Attitude determines altitude

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Reflecting on the law By SHAD SALEEM FARUQI

To seek and attain inner peace, live simply, think deeply, act nobly; and leave the world a better place than you found it.

A DEAR colleague’s son was recently called to the Bar. At the dinner to commemorate the occasion, several of us were asked to share a few words of advice.

The wise among us spoke because they had something to say.

Lesser people like me spoke because we were asked to say something. This is what I could manage.

In the journey of life, a new destination beckons you. We, the friends of your parents, pray fervently that your journey on the highway of life will be successful; that you will blaze new trails; that the road ahead will lead you to many summits; and that each panoramic view will stir in you a striving for the horizons beyond.

Success, is, of course, a matter of personal perception.

To some people, wealth, power, influence and status are the tests of having made it.

To others – and I hope you will be in this category – success is to bring sunshine into the lives of others.

When you do that, some of that sunshine will illuminate your life as well.

Whatever your concept of success is, its attainment is rooted in some conducive mental attitudes and a great deal of planned, hard work.

Visualising and envisioning: You must envision, constructively imagine and role-play whatever you wish to be.

Dreams are the foundation of reality. If you can dream it, you can achieve it.

Any fulfillment is, of course, subject to your courage and discipline to act on your dreams and materialise them into concrete actions. Kipling’s admonition must be remembered: “If you can dream and not make dreams your master. If you can think but not make thoughts your aim”.

Daily planning: On a daily basis, plan your schedule. Fill every minute with 60 seconds of distance run. Sail a chartered course. Do not drift in the wind and the waves.

Act on, not just react to, things as they come. Do not let others lead you by the nose. Do not count on luck. Luck is what happens when preparation meets opportunity.



Mapping the road ahead: Careers are like ladders with many rungs. Map out the steps. Fix time frames. Periodically review your progress towards your long-term goals.

Intensity: There must be an intensity of commitment, a fire, a burning desire, an over-riding, if not single-minded, determination to attain your goals.

Ambition: Think big. Do not settle for too little. Make plans to reach the sky. If you land on the clouds, that’s OK. Strive harder next time.

Faith in God: When confronted by inevitable storms, trust God. God does not burden any soul with more than it can bear.

Self-confidence: We are all specks of dust in the universe. This necessary humility can, however, go hand in hand with a self-confidence that everything is attainable if we strive hard enough.

We must doubt our doubts but not our beliefs. We must remember that attitude, more than aptitude, determines our altitude.

Discipline and hard work: Work is part of worship and must be given the same type of devotion. Hard work compensates for lack of genius.

Many ordinary people achieve extraordinary things because they toil through the night while the world sleeps. Genius is 10% inspiration; 90% perspiration. A toiling tortoise can beat a heady hare.

Over the course of four decades, I have seen scores of extremely intelligent people fail in their endeavours because they lacked the humility that drives hard work; the discipline and planning that ensures progress; and the courage and persistence that overcome odds.

In most challenges in life, natural talents do not take us very far. Discipline does.

Passion: Whatever you do, do well. Let reason be the rudder and passion the sail. There are no small jobs; only small people.

There is honour in every profession provided we put our heart and soul into it and do ordinary things extraordinarily well.

It is often the case that those who do small jobs meticulously are likely to confront major challenges majestically.

Do not wait for ideal conditions: Do not wait for the perfect time to start building on your dreams. External conditions will never be ideal. We have to make do with what we have.

The wind often changes for the better once we set sail. It is our inner determination that makes the world stand aside to let pass a man who knows where he is going.

Show-case your talents: At a place of work, substance and form, isih dan gaya, the ability to be relevant, as well as to seem competent, are all equally important. Don’t be like the peacock that dances in the jungle but is not seen by anyone.

Find sophisticated and civilised ways to show-case your talents. Polish up your communication and PR skills so that your hard work and competence will be known.

Rewards come in many ways: It is natural to expect appreciation and recognition.

However, one must remember that in the workplace there are rivalries, jealousies and injustices.

