Stop playing race game in Malaysian politics

The country has changed so much since 1969 that to keep using the argument that we are on the verge of race war is rather obsolete.

I WAS wondering when it was going to happen; when certain quarters were going to dust off that old chestnut of May 13, 1969, and use it as a political tool.

It all seems terribly coincidental that as the general election draws nearer, suddenly race riots get inserted into political speech, and a movie about May 13 is apparently waiting to be released.

The country has changed so much since 1969 that to keep using the argument that we are on the verge of race war is rather obsolete.

Let’s look at some facts. Firstly, the vast majority of the Malaysian population were not even born in 1969.

This means that first-hand knowledge of that terrible time is simply not part of most of us. Without that emotional connection, I believe that younger Malaysians are willing to question the feasibility of such a thing happening again.

And really, could it? In 1969, the politics of the nation was so very clearly divided along racial lines. The Opposition was not united as it is today. PAS won 12 seats, DAP 13 and Gerakan 8.

They were not part of a coalition and each stood on its own, therefore it was possible to play the race game because, in Kuala Lumpur and Selangor in particular, the Opposition had the face of “the other”.

Today, with the Pakatan coalition in existence, the Opposition is a much more complex animal. If the Opposition wins, how can the race card be played when two of the component parties are so predominantly Malay?

Let’s take a look at recent events that has got some powerful people’s knickers in a twist.

In particular the Bersih demonstrations of 2007, 2011 and 2012. The demographics of these events were multi-ethnic and became even more multi-ethnic with each progressive one.

By the time of this year’s Bersih demonstration, the make-up of the people who took part was much closer to the make-up of the country as a whole. However, the predominant ethnic group was still Malay.

This goes to show that the political divide, not of political parties but of ordinary citizens, can no longer be conveniently divided along ethnic lines.

Significant numbers of Malaysians, regardless of their background, can be united when they have a common political goal, in this case clean and fair elections.

Furthermore, ethnic Malays can be vocally unhappy with the status quo. In the present-day scenario, it is ridiculous to say that the politics in Malaysia is simply a matter of Malays versus Non-Malays.

And let us look at the 2008 elections. The results were unprecedented and surprised most people. I remember that night very well, as the results became clear that Barisan had lost their two-thirds majority and five state governments.

I decided to drive around Kuala Lumpur, just to see what would happen. And what happened? Nothing.
The streets were quiet. No celebratory parties, no processions, no fireworks; nothing.

The Opposition and their supporters on the streets were as muted as the Barisan and their supporters.

No gloating, no taunting, no excuses at all to provoke a reaction from the supporters of the powers-that-be.

I am certain that if a similar result is achieved in the next elections, the same would happen. There will be no provocation from the opposition and their supporters.

That is not to say there will not be any trouble. Recent events in this country have proven that there are gangs of thugs who are willing to be violent for political purposes.

The thing is though, I believe that the Malaysian public are not going to rise to the bait.

I fervently hope we will show them that we are better than them, we are nobler than them and they are nothing but hooligans with delusions of grandeur.

No, the danger that faces this country will not come from race riots.

If we have trouble in Malaysia, it will be if there is a prolonged disrespect for true democratic principles.

If the election process is not transparent and fair, if the result of a clean election is not respected, then and only then should we start to worry.

BRAVE NEW WORLD

By AZMI SHAROM

Learn more about Malaysian new Assembly Act

Previously, everything was prohibited unless permitted. Now everything is permitted unless prohibited. This is a significant shift in civil rights thinking.

IN early legal systems, the primary end of the law was to keep the peace. In modern legal orders, a just balance between the might of the state and the rights of the citizens is attempted. No field better exemplifies the difficulty of achieving this fair balance than Malaysia’s law relating to assembly and procession.

The recently enacted Peaceful Assembly Act 2012 has received much criticism in the media and deserves scrutiny of its high and low points.

Police permit: Previously under Sections 27 of the Police Act, citizens had to apply for a police permit for gatherings or processions of more than three people.

Under the new Act, there is no requirement for a police permit, but organisers of assemblies must notify the authorities 10 days in advance under Section 9(1). No notice is required for meetings in designated places or if the assembly is an exempted assembly.

If in response to a notification the police do nothing, then under Section 14(2) silence is deemed as consent.

Previously, everything was prohibited unless permitted. Now everything is permitted unless prohibited. This is a significant shift in civil rights thinking.

No power to ban: Under the Police Act, assemblies and processions could be prohibited outright or conditions imposed.

The new Act in Section 15 permits the OCPD to impose significant restrictions and conditions including the date, time and place of the assembly. However, there is no power to issue an outright “No” before the assembly takes place.

Time limits: Just as citizens are required to give advance notification of 10 days, the police response must also be communicated within a stated time limit of five days: Section 14(1). An appeal to the Home Minis­ter must be decided within 48 hours: Section 16(2).

