Making Sense Of Draconian Acts

http://www.malaysiakini.com/letters/90465

Malaysia is a law-abiding country. We are a country which respects the rule of law and its just application to all citizens under our Federal Constitution and our Islamic guiding principles. In cases of perceived conflict between federal law and Islamic law, Muslims always have the option of choosing the syariah courts to resolve their difficulties.

It is among Malaysia’s finest achievements that both Islamic and secular legal tracks (based upon British common law) are fully available to its multi-religious citizenry. According to both secular and Islamic tracks, at no time should a person be detained without undergoing ‘due process’, including the right to a fair hearing.

Criminal prosecutions initiated for unreasonable or hidden purposes, regardless of the status or rank of the initiating party, goes against principles of natural justice as well as the syariah, which mandates impartiality, justice, and fairness. Accordingly, the detention of any individual under the Internal Security Act (ISA) must be strongly condemned.

Detainees under the ISA are denied the right to be heard and the right to a fair trial. The detainees should be given immediate access to legal counsel, and, if there is a strong criminal case against them, they should be immediately brought before the court to face such criminal charges and allowed a fair hearing.

The ISA is vulnerable to political abuse as well as violation of the personal rights of the prisoner. Detainees are also subject to physical and mental abuse, and there have been instances in which public officials guilty of such mistreatment of detainees are given absurdly light punishment – or none at all.

This results in part due to their encroachment on the sacred boundary between enforcers of the law and judges of the law. Whenever law enforcement or an executive officer of a nation arrogates to itself the right to pass judgment and initiate punishment, the very fabric of civilised life is threatened by fascism by virtue of an open ended authority without limitation.

Creeping fascism’ is a very difficult legacy of World War II. The extent to which the Muslims had collaborated with the Japanese in that war has recently come to light; this collaboration and compromise in Islamic principles was due arguably to Japanese promises of liberation of Muslim lands from European domination.

The problem is that the utterly inhumane cruelty of the Japanese was not understood then, at least not by the Muslims, and so they felt the Japanese theory of an Asian ‘sphere of co-prosperity’ was actually a promise that may come to pass. Even Sukarno of Indonesia collaborated with the fascist Japanese with the hope of using the empty promises of their power to liberate his own homeland.

It should be noted that the Muslims were not alone in such collaboration. The Catholic hierarchy, from local bishops to the Pope himself, collaborated with Germany, as did Protestant leaders in occupied countries. This was also true in North Africa, which had a majority Muslim population.

It should be noted that in instances of both Axis powers, both had genocidal obsessions, were brutal and arbitrary in their administration, and the fear of the occupied was a substantial factor in their maintenance of power and authority in their occupied territories. Even in World War I, the Caliph of all the Muslims in Istanbul aligned the Muslim ummah with the fascist powers in that part of the world, namely the Germans and their allies.

The extent of German cruelty and inhumanity – although less so then their inheritors under Hitler – was not then understood, and the European fascists evidently made the same empty promises to the Muslims as did the Japanese in the later war in their attempt to achieve domination. Muslims collaborated, conspired and colluded with their enemy in both wars, and were contaminated by these acts and the consequences of these failures of conscience on other groups and nations.

The cited instances show the damage not only to the Muslims, but to others impacted by their acts: the consequences can be as apparently benign as a nod, or as loud as gunshots in Changi, or as quiet as a gas jet in Auschwitz. There are political and economic reasons for these betrayals of faith, but their morality is reprehensible in the foulest sense.

Nowadays, it seems that America is showing signs of ‘creeping fascism’, especially with passage of the Patriot Act 2001 in hysterical (or carefully calculated, if you believe in gothic conspiracy theories) reaction to the attack by Muslims (though not by Islam) on New York’s World Trade Centre, one of the icons of peace-through-word-trade in the second half of the 20th century.

It seems the whole world is now hoping that a change of administration will help to correct some of these symptoms of ‘creeping fascism’, such as the Patriot Act 2001, which was in fact somewhat imitative of Malaysia’s pre-existing Internal Security Act (ISA).

With regard to the recent detention of the three parties under ISA, whatever the reasons for the detention or the motives of the detaining authorities, it is incumbent upon such authorities to conform to established standards of justice, and refrain from casting the malevolent shadow of fascism upon the land.

