Scant Regard for the Law

FEB 4 — Our first three Prime Ministers were lawyers. It also during their tenures that Malaysia, despite being economically supine, was nonetheless blessed with unfettered media reports (this can be confirmed by visiting any of the archives of our main newspapers) and we almost never heard of transgressions by the organs of state.

However, our fourth Prime Minister viewed the law and disciples of the laws with great suspicion. He proceeded to dismantle and encumber the very freedoms we cherished for so long, resulting in 22 years of disregard for the rule of law, due process, basic rights and a total absence of accountability.

The fifth Prime Minister promised us something different. He tried so very hard and spectacularly failed, resulting in the BN being drubbed during the 12th General Election. In order to pacify the anger of Malaysians who could no longer stomach the excesses of powers and abuse, meek and torpid legislation was recently bulldozed though our Parliament.

Again, some quarters including Umno Youth concluded that the legislation was too "far-reaching" and our Anti-Corruption Commission has no business investigating the ills of Umno or other non-governmental bodies.

Umno, being the single largest party in government and with its members holding almost every important position of state, must not escape the tentacles of accountability. Despite the weakness of the MACC, it is the best Malaysia has at the moment. It is a commission established by Parliament and it would be most unwise of Umno Youth or any other body to question its authority.

However, Malaysians have always been forced to only pay scant regard to the rule of law. We continue to stomach the abuses for the sake of peace and tranquillity.

The police can abuse detainees without any regard for their rights. Kugan's case is simply one of the many cases involving the high-handedness of those in a position of authority. In the absence of a complaints body, we have the police investigating their own alleged misdeeds. I am wondering why we didn't ask the Nazis to investigate the Holocaust. It is only in Malaysia where a conflict of interest never arises and even if it does, it never makes a worthy difference or any at all.

We have the Election Commission playing judge with regards to the recent controversy surrounding two elected representatives in Perak. I echo what Malik Imtiaz has said regarding the powers of the Election Commission. As a barrister, I can add my "two-cents" worth to the mix; and I do not see the EC having any adjudicative function. A literal reading of Article 113 of the Federal Constitution clearly states that the EC has a duty to delineate in line with demographic changes and it has a duty to conduct elections. It does not confer the EC with quasi-judicial powers nor does it give the EC the right determine the legitimacy of resignations.
The right course for the two aggrieved assemblymen is to take the matter to court and seek an injunction or a "certiorari" prohibiting their withdrawal until the validity of their resignations is determined by the courts.

The EC once again has proven itself as incapable of being fair and non-partisan and this will only further besmirch the reputation of Barisan Nasional.

Like most Malaysians, I am appalled by the scant regard for the law and our failure to do what is right. The spirit and the letter of the law may sometimes conflict; however we must not forget that the law in all certainty is the only check against arbitrary and absolute power.

It is my fervent belief that the BN and Umno in particular can no longer allow the abuse of rule of law in Malaysia. I am reminded by what Tony Blair said at the Sultan Azlan Shah Law Lecture last year, while furious with a decision of the House of Lords (Britain's equivalent to the Federal Court of Malaysia) on the legality of an Act of Parliament that was meant to deal with the post 9/11 terrorist threat, he soberly remarked: "It is their right they can; that they are above me and not me above them."

So as we scream and shout about the alleged atrocities in Gaza, Iraq and Afghanistan, we have taken a not-so-elegant silence about the transgressions of our own government. Our credibility is surely weakened but only Malaysia does not see it.

Ivanpal S. Grewal is an analyst with SEDAR Institute. The views expressed are a personal observation on the state of affairs in Malaysia.