Challenges on the issue of citizenship
As part of the compromises achieved through the social contract, on Merdeka Day, 31 August 1957, 1.3 million migrant non-Malays were granted citizenship. Part III of the Federal Constitution which provides for various modes to acquire citizenship does not impose race or religious prerequisites. Under Article 119 of the Federal Constitution, every citizen regardless of race or religion or community who satisfies the age requirement has an equal right to vote and to seek elective office at both federal and State levels.
The voice of an ordinary citizen will serve to illustrate how sensitive this issue is today and how closely developments are being watched because of the recent actions of certain politicians. S. Sundareson, a former registrar of citizens at the National Registration Department in Petaling Jaya from 1969 to 1975 felt moved to clarify the provisions in the Federal Constitution relating to citizenship in response to the Home
Minister's statement in the Dewan Rakyat on 29 October that a child's citizenship is determined by the parents' marital status and citizenship.
After explaining the basis for acquisition of citizenship, he concluded by emphasizing that, "It is imperative that the provisions in the Constitution are not given a narrow interpretation and so deny lawful citizens of their birthright."
Ladies and gentlemen,
WHAT WILL BE
Wither the Sedition Act 1948?
It is trite that the law is not the solution to all of society's ills. Charles Samford, eminent Australian ethicist and law professor, propounds that over reliance on the law is unproductive. This is because law does not change, and cannot control, human behavior.
Based on media reports it appears that there is a nationalistic struggle going on about the future of the Sedition Act 1948. Those that advocate its wholesale repeal and substitution with a "national harmony", "race relations" or "hate-crime" type legislation modeled on the laws in the United Kingdom, Australia, Canada and the United States of America say that it is archaic. However those that fear its repeal will lead to social disorder, anarchy or compromise of the special position of the Malay Rulers, which in turn would jeopardize the Malay Rulers ability to uphold Islam and safeguard Malay/ Bumiputra rights, now argue for its retention.
The Government has stated that it is still in consultations with all stakeholders on the construct of the new legislation, be it a new law or amendments to the existing law. The Government has refused to be hurried even though the first-mentioned groups insist that the Honourable Prime Minister uphold his promise on 16 April 2012 to review the Sedition Act 1948.
What then are the options? If there is consensus that contempt of court and criticism of the administration and the Executive no longer warrant being treated as having "seditious tendencies", perhaps these can be dealt with under separate laws.
My personal opinion is that contempt of court should be enacted as a separate law - a new Contempt of Court Act, modeled on the United Kingdom legislation. But the courts must also be serious in taking action for contempt against itself, that is contempt in the face of the court. In my view also, criticism of the Government is part of democracy and not an issue. If lies are put up, suits for defamation can be filed.
On the other issues, namely the special position of the Malay/ Bumiputra and the special position and privileges of the Malay Rulers, I believe it would be a problem to take these out of the realm of sedition and the Sedition Act 1948. I would like to make it clear that this is because these matters are embodied in the Federal Constitution. Therefore, they will have to be protected under the Sedition Act 1948 unless those provisions themselves are first amended. The position of Islam and the citizenship rights of the non-Malays must also be similarly protected. If non-Malays satisfy the citizenship requirements, so be it. That was part of the social contract. For the rights of Sabah and Sarawak, these were the very basis for the two States to form Malaysia and the rights are contained in the Malaysia Agreement. They should be honoured.
If this approach is agreed, it would enable the Sedition Act 1948 to revert to dealing with serious threats which undermine the security, sovereignty and dignity of the nation and the special position of the Malay Rulers. It would thus allow sedition to be used as a jealously guarded, ultimate safeguard, for social order and national harmony.
With regard to the proposed national harmony legislation, it is noted that on 11 July 2014 at the Attorney General's Chambers Dinner with the Prime Minister, the Honourable Prime Minister had set out the principles which would guide the formulation of the proposed legislation.
These principles were essentially the Prime Minister's guarantee that nothing in the new law would incite hatred and contempt or disloyalty to the Yang di-Pertuan Agong or any Ruler. The new law would also proscribe promotion of ill will and enmity among races or different groups of peoples in Malaysia, and would prohibit the questioning of any rights, position, privileges, sovereignty and prerogatives as prescribed or protected under the provisions of Part III and Articles 152, 153 and 181 of the Federal Constitution.
This is a guarantee that has also been reaffirmed by the Attorney General's Chambers in taking up the gauntlet to prepare this new era legislation for Malaysia.
PEGUAM Negara, Tan Sri Abdul Gani Patail menyampaikan ucaptama pada Persidangan Undang-undang Kebangsaan yang bertemakan "Law and Social Order: Current Challenges in Malaysia" anjuran Institut Latihan Kehakiman dan Perundangan (ILKAP) di Pusat Konvensyen Antarabangsa Putrajaya (PICC) di Putrajaya. - Foto Ahmad Irham Mohd Noor
Ladies and gentlemen,
Kropotkin said that, "When there is ignorance in the heart of society and disorder in people's minds, laws become numerous. [People] expect everything from legislation and, each new law being a further miscalculation of reality, they are led to demand incessantly what should emerge from themselves ..." In other words, everybody expects laws to change everything. But change can only from each one of us. It should also be remembered that in all religions, to forgive is divine.
We should learn from the experiences of others. The United Kingdom found that changing societal attitudes is a slow process and legislation is only effective if it is correctly implemented and at the right time. The only way to combat discrimination and prejudice is through education and good behavior from ourselves. Canadian experience has shown that multiculturalism encourages racial and ethnic harmony and cross-cultural understanding. Mutual respect helps develop common attitudes and diversity is accepted as a national asset.
On the way forward, perhaps the Honourable Prime Minister of
Malaysia, Dato' Sri Mohd Najib said it best when he said that, "There is a need to manage polarities that exist in our society to achieve peace and harmony. I believe the best way to achieve this is through respect, tolerance, forgiveness and reconciliation." I would add that we should also not think ourselves better or holier than the other.
As the Prime Minister succinctly yet unequivocally further stated , "When we have a problem, we have to solve it. It is not difficult to achieve solutions to any problems. You do not have to know rocket science to find a formula for harmony. The solution is just rational thinking. ..."."
Therefore the solution has always been with us. We have seen it done by our forefathers. We have just forgotten how.
Ladies and gentlemen,
At the end of the day, the choice to preserve our own model of social order and national harmony lies in the hands of the citizens of Malaysia. And it will be our choices that will show what we really are - whether devils or angels. We have to believe that in the long run, Malaysians will do the right thing.
Allow me to conclude with a note of hope in the wise words of Dodi
Janki, Spiritual Leader, Brahma Kumaris, who said "During times of darkness, one lamp is not sufficient; we need lamps all over the place. When one light is lit, than many other flames can be lit from it." The Prime Minister alone is not enough. We all need to play our role.