Speech at Senate House, London University, October 2015
Let me begin by expressing my appreciation and thanks to the Commonwealth Institute, The Round Table, and the Commonwealth Journalists Association for hosting this event. It is good to be back in London and meeting old friends such as Rita Payne and Dr Venkat Iyer once again.
Freedom of speech and expression is central to basic human rights. Besides food and shelter, there is nothing more precious to life than personal freedom. If we want to live a life of dignity, then the freedom to speak and think must be available to us and to the society in which we live.
It isn’t necessary for us to be as bold as Patrick Henry, the great American patriot who waged war for the independence of the colonies. We needn’t proclaim: “Give me liberty or give me death!”— like he did, but, nonetheless, freedom and personal liberty are vital to the wellbeing of humanity.
There are many today who have none of these freedoms. We see them in places such as Saudi Arabia, North Korea, Iran and elsewhere. In these places, I believe that life can be terrible unless one belongs to the top stratum of society where rules and restrictions do not apply.
It saddens me that I must remark on my own country in the same vein. Malaysia under the present Prime Minister has changed completely; it is now a place where dissidents are arrested for sedition and charged with alarming regularity; where newspapers and books are banned, and where the whistleblowers are hounded and arrested but the crooks continue to rule.
Article 10(1) of the Malaysian Federal Constitution provides that “every citizen has the right to freedom of speech and expression”. There is the qualification, of course, that Parliament may restrict or limit this right for whatever purpose it deems expedient—for example, public order and morality.
Recently, the Malaysian Federal Court in the case of Azmi Sharom has been quick to use this qualification as justification for declaring as valid any law that restricts freedom, even if the restriction is so wide as to render meaningless the basic freedom conferred by Article 10. Indeed, the Court’s favourite observation today is that there is “no such thing as absolute freedom”.
And so the question that people ask—and which the Court has declined to answer with any conviction—is: what freedom is left in Malaysia?
The Court’s restrictive view of legal rights under fundamental liberties leaves much to be desired. Perhaps this is why the Malaysian Prime Minister and his Minister of Home Affairs seem unconcerned about using anti-terrorism laws to detain members of the public for no greater “crime” than asking the Police to investigate how the Prime Minister ended up with 2.6 billion ringgit in his personal account.
Today, Malaysians live in fear of prosecution if they choose to make their views known on even the most elementary subject. As I speak, a journalist is being investigated for sedition simply for writing an article considering whether a certain provision in the Federal Constitution ought to be amended.
Azmi Sharom, an associate professor of law, has been charged with sedition merely for arguing in favour of transparency in the context of politicians attempting to force a vote of confidence in a legislative assembly.
When it was argued that the Sedition Act was unconstitutional—since the Act prohibits practically everything the Government deems unpleasant—the Federal Court chose to dismiss his argument with the simple justification that “it was not for the court to determine a restriction imposed by Parliament.”
A more positive and forward-looking constitutional court might just as easily have ruled the Act unconstitutional, leaving the Government—which has a comfortable majority in Parliament—to say otherwise.
My own son Ezra is now being charged in the Shariah Court for translating into Malay the book Allah, Love and Liberty, written by the Canadian Muslim author Irshad Manji. It was the view of a state Religious Department that the views expressed in the book were contrary to the precepts of Islam. At the time the translation was done, however, the English version of the book was freely available in commercial bookshops.
This, ladies and gentlemen, is a result of the Islamisation of Malaysian political life, which began in the 1980s.
Before that time, our judges (who were mostly trained here in the United Kingdom) staunchly defended our fundamental liberties whenever they could—and we may still discern the importance of these principles in their judgments. Our Constitution was crafted in the middle of the Communist insurgency and was amended many times after the May 1969 racial riots, so, naturally, freedom and personal liberty have not always been a national political priority. And yet, Malayan and Malaysian judges of that era took care to protect whatever little freedom we had, whenever possible.
Those judges took cognisance of the basic need for freedom even though that freedom had to be circumscribed or qualified from time to time according to the needs of national security and public order. Indeed, Malaysia has always been a country deeply sensitive to matters of security, but judges of that era were equally sensitive to finding the right balance between the needs of the state and the needs of the people.
