BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
RECENTLY I wrote of a fresh danger against dissident voices: the newly-minted Section 124B of the Penal Code. It provides for a jail term of up to 20 years on conviction of an offence for “activity detrimental to parliamentary democracy”.
Now it has come to pass.
Datuk Seri Khairuddin Abu Hassan has been detained pending investigation under precisely this provision. His alleged crime as reported? Giving the attorney-general of Switzerland documents on the RM42 billion 1Malaysia Development Bhd (1MDB) issue, presumably for investigation. In short, seeking the help of another jurisdiction in respect of a possible crime.
The new crime of “activity detrimental to parliamentary democracy” is for doing anything “designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means.”
What activity will “undermine parliamentary democracy” is not defined.
Even lawyers are grappling with the meaning of this term. Without intending any disrespect, how much more difficult must it be for the police.
Legal commentators say this expression is “vague in the extreme” – referring to an identical expression in the UK Security Service Act 1989 (A Nicol, ‘National security considerations and the limits of European supervision’  EHRLR 37.)
What then is its ambit?
The reason given in Parliament by then de facto law minister, Datuk Seri Nazri Abdul Aziz was that this Section 124B (and related 124J – for passing documents) was meant to tackle terrorist activities. He cited an example: the Al Ma’unah episode – where a group of people raided an armoury to secure arms to overthrow the government. “Unconstitutional” was when it (clearly) went against the Constitution such as setting yourself up as a PM, he explained.
Decisions of other courts interpreting an almost identical provision may be instructive.
It was exclusively to combat terrorists who plan unlawful violence, said the highest English court, the House of Lords. It was a crime “against national security” involving engagement “in activities directed at the overthrow by external or internal force or other illegal means of the government of the country concerned …”: Secretary of State for Home Department v Rehman  1 A.C. 153.
Nazri’s reasons are completely in accord with this decision.
So “security” is the rationale.
That’s why Khairuddin is in jail pending investigations for 28 days on the say-so of a police officer under another new security law act – the Security Offences (Special Measures) Act 2012 (Sosma). (He was re-arrested – after being released by the court for the earlier arrest.)
This law, which replaces the ISA, dispenses with the need to get a remand order from the magistrate. It provides for the arrest and detention of any person based on the mere belief of a police officer of involvement in a security offence – defined as an offence under some sections of the Penal Code. This “undermining democracy” is one such crime – which extends to providing documents to others.
The legal fraternity and others have decried the arrest and detention as an abuse of power. After all how can seeking to staunch or expose a crime – by seeking the help of whichever jurisdiction and in whichever way – be undermining the security of our country?
Surely it cannot be illegal to ferret out the facts in relation to a purported illegal act. We have our very own 2010 Whistleblower’s Protection Act which makes that clear. It protects those who disclose improper conduct to combat corruption and other wrongdoings; and provides for these disclosures to be investigated. Before blowing the whistle facts need to be investigated through whatever channels.
The fact that the evidence was provided to outsiders instead of to him, says the IGP, amounts to an act of sabotage of Malaysia’s economy and sovereignty! And punishable as a security offence.
The logic is difficult to fathom. Aside from the need to ascertain the facts, in any event, the facts including documents in relation to 1MDB have long been in the national and international public domain – replete with strenuous denials and justifications.
The fact that a prime minister is at the centre of the 1MDB complaint is of no consequence in the eyes of the law.
Lord Denning, whose judgments our courts cite ever so frequently, warns:
“To every subject of this land, however powerful, I would use Thomas Fuller’s words over three hundred years ago, ‘Be ye ever so high, the law is above you’.”
Heads of governments have tumbled – invariably reinforcing, rather than undermining, democracy. US President Richard Nixon and more recently the Guatemalan president are classic examples.
The speaker of the Australian Parliament was forced to resign last month because of public anger over her travel expenses (albeit within her entitlement) of a relatively paltry sum of taxpayers’ money including A$5,000 (RM15,460.22) on an 80km helicopter ride for a political fund-raiser. She finally relinquished her position “out of love and respect for the institution of Parliament …”.
To be sure, this article does not prejudge any outcome of the 1MDB investigations. Nor ascribe guilt to anyone.
What it does say unequivocally, with respect, is that the use of these new provisions (aside from the act’s many other pernicious elements) seems to fly in the face of the explanations given as to the purpose for which the law was intended.
Does it not then smack of an abuse of power for an extraneous purpose?
Gurdial is professor at the Law Faculty, University of Malaya, and HAKAM Deputy President.