Our new democracy

CHANGE is in the air. Pakatan Harapan's electoral sweep has energised vast swathes of our population to mould a new Malaysia. Ushering a significant and dramatic change in the body politic. Civil society, experts, organisations and kindred bodies – all have spent copious hours before specially tasked committees. Presenting their vision of revitalised institutional, legal, social and economic infrastructures. Essentially, arguing for tossing out the decrepit, politically-biased, archaic and corrupt. For a bold, dynamic and enlightened new order. A critical facet of which is the creation of democratic space for free speech to spawn creative ideas to inform this new vision.

This requires an overhaul of the legal framework which stultifies and intimidates.

The "legal" dragnet – a plethora of new laws and amendments to existing laws – felled cartoonists, literati, activists, opposition politicians, bloggers and the like.

As promised, these laws must go. Such as the Anti-Fake News law rushed through Parliament to thwart public discussion of critical issues.

So too Sosma – which established pernicious procedures for trying offences under other laws. Such as detaining suspects (example: Maria Chin on the eve of a Bersih rally); no bail even for those acquitted by a court of law and awaiting appeal by the prosecution; shackling children and women with monitoring devices.

What of Section (233) of the Communications and Multimedia Act? It threatens to jail anyone who transmits online stuff which the authorities consider offensive, annoying, or harassment. Who defines these vague and overbroad acts? Such provisions have been declared unconstitutional by courts in India, the US and Canada. Our courts remain impervious to these decisions. And the use of this provision to charge those who have made fun, satire and parody of some "untouchable" personalities.

Then we have sections of the Immigration Act – amended to exclude the right of a person to natural justice and ousting the review by courts of any decision to ban travel by citizens (even to East Malaysia). This despite apex court rulings that such ousters violate the basic structure of the Constitution and the rule of law, no less. This vast unfettered, dictatorial powers of the immigration authorities must be curbed.

Yet another novel offence birthed by the outgoing administration is Section 124 of the Penal Code – "undermining parliamentary democracy". Under which a lawyer and his client were charged for furnishing evidence to the Swiss attorney-general relating to the misappropriation of 1MDB funds. And student activists threatened with prosecution for proposing a vote of no confidence against the then PM. The then law minister defended the creation of this offence as vital for dealing with terrorists of the likes of Al Maunah!

Then we have various provisions nesting insidiously in the interstices of other laws. For example the Prevention of Terrorism Act (Pota) says that no person shall be arrested and detained solely for his "political belief or political activity". This is defined to limit expressions through a registered political party and as against the government. Ignoring that in a democracy, people articulate their views outside of political parties as well as against institutions other than the government (example the Elections Commission and the MACC). Then again a person can be imprisoned on the mere written statement by a police inspector of his belief that a person is engaged in or supports terrorist acts and such like. There is no need for the grounds of his belief to be stated for review by a magistrate. And no requirement for the magistrate to record his reasons for ordering the detention. This defies a principle of ancient repute accepted by our courts that the exercise of any such power must be based on the establishment of objective facts and reviewable by the courts: Darma Suria v Menteri Dalam Negeri.

Pakatan Harapan's manifesto promises to abolish the Sedition Act, a legacy of British colonial rule; adapted now to charge citizens for exercising the freedoms guaranteed by the Constitution. Some counter concerns say that this act should be maintained to protect the monarchy against undue threat.

Yet the point to be made is that any such projected mischief can readily be covered under the purview of other laws.

Taking a leaf from the new laws to deal with terrorism. The Penal Code has an entire chapter on "Offences relating to Terrorism". Any gaps may be added by an amendment to this chapter. Thus in one sweep we can do away with Pota, Prevention of Crimes Act and the National Security Act.

And for sure, we can function perfectly well without the ugly spectre of these laws and others such as the University and University Colleges Act (which curtails the freedom of students and academics) and the Peaceful Assembly Act (which places undue constraints on the right to assemble).

One final note. Ultimately, the rakyat can challenge any governmental abuse in our courts. For which we need an independent judiciary. In this context the promise of the government to restore the bruised public trust in the judiciary and in the judicial and legal institutions shines through the new Malaysian dawn of a new democracy.

Gurdial is a retired University of Malaya law professor and a consultant in a law firm. Comments: letters@thesundaily.com