Friday, 7 August 2015

Amend law to make it clearer

Brave New World (The Star)
5 August 2015


Whoa! Talk about a stealth bomber of a law. This one slipped under my radar and the next thing I know it’s pounding down with legal explosives.
I am talking about the new section 124B of the Penal Code. This provision which criminalises “activities detrimental to parliamentary democracy” was introduced in 2012. I think some noise was made about it then, but soon we got distracted, as we Malaysians are wont to do.
To be fair we got distracted by some pretty big things. The sudden ever presence of the Sedition Act, the threat of the new Prevention of Terrorism Act, these were all relevant and pertinent issues that had to be faced.
Then suddenly out of the blue like flatulence in an elevator they whack us with this law. And it’s a doozy.
It seems to be their oppressive legislation of choice nowadays. Everybody seems to be getting hit by it. From prominent lawyers to student activists. The latest round of arrests were of course from the aborted demonstration in KL last Saturday. The Sedition Act must be feeling like the out of favour ex-boyfriend.
The thing about section 124B is that it sounds harmless but it really is a nasty piece of work. I mean, surely protecting democracy is a good thing. But then, the problem is just what “parliamentary democracy” is, is not defined by the Penal Code and I am afraid my definition of it is vastly different from the powers that be. Forgive me as I go into law lecturer mode, but I think it may be useful to reproduce section 124B verbatim:
“Whoever, by any means, directly or indirectly, commits an activity detrimental to parliamentary democracy shall be punished with imprisonment for a term which may extend to twenty years.”
First thing that may strike you is that the punishment is akin to one for committing murder. Twenty years, that’s pretty hard-core. But putting that aside for the moment, let’s see what they say “activity detrimental to parliamentary democracy” means.
“’Activity detrimental to parliamentary democracy’ means an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means”.
Alright, no argument from me about criminalising violent over throw of government (although I am quite sure we have laws for that already). By this I presume they mean with the use of weapons; something like a military coup. But what does “unconstitutional means” mean?
You see, the way I see it a parliamentary democracy needs to have certain things to exist. A fair electoral system is the most obvious. But it also needs the freedom of expression. This is especially true if those doing the expressing are concerned about issues of governance. All this is actually protected in our Constitution.
When we go to vote, do we want to vote in honest people or dishonest people? Do we want to vote in competent people or incompetent people? Now, if there is no freedom of expression then how would we know if those who are putting themselves up for election are either honest or competent?
Simple right?
Also those who are in power can be forced out of power if they lose an election or if they have been found of wrongdoing. Criminal acts means you are disqualified from being an MP, which the last time I looked was part of the Parliamentary Democratic system and part of our Constitution.
 [The text in red was taken out by The Star]
You follow me so far? Of course you do, you are not thick.
But the same cannot be said of all people. By applying this really simple and indisputable idea of what a parliamentary democracy is to recent events, one can see with crystal clarity that when the authorities are using this law, they are not protecting parliamentary democracy, but are instead helping to destroy it.
They seem to think that once a party or individual is in power then any calls for investigation or removal is against democracy. I am sorry, but that is part and parcel of democracy. Just because you are in power does not mean you are suddenly exempt from the law and people have a right to say it. They don’t nor should they have a right to start throwing grenades and what not, but they sure do have the right to express it.
So right now we have a vague law being used, in my view, very wrongly. What hope is there? The law could be amended to make it clearer. That is one way to go, but I don’t think that is going to happen with parliament being what it is right now.
Or, we can place our hope in the judiciary. Surely the judges must be able to see what the elements of democracy are, and that if these elements, freedom of expression, freedom of peaceful assembly, are being curtailed by a law that is purportedly meant to protect democracy, then we really don’t have a democracy anymore.

1 comment:

cakapaje said...

I think, the law is meant to protect a certain organisation and not democracy. For if we live in a simple democracy, then that particular oranisation would have long been dead, buried, and forgotten.