Rule of Law: A lack of consensus

-A +A

IT SEEMS that much of the debate about current events in Malaysia reflects the absence of a common perspective on matters that, one would think, should not be in controversy at all.

We have the benefit of a written constitution that, upon the proclamation of Merdeka, laid out a definitive framework for life in this country. Quite apart from establishing the organs of state — the executive, legislature and judiciary — and their separation from each other, it spelt out in clear terms what our individual rights were, the limits on the power of the state and what we could legitimately expect of life in Malaysia.

Going by the fact that no real controversy erupted over these fundamental matters for a significant period post-Merdeka, I think it is reasonable to say that Malaysians on the whole were in agreement on such matters and what they entailed.

Controversy has however since broken out. To name a few instances, we now hear assertions of a constitutional justification for claims of Malay supremacy or of Malaysia being an Islamic state (from a legal standpoint) and a role for Islamic law in the public sphere, be it the implementation of hudud and qisas laws or the creation of federal syariah appellate and apex courts. Leaving aside the question of whether such assertions are legally justifiable, they reflect a departure from the consensus upon which this country was founded.

(In my view, these assertions are plainly inconsistent with the compact contained in the Federal Constitution. In order for such claims to be valid, there must be changes to the Federal Constitution or, if such changes are not permitted by law, the establishment of a wholly different constitution — if that is even possible. I must stress however that aspiring for a different framework is not a concern in itself — the freedom of expression guaranteed by the Constitution protects the right to harbour such opinions. Reinterpreting the Constitution at convenience to justify such claims is however a different thing altogether.)

Seen in this light, debates over the need for increased accountability and transparency on the part of administrators, be they Cabinet ministers or local councillors, or even constitutional bodies such as the Attorney General or the Election Commission, can be said to reflect a lack of consensus as to what democracy means.

Democracies all over the world have had little choice but to keep in step with evolution, so much so that in many countries, participatory democracy has come to be understood as involving far more than merely casting a ballot every five years or so.

Interaction between voters and their elected representatives and the machinery of government is now acknowledged as a vital part of the democratic process, as is the need for voters to have access to information reasonably necessary to them making informed decisions not just at the ballot boxes but also in the period between elections.

Though some of that information has been made accessible through social media and online news sites, breaking the stranglehold the regulated media has had in Malaysia over news and opinion, information that is not in the public domain has remained inaccessible.

The current debate over whether the home minister should disclose what national security efforts Phua Wei Seng was involved in is illustrative. Malaysians know that a letter was written as information on the letter was pushed into the public domain by the South China Morning Post, but do not have access to information concerning what it is the minister said in his letter. They cannot arrive at an informed view as to the correctness of what the minister did.

Therefore, the ability of voters to access information is of critical importance. Not just to satisfy their curiosity but in order that they may form views or take positions on issues as citizens in a society administered by a representative government.

This right to information concerning matters of administration, or the freedom of information as it is more usually referred to, is a necessary incident of the freedom of expression; the latter is directed at matters in the public sphere, the underlying rationale being that there can be no government of the people, for the people or by the people if the people are not able to share their views on matters of public interest and importance. These twin freedoms are the cornerstone of a truly functioning participative democracy.

It is pertinent that the Malaysian Federal Court has recognised that the freedom of, and as such, to information, is housed in the freedom of expression. Legislation on the freedom of information is as such intended only to facilitate the process of accessing information, and not to create a right to it. It is as such incorrect to state that as Malaysia does not have freedom of information legislation, Malaysians do not have that right.

Notwithstanding the obvious logic of the scheme described above, and its constitutional underpinnings, there appears to be no consensus on the subject of what sort of democracy is intended to be operative in this country. There are those who cling on to that version of democracy where all voters are entitled to do is vote every time there is an election and information is meted out on a need-to-know basis.

Looking at the way the Election Commission has approached the current redelineation exercise, it seems that its members hold to such a notion. Redelineation, or delimiting, of constituencies at the federal and state levels is permitted under the Constitution.

Such exercises must however be conducted in a manner that as far as possible ensures, among other things, that the number of electors within each constituency be approximately equal (with an exception for rural constituencies for which, in light of greater difficulty of reaching electors and the other disadvantages, a measure of weightage for area can be given). Furthermore, consideration must be given to the inconvenience that naturally arises from alterations of constituencies, and to the maintenance of local ties.

These factors are of undeniably grave importance to achieve free and fair elections. It is for this reason that registered voters are given a right to make representations within 30 days of the Election Commission giving notice of such an exercise. It stands to reason that voters must be given sufficient information to arrive at their own view as to whether the delimiting has been done in a manner that is fair.

It is immediately apparent that such information must include a clear indication of how the electoral boundaries have been changed not just for the constituency of the voter concerned but of other constituencies, the number of voters in the various constituencies, explanations for why unequal numbers of voters in different constituencies have been allowed if this is the case, and such other information that is relevant to the exercise of judgement on the part of a voter in deciding whether to accept the delimiting or reject it.

One would have thought that this would be a simple matter. After all, the commission would have to look into these matters when conducting a delimiting exercise. Having such data, it would not be a burden to have the same information made available for inspection and downloads on the commission’s website; the commission is paid from public funds.

Yet, judging by the protests from civil society groups as to the manner in which the ongoing delimiting exercise in Sarawak is being conducted, the commission does not see the disclosure of such information as being essential to the integrity of the process. Though its recommendations for the Sarawak delimiting exercise as well as a map of the additional state constituencies it has recommended are available on its website, the two documents leave a number of critical questions unanswered.

The commission’s approach portends the manner in which it intends to deal with the proposed redelineation exercise in Peninsular Malaysia. This is a troubling state of affairs. The Election Commission is a constitutional body that is charged with administering one of — if not the — most important processes prescribed by the Constitution.

It is essential to the establishing of a truly democratic government. This singular importance is reflected by the constitutional imperative that the commission is to enjoy public confidence, and the security of tenure given to its members who, as a consequence, can only be removed by Parliament.

Regrettably, the approach of the commission is not unique to itself. This lack of consensus on what democracy means, and the reasons for it, require urgent consideration. Occurring as it does in the wider plan, it points to increasing discord, and possibly acrimony, on matters of fundamental significance to this country.

This potentially devastating state of affairs requires all stakeholders to put politics aside in order that balance may be restored; it is as if the very fabric of society is unravelling.

Datuk Malik Imtiaz Sarwar is a practising lawyer and a past president of the National Human Rights Society (HAKAM)

This article first appeared in Forum, The Edge Malaysia Weekly, on January 26 - February 1, 2015.