NOV 16 — It is now 54 years since we became independent, and with the 13th general elections approaching, it is time to count the cost of BN rule since 1957. Many draconian and unjust laws did not exist at independence and Malaysians should seriously reflect on the way we were and how many reforms being proposed today merely represent the status quo in 1957, nothing more. Malaysia in fact needs to undergo much deeper reforms to survive the 21st century.
Let us first examine the situation at independence to see how our country has regressed under BN before we consider further reforms. It also brings into perspective the so-called "social contract" frequently brought up by UMNO to justify the status quo. And let us not forget that UMNO has managed to destroy our democratic institutions only with the assistance of all the other BN coalition parties in parliament.
The following are some stark examples of the damage done to our fundamental liberties enshrined in our Federal Constitution in 1957:
1. Equality undermined through the amendment to Article 153 in 1971:
The addition of the new clause "8A" to article 153 in 1971 two years after May 13 has led to the gross racial discrimination seen in admissions to educational institutions such as MARA science schools, colleges and UITM, and the access to public-sector scholarships. In recent years, racial discrimination has been further institutionalised through the routinised usage of "Ketuanan Melayu" (Malay dominance) in common parlance to justify the discrimination.
2. Liberty of the person violated since 1960 to allow detention without trial:
The Internal Security Act that has been used to put away dissidents and the opposition all these years only came into existence three years after independence in 1960. Under the guise of protecting "national security", it was used to finish off the entire leadership of the Labour Party, the main threat to the Alliance government in the sixties. To date, more than 10,000 people have been detained under this iniquitous law.
The Emergency Ordinance 1969 also allows the BN government to detain Malaysians without trial; it only came in 1969 after "May 13". Purportedly necessary to deal with gangsters and others, this law was recently used against six leaders of Parti Socialis Malaysia using absurd allegations of fact.
The legislation of the Dangerous Drugs Act 1985, which also allows the BN government to detain people without trial, only came into existence in 1985, purportedly to deal with drug dealers and traffickers. In recent years, hundreds of people have been detained under the EO and DDA.
3. Independence of the judiciary in doubt since 1988:
Ever since Mahathir sacked the Lord President and suspended three more Supreme Court judges just before the crucial judgement on the UMNO Team A/Team B judicial challenge in 1988, the Malaysian judiciary's independence has been in doubt.
4. Unfair constituency delineation since the amendments to the Constitution in 1962 and after:
The original Merdeka constitution provided that in drawing up constituencies, "there shall not be more than a difference of 15 per cent in the number of electors of any constituency to the electoral quota". The "electoral quota", or national average, was defined as the number obtained by dividing the number of electors in the Federation by the total number of constituencies. Section 2 (c) of the Thirteenth Schedule had stipulated that "the number of electors within each constituency ought to be approximately equal throughout the unit of review".
The Constitution was amended in 1962 transferring the power to delimit parliamentary constituencies from the Election Commission to a bare majority of parliament. Professor R.H. Hickling, the first parliamentary draftsman of Independent Malaya commented on this amendment thus:
"The abolition of the powers of an independent commission smacks a little of expediency and expediency can be a dangerous policy…the Federation is intent upon destroying the relics of a paternal policy embedded in the original Constitution, under which a number of independent bodies (in addition to the Supreme Court) shared, with the legislature, the authority of the federation."
A new Thirteenth Schedule set out certain new features permitting a weightage of up to 2:1 in favour of rural constituencies, thus enabling differences of 100 per cent between urban and rural seats. A further constitutional amendment in 1973 took away altogether the original check in the Thirteenth Schedule on there being too great a disparity between urban and rural seats. Today, the absurdity of constituency delineation in Malaysia is exemplified by the contrast between 6,000 voters at Putrajaya federal constituency and more than 100,000 at Kapar, a disparity of 16:1.
5. Suspension of local government elections in 1965:
At independence in 1957, we had elected local government. In fact the Kuala Lumpur municipal elections were our baptism in democracy even before independence. But the government suspended local council elections on March 2, 1965, when the Labour Party was at its strongest, using Indonesia's "Konfrontasi" as an excuse. They promised to restore elected local authorities "the very moment peace is declared and the Emergency regulations are withdrawn". These emergency regulations have been in existence for more than 40 years, allowing the government to continue to suspend local council elections.
