Changes in the nation’s horizon

The Star
Reflecting On The Law By Shad Saleem Faruqi

Whether by revocation by the King or annulment by Parliament, all emergency legislations will cease to exist six months after the end of an emergency proclamation.

THE Prime Minister’s surprise announcement that the Emergency will be lifted, that the Internal Security Act will be repealed, and that laws like the Printing Presses and Publications Act will be amended to constitutionalise and humanise them has fired everybody’s imagination, and at the same time raised apprehension among the defenders of the status quo.

One reader asked whether the Prime Minister consulted with, and obtained, the consent of the Cabinet before making these bold pronouncements.

No outsider can answer this accurately, but what can be pointed out is that in parliamentary democracies, prime ministers are known to launch bold initiatives on their own and to present their Cabinets and their countries with a fait accompli.

Clear examples are decisions on premature dissolution of Parliament and budget and foreign policy initiatives.

In 1956, Anthony Eden of Britain got his country embroiled in the disastrous Suez invasion, and informed his Cabinet only after British paratroopers had landed on Egyptian soil.

In a strictly legal way, the prime minister is not bound by the Cabinet; instead the Cabinet is bound by the direction he supplies.

Politics may, of course, encourage a consultative approach but all students of parliamentary government know that the prime minister is the sun around which the Cabinet revolves.

Individual ministers are bound under the doctrine of collective ministerial responsibility to support their prime minister or step down from office.

Another reader asked whether the Prime Minister’s announcement means that the Emergency is already lifted?

The answer is in the negative.

The Emergency is proclaimed by the King and either he must revoke his proclamation(s) or the two Houses must by resolution annul the proclamation(s).

If the King (acting on advice) revokes a proclamation, the revocation comes into effect immediately.

However, if the two Houses are to debate and vote on a resolution to annul, that process can be expected to take some weeks or months because the Dewan Negara will probably convene only after the Dewan Rakyat’s lengthy budget session beginning in October.

However, if immediate parliamentary action to annul the 1966, 1969 and 1977 proclamations is thought desirable, the two Houses can meet concurrently to draw to a close the 47-year saga of the existing post-independence Emergency.

Once a proclamation expires, whether by revocation by the King or annulment by Parliament through an Emergency Act of Parliament or a piece of subsidiary legislation under an emergency law, all emergency legislations will cease to exist six months after the proclamation.

If the Emergency ends, does the Internal Security Act (ISA) also cease to exist? The answer is in the negative.

The ISA is a law against subversion under Article 149.

It is independent of Article 150 and has a life of its own, no matter what happens to the Emergency.

If the ISA is repealed, will those detained under the ISA have to be released? Undoubtedly, yes.

If the basis of their detention is extinguished, the detention, too, ceases to be valid.

Even if there is a new law under Article 149 to deal with security or terrorism cases, that law cannot be backdated due to the prohibition of Article 7(1).

Of course, the detainees may face new prosecutions under the Penal Code or the new laws.

The rule of double jeopardy will not apply.

Will the Government have to pay compensation to all people detained under the ISA, including in previous years?

The answer is “no” because the legality of an act must be judged by the law at the time of the commission of the act and not by what happens afterwards.

How can the ISA be repealed? Does its repeal require the consent of the Conference of Rulers?

Under Article 149, any law against subversion may be passed or repealed by Parliament.

A simple majority vote is sufficient.

The consent of the Conference of Rulers is not needed.

From what we have heard, the ISA will be replaced by two laws on terrorism and national security.

Some cynics are saying that the move is therefore purely cosmetic and political.

The ISA may end but preventive detention may remain.

I think we should hold our judgment on this issue till we see the substantive content of the proposed new laws.

I would give anxious consideration to the following issues:

> The concepts of terrorism and national security must be precisely and objectively defined and must not have any catch-all tendencies.

> There should be no exclusion of judicial review so that any abuse or misuse of power can be tested in the courts.

It is acceptable that on matters of security, the political executive must have a strong say without excluding the power of the courts to determine independently whether security was indeed involved or not.

> There must be some safeguards against political detentions.

> The power of the police to detain for purposes of investigation must be drastically reduced from the present 60 days to no more than three weeks.

> The Minister’s power, as at present, to order detention for two years and for such further periods as he deems necessary must be abolished.

Detentions on the orders of the Minister raise the unconscionable issue of accuser, adjudicator and executioner being combined. Some separation of powers and some check and balance is desirable.

Justice must not only be done but must be seen to be done.

> The power to try, to convict and to detain must be committed to a Special Security Court or Anti-Terrorism Court (or by whatever name called).

> Anxious consideration must be given to the composition of this Special Court which must arouse public confidence.

> The executive must accuse, the court must decide.

> Special procedural rules for security trials exist in many countries and must be examined.

Perhaps trials should be held in camera (without the public present).

Whatever the case, there must be fair due process. The accused must know the charge.

No incriminating evidence must be withheld from him and from the judge, as is possible at present.

The accused must be allowed to defend himself fully and fairly.

> The penalties and the maximum period of detention must be prescribed.

> Whether there should be no appeal in “security” and “terrorist” trials is a matter for further consideration.

We have many model legislations from many countries that we can emulate.

Whatever we follow must show fidelity to our own Constitution and to the primary instruments of international law.

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