Malayisa in the Era of Globalization #85
Chapter 10: Freedom, Justice, and the Law
Personal Liberty in Malaysia
Freedom is not absolute. In the West where personal freedom is held in the highest esteem, there are still definable limits. Freedom of speech, in the words of an American jurist, does not include the freedom to yell “Fire!” in a crowded theatre, unless of course there is a fire. America has enshrined in its constitution the Bill of Rights with the specific purpose of protecting the civil liberties of its citizens. Among its provisions are the freedoms of speech, religion, and peaceful assembly, together with the rights of due process. These statutes notwithstanding, they did not protect Japanese Americans from being forcefully relocated and incarcerated during World War II, and more recently, the detention of thousands of Arab-Americans following the 9/11 attacks. Today the injustices perpetrated on those Japanese-Americans are widely acknowledged, but significantly, the Supreme Court decision affirming the legality of that mass detention has yet to be overturned.
There will always be limits to freedom; the pertinent question is where those lines are drawn and the role they play in the ordinary lives of the citizens. An analogy will help clarify my point.
Visiting San Diego Zoo I was impressed to see how free the African antelopes were on their little man-made island surrounded by a narrow strip of shallow moat. The animals could easily jump over that barrier and escape. The attendant explained that the moat is a natural barrier (limit) and that the animals felt safe behind it. Indeed they seemed content, munching close to the very edge without ever attempting to jump over. Had they been enclosed behind a high wire fence, the ground near the fence would be barren with the animals pacing to look for an escape route. The moat serves as a limiting boundary but unlike the fence, it does not interfere with the daily lives of the animals. Indeed the animals behave as if there is no boundary even though their movements were limited.
Limits on human freedom can be viewed likewise. In America there are definite limits but they are more like the moat; the citizens are hardly aware of them. They are not intrusive. Executive powers to establish military tribunals for example, are definite boundaries and gross infringements on the citizens’ freedom. Similarly Canada has its War Powers Act that gives its prime minister as sweeping a power as Malaysia’s ISA. Indeed the War Powers Act was used in 1970 by no less than the libertarian Prime Minister Pierre Trudeau. Because these statutes are rarely invoked except in national emergencies, citizens do not feel constrained by them.
There are other less intrusive but no less potent restraints. I may own private property in California but I cannot even pave my driveway without first getting a permit from the county. A colleague had long dreamed of building his retirement home in the countryside. Unfortunately the county discovered a rare specie of salamander inhabiting his land, thus he could not build where he wanted to! A neighbor had a ranch raising pony horses, but an accident involving another neighbor’s child resulted in a messy lawsuit that ultimately ended with his getting rid of his beloved animals. I may be a trained and licensed surgeon, but I cannot practice my profession unless I carry adequate medical malpractice insurance. If I cannot afford or find one, then I cannot practice. Thus my freedom to practice my profession is infringed by and dependent on some insurance underwriters.
A more dramatic example would be the constraints American liability laws have on businesses. Many huge and otherwise successful firms have been forced into bankruptcy because of massive liability claims on their products. Manville Corporation was done in by the avalanche of asbestos lawsuits, and Dow Corning over its silicon implants. There is in America at present a massive redistribution of wealth through the tort system, with the bulk of that bounty ending up in the pockets of plaintiffs’ lawyers. A major concern of the present Bush administration is to rein in these legal robberies. The battle is severely handicapped because these super rich lawyers are also the wealthiest and most powerful political contributors and lobbyists.
These tort restrictions are real and they affect the daily lives of all citizens but somehow they do not appear as ominous or threatening as the rigid rules of a totalitarian state. They are like the moat in the zoo. Unlike America, Malaysia does not have a moat, instead ugly and menacing metaphorical barbwire fences. They announce their limits crudely and in no uncertain terms. Challenge them at your own risk! As such they are much more intimidating and affect individual behaviors much more profoundly.
Malaysia has many such highly intrusive rules, ranging from the Printing Press Act to the Universities Act. But the mother of all restrictive laws is its infamous Internal Security Act (ISA).
The ISA, with its provision for preventive detention without trial, is meant to protect the stability and security of Malaysia from subversive elements. It is a legacy of colonial rule, and in its original incarnation was meant to fight the communist insurgency in the 1950s. Since then it has been “strengthened” (made more intrusive) despite the fact that the country no longer faces any communist or subversive threat. Originally the orders of the minister were subject to court review; now that protection is gone. Detainees can appeal to the King, but the same minister also advises the monarch. Some checks and balances! In effect the minister’s power to incarcerate a citizen is absolute.
Malaysians tolerate the ISA partly because they have seen how quickly society’s stability can be easily disrupted, with disastrous consequences. One merely has to look at Indonesia and Sri Lanka to be reminded of this grim reality. Better that we jail a few, ISA apologists argue, if that prevents Malaysia from degenerating into another Bosnia.
The genius of the American system is its diffusion of powers and the delicate checks and balances. Despite that, egregious abuses do occur. The Watergate scandal of the 1970’s involving senior Nixon administration officials was perhaps the most pervasive and disturbing. More recently, the coziness of the FBI and the White House resulted in confidential files of many Americans being surreptitiously viewed by President Clinton’s political operatives.
As long as humans wield power, there will be abuses: hence the importance of checks and balances. The process must also be transparent, with adequate and effective review mechanisms. The more awesome the power, the more we must have meaningful oversight. That the decision of a mere minister is not subject to judicial review is the most menacing aspect of the ISA.