As in the outside world, so in the workplace, justice does not usually prevail.

If the rewards do not come when they are due, remember that God is watching. His justice will one day prevail.

Work never goes to waste. A competent man is like the moon. Clouds can hide the moon for a while but in the end the beams of light will break through and the world will be filled with their luminescence.

Remember also that hard work with sincerity is nourishing for the soul and good for health.

The rewards of hard workare long term, internal and intangible. We all know that of all the things that matter in life, most are not things.

Success and failure: Success is never final. It is a journey, not a destination. It is a continuing process of repeating, reinforcing past accomplishments and conquering new challenges by adapting to a changed world.

Success is sustained effort over time and persistence in the face of hurdles. It is an attitude of “I think I can”. It is the courage to treat adversity as an opportunity. It is the willingness to regard every dare as a door.

Falling down does not amount to failure. Failure is to stay down. Falling down is never fatal. Life breaks all of us. The thing to do is to learn from our failings and to emerge stronger where we’re broken.

Happiness: To seek inner peace, live simply. Richness is not the accumulation of wealth but the smallness of needs. Think deeply. Act nobly. Leave the world a better place than you found it. Learn from people you admire.

“Lives of great men all remind us; we can make our lives sublime and departing leave behind us, footprints on the sands of time”.

Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM. He wishes all readers happiness and health in the New Year.

Changes in Malaysia's horizon; Keep the momentum up!

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Changes in the nation’s horizon

Reflecting On The Law By Shad Saleem Faruqi

Whether by revocation by the King or annulment by Parliament, all emergency legislations will cease to exist six months after the end of an emergency proclamation.

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THE Prime Minister’s surprise announcement that the Emergency will be lifted, that the Internal Security Act will be repealed, and that laws like the Printing Presses and Publications Act will be amended to constitutionalise and humanise them has fired everybody’s imagination, and at the same time raised apprehension among the defenders of the status quo.

One reader asked whether the Prime Minister consulted with, and obtained, the consent of the Cabinet before making these bold pronouncements.

No outsider can answer this accurately, but what can be pointed out is that in parliamentary democracies, prime ministers are known to launch bold initiatives on their own and to present their Cabinets and their countries with a fait accompli.

Clear examples are decisions on premature dissolution of Parliament and budget and foreign policy initiatives.

In 1956, Anthony Eden of Britain got his country embroiled in the disastrous Suez invasion, and informed his Cabinet only after British paratroopers had landed on Egyptian soil.

In a strictly legal way, the prime minister is not bound by the Cabinet; instead the Cabinet is bound by the direction he supplies.

Politics may, of course, encourage a consultative approach but all students of parliamentary government know that the prime minister is the sun around which the Cabinet revolves.

Individual ministers are bound under the doctrine of collective ministerial responsibility to support their prime minister or step down from office.

Another reader asked whether the Prime Minister’s announcement means that the Emergency is already lifted?  The answer is in the negative.

The Emergency is proclaimed by the King and either he must revoke his proclamation(s) or the two Houses must by resolution annul the proclamation(s).

If the King (acting on advice) revokes a proclamation, the revocation comes into effect immediately.

However, if the two Houses are to debate and vote on a resolution to annul, that process can be expected to take some weeks or months because the Dewan Negara will probably convene only after the Dewan Rakyat’s lengthy budget session beginning in October.

However, if immediate parliamentary action to annul the 1966, 1969 and 1977 proclamations is thought desirable, the two Houses can meet concurrently to draw to a close the 47-year saga of the existing post-independence Emergency.

Once a proclamation expires, whether by revocation by the King or annulment by Parliament through an Emergency Act of Parliament or a piece of subsidiary legislation under an emergency law, all emergency legislations will cease to exist six months after the proclamation.

If the Emergency ends, does the Internal Security Act (ISA) also cease to exist? The answer is in the negative.  The ISA is a law against subversion under Article 149.

It is independent of Article 150 and has a life of its own, no matter what happens to the Emergency.

If the ISA is repealed, will those detained under the ISA have to be released? Undoubtedly, yes.