This balance is no longer considered to be important. The judges are no longer willing to be honest arbiters between the powerful and the powerless. They are more excited about being able to lend support to a Government that already has more powers than it has ever needed. The highest court in the land pays no regard to fundamental liberties: the Court now says that the limitations placed by Federal law on fundamental liberties need not be reasonable. The Court is happy to let the Prime Minister decide if society needs more control. Thus, in Malaysia today, the Executive—acting with the rubber stamp of its majority in Parliament—may deny basic rights to the people.
And if this is not enough, the wave of Islamisation restricts further the rights to fundamental liberties for Muslims in the country, and it is gathering pace.
Malaysia is a federation of states. Whereas in the past the government would reserve for Parliament to power to pass criminal laws, as provided under the Constitution; now with Islamisation, states today are allowed to promulgate laws restricting liberty—and even to create new offences—provided that Islam is the basis of those restrictions.
As it is, Article 74 of the Federal Constitution allows for state legislatures to pass laws, but these powers are limited to a very specific list, called the State List. Generally speaking, state governments are responsible for Muslim laws, such as family law, marriage and divorce, and inheritance. However, the Constitution also gives states the power to legislate offences against the precepts of Islam. In the past, states were slow to create criminal offences under this provision because, if their powers were widened too much, they would compete with Federal power to create offences under the Penal Code. This was clearly not intended by the framers of the Constitution—if the power to create religious laws had no limit, then Malaysia would not be a democracy but a religious state. Despite being aware of this, our judges are now freely expressing support for the widening of state government powers to legislate on Islamic matters.
The phrase “precepts of Islam” is completely unclear in Malaysian law—at least to those of us who see Malaysia as a democracy and not a fascist theocracy.
In the years before Islamisation, judges would not countenance expanding the jurisdiction of the states to create more offences that curtailed freedom and liberty. In their view, Parliament alone should have that power, and the judiciary provided the necessary checks and balances.
Today, an increasing number of Malay judges favour Islamic law and use the lack of clarity surrounding the definition of “precepts of Islam” to declare as constitutional the creation of more religious offences. These judges are fearful that if they do not support what are considered to be “Islamic” demands, they might be committing a grave sin. They also use the excuse that Islam is the country’s “official” religion.
The courts have not explained the apparently new meaning of the word “official” in this context. Our first three Prime Ministers made it clear that Malaysia was a secular democracy and that the expression “official religion” meant only that Islam was to be used for ceremonial purposes. But top judges in subsequent years have not agreed with this interpretation; although they have not explained how the expression “official religion” can fundamentally alter the basic character of the country’s legal system. They seem to be happy to widen the operation of Islamic law and the Shariah Court, although this effectively means reducing the importance of the civil court system and their own powers. It is bizarre, but true. The judges now say that “precepts” are everything declared as such by the state Religious Departments, and therefore belong to the State List of the Federal Constitution. This is how liberty is dying a slow death in Malaysia.
Today, if I were to publicise my opinion that transgendered persons should be accorded full rights as human beings, I will very likely run afoul of state laws that declare transgenders and other “deviants” to be somehow “unIslamic”.
This, in fact, is the crux of the charge against my son. The book he published was not prohibited at the material time by any order of the Federal Government. Translating the same book should not therefore result in the commission of an offence. But when the state legislature creates an offence by declaring the translation to be contrary to the precepts of Islam, what freedom can anyone have under the Federal Constitution?
A Malaysian Muslim today seems to have no space at all for expression, since he or she could be constrained by both Federal law (on grounds of security or public order) and state law (on grounds of offending Islamic precepts). By the recent ruling of the Federal Court, state Islamic laws can now limit fundamental Constitutional liberties in ways never before seen in our jurisprudence.
The effect of it is this: Malaysian Muslims have no way of knowing if what they say or do is an offence until it is too late.
And what of non-Muslims? The Constitution prescribes that the Shariah Court may have no jurisdiction over them and this has lulled some non-Muslims into thinking that they are safe from the clutches of the religious laws. They are not. There have been cases of non-Muslim couples divorcing: either party automatically gains child-custody rights if that party converts to Islam. The reason for this is that the Shariah Court will not grant custody to a non-Muslim parent, and so far the secular courts have been powerless to prevent this. Even the Police are no longer willing to follow the orders of the civil court if there is a competing order from the Shariah Court on the same case. The Shariah court has achieved parity with the cvil court, and soon will probably become the final determinant of laws in our country.
Any one of us regardless of religion, might land in trouble if he or she says something innocuous like: “The fundamental liberties of Muslims must be protected by the Federal Constitution”. The problem is that particular point of view might well be construed by the authorities to be an insult to the supremacy of Islam. Whoever makes that opinion would then be liable to a charge under the Sedition Act and even the Penal Code for disparaging the religion.
