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Posted: 15 Sep 2011 10:05 PM PDT

Tunku 'Abidin Muhriz, founding president of the Institute for Democracy and Economic Affairs (IDEAS), starts a weekly column today. IDEAS is a think tank committed to promoting the fundamental precepts of first Prime Minister Tunku Abdul Rahman's vision in the belief that a fresh application of those precepts can help the nation overcome the challenges it faces.

Clearly, my two ancestors employed different strategies in dealing with the British. Was one a hero and the other a traitor? No, they were merely individuals trying to abide by their adat while dealing with the exigencies of global British power.

ROAMING BEYOND THE FENCE
By TUNKU 'ABIDIN MUHRIZ, The Star

MY formal "hello" will have to wait because the impulse to comment on the current furore about our history is just too great. As I have written elsewhere, genealogy enables us to contextualise events that occurred around our ancestors and those who lived with them.

For me and several hundred fourth cousins, there are two ancestors whose political experiences illuminate not only on the process of colonisation, but also expose as ridiculous this "hero versus traitor" dichotomy that so many are attempting to peddle for political purposes today.

The elder ancestor is Yamtuan Antah, the elected Yang di-Pertuan Besar of Negri Sembilan and Seri Menanti from 1872 to 1887, who is today feted as a hero in the Education Ministry-approved history books. You will find him celebrated in websites that also promote Datuk Maharaja Lela and Mat Salleh as valiant defenders of their race and nation.

Essentially, Yamtuan Antah waged war against the British in 1875 after the Undang of Sungei Ujong had signed a Pangkor-like treaty with the British.

When the latter trespassed into Terachi, my great-great-great-grandfather's forces attacked, repelling the British forces back to Seremban.

Unfortunately, British artillery had arrived, and a cannon shot destroyed Yamtuan Antah's camp. He was driven back to Bukit Putus where a fierce battle that resulted in the award of a Victoria Cross ensued, and eventually the British got to Seri Menanti where they burnt down the Istana (for which the current Istana Lama is a replacement).

Subsequently, Yamtuan Antah was recognised only as Yamtuan of Seri Menanti, rather than of Negri Sembilan as a whole.

After Yamtuan Antah succumbed to smallpox in 1887, his son Tuanku Muhammad was proclaimed Ruler. A decade later the state was reunited as a federation, complete with the institution of Yang di-Pertuan Besar of Negri Sembilan.

Educated at the English High School in Malacca, my great-great-grandfather enjoyed much better relations with the British.

Sir Frank Swettenham wrote that he was an "example of the best type of intelligent, straightforward Malay Raja", and J.M. Gullick wrote in 1953 "even now, 20 years after his death, a reference to 'Almarhum' (the late Yamtuan) evokes, among the older generation in Negri Sembilan, a Ruler still remembered with deep affection and respect".

It was during his reign that Negri Sembilan joined the Federated Malay States, and during a Federal Council meeting in November 1914 Tuanku Muhammad proposed the creation of a locally raised defence regiment.

This became the Royal Malay Regiment, and provides an example of where the Rulers were not mere puppets of the British as often alleged, but worked within the system to promote political stability, military security and economic development for their subjects – yes, the British exploited our resources but, by any measure, living standards for the majority of the people improved as well.

Clearly, my two ancestors employed different strategies in dealing with the British. Was one a hero and the other a traitor? No, they were merely individuals trying to abide by their adat while dealing with the exigencies of global British power.

A neat reconciliation occurred in Tuanku Muhammad's son, Tuanku Abdul Rahman, elected as the first Yang di-Pertuan Agong of the Federation of Malaya as a constitutional monarch steeped in Malay traditions heading a parliamentary democracy based on the Westminster system.

The Communist Party of Malaya, opposed to both inspirations of this form of government, tried to murder him.

So, there is an excerpt of my understanding of the evolution of my state and my country. Some will disagree with it, and I would be happy to exchange views.

However, the battle now raging about Bukit Kepong, the role of Tunku Abdul Rahman and the technicality of British colonialism in Malaya is a political debate. The parties of today are trying to claim a genealogy to the history of this country in order to portray ideological purity and continuity, and as a result history is being debased.