If the basis of their detention is extinguished, the detention, too, ceases to be valid.

Even if there is a new law under Article 149 to deal with security or terrorism cases, that law cannot be backdated due to the prohibition of Article 7(1).

Of course, the detainees may face new prosecutions under the Penal Code or the new laws.
The rule of double jeopardy will not apply.

Will the Government have to pay compensation to all people detained under the ISA, including in previous years?

The answer is “no” because the legality of an act must be judged by the law at the time of the commission of the act and not by what happens afterwards.

How can the ISA be repealed? Does its repeal require the consent of the Conference of Rulers?

Under Article 149, any law against subversion may be passed or repealed by Parliament. A simple majority vote is sufficient. The consent of the Conference of Rulers is not needed.

From what we have heard, the ISA will be replaced by two laws on terrorism and national security.
Some cynics are saying that the move is therefore purely cosmetic and political.

The ISA may end but preventive detention may remain. I think we should hold our judgment on this issue till we see the substantive content of the proposed new laws.

I would give anxious consideration to the following issues:

> The concepts of terrorism and national security must be precisely and objectively defined and must not have any catch-all tendencies.

> There should be no exclusion of judicial review so that any abuse or misuse of power can be tested in the courts.

It is acceptable that on matters of security, the political executive must have a strong say without excluding the power of the courts to determine independently whether security was indeed involved or not.

> There must be some safeguards against political detentions.

> The power of the police to detain for purposes of investigation must be drastically reduced from the present 60 days to no more than three weeks.

> The Minister’s power, as at present, to order detention for two years and for such further periods as he deems necessary must be abolished.

Detentions on the orders of the Minister raise the unconscionable issue of accuser, adjudicator and executioner being combined. Some separation of powers and some check and balance is desirable.

Justice must not only be done but must be seen to be done.

> The power to try, to convict and to detain must be committed to a Special Security Court or Anti-Terrorism Court (or by whatever name called).

> Anxious consideration must be given to the composition of this Special Court which must arouse public confidence.

> The executive must accuse, the court must decide.

> Special procedural rules for security trials exist in many countries and must be examined.

Perhaps trials should be held in camera (without the public present).

Whatever the case, there must be fair due process. The accused must know the charge.

No incriminating evidence must be withheld from him and from the judge, as is possible at present.

The accused must be allowed to defend himself fully and fairly.

> The penalties and the maximum period of detention must be prescribed.

> Whether there should be no appeal in “security” and “terrorist” trials is a matter for further consideration.

We have many model legislations from many countries that we can emulate.

Whatever we follow must show fidelity to our own Constitution and to the primary instruments of international law.

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

Keep the momentum up!

Question Time By P. Gunasegaram

The momentous changes proposed by the Prime Minister need to be pushed through with the utmost urgency for greater effect.

THE overwhelming support and acclaim from Malaysians over the proposals by the Prime Minister to repeal the Internal Security Act or ISA and lift all proclamations of emergency show just how unpopular these measures are among Malaysians.

Datuk Seri Najib Tun Razak has read the signals right. But as important as these and other proposals are, the larger agenda is even more significant – to review and if necessary repeal and replace all laws which stand in the way of demo-cracy, legitimate free expression, and human and individual rights.

Two paragraphs from Najib’s speech last Thursday are worth re-quoting: “It is absolutely clear that the steps I just announced are none other than early initiatives of an organised and graceful political transformation. It stands as a crucial and much needed complement to the initiatives of economic transformation and public presentation which the government has outlined and implemented for over two years in the effort to pioneer a modern and progressive nation.

“…the Malaysia that we all dream of and are in the process of creating is a Malaysia that practises a functional and inclusive democracy where public peace and prosperity is preserved in accordance with the supremacy of the Constitution, rule of law and respect for basic human rights and individual rights.”

Two things are necessary to carry these reforms to its natural conclusion. The first is to keep the momentum generated up and without any delay implement what has been promised. Any delay and back-pedalling to cater to the interests of some sections of the community will have the effect of raising cynicism yet again.