Designated places: The Act permits the minister to designate places where assemblies may be held without notification to the police. Critics have charged that this is an attempt to isolate Opposition gatherings in distant and low-impact places.

This is an overly cynical view. Actually it is a good idea to designate some fields, stadiums and Speakers’ Corners for public assemblies.

What would be improper is if the owners of designated places indulged in the selective granting or refusal of permission. If this happens, judicial review is likely on the (Article 8) principle of equality or the administrative law principles of reasonableness, irrationality or abuse of power.

Exempted assemblies: This Act does not apply to election campaigns, strikes, lock-outs and pickets under the Industrial Relations Act and the Trade Union Act: Section 1(3).

It is also inapplicable to religious assemblies, funeral processions, weddings, open houses, family get-togethers, family days and meetings of societies or associations: Third Schedule Paragraph 9(2)(b).

The words “meetings of societies and associations” are very broad and permit vast possibilities.
Right to object: All persons likely to be affected by a proposed assembly have a right to be informed and to raise objections. In principle this is acceptable.

However, there is a perception that the police may pander to extremist groups; subordinate minority rights to majority concerns, and discourage lawful but unpopular assemblies. This perception needs to be proved wrong.

Judicial review: Mercifully, the Act has no ouster clauses for excluding judicial review.

Counter-assemblies: The Act takes admirable note of counter- and simultaneous assemblies, and seeks to regulate them by giving preference to the assembly first in place. It also provides for alternative sites, times and dates for the counter- or simultaneous assembly or assemblies.

Spontaneous gatherings: These are not contemplated by the law and are presumably not illegal.

Involuntary presence: The definition of “participant” leaves out anyone who is unintentionally or involuntarily present at an assembly. This will be a useful defence to a citizen who is the subject of a prosecution.

Despite the above wholesome features, the reformed law still bristles with some controversial provisions.
Street protests: These are a form of assembly in motion, a procession or a demonstration. They were permitted (within limits) subject to regulation under Section 27 of the Police Act, but are now absolutely banned.

Other ambiguous aspects of the law are that a street protest by definition involves “walking in a mass march or rally.” So if there is no walking but a motorcade of cars or bikes, that will not be caught by this law and the authorities may have to use Section 268 of the Penal Code or some provision in the Road Traffic Act 1987.

Further, although “street protests” are banned, the Act refers here and there to “processions” and “assemblies in motion.” One has to struggle to understand the distinction bet­ween a lawful procession and an unlawful street protest.

Police discretion: Under the Police Act, police discretion to grant or withhold a permit was more or less unfettered and the power to impose conditions was very wide, although subject to occasional judicial review as in Chai Choon Hon v Ketua Polis Kampar (1986) and Patto v CPO Perak (1986).

Similar to the Police Act, the new law in Section 15 still confers on the men in blue very wide discretion to impose “restrictions and conditions,” arrest without a warrant any person failing to comply with a restriction or condition, or order the assembly to disperse.

It must be acknowledged, however, that such wide discretion is known in other jurisdictions like Britain, Finland and the state of Queensland in Australia, but subject to external review.

External control: Unlike the recent Security Offences (Special Measures) Act which subjected the powers of the police and the Minister to judicial control, this Act makes no effort to subject police discretion to external, non-executive control.

An appeal lies with the minister, which basically means there is an appeal from the executive to the executive.

Fortunately, however, there is no ouster clause, and judicial review on the first principles of administrative law is a possibility.

Public places: These are defined too broadly, so they include private places open to or used by the public by the express or implied consent of the owner or on payment of money. This means that private premises, hotels and halls to which members of the public are invited or permitted are deemed public places!

Constitutionality: It remains to be seen whether the courts will review the constitutionality of some parts of this law. Issues germane for discussion are:

> The total ban of street protests without linking it to public order and national security may well fall foul of Article 10(2).

> The ban on people under 21 organising an assembly may be challenged as a violation of Article 10 (free speech) and Article 8 (equality). It is noteworthy that case law has established that parliamentary res­tric­tions on human rights must be reasonable by objective standards (Hilman Idham).

> One of the grounds on which the police may exercise the power to regulate assemblies is “the protection of the rights and freedom of other persons” (sections 2, 3 and 15). These words of limitation do not occur in Article 10(2), and may therefore be seen as an extra constitutional limitation.

In most countries including the US and Malaysia, courts have accepted implied limits on human freedoms and have often carved out common law restrictions on fundamental freedoms.

In sum, the Act has many wholesome features. But it is defective in that it imposes no objective restraints on the police and ministerial discretion.

Nevertheless, as judicial review is not excluded, courts may provide a proper balance between police powers and fundamental freedoms. Whether the courts will play such a balancing role remains to be seen.

REFLECTING ON THE LAW By SHAD SALEEM FARUQI

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