6. Mother tongue education stunted since 1961:
At independence, the Education Ordinance 1957 provided for local education authorities as part of elected local councils. These local education authorities provided for surveying, planning and allocating resources for building schools. The number of English, Malay, Chinese or Tamil schools to be built in each locality and the financial allocation they were entitled to depended on the need of the people in the area. It was not something to be horse traded by political carpetbaggers to appease their communalist supporters. Thus at independence there were 78 Chinese secondary schools, 1,320 Chinese primary schools and 800 Tamil primary schools. Even the school-leaving certificate of the Chinese secondary schools was a government examination.
Now we only have 1,285 Chinese primary schools and 550 Tamil primary schools. The government will only allow 60 independent (community funded) Chinese secondary schools and their Unified Examination Certificate is recognised all over the world except in Malaysia!
The 1961 Education Act did away with the Chinese secondary schools and after the suspension of elected local government, education became a federal prerogative and has become an object of communalist politics ever since.
7. The right to peaceful assembly taken away in 1967 and after:
Our right to assemble peaceably under Article 10 was severely circumscribed by the Police Act 1967, giving the police wide discretionary powers to regulate assemblies, meetings and processions by requiring a licence to be obtained for peaceful assemblies. Amendments to the Act in 1987 further extended police powers to stopping and dispersing activities in private places. It also provided the police with power to use force against participants when closing down events, whether in public or private places. Since 2007, section 98 of the Criminal Procedure Code allows the government to use court orders to stop public assemblies. The police have the power to arrest individuals named in court orders if they enter the identified areas of planned assemblies. With the passing of the latest Peaceful Assembly Bill, the right of Malaysians to assemble peaceably has been further circumscribed.
8. Our freedom of expression shackled in 1971 and after:
The Constitution was amended in 1971 making it seditious or criminal to question any rights and privileges relating to citizenship, the national language and the use of other languages, to quotas for Malays and the natives of Borneo, and to the sovereignty of the rulers. The Internal Security Act 1960, the Universities and University Colleges Act (UUCA) in 1971, Official Secrets Act 1972, the Printing Presses and Publications Act 1984 have further restricted Malaysians' freedom of expression. The monopoly of the mainstream media by the component parties of the BN acts as an effective clampdown on our freedom of expression.
9. Our freedom of association restricted since 1959:
We enjoyed relative freedom of association until 1959 when the Trade Unions Act was brought in to impose strict controls on trade union affairs. The Societies Act was introduced in 1966 requiring every organisation to secure a licence. In 1967, the Industrial Relations Act further restricted Malaysian workers' freedom of association. The UUCA clamped down on the freedom of association by academics and students. The Societies Act was further amended in 1981 and in 2011, two respectable associations, namely the Malaysian Medical Association and the Malacca Chinese Assembly Hall, were deregistered.
Thus, it is no big deal to call for the reinstatement of all the democratic institutions that were in place at the time of independence in 1957. If we manage to do that, Malaysians will only be realising the quality of life at the time of independence, such as a relatively more equal society; a more independent judiciary; fairer constituency delineation; elected local government; freedom for mother tongue education to grow; the freedoms of expression, assembly and association respected; no detention without trial for a start.
We would still need a new agenda for concrete reforms to take us through the many challenges we face in the 21st century to deal with racism, racial discrimination and other related intolerances; abuse of powers; law reform and the rule of law; effective prevention of corruption; free and fair elections; more accountable and representative democracy; freedom of information; defending workers' rights and living conditions; upholding women's rights and dignity; protecting the rights of indigenous peoples; a progressive economic policy; an environmentally friendly policy; a people-centred social policy; channelling defence spending into social services and promoting a culture of peace.
* Dr Kua Kia Soong is director of SUARAM.
* This is the personal opinion of the writer. The Malaysian Insider does not endorse the view unless specified.