The second is to look into all the other laws which need to be changed to allow Malaysians to exercise all their full rights as enshrined in the Federal Constitution without hindrance.

That means that all those laws that are in direct contradiction to the letter and spirit of the Constitution must go. The sooner they go, the better. There has to be demonstrable urgency over this matter.

Already there are some politicians who are saying that the amendments to make some of the major changes cannot be tabled at the forthcoming Parliament session and will have to be deferred to next year. That will be a wrong start.

The necessary repeals of the relevant legislation can be made and still passed by Parliament this year for implementation next year. By that time, other legislation such as a counter-terrorism Act to still allow detention without trial under special circumstances and under judicial review can be introduced.

That will have the effect of setting a timetable for the implementation of the proposed changes already announced so that no one will doubt that the Government is serious about implementing the promises.

Already, there is talk that some sections within the ruling party and some parts of the police force are opposed to the repeal of the ISA and the Banishment Act. But these people must not be permitted to stop – or even delay – the reform process set into motion by the Prime Minister.

Simultaneous with the rapid implementation of the announced measures is the necessity to do an urgent yet comprehensive review of existing laws to expand the public space and bring forth important issues to be debated maturely and openly – with no threat from any party.

The proposal to remove the yearly licensing requirement for publications including newspapers under the Printing Presses and Publications Act is a relief, but a small one. The Home Ministry still wields disproportionate power and has the right to stop publication at any time without there being any recourse to the courts.

For the full flowering of legitimate expression across the board, it will be necessary to repeal fully this Act. That of course does not mean we are free to publish whatever we want because we will still be subject to provisions of the law for defamation, sedition, secrecy and so on. There is still adequate check and balance.

Another piece of draconian legislation that needs to be reviewed is the Official Secrets Act (OSA). This Act was amended in the eighties to provide for mandatory jail sentence and gave the Government the right to determine what affected national security without review by the courts.

In practical terms, this has prevented many issues of great public interest such as toll agreements to come out into the open. In practical terms, the Government could classify the number of cups of coffee consumed in a departmental canteen as a secret and anyone who reported it could be convicted under the OSA and go to jail for a minimum one year.

New legislation should be worded such that it respects secrecy when it involves issues of national security, not cover up inefficiency, incompetence or breach of trust by the Government. That would help ensure a more accountable government.

One other Act which deserves mention is the University and University Colleges Act that prevents local students from taking part in political activities and being aligned to political parties. This is strange considering that many of our founding fathers were political activists from their student days.

They may be students but they are also adults and as adults should play their full role in society, including taking part in political activities. That is part and parcel of developing their maturity and making them better members of society in future.

There is no doubt many other pieces of legislation need to be reviewed and the task is momentous. However, momentous as it is, the momentum that has been created by the announcement of the proposals must not be lost. We must press on relentlessly.

Momentum is of the utmost importance for change to take place. We need to turn the wheels of transformation faster instead of slowing them down with all manner of unfounded excuses. Malaysia and Malaysians have to move forward and quickly.

> Managing editor P. Gunasegaram believes in the old axiom that change is the only constant.

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Winds of change blowing in Malaysia; Dawn of a new era?   

Winds of change blowing in Malaysia; Dawn of a new era?

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Winds of change blowing

BEHIND THE HEADLINES  By BUNN NAGARA

THE relief that greeted the Prime Minister’s announcement that the Internal Security Act (ISA) 1960 and other repressive laws would be abolished was difficult to define for several reasons.

First, nobody expected Datuk Seri Najib Tun Razak to have gone so far in throwing off decades of unjust laws. When it happened, it took time to sink in, after more than a generation of having to endure those laws.
Image by KamalSelle via Flickr
Second, mention of two new laws to replace the ISA tempered the plaudits from critical observers. Would that mean returning to square one through a bait-and-switch?

Third, those who had banked on the Government retaining the ISA in some revised form were caught unawares. Regardless of their own views of it, they insisted there would be little change, seeking to vindicate themselves and “save face”.

