A Perpetual State of Emergency
One very uncommonly known fact about Malaysia is that it has been officially under a state of emergency since 1969 (at the latest; I can't recall now, but if a nationwide emergency had been declared earlier, then we would have been under emergency rule since then).
A more commonly, but still not too well-known fact is that the government has extremely wide-ranging powers under emergency rule. The government can promulgate law at will (to distinguish what laws are made by Parliament and what are made by the Prime Minister, recall that legislation passed by Parliament is called an "act", whereas that made by the PM is called an "ordinance"), with a few exceptions.
If you're familiar with the political climate here, you might have guessed what these exceptions are. Yes, constitutional amendments are still Parliament's prerogative, and of course all those touchy things like the Muslim religion, Malay rulers, citizenship provisions, and the special position of the Malay race are all off-limits to the executive.
Nevertheless, aside from that, the Prime Minister can actually make pretty much any law he wants. And even though theoretically there are limits, such as those preventing the executive from amending the Constitution at will, even these can seem to be overriden easily.
For example, in PP v Khong Teng Khen, the Federal Court held that an ordinance the King had promulgated (the King acts on the PM's advice, so this was basically an ordinance promulgated by the PM) had granted the King power to make law even when Parliament was sitting — in direct contravention of the Constitution, which states that the King may only make ordinances when Parliament is not sitting.
There are of course some other theoretical Constitutional checks on this legislative power granted to the executive. Ostensibly, laws made by the executive expire after a certain period of time. However, as these laws can be renewed indefinitely, this is about as meaningful a check on executive power as the Internal Security Act's requirement that detention orders lapse after a certain period unless renewed by the Home Minister.
Of course, the question that may be on your mind is, if the government has so much power under a state of emergency, why on earth are we still under emergency rule? Well, apparently the fellows who drafted the Constitution forgot to account for two things.
The first was that they did not explicitly specify when a state of emergency would lapse. The second was that they assumed that the courts would have a backbone and brain of their own, and use some common sense and realise that there's no use in a government promulgating "emergency regulations" half a decade after the racial rioting that triggered the emergency proclamation.
Because of these mistakes, the courts found a loophole and tore it wide open for the executive to use and apply. The result is that today, we are legally living under emergency rule, and our Parliament is a sham.
I used to think that those who compared us to tinpot dictatorships and banana republics had gone off the deep end. But when people like Rais Yatim (currently a member of the Cabinet) devote an entire PhD thesis to cataloguing the travesties of justice that have ensued because of our sham emergency rule, it's difficult not to wonder if these insane people are not as mad as they seem at first.
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natalinasmpf
Member Posts: 39 IP Logged | Posted at 4:54:12 pm Feb 4, 2006
This is one of the more redeeming features of the Western Republic, ie. the United States. Currently, the Supreme Court of either Malaysia or Singapore doesn't have the power to strike down unconstitutional laws. It's laws like this (a law that makes it illegal to talk about political parties on the internet because it can be interprted as "advertising" for them when there's an upcoming general election) that calls for a need for such a judicial authority. Of course, there are issues like activist judges and whether judges should strictly interpret the consititution or liberally interpret the constitution, or the discern the framers' intent. Or what exactly happens if judges decides to strike down a law for no apparent reason, but this rarely happens because of scandal and there is no excuse and of course apparently the constitutional crisis will resolve. It probably just needs to be refined somehow. The key thing is that this prevents erosion of rights like freedom of speech on the majority's whim. But in Singaporean and Malaysian cases, more like the legislators' whims and the majority's apathy. There are things like the need to distance justice away from the whims of voters, ie. no direct voting for justices, and appointment by proxy, ie. people vote for both executive and legislative, executive nominates a judge, legislature approves it, like we saw with Alito. But then, the issue is how to obtain judges that has the conscience not to be in cahoots with the ruling party and rule impartially (and how to remove them), and whether favouring slightly more direct control by citizens (perhaps, a referendum to vote on a constitutional amendment, such as an amendment to enforce the right to freedom of speech, rather than just plain ratification) might resolve the issue. Thoughts? I think this could be a key issue, because these authoritarian laws keep passing under our noses, and we never hear of them until they bring the charges against us bloggers, in this case. Without this ability by the Supreme Court, our rights are slowly being taken away, and we are blind to it. |
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natalinasmpf
Member Posts: 39 IP Logged | Posted at 7:02:41 pm Mar 25, 2006
Vissario: d'accord, but if indirect representation didn't exist in the first place, then there would be less of a need to worry about partisan politics or about re-election. The concept of a jury is also important, which stands in contrast mandating expertise. However, here the judges in Singapore are heavily biased towards the ruling government it seems (perhaps it is because they can be removed)...the chances of winning a suit against the government is one in a million, and losing when prosecuted by the government for sedition approaches 99.99%. The other issue which I have reasoned out before is the issue of time. The courts exist so that the law does not change on mere whim, but as their terms last through several election terms they know what the original laws were legislated for. This is also the justification behind some "victimless crimes" - ie. individiuals may protest it now, but later on the will accept it, ie. defending the rights of the later person not to be fallen by the mere mistakes of say, someone who was ignorant of the dangers of narcotics. Of course, judicial review using the Supreme Court a very good solution for Singapore, but if we were to approach an ideal then perhaps the principle could be further refined, as having it confined to a body of a few individuals is always carries some risk (as I believed happened with several attempts at oligarchy at Athens). After all, there exists the issue of oligarchy, and what happens if a judge did decide to strike down any law he or she wanted, anyway? |
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Vissario
Member Posts: 35 IP Logged | Posted at 7:40:26 pm Mar 25, 2006