Tragically, many supporters of political parties are complicit in this desecration, reducing history to just another marker of irreconcilable polarisation in our country.

The only way to fix this is for us to reclaim history for ourselves. Politicians must be removed from the process of writing the curriculum, and professors granted the academic freedom to include controversial viewpoints.

Most importantly, the entire basis of the education system urgently needs to change from the rote learning of acceptable "facts" to the equipping of young brains to appreciate and analyse different opinions.

This will be a tough sell in a country where sporting and cultural icons of even 20 years ago do not feature in the nation's collective memory, but this newspaper is doing a fabulous job with its highlights from 40 years ago.

I look forward to saying "hello" properly next week.

Happy Malaysia Day!

A new dawn beckons

Posted: 15 Sep 2011 05:16 PM PDT

The Prime Minister's announcement on a number of changes to the country's laws, including ending the Emergency, will have massive positive implications.

Under Article 150, once a proclamation of emergency by the Yang di-Pertuan Agong is gazetted, the floodgates are lifted and legislative powers of Parliament are greatly broadened. Parliament can make laws that violate, suspend or bypass any constitutional provision except six items in Article 150(6A).

By SHAD SALEEM FARUQI, The Star

THE Prime Minister's speech last night evoked the kind of hope and exhilaration I felt many decades ago on Aug 28, 1963, when I heard American civil rights leader Martin Luther King, Jr. deliver his "I have a dream" speech at the steps of Lincoln Memorial.

The Prime Minister pointed to a number of changes that he intends to bring to the country. Many of these proposals will have massive positive implications for the country's legal system, its administration of justice and the sovereignty of law over personal discretion. He promised that:

> The emergency proclamations that are in operation will be presented to Parliament for annulment;

> The Internal Security Act will be repealed but replaced with two security laws framed under the Constitution's anti-subversion provision of Article 149;

> The Restricted Residence Act and the Banishment Act will be brought to an end; and

> The much-criticised Printing Presses and Publications Act will be amended.

It will take some time and considerable research to fathom the full implications of the above pronouncements. Needless to say, the impact on the legal life of the community, the rights of the citizens, the powers of the Home Minister and the police will be monumental.

The rule of law will be strengthened and the days of the omnipotence of the Government will come to an end. Looking at the implications of the lifting of the Emergency, the following salient features of emergency laws must be noted:

Ordinary legal system eclipsed: Under Article 150, once a proclamation of emergency by the Yang di-Pertuan Agong is gazetted, the floodgates are lifted and legislative powers of Parliament are greatly broadened. Parliament can make laws that violate, suspend or bypass any constitutional provision except six items in Article 150(6A).

All fundamental rights except freedom of religion can be violated. The federal-state division of powers can be disturbed and state powers usurped.

Emergency laws do not require a two-thirds majority. Neither do they require the consent of the Conference of Rulers or the Yang di-Pertua Negeri of Sabah and Sarawak.

Judicial review on constitutional grounds is ousted because of Article 150(6).

An emergency law has no time limit and can continue as long as the emergency lasts.

Malaysia has been under such a state of emergency continuously since 1964. For all practical purposes, an emergency legal system eclipsed the ordinary legal system for the last 47 years.

The King's power to make laws: As with the powers of Parliament, the powers of the federal executive are immensely enlarged during an emergency.

The Yang di-Pertuan Agong acquires plenary and parallel ordinance-making powers under Article 150(2B) as long as the two houses of Parliament are not sitting concurrently.

The executive's power of ordinance-making is as large as Parliament's power of legislation. The entire Constitution can be suspended except for six topics in Article 150(6A).

Since 1964, the Yang di-Pertuan Agong has promulgated nearly 92 emergency ordinances. Among these is the Emergency, Public Order and Prevention of Crime Ordinance, which is a favourite with the police and which results in more preventive detentions than even the Internal Security Act.

Executive power to give instructions: Under Article 150, the Federal Government acquires powers to give directions to the states in contradiction with the meticulous federal-state division of powers.

