PM announced declarations and laws to repealed or amended

September 16th, 2011 by poobalan | View blog reactions Leave a reply »
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 You can read PM Najib’s full text of the Malaysia Day speech here. The crux of the speech came towards the end, where he announced some major proposal (since its yet to made formal, presented in Parliament and approved).  Things can change from what’s been announced, so we shall keep our fingers crossed. However, it is a good move, something that can improve our ratings in the various rating systems and improve public perception. In a way, the pressure by the opposition and public have sped up the inevitable decision, IMHO. The perceived abuse of such laws over the years only served to undermine whatever good things done by the government of the day.

The repeal of Printing Presses and Publications Act is a pleasant surprise, at least for me. I kind of expected some sort of changes on the human rights laws, but not on the media law. A good news indeed.

Anyway, it is left to be seen how the new laws which are meant to replace some of the repealed ones will be. Hopefully it won’t be new wine in old bottles.

  image from The Malaysian Insider


The Star also provided a rundown on the said Acts:

Laws to be reviewed

Printing Presses and Publications Act 1984

1. The Home Minister:

> has absolute discretion to grant any person a permit to print or publish a newspaper in Malaysia.

> may at any time revoke or suspend a permit for any period he considers desirable.

> makes the decision to refuse, revoke or suspend a licence or permit and his decision is final.

2. Any person who commits an offence, including printing, importing, producing, publishing and distributing any prohibited publication commits an offence and is liable to not more than three years imprisonment, fine not more than RM20,000 or both.

Restricted Residence Act 1933 (to be reviewed)

1. The Home Minister:

> may order the arrest and detention of any person he deems necessary to reside in any particular area or prohibited from any particular area or areas.

> may make an order for the person to reside in the specified area or prohibited from entering specified areas from a set date.

> may at any time revoke, cancel or vary the order.

> may order the person be put under police supervision for not more than five years and may renew any such order for a further period or periods not exceeding one year at any one time.

2. Any person found within any area, town or village that he is prohibited from shall be liable to imprisonment for a term not exceeding three years.

Laws to be repealed

Banishment Act 1959

1. The Home Minister:

> may issue a warrant for the arrest and detention of any non-Malaysian or exempted person if he judges there are reasonable grounds for banishment, on receiving written information submitted to him by the Inspector-General of Police or a chief police officer.

> may order that this person be banished from Malaysia either for a specified term or the term of his natural life.

> may issue an expulsion order requiring this person to leave Malaysia before 14 days.

> may at any time revoke a banishment or expulsion order.

2. Any banished or expelled person found entering or residing in Malaysia who commits an offence is liable to imprisonment depending on the term of banishment, expulsion or deportation, or to not more than 15 years imprisonment if previously convicted under the Act.

The Internal Security Act (ISA)

1. Was first implemented in Malaya by the British in 1948 to combat the armed insurgency of the Malayan Communist Party during the Malayan Emergency.

2. Allows for detention without trial or criminal charges under limited, legally defined circumstances.

3. Since its inception until 2005, a total of 10,662 people have been arrested under the ISA.

4. One of the biggest spate of arrests happened during Operasi Lalang in 1987 when 106 politicians, social activists and NGO leaders were detained.

5. A person may be held by the police for up to 60 days without trial for acts which allegedly threaten the security of the country. After the 60 days, the Home Ministry may release a detainee on restrictive orders, or order further detention without trial for a term of two years.

Emergency Proclamations

1. A proclamation of emergency is made when the public’s safety or economic livelihood or the peace of the country is under threat.

2. Since independence, four proclamations of emergency were issued in 1964 and 1969 for the whole of Malaysia, 1966 in Sarawak and 1977 in Kelantan.

3. The 1964 Proclamation of Emergency was made in response to Indonesia’s declaration of confrontation with Malaysia while the one in 1969 was made following the May 13 riots .

4. In 1971, a court ruled that the 1969 proclamation had superseded the 1964 one although it was never revoked.

5. Today, three proclamations of emergency are still in place.


 Another one missed in the list above is the review of the Police Act  in terms of freedom of speech and assembly:

Allowing greater freedom to assemble by reviewing Section 27 of the Police Act 1967 by taking into consideration Article 10 of the Federal Constitution which guarantees every citizen with the right to freedom of speech and assembly.

Below is commentary by Prof Shad Saleem:

The Prime Minister’s announcement on a number of changes to the country’s laws, including ending the Emergency, will have massive positive implications.

THE Prime Minister’s speech last night evoked the kind of hope and exhilaration I felt many decades ago on Aug 28, 1963, when I heard American civil rights leader Martin Luther King, Jr. deliver his “I have a dream” speech at the steps of Lincoln Memorial.

The Prime Minister pointed to a number of changes that he intends to bring to the country. Many of these proposals will have massive positive implications for the country’s legal system, its administration of justice and the sovereignty of law over personal discretion. He promised that:

> The emergency proclamations that are in operation will be presented to Parliament for annulment;

> The Internal Security Act will be repealed but replaced with two security laws framed under the Constitution’s anti-subversion provision of Article 149;

> The Restricted Residence Act and the Banishment Act will be brought to an end; and

> The much-criticised Printing Presses and Publications Act will be amended.

It will take some time and considerable research to fathom the full implications of the above pronouncements. Needless to say, the impact on the legal life of the community, the rights of the citizens, the powers of the Home Minister and the police will be monumental.