It must be said that charges of sedition, although becoming all too common, are in essence requests that death sentences be considered against those charged. Death has always been the penalty for those who betray the state. Charges of sedition that cannot be substantiated by proof of threats of forceful overthrow of the government in power, could conceivably become the basis for charges of wrongful arrest.

The charge of sedition is also often invoked to charge those whose rights and aspirations have been cruelly truncated by means of false borders drawn by the colonial powers after World War I and World War II, borders still acknowledged by the United Nations, even though their divide-and-conquer function has become painfully clear in the modern world.

Some examples of what Samuel Huntington calls “Islam’s bloody borders”,which have been made “bloody” by the injustice of these post-World-War-One borders (drawn by the victors to dismember the losing Muslim regions), are the occupied territories of: the Mindanao Moros, Southern Thai Malay, Kashmiri Muslims, Kurdish Muslims (their homeland Kurdistan dismembered into areas assigned to Turkey, Iran, and Iraq), Lebanon (an impossible Muslim/Christiansplit), Russian Muslims in Chechnya, Uigher Muslims in Northwest China, and the major ethnic groups (Sunni, Shia, Kurdish) in Iraq that have never wanted to live with each other.

Iraq itself is an entirely unmanageable and artificial political entity created by the French, who also carved up North Africa along with the British. And, of course, there is the mother of all unjust political entities, Israel. Charges of sedition cannot be justly applied to those who aspire for changes in such borders, since no equitable machinery for change is available. Charges of sedition in such cases are thus completely unjust, unless they involve forcible overthrow of the central government.

Even then, if such governments in Manila, Bangkok, New Delhi, Beirut, Moscow, Beijing, Jerusalem (which really should be Tel Aviv), Myanmar, and elsewhere, refuse to honor the aspirations of their Muslim-majority regions for self-rule, they may inevitably come under attack, by whatever name you call it.

In the meantime, as Thomas Jefferson pointed out, the intention of sedition cannot be inferred by delving into someone’s thoughts, or even by speech that frightens the authorities. Therefore, the crime of sedition is only very rarely charged in the modern world. And it seems that Malaysia may have exceeded its quota of leveling this charge.

All public media must also refrain from seeming to share in such accusations in any way. In this respect, the media are responsible for carrying out fair reporting of relevant incidents, while also taking into account the realities of Malaysia’s multiracial and multi-religious society, itself a creation of British/Dutch colonial territorial divisions, although good leadership has mercifully tended to overcome the ethnic inequities that plague so many other Muslim polities.

As fair and ethical reporters, their job is neither to be critical or supportive, but to report. Their function also includes the obligation to editorialise, to equally present the news, and to be a check on arbitrary and capricious acts by any segment of government or the private sector.

At the same time, no individuals in the Malaysian or other Muslim nation-states should be allowed unlimited freedom to ridicule, disparage, or scandalise members of differing faiths or religions, or make public comment that may result in breakdown of social order. The right to criticise and comment must be exercised responsibly and within the limits of propriety appropriate to the social realities of the country, which have remained remarkably peaceful.

Various charges other than sedition may be invoked to discipline those who compromise the public peace. These range from injunctive relief such as civil orders which have been sought by the New Straits Times and others, to criminal charges available in civil and Syariah law which do not carry the punitive elements that a charge of sedition evokes.

The government of the day should be particularly cautious when framing such charges, so as not to alienate substantial segments of the citizenry, as the present government sometimes seems to be doing, in spite of its apparent wish for renewed public support.

Although the American Patriot Act 2001 to some extent followed the examples of Malaysia’s ISA and other similar laws, the conditions necessitating passage of such acts now seem to have stabilised to the extent that Malaysia should take the “moral high ground” by recognising the abuse of principles of justice and fairness that may accompany their enforcement.

Trans-border terrorism, like the world of international crime, can never really be completely stamped out by allowing erosion of justice within civilised countries and passing a statute and giving it extra-territorial effect without any provisions for due process.

Malaysia should be in the forefront of declaring her freedom from fear and freeing its citizenry from fear. Malaysia must assert her self-confidence, as well as her commitment to the principles of justice and fair play, by repealing the ISA, thereby setting an example which America and other countries may wish to follow in due course.

To do anything less than taking this timely initiative would be to forsake the bedrock principles of our faith, and to hobble the coming Muslim leadership of the world community.

The author is a Kuala Lumpur-based lawyer and the Vice President of Muslim Youth Movement of Malaysia (ABIM).

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