If the emergency proclamations are repealed, what effect will that have on the legal system?

Restoration of normal laws: If the two proclamations of national emergency in 1964 and 1969 are repealed, the country will return to the normal operation of the constitutional system.

The five or so emergency laws made by Parliament under the authority of these proclamations will cease to operate. Any detention under these laws will have to be terminated.

Emergency ordinances will end: As with the emergency laws enacted by Parliament, the 90 or so emergency ordinances promulgated by the Yang di-Pertuan Agong (and the hundreds of subsidiary laws made thereunder) will also cease operation.

However, the cessation of emergency laws is not immediate. Under Article 150(7), there is a grace period of six months during which the emergency laws may still continue to operate. Once the six months expire, the expiry of the laws is automatic and no individual repeal is necessary. However, no action (e.g. for damages) can be taken for anything validly done under previous laws.

Some may wonder whether the Yang di-Pertuan Agong, in his discretion, may refuse the Prime Minister's advice to restore the rule of law and to lift the proclamations of emergencies?

In a long line of other cases, it has been held that emergency rule does not alter the position of the Yang di-Pertuan Agong as a constitutional monarch bound to act on advice.

The case of PP v Mohd Amin Mohd Razali (2000) altered the law slightly: it held that during the dissolution of Parliament, the Yang di-Pertuan Agong is not bound by the caretaker government's advice on emergency matters.

Amin is, of course, not relevant to the Prime Minister's speech last night because Parliament is not under dissolution and the Prime Minister's advice is binding on the King.

Judicial review strengthened: The lifting of the Emergency will remove the eclipse of ordinary laws. The possibility of judicial review of executive and legislative measures will be enhanced. Many human rights will be restored.

The demise of hundreds of emergency laws, some conferring preventive detention powers and others excluding due process, will be a defining moment for Malaysian democracy.

However, the euphoria that is bound to be felt as a result of these wholesome developments must be tempered with caution.

New proclamations: The lifting of the 1964 and 1969 emergencies does not prevent the re-issuing of a new proclamation of emergency and the promulgation of new emergency Acts and ordinances, if circumstances so demand.

Subversion laws stay: Even if the Emergency is lifted, Parliament is still armed with anti-subversion powers under Article 149. New security laws under Article 149 have been suggested by the Prime Minister. Existing laws like the Dangerous Drugs Preventive Measures Act will not be affected by the lifting of the Emergency unless the Government sets about to apply the reformative paint brush to them as well.

Police Act remains: Controversial ordinary laws like the Police Act, the Official Secrets Act and the Universities & University Colleges Act will remain in the statute book though, of course, they will face pressure to accommodate the spirit of the times.

Some may, therefore, regard the lifting of the Emergency as merely a cosmetic measure because Articles 149 and 150 still arm the Government and Parliament with massive power to suspend constitutional guarantees.

Such a perspective is unduly cynical. It amounts to an all-or-nothing attitude. Whatever reforms are adopted and implemented must be welcomed. They may be harbingers of new things to come. They will certainly set a new mood and may be the catalyst and impetus for further improvements to the human rights scene.

A government receptive to the lifting of the Emergency cannot be indifferent to improving the situation of laws under Article 149.

All in all, one must applaud the Prime Minister's courage, his willingness to listen to the voice of the people, his receptiveness to the felt necessities of the times, and his exhilarating agenda for reform.

The Attorney-General's office also deserves congratulations for advising the Prime Minister on the incongruence between the rule of law and the state of emergency lasting 47 years.

So, let Sept 16, 2011 go down in our history as "a joyous daybreak" to end the long night of the Emergency.

> Datuk Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.

Peanuts, not sweeping reforms

Posted: 15 Sep 2011 04:23 PM PDT

Let's not be fooled, people. The changes Najib announced are merely cosmetic, and will have to be passed in Parliament first before they become effective.

Meanwhile, Articles 149 and 150 are still there to provide Parliament with the power to pass laws that do not have to be consistent with the freedoms guaranteed in Articles 5, 9, 10 and 13, and to allow the Cabinet to declare an emergency. The Emergency proclamations may go, but Article 150 is still around. We the people are still vulnerable.