All these have been efforts to adjust to a new national reality post-ISA. A fourth reaction comes from political opportunism: robbed of their thunder, the Opposition tried to diminish the significance of the Government’s move.

To others, however, the state’s abandonment of these repressive laws is both historic and definitive.
Of all the Governments that had presided over the ISA through the decades, Prime Minister Najib’s has been the one bold enough to do the decent thing of abolishing it.

It is not because this is possible only now since Malaysia no longer needs the ISA, because the country has not needed it for a long time already. Besides, some close to the seat of power still insist such preventive detention laws are needed.

It is untypical of any government to renounce a sweeping law that gives unparalleled powers to it. Dumping the ISA not only took guts, it showed a rare selflessness that placed actual national interest above perceived (by some) national security interest.

Doubts over the two new laws to replace the ISA may be natural but unwarranted. Both laws would relate to Article 149 of the Federal Constitution, which would shift more responsibility on preventive action from the Cabinet to Parliament, with emphasis on any use of these laws against a “substantial body of persons” rather than isolated individuals.

Malaysian parliamentarians have grown more alienated from the ISA than ever, even before the 2008 general election that made an unprecedented number of Opposition candidates MPs. Also, the aversion to draconian laws among Barisan Nasional MPs is far greater than any pro-ISA sentiment among Pakatan Rakyat MPs.

There is therefore no going back to anything like the ISA now. Any return to the spirit, if not the letter, of the ISA can only backfire badly on the Government and discredit it politically.

Until recently, there was the prospect of merely tweaking the ISA. But it soon dawned that simply twiddling the dials of a bad law would not make it good.

The toughest part of the journey towards abolishing the ISA is over. That was not in Parliament, the Opposition or the public, but in places closer to the Government, including some governmental agencies and NGOs.

Activists tempting ISA arrests may want credit for piling on the pressure until its final annulment. However, the opposite is more likely: raucous activism helped to make the ISA seem useful, even indispensable, while also weakening arguments for its abolition.

The authoritarian mentality sees any threat or challenge to the status quo as grounds for using greater force, not less. And such a mindset has hitherto had its hold on the levers of power such as the ISA.

For now, the case remains to be made as to why the two proposed laws are needed, what they should entail, and how their operation can respect civil liberties. Transparency would help public support for them, or at least mitigate any animosity.

The scheduled abolition of the ISA and other repressive laws has meant raised expectations of a new era of civil liberties. Law enforcement and maintenance of public order would then depend more on informed consent than submission or capitulation.

The implications place the ball in the court of key national institutions: Parliament, the judiciary and the police. They need to respond to signal assent, since they stand to benefit.

Parliament should exercise its lawful prerogatives to the fullest extent the political transformation affords. This begins and ends with every parliamentarian acting in his or her legitimate capacity.

The judiciary should assert its constitutional role by acting vigorously in concert with other major national institutions. It should no longer shy from a judicious activism that serves the national interests.

The police stand to gain the most from this push to enhance investigative norms, focus on criminal intent, seek admissible evidence and develop standard operating procedures instead of relying on non-contestable shortcuts like the ISA. Moving away from easy catch-all measures like ISA arrests and detentions can also improve the work ethic and public image of the force.

This aspect of the political transformation is an assurance that Malaysia’s development is also political and social, not just economic. It enables the country to move ahead of others in the region that may be more developed only economically.

For Malaysia itself, it is a large step towards Vision 2020, most of whose nine development objectives are not economic but political and social. No nation aiming to be fully developed can neglect them.

The small-minded may scoff at the transformation Najib announced on Friday. And only the mean-spirited would refuse to give credit for the new direction.

To say all this is mere election fluff ignores the fact that it is neither fluff nor as shortlived as an election campaign. To insist it is only a political move forgets that dismissing it is just as political.

Besides, if the ISA had been initiated and executed for political reasons, it should not be unnatural for its annulment to be so as well.