Only last week, the Federal Court held a particular state law prohibiting cross-dressing by transgenders to be valid—and the state law declared that transgenders had deviated from Islam and were therefore liable to punishment. If I were to maintain that Muslim transgenders had the same rights under the Constitution as I did, then I’d probably be committing an offence too.
I have tried to summarise and discuss these and other related issues in a series of short essays published two weeks ago in a book called Assalamualaikum. I have some copies here if you wish to buy them.
The book is a collection of my observations about what is happening in my country. That said, I found that as religion encroached increasingly upon the public sphere, less and less democracy and freedom remained. That in itself was unsurprising, but what was worrying for me was that Islam itself had become tainted by politics. It is always the case that when politics and religion get mixed up, it’s religion that suffers.
My book seeks to highlight the challenges Malaysians will face in the years to come, and why it is so very important that Muslims and non-Muslims help each other to keep Malaysia free and democratic.
As such, we need to mount more legal challenges, like what my son and others are doing against this “new” Malaysia. We may not succeed today, but we must not abandon the fight against the crooks to restore the character of our country and its people. Many spirited public law and constitutional lawyers are helping to fight the cases in our courts on a pro bono basis, but we still need to raise funds for the other expenses these legal challenges entail. I hope that human rights groups and lawyers throughout the Commonwealth who are committed to liberty will join hands and help us overcome this new repression in Malaysia.
Many have asked me why there has been such dramatic change in the country. What has taken place since Independence in 1957? These are not easy questions. The change in Malaysia from a moderate western democracy to its present state stems mainly from the success of the ruling party, UMNO, to influence professional groups and civil administrators to accept its flawed party-political ideology. Firstly, UMNO ideology eschews equality and the concept of fairness. UMNO Malays have more benefits than non-UMNO Malays. Right-wing UMNO Malays are more acceptable than the liberal Malays. Then we have the concept of Bumiputera, the sons of the soil, having more rights and privileges than the non-Malays. Even amongst Muslims, Sunnis and those fervent believers in Saudi Wahhabis have more rights than the Shiites whom they consider deviants. The whole society operates on an unethical foundation of inequality; and when one is comfortable being discriminatory with one group; it will extend to others just as easily. When leaders have absolute power; they confer benefits to the people by their grace.
UMNO has massive influence over Malay-Muslim civil servants, teachers, politicians, academics and even some within the judiciary. These civil servants and politicians have a better chance to succeed and to be promoted if they are acceptable to UMNO. Personal interests take a strong hold within the institutions of government. Hence professionalism suffers and objectivity is jettisoned in favour of the interest of the leaders. These civil servants no longer can tell the difference between national and individual interests.
So when the Prime Minister tells them that he did not do anything wrong when he was found with billions of Ringgit in his personal account , they still support him. Their position would be threatened otherwise. When the PM says they need to “reclaim” the country from outsiders—that is to say, Malay liberals, democrats, non-Malays and foreigners—because Malays and Islam are apparently under attack, they believe him. I used to wonder what the North Koreans were thinking when they said they love the Kim family and no one else; now I understand what can happen with 50 years of indoctrination.
Today, UMNO tells their supporters that Malays were short-changed when securing independence, which Malays and others freely negotiated with the British. They also somehow cannot accept that members of minority communities became citizens of the same country more than half a century ago. They seem annoyed that our country had a constitution crafted by Britain and a Westminster democracy, and not by Saudi Arabia, that allowed for basic freedoms of religion, expression, and more—that is to say, the rights and liberties given us as a nascent democracy in 1957. Malaya was born a democracy—they now want Malaysia to change into something else. That “something else” is some kind of Najib Caliphate perhaps.
We are regressing economically , theologically confused and socially insecure because of this “new” thinking. We can forget about being an advanced country and a developed economy come 2020. This new thinking has destroyed democracy and the Rule of Law in Malaysia. It has reduced many members of the government to be supporters of the beleaguered PM and not loyal servants of the state. Ironically, if the elite placed more trust in the institutions of democratic government and not succumb to the greed of the leaders; if they were Islamic enough to embrace honesty and integrity in their lives as demanded by Islam, and not just enforce Islamisation for public consumption, perhaps Malaysia could become a great country one day. It’s a big if.