Hornbill Unleashed

October 6, 2014

The Malayssian Dilemma – to speak or not to speak?

Filed under: Politics — Hornbill Unleashed @ 8:00 AM
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Professor Aziz Bari’s studied silence under police questioning for alleged seditious comments is in sharp contrast to his vigorous articulation on matters of high constitutional importance.

The action against is seen by many as little more than a continuing attempt to silence any voice that is not in accord with the official ‘wisdom’.

The recent seemingly limitless sedition blitz against a growing number of our citizenry prompts us to ask – in an adaptation of Shakespeare’s Hamlet’s lament – “To speak or not to speak, that is the question?”

Alongside my esteemed friends-at-law – Aziz Bari (left), Azmi Sharom and others – we have sought to interpret actions that affect the nation in the light of constitutional scholarship – for no other reason than to engender open debate so as to promote a better understanding of complex questions that underlie the current controversies.

Our efforts have no ulterior motive – least of all to breed hatred and contempt between races, classes. Nor do we intend to destabilise established institutions – such as the royalty and the judiciary. Our comments and critiques – which even the pernicious sedition act allows – have been within the confines of decency and decorum.

But these acts are vilified. Already 2 students and an activist have ended up in jail. In civilized societies these very acts would he applauded as integral to the creation of an informed and reasoning public.

Take the action under the Sedition Act against Aziz – hauled up for suggesting that the powers of a constitutional monarch are not at the same level as the omnipotence of God. Seditious tendency or reality check?

Questions that demand answers

Our Rukun Negara starts with the preeminence of belief in God; followed by loyalty to Agong and country, implying the hierarchy between mortals and the divine.

How by any stretch of any imagination can Aziz’s comment that only God and not lesser beings have absolute powers – be cast as challenging the institution of the monarchy?

Then again Aziz is being questioned for comments that suggest the role of the monarch as limited by the constitution under which the sultan must perforce operate.

Most constitutional experts take this as a trite principle of constitutional law. How could this be a ‘seditious tendency’?

And Azmi Sharom’s (right) comment that an open vote in the state assembly (as provided for under the state constitution) was the preferred and transparent mode to determine who commanded the assembly’s majority – rather than the closed door route chosen by another monarch to resolve a similar crisis in Perak; how can this, viewed in a broad context, be seditious?

Of course some of these comments were oral responses to questions posed by an inquiring public and media – and so, as always, some latitude to oral expression must necessarily be accommodated.

Not without reason many have castigated the AG for levying these charges. Recently Abu Talib Othman in an oblique criticism said the AG should act judiciously “not at (the AG’s) whims and fancies or dictated by a third party”

Boldly raising explosive suggesion

He must know – he was one of the longest serving attorneys-general of the country from 1980 to 1993.

And he was so bold as to suggest that the AG’s discretion could well amount to ‘persecution’ – a charge so serious, by one so high and well apprised, as to merit a public inquiry into the AG’s role in these matters.

A former deputy minister and a present minister with the ruling federal coalition openly questioned the propriety of the AG’s actions in preferring some of the sedition charges.

And so a plea – let the democratic ethos prevail. Our society and its institutions are mature and resilient enough to accommodate an open discussion of the kind of issues raised by these academics.

Two tenets of the Rukun Negara mandate this: one, supremacy of the constitution; and two, the rule of law.

The Sedition Act, as I have argued elsewhere, is antithetical to these principles and simply has no place in a functioning democracy.

The Act allows for subjective assessment of what is a ‘seditious tendency’; the criteria for this is vague and allows for arbitrary decisions. The intention of the speaker is declared irrelevant – a breach of the elementary principles of criminal justice.

Maintaining past to control present

Almost every colonised country that imposed this colonial law has repealed it; India which still maintains remnants of the law, links any words or acts to the intention to create violence and disorder. Our law requires none of that.

It is quite nonsensical, with respect, for the Higher Education Plan, to advocate academic freedom as a basis for a creative community yet at the same time spawn a culture of fear among teachers and others.

For those that truly seek to upset our societal equilibrium – as many extreme groups persist in doing without any reprisal – there are penal laws aplenty. The AG knows these. Indeed he has used them time and again.

How then to respond to this ceaseless recourse to a law that even the prime minister, in a moment of commendable clarity, described as antiquated?

The answer to the question: To speak or not to speak?

“Is it nobler in the mind to suffer the slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles, and, by opposing, end them?”

(Hamlet, Act 3, scene 1)

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