By Kee Thuan Chye, Free Malaysia Today

PEANUTS. That's what Prime Minister Najib Tun Razak's so-called "sweeping reforms" are. They hardly amount to a political transformation.

While it's cheering to note that the Internal Security Act (ISA) will be repealed – finally, after our many years of waiting – and that the Emergency proclamations are to be lifted – a decision that is decades overdue – it's disturbing to be told that they will be replaced by two new laws aimed at preventing subversion and safeguarding public order.

And even though the detention period under these new laws may be shorter, with further extensions to be made by court order, the Home Minister is still the one to decide who gets detained for suspicion of being a terrorist.

This means, theoretically speaking, that although Najib has given the commitment that "no individual will be detained purely based on political ideology", there is no stopping the government from branding a political opponent a suspected terrorist, whether or not he is one. Just to lock him away.

Another so-called "reform" is scrapping the requirement for publications to renew their printing licences annually.

This, also, is nothing to crow about. It still means that publications have to obtain a licence that the Home Minister may or may not grant. It still means the Home Minister has the absolute power to suspend or revoke a licence at any time. And his decision cannot be challenged in court. He does not even have to give a reason.

It also means the Home Ministry can still call up newspaper editors and cow them into submission for publishing something the ministry finds objectionable. Like what happened recently to The Star when it ran the heading 'Ramadhan delights' for an eating-out supplement that was not totally devoted to halal food.

The ministry can still practise the double standards it has been practising – turn a blind eye to the race-baiting and rabble-rousing of Utusan Malaysia but come down hard on the minor transgressions of other publications. So where's the change?

If the government were truly sincere and had the political will, it should repeal the Publications and Printing Presses Act (PPPA) and no longer require publications to obtain a printing licence. That would be in keeping with the spirit of what Najib talked about instituting in Malaysia when he announced the "reforms" on Sept 15 – a "democratic system based on the universal philosophy of 'of the people, by the people and for the people'".

Vague reforms

None of the newly announced "reforms" fully cohere with this spirit.

On Section 27 of the Police Act, Najib said there would be a review to take into consideration the provisions under Article 10 of the Federal Constitution which guarantees Malaysians the right to freedom of speech, freedom of assembly and freedom of association.

But in the same breath, he said police permits would still be required for street demonstrations, subject to certain criteria.

If freedom of assembly, which should be a right of all citizens, is still curtailed in this fashion, what is that rubbish talk of Najib's about forging a democratic system "of the people, by the people and for the people"?

He did say, however, that "permission to assemble will be given in accordance with procedures to be fixed later that will take into account international norms". But this sounds vague. What international norms did he mean? And when is "later" going to be?

And speaking of Article 10, why doesn't the government address the other impediments to freedom of speech, such as the Official Secrets Act (OSA), the Sedition Act, the Universities and University Colleges Act (UUCA), the Multimedia and Communications Act, the Public Order (Preservation) Ordinance?

No wonder Home Minister Hishammuddin Hussein was smirking and applauding when Najib made his announcements. His absolute powers remain intact.

Let's not be fooled, people. The changes Najib announced are merely cosmetic. And of course they will have to be passed in Parliament first before they become effective.

Some of us may say that we cannot expect the government to make such truly sweeping reforms in one go, and that we should be thankful for the small mercies we are now getting. Some may say this could be just the beginning, and more reforms could come.

That's well and good. But at the same time, we should give credit where it's due for this beginning. It's not Najib we should thank. What we are getting is what has been due us for a long time, what any concerned government should have given us even without our having to pressure them to do so.

We should instead acknowledge that the March 8 effect lives on, and therefore the credit for these changes should go to us the rakyat for voting as we did on March 8, 2008. We voted in a stronger opposition, we denied the ruling party the two-thirds majority that it had abused to increasingly curb our democratic rights over the decades. We sent them the message that enough was enough.

READ MORE HERE

Kredit: www.malaysia-today.net

Jumaat, 16 September 2011

Malaysia Today - Your Source of Independent News

Malaysia Today - Your Source of Independent News

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