If you can Natalina, provide us with a general overview of how the Singaporean courts have ruled since its inception in the 1960s(?). I think that the courts of any society, be it totalitarian, democratic, or other, are really a good representation of the current generation and the broad wants and needs of the general society. For example, in the United States, the courts have always been a reflection of the times and have defined what society usually wanted because the justices were far closer to the ideals our founding fathers had for the people as opposed to what contemporary politics would preach. And as such, when the overall view of the people was for moderation, our courts have typically decided in moderation without becoming staunch activists, and when our society has demanded change (or at least condoned it), the courts have been ready to create civil and social change. Perhaps, for Singapore, the current 'biased' court system is the greater request of the people looking for security and a defined system of values in a time where Western dogmas, values, and material pleasures are rapidly spreading throughout Asia and challenging the amazingly conservative morays of most Asians. |
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natalinasmpf
Member Posts: 39 IP Logged | Posted at 8:29:22 pm Mar 25, 2006
If you can Natalina, provide us with a general overview of how the Singaporean courts have ruled since its inception in the 1960s(?). Firstly, what one of the first things the PAP did was to abolish the institution of the jury. Excellent. They keep an outdated penal code, citing it was carried over from English common law, but decide to do away with a vital institution that has existed in common law since the Magna Carta for about 750 years. The PAP also frequently sues the opposition, or prosecutes them for "sedition" or for publishing "incendiary" material (what they did was merely accuse the government of bad faith) ... the Sedition Act only allows accusations of "errors", ie. assuming the government was mistaken but did it in good faith. There was Francis Seow, who was on the verge of winning an election in a particular constituency (which was rare in the case of normal PAP dominance) and was promptly arrested and held for 72 days without trial under the Sedition Act, because of the accusation he had received funds from the United States and was being a puppet, etc. etc. The PAP sued Jeyaratnam till he was bankrupt, then said he couldn't run for the general elections because bankruptcy disqualified him. Chee Soon Juan was imprisoned for criminal slander when he accused Lee Kuan Yew in public of apparently supposed falsities (such as the allegation he made an illegal transaction with Indonesia) ... and I he still is, IIRC. Just a highlight of many cases. In fact, many of these do not see trial - those that do not win favour from the courts. The courts, without judicial review, cannot say "political criticism does not qualify under the slander laws", or have the discernment between political criticism and sedition...not to mention sedition is an thoroughly anti-democratic concept... Perhaps, for Singapore, the current 'biased' court system is the greater request of the people looking for security and a defined system of values in a time where Western dogmas, values, and material pleasures are rapidly spreading throughout Asia and challenging the amazingly conservative morays of most Asians. Unlike the United States, the court system does not interfere with abortion (which is thoroughly legal), freedom of religion, right to bear arms, or any often contentious issues. The court system as I am aware of, has never made a ruling in favour of free speech. I talk to my peers about political issues, and they declare, "this isn't a free country - if you want free speech, go back to America!" (which is better I suppose than having Americans tell me "Go back to China!" As I do not think that prosecuting for sedition and slander because someone made valid political allegations is exactly a means of reinforcing the sense of security or a defined system of values. Compare this to Hong Kong, which has a healthy demonstration culture, but also will badly need a stronger court system with strong powers of judicial review if it is to survive the machinations the PRC is trying to impose by slowly eroding the rights of Hong Kong'ers well before the 2090 permission. |
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Vissario
Member Posts: 35 IP Logged | Posted at 2:55:28 pm Mar 26, 2006
Just a highlight of many cases Thanks for the quick overview, perhaps you can provide us with a website containing a synopsis of major cases, as well? has never made a ruling in favor of free speech. Once again, people, the average person, in Asia is amazingly conservative in their views about government, politics, and social institution. I think they make this evident in the regimes they support; not ones which give tangible amounts of personal freedom and expression and allow for highly individual self-determination, but ones which actively impose a sort of 'social order' for the sake of uniformity and economic gain. "this isn't a free country - if you want free speech, go back to America!" As Asia becomes increasingly infused with western money, nationals, and, most importantly, ideas, that attitude towards what government can and can't do will change hugely. Unless, of course, if there is some drastic change in the cultural and political paradigm within the next 50 years, which I doubt seeing as there will still probably not be another superpower to spite the United States, Asians cities and general society will increasingly resemble that of the United State's or Europe. As I do not think that prosecuting for sedition and slander because someone made valid political allegations is exactly a means of reinforcing the sense of security or a defined system of values. But isn't it? The PAP doesn't allow political opponents because that would imply that their power is weak or disputed, and with that weakness will brood more seeds of dissention which will only encourage others to further dissent and rebel. This, as has been observed in history, is something which eats away at the national psyche because it creates a general uncertainty and a fear of change. Just because you would welcome a regime change doesn't mean that the rest of the population is willing to, Natalina. |
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johnleemk
Infernally Rambling Thoughtless Mind Head Administrator Posts: 948 IP Logged | Posted at 8:05:12 am Mar 27, 2006
As an aside, I think it would be cooler to restore lay magistrates. (Provided, of course, that they aren't those moronic "Justices of the Peace" who just get this nice crest to stick on their bumpers and use it to get away with parking illegally.) Juries are an excellent exit valve for idiocy in the system and for handling wedge cases, though. To cite one example from the British system, have a look at R v Ponting, where a jury found Clive Ponting not guilty of revealing state secrets, even though he obviously did. (Basically he revealed certain circumstances regarding the sinking of the Argentine battleship the General Belgrano during the Falklands War that Maggie Thatcher didn't exactly want revealed but really posed little to no threat to the Brits -- just look it up on Wikipedia.) Incidentally, the presiding judge told the jury that the best interests of the state were represented by the government's policies, and directed them to make their decision based on that. (Good thing they ignored it.) |