Next: The Abomination That is the ISA
Personal Liberty in Malaysia
Freedom is not absolute. In the West where personal freedom is held in the highest esteem, there are still definable limits. Freedom of speech, in the words of an American jurist, does not include the freedom to yell “Fire!” in a crowded theatre, unless of course there is a fire. America has enshrined in its constitution the Bill of Rights with the specific purpose of protecting the civil liberties of its citizens. Among its provisions are the freedoms of speech, religion, and peaceful assembly, together with the rights of due process. These statutes notwithstanding, they did not protect Japanese Americans from being forcefully relocated and incarcerated during World War II, and more recently, the detention of thousands of Arab-Americans following the 9/11 attacks. Today the injustices perpetrated on those Japanese-Americans are widely acknowledged, but significantly, the Supreme Court decision affirming the legality of that mass detention has yet to be overturned.
There will always be limits to freedom; the pertinent question is where those lines are drawn and the role they play in the ordinary lives of the citizens. An analogy will help clarify my point.
Visiting San Diego Zoo I was impressed to see how free the African antelopes were on their little man-made island surrounded by a narrow strip of shallow moat. The animals could easily jump over that barrier and escape. The attendant explained that the moat is a natural barrier (limit) and that the animals felt safe behind it. Indeed they seemed content, munching close to the very edge without ever attempting to jump over. Had they been enclosed behind a high wire fence, the ground near the fence would be barren with the animals pacing to look for an escape route. The moat serves as a limiting boundary but unlike the fence, it does not interfere with the daily lives of the animals. Indeed the animals behave as if there is no boundary even though their movements were limited.
Limits on human freedom can be viewed likewise. In America there are definite limits but they are more like the moat; the citizens are hardly aware of them. They are not intrusive. Executive powers to establish military tribunals for example, are definite boundaries and gross infringements on the citizens’ freedom. Similarly Canada has its War Powers Act that gives its prime minister as sweeping a power as Malaysia’s ISA. Indeed the War Powers Act was used in 1970 by no less than the libertarian Prime Minister Pierre Trudeau. Because these statutes are rarely invoked except in national emergencies, citizens do not feel constrained by them.
There are other less intrusive but no less potent restraints. I may own private property in California but I cannot even pave my driveway without first getting a permit from the county. A colleague had long dreamed of building his retirement home in the countryside. Unfortunately the county discovered a rare specie of salamander inhabiting his land, thus he could not build where he wanted to! A neighbor had a ranch raising pony horses, but an accident involving another neighbor’s child resulted in a messy lawsuit that ultimately ended with his getting rid of his beloved animals. I may be a trained and licensed surgeon, but I cannot practice my profession unless I carry adequate medical malpractice insurance. If I cannot afford or find one, then I cannot practice. Thus my freedom to practice my profession is infringed by and dependent on some insurance underwriters.
A more dramatic example would be the constraints American liability laws have on businesses. Many huge and otherwise successful firms have been forced into bankruptcy because of massive liability claims on their products. Manville Corporation was done in by the avalanche of asbestos lawsuits, and Dow Corning over its silicon implants. There is in America at present a massive redistribution of wealth through the tort system, with the bulk of that bounty ending up in the pockets of plaintiffs’ lawyers. A major concern of the present Bush administration is to rein in these legal robberies. The battle is severely handicapped because these super rich lawyers are also the wealthiest and most powerful political contributors and lobbyists.
These tort restrictions are real and they affect the daily lives of all citizens but somehow they do not appear as ominous or threatening as the rigid rules of a totalitarian state. They are like the moat in the zoo. Unlike America, Malaysia does not have a moat, instead ugly and menacing metaphorical barbwire fences. They announce their limits crudely and in no uncertain terms. Challenge them at your own risk! As such they are much more intimidating and affect individual behaviors much more profoundly.
Malaysia has many such highly intrusive rules, ranging from the Printing Press Act to the Universities Act. But the mother of all restrictive laws is its infamous Internal Security Act (ISA).
The ISA, with its provision for preventive detention without trial, is meant to protect the stability and security of Malaysia from subversive elements. It is a legacy of colonial rule, and in its original incarnation was meant to fight the communist insurgency in the 1950s. Since then it has been “strengthened” (made more intrusive) despite the fact that the country no longer faces any communist or subversive threat. Originally the orders of the minister were subject to court review; now that protection is gone. Detainees can appeal to the King, but the same minister also advises the monarch. Some checks and balances! In effect the minister’s power to incarcerate a citizen is absolute.
Malaysians tolerate the ISA partly because they have seen how quickly society’s stability can be easily disrupted, with disastrous consequences. One merely has to look at Indonesia and Sri Lanka to be reminded of this grim reality. Better that we jail a few, ISA apologists argue, if that prevents Malaysia from degenerating into another Bosnia.
The genius of the American system is its diffusion of powers and the delicate checks and balances. Despite that, egregious abuses do occur. The Watergate scandal of the 1970’s involving senior Nixon administration officials was perhaps the most pervasive and disturbing. More recently, the coziness of the FBI and the White House resulted in confidential files of many Americans being surreptitiously viewed by President Clinton’s political operatives.
As long as humans wield power, there will be abuses: hence the importance of checks and balances. The process must also be transparent, with adequate and effective review mechanisms. The more awesome the power, the more we must have meaningful oversight. That the decision of a mere minister is not subject to judicial review is the most menacing aspect of the ISA.
Next: The Abomination That is the ISA
posted by M. Bakri Musa | 3:29 PM
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