The rule of law will be strengthened and the days of the omnipotence of the Government will come to an end. Looking at the implications of the lifting of the Emergency, the following salient features of emergency laws must be noted:

Ordinary legal system eclipsed: Under Article 150, once a proclamation of emergency by the Yang di-Pertuan Agong is gazetted, the floodgates are lifted and legislative powers of Parliament are greatly broadened. Parliament can make laws that violate, suspend or bypass any constitutional provision except six items in Article 150(6A).

All fundamental rights except freedom of religion can be violated. The federal-state division of powers can be disturbed and state powers usurped.

Emergency laws do not require a two-thirds majority. Neither do they require the consent of the Conference of Rulers or the Yang di-Pertua Negeri of Sabah and Sarawak.

Judicial review on constitutional grounds is ousted because of Article 150(6).

An emergency law has no time limit and can continue as long as the emergency lasts.

Malaysia has been under such a state of emergency continuously since 1964. For all practical purposes, an emergency legal system eclipsed the ordinary legal system for the last 47 years.

The King’s power to make laws: As with the powers of Parliament, the powers of the federal executive are immensely enlarged during an emergency.

The Yang di-Pertuan Agong acquires plenary and parallel ordinance-making powers under Article 150(2B) as long as the two houses of Parliament are not sitting concurrently.

The executive’s power of ordinance-making is as large as Parliament’s power of legislation. The entire Constitution can be suspended except for six topics in Article 150(6A).

Since 1964, the Yang di-Pertuan Agong has promulgated nearly 92 emergency ordinances. Among these is the Emergency, Public Order and Prevention of Crime Ordinance, which is a favourite with the police and which results in more preventive detentions than even the Internal Security Act.

Executive power to give instructions: Under Article 150, the Federal Government acquires powers to give directions to the states in contradiction with the meticulous federal-state division of powers.

If the emergency proclamations are repealed, what effect will that have on the legal system?

Restoration of normal laws: If the two proclamations of national emergency in 1964 and 1969 are repealed, the country will return to the normal operation of the constitutional system.

The five or so emergency laws made by Parliament under the authority of these proclamations will cease to operate. Any detention under these laws will have to be terminated.

Emergency ordinances will end: As with the emergency laws enacted by Parliament, the 90 or so emergency ordinances promulgated by the Yang di-Pertuan Agong (and the hundreds of subsidiary laws made thereunder) will also cease operation.

However, the cessation of emergency laws is not immediate. Under Article 150(7), there is a grace period of six months during which the emergency laws may still continue to operate. Once the six months expire, the expiry of the laws is automatic and no individual repeal is necessary. However, no action (e.g. for damages) can be taken for anything validly done under previous laws.

Some may wonder whether the Yang di-Pertuan Agong, in his discretion, may refuse the Prime Minister’s advice to restore the rule of law and to lift the proclamations of emergencies?

In a long line of other cases, it has been held that emergency rule does not alter the position of the Yang di-Pertuan Agong as a constitutional monarch bound to act on advice.

The case of PP v Mohd Amin Mohd Razali (2000) altered the law slightly: it held that during the dissolution of Parliament, the Yang di-Pertuan Agong is not bound by the caretaker government’s advice on emergency matters.

Amin is, of course, not relevant to the Prime Minister’s speech last night because Parliament is not under dissolution and the Prime Minister’s advice is binding on the King.

Judicial review strengthened: The lifting of the Emergency will remove the eclipse of ordinary laws. The possibility of judicial review of executive and legislative measures will be enhanced. Many human rights will be restored.

The demise of hundreds of emergency laws, some conferring preventive detention powers and others excluding due process, will be a defining moment for Malaysian democracy.

However, the euphoria that is bound to be felt as a result of these wholesome developments must be tempered with caution.

New proclamations: The lifting of the 1964 and 1969 emergencies does not prevent the re-issuing of a new proclamation of emergency and the promulgation of new emergency Acts and ordinances, if circumstances so demand.

Subversion laws stay: Even if the Emergency is lifted, Parliament is still armed with anti-subversion powers under Article 149. New security laws under Article 149 have been suggested by the Prime Minister. Existing laws like the Dangerous Drugs Preventive Measures Act will not be affected by the lifting of the Emergency unless the Government sets about to apply the reformative paint brush to them as well.

Police Act remains: Controversial ordinary laws like the Police Act, the Official Secrets Act and the Universities & University Colleges Act will remain in the statute book though, of course, they will face pressure to accommodate the spirit of the times.

Some may, therefore, regard the lifting of the Emergency as merely a cosmetic measure because Articles 149 and 150 still arm the Government and Parliament with massive power to suspend constitutional guarantees.

Such a perspective is unduly cynical. It amounts to an all-or-nothing attitude. Whatever reforms are adopted and implemented must be welcomed. They may be harbingers of new things to come. They will certainly set a new mood and may be the catalyst and impetus for further improvements to the human rights scene.

A government receptive to the lifting of the Emergency cannot be indifferent to improving the situation of laws under Article 149.

All in all, one must applaud the Prime Minister’s courage, his willingness to listen to the voice of the people, his receptiveness to the felt necessities of the times, and his exhilarating agenda for reform.

The Attorney-General’s office also deserves congratulations for advising the Prime Minister on the incongruence between the rule of law and the state of emergency lasting 47 years.

So, let Sept 16, 2011 go down in our history as “a joyous daybreak” to end the long night of the Emergency.

> Datuk Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.



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