Thursday, 5 January 2012

Lack of respect for the Constitution

Selangor Times
25 November 2011


It’s quite apt that it was during a mass circumcision ceremony that Datuk Seri Nazri Aziz made his announcement that Section 27 of the Police Act 1967 is going to be removed. We, the people of Malaysia, just like the poor little nippers at that ceremony, are going to be rid of something.
However, there is a difference between us and the scores of little boys who will now be wandering around gingerly holding their sarongs at arm’s length. Whereas they are safe in the knowledge that their foreskins are not coming back, we can’t really be sure whether Section 27 of the Police Act is going to return in another form.
Section 27 is the law that governs public assemblies, and it has been heavily criticised as being a stumbling block to legitimate peaceful gatherings. Now the government wants to replace it with a new law. But we will have to look at the proposed Peaceful Assembly Bill very closely before we can say with any certainty that the draconian Section 27 is well and truly consigned to the graveyard.
It’s all rather silly, actually. We would not need a Peaceful Assembly law if there was a true understanding of the law in the first place. If one were to look at Section 27, it does look, on the face of it, a totally authoritarian law. The police appear to have unlimited power to decide whether a permit to assemble can be issued or not.
However, there are limits to police powers. It’s called the Federal Constitution. The constitution guarantees us the right to gather peacefully. The only conditions are that the gathering is non-violent, and not a threat to national security or public order.
In other words, unless the police have actual hard evidence that one or more of these conditions will not be fulfilled, they simply must give a permit. And if they make a poor decision, then the courts should be the final arbiter.
The problem is that there is no respect for the constitution. The reason why nations have constitutions in the first place is to ensure that government has boundaries. Think about it, they have tremendous power.
They can tax us, their agents can carry weapons, they can lock us up, they can make us listen to turgid patriotic songs. There has to be something in place to ensure that this power is not abused. Hence the constitution.
However, if one were to treat the constitution simply like some sort of manual, a sort of “Governance for Dummies”, without understanding its true meaning and purpose – which is as a guarantee and protector of the people of this country – then anything can happen.After all, the definition of “national security” can be so broad that it makes a farce of constitutional provisions.
The police could say, “Asking for fair elections is against national security, so we won’t allow for a march to happen”; and then the court says, “Yup, we agree.” They will be following the letter of the constitution, but certainly not it’s spirit.
But I think this argument for constitutionalism would roll off the government’s back. I mean, when you have two cabinet ministers saying that homosexuality is unconstitutional, you know that you are dealing with people with zero understanding of what the constitution is.
Because apparently, according to Article 3 of the constitution Islam is the religion of the federation and homosexuality is against Islam, then homosexuality must be unconstitutional.
First off, Article 3 does not make Malaysia an Islamic state. According to the Supreme Court case of Che Omar Che Soh [1988], it was held that secular law governs the nation and Islamic law is confined only to the personal law of Muslims. Article 3 is taken to mean that as far as official ceremonial matters are concerned, Islamic form and rituals are to be used.
Furthermore, if we take the ministers’ line of reasoning, the article that forbids slavery must be removed from the constitution because Islam does not forbid slavery. In fact, the Quran has several verses condoning it.
This country was built on the premise that our secular government is limited, and that the people have fundamental liberties that must be protected.
But when those who are in power have no concept whatsoever about this philosophy – when years of uninterrupted power and a pragmatic ruling style which cares nothing for principles have ruled for over half a century – we get the situation which we are in, where laws that already exist are ignored, and a big deal is made of new laws that do nothing more than illustrate the ignorance of the government machinery.

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