Dawn of a new era

ON THE BEAT By WONG CHUN WAI

Najib deserves credit for his move to reform some of the country’s most unpopular laws.

IT was the best gift for Malaysians on a special day. It is also a reminder that the nation has grown up and that we should move forward, leaving our baggage behind.

In a nutshell, the Prime Minister has stepped out of the shadows of his predecessors. It is a major step into the future. Datuk Seri Najib Tun Razak couldn’t have chosen a better day to make the announcement to do away with some of the country’s most unpopular laws.

It surely has not been easy. When bits of news filtered out about his Malaysia Day speech, there were doubts as to how far he would go.

Those who were privy to inner-circle discussions on how the speech would be crafted crossed their fingers and hoped there would be no last minute changes.

After all, as a politician, the Prime Minister has to balance the needs of the conservatives, right wingers and liberals within his party and also the Barisan Nasional coalition.

The PM understands fully how much the world has changed. The global political landscape has been altered drastically and the lessons to learn are that if leaders cannot change, the people will change them. There is plenty to learn from history, some very recent too.

The more conservative in Umno are still grappling with the changes, preferring to hold on to something which they are familiar and comfortable with. They are trying hard to understand where Najib is taking Malaysia to.

The younger ones, while looking apprehensively at the lack of changes in Umno, have tried hard to push, worried that the country’s ruling party could be losing its connection with the Twitter and Facebook generation. It’s not wrong to say that the PM has been watching, listening and feeling it all over the last three years.

On Aug 28, this scribe wrote that Najib’s call for greater democratic space, including doing away with censorship laws and setting up a Parliamentary Select Committee to review electoral laws, was just a prelude to his address on Sept 16.

I wrote that “it is almost certain that he will expand on democratic reforms with an outline of the changes he wants to implement in Malaysia. It won’t be promises but changes that would be set out in black and white.

“The fresh democratic reforms will surprise even his critics, particularly those who are pushing for a greater civil society.

“In short, the new democracy that he wants to see would recognise the calls by Malaysians. It is the Middle Malaysia that he wants to address. He will say that yes, he hears these voices.”

But even this writer was surprised at how far he was prepared to push. I dared not commit myself to put into words that he would repeal the Internal Security Act, but Najib has proven his doubters and critics wrong. He proved that he walked the talk.

As expected, everyone is trying to claim credit for the changes. The Opposition, still reeling from the shock, has said these would not have happened without their pressure and protests.

Then there are the usual cynics.

I think the point is this: It does not matter who is right, but what is right. It does not matter who did it, so long as the right thing gets done. Malaysians cannot be partisan on issues that affect us all.

Najib deserves credit for having the courage to take the bold steps. His New Democracy thrust is certain to continue.

The ISA will be repealed, no one should even doubt it anymore. An Anti-Terrorism Act – specifically for terrorists and not for political opponents, as in Britain and the United States – is likely to take over.

The Police Act would be redefined and possibly the right to assemble, which could be made clearer by designating places, time and how gatherings should be done.

An example to look at is Hong Kong, where night protests are directed to specific roads that would have little impact on businesses. Even then, gatherings are allowed on only one side of the road so that traffic can continue to flow on the other side.

In New York, there is a designated spot not far from the United Nations building for protest gatherings. A spot could be set up not far from the Parliament for similar purposes.

As in football matches in Britain, where police resources are used to safeguard public safety, organisers of protest gatherings in stadiums could be asked to put up deposits for police security and possible damages.

But the Printing Presses and Publications Act is still a thorn on the side for the media. Najib has taken the first step to abolishing this much hated law by allowing a one-off permit without the requirement for annual renewal. The Government must commit itself to a total abolishment, however.

An independent media council to be run by editors will finally be formed after 54 years of independence, and repealing the law would certainly be on the agenda of journalists. After all, no one needs a permit to start a blog or an online news portal, so why impose a permit for print?

The reforms have left a feel-good feeling but the Prime Minister has to follow up with an equally impactful Budget speech. All these reforms are good but they won’t put food on our tables.

Ordinary Malaysians are worried about the rising cost of living and middle income Malaysians are hit the most by monthly tax deductions.

In the rural areas of Sabah and Sarawak, where food and fuel need to be transported into the interior, the costs are even more enormous.

Malaysians want to hear how the Government intends to help them face the economic uncertainties, the spiralling cost of food and how to be confident about the future.

Malaysians are not expecting their Government to adopt a populist approach of promising the sun and the moon, which will bankrupt the nation. But they want the Government to be equally responsible in sharing the burden by cutting out excessive financial waste and leaks.

Najib’s challenge would be to balance the budget in the face of a slowing economy and at the same time appease the people ahead of a general election.

The Budget Speech is on Oct 7. Can Malaysians expect the Big Day to be soon after the PM has announced his economic plans for the country?

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Changes in Malaysia's horizon; Keep the momentum up!

Malaysia to relax strict security laws; a right move, a new dawn beckons; Thumbs up for ISA move!

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Malaysia to relax strict security laws

Eileen Ng AP

Malaysia plans to abolish two unpopular security laws allowing detention without trial and relax other measures curbing the media and the right to free assembly, Prime Minister Najib Razak says.

Video: http://bcove.me/pke9h9mj
PM announces repeal of ISA, three Emergency proclamations.

Prime Minister Datuk Seri Najib Tun Razak announced on Thursday that several draconian laws including the ISA and the three Emergency proclamations are to be repealed under major civil liberty reforms.

The policy changes are the boldest announced by Najib since he took the helm in April 2009 and are seen as a move to bolster support for his ruling coalition ahead of general elections, which are not due until 2013 but are widely expected next year.

Najib says heading toward a more open democracy is risky but crucial for his government's survival.



Malaysia plans to abolish two unpopular security laws allowing detention without trial and relax other measures curbing the media and the right to free assembly, Prime Minister Najib Razak says.

The policy changes are the boldest announced by Najib since he took the helm in April 2009 and are seen as a move to bolster support for his ruling coalition ahead of general elections, which are not due until 2013 but are widely expected next year.

Najib says heading toward a more open democracy is risky but crucial for his government's survival.

"There may be short-term pain for me politically, but in the long-term the changes I am announcing tonight will ensure a brighter, more prosperous future for all Malaysians," Najib said in a nationally televised speech on Thursday.

Critics who have long accused the government of using the security laws to stifle dissent cautiously welcomed the announcement but said they would have to wait to see what the measures are replaced with before assessing the reforms.

Lim Kit Siang, who heads the opposition Democratic Action Party, said he wondered if Najib's move was an election ploy.

"We see this as a victory of the people in demanding for greater democracy and respect of human rights, but the question is will he walk the talk?" Lim said.

Najib said the colonial-era Internal Security Act and the Emergency Ordinance, which allow indefinite detention without trial, would be abolished and replaced with new anti-terrorism laws that would ensure that fundamental rights of suspects are protected. He pledged that no individuals would be detained for their political ideologies.

Najib said police laws would also be amended to allow freedom of assembly according to international norms.

The government will also do away with the need for annual printing and publishing licenses, giving more freedom to media groups, he said.

"It is time for Malaysians to move forward with new hope," he said. "Let there be no doubt that the Malaysia we are creating is a Malaysia which has a functional and inclusive democracy."

The prime minister's speech was to mark Friday's anniversary of the 1963 union of peninsula Malaysia with Sabah and Sarawak states on Borneo, six years after the country's independence from British rule.

Najib's National Front has been working to regain public support after suffering its worst performance in 2008 polls, when opposition leader Anwar Ibrahim's alliance wrested more than one-third of Parliament's seats amid public allegations of government corruption and racial discrimination.

The National Front's popularity recently took a dip after authorities arrested more than 1600 demonstrators and used tear gas and water cannons against at least 20,000 people who marched for electoral reforms in Kuala Lumpur on July 9.

Syed Ibrahim Syed Noh, who heads the Abolish ISA Movement, asked if the two new laws to be introduced would also provide for detention without trial.

He estimated there are still some 30 people held under the ISA and another 6000 under the Emergency Ordinance, and called for their immediate release.

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Najib announces major changes in controversial laws as Malaysia Day gifts

KUALA LUMPUR: Malaysians received a significant Malaysia Day present in the form of greater civil liberties and democratic reforms under sweeping changes announced by Prime Minister Datuk Seri Najib Tun Razak.

Saying that the country is evolving and the people wanted more freedom, Najib outlined the historic announcement in his Malaysia Day eve address that was telecast live on TV.

The changes, he stressed, were to accommodate and realise a mature, modern and functioning democracy; to preserve public order, enhance civil liberty and maintain racial harmony.

All these changes will need to be tabled in Parliament.

Six of the best

>The Internal Security Act (ISA) 1960 will be repealed.

- In its place, two new laws will be enacted to safeguard peace and order the detention period will be reduced and can only be extended by the courts, except in cases involving terrorism.

>Three remaining emergency proclamations to be lifted are:
- Emergency 1969, Emergency 1966 (Sarawak) and Emergency 1977 (Kelantan).

>Banishment Act 1959 will also be repealed.

>The annual licence renewal requirement for newspapers and publications will be replaced with a one-off permit by reviewing the Printing Presses and Publications Act 1984.

>Reviewing the Restricted Residence Act 1933.

>Allowing greater freedom to assemble by reviewing Section 27 of the Police Act 1967 by taking into consideration Article 10 of the Federal Constitution which guarantees every citizen with the right to freedom of speech and assembly

A New Dawn beckons

REFLECTING ON THE LAW  By Shad Saleem Faruq iwww.thestar.com.my

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

 

THE Prime Minister’s speech last night evoked the kind of hope and exhilaration I felt many decades ago on August 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, Washington DC.

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 September 16, 2011 go down in our history as “a joyous daybreak” to end the long night of the Emergency.

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

Thumbs up for ISA move

PETALING JAYA: The repeal of the Internal Security Act (ISA) is “a breath of fresh air,” said DAP national chairman Karpal Singh.

He also called for the abolishment of the Sedition Act.

“Why is the Sedition Act, enacted by the British in 1948, not one of the laws to be repealed?”

He said this Act was a draconian law which “did not enhance the democratic process”.

He was responding to the Malaysia Day announcement by Prime Minister Datuk Seri Najib Tun Razak regarding the repeal of the ISA.

In its place, Najib said two anti-terror laws would be drawn up to deal with terrorists, violent criminals and subversive elements.

DAP adviser Lim Kit Siang said the Najib administration should “really walk the talk” in providing greater civil liberties.

He said the promised reforms were “proposals” at the moment, adding that he “cautiously welcomed” the move to repeal the ISA.

He would observe the details of the alternative laws drawn up to replace it, he added.

PKR deputy president Azmin Ali suggested that a national consultative council be set up to deliberate on the two new anti-terror laws.

He also recommended that members of the council comprised representatives from the Government, Opposition and non-governmental organisations.

Azmin also urged the Government to release all ISA detainees or bring them to court.

Perkasa secretary-general Syed Hassan Syed Ali said its supreme council would meet tomorrow to discuss the changes.

“We will study why the Government decided to abolish these Acts and see whether it was made for political reasons or for the good of the citizens and country,” he said in a statement here yesterday.

Penang Chief Minister Lim Guan Eng said he was disappointed that the Printing Presses and Publications Act 1984 would not be abolished.

“The only part amended is the Section on publications that will no longer need to renew their printing licences annually.

“The other one for printing false news has been retained,” said the DAP secretary-general.

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Najib: Not too early or too late for initiatives to be introduced
The Laws in Question
Hisham: All about the right balance
Move to repeal laws welcomed
What they say
Lawyers, activists hope changes are made fast
Two new laws to replace Internal Security Act
Best piece of news for editors
No more annual licence renewal for newspapers
Newspapers form press council
A joyous daybreak beckons
Make no mistake, these transformations are real