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Wednesday, November 7, 2007

In the name of Merdeka!

Aliran (7/11/2007): Merdeka survivor Hamid Ibrahim, who witnessed the lowering of the Union Jack at the Selangor Padang, urges Malaysians to remember the very foundations on which the country was built.

As a survivor of the years between 1957 and 2007 I wish to tell you about my memories of Merdeka day and then, put it in the context of some challenges that I think we must address if this nation is to move ahead in a meaningful and significant way.

On the day the Union Jack flag was lowered at the Selangor Club Padang, I was there. The crowd of roughly 2,000 – mainly city folks - was very happy. By the next morning, 31 August, when Independence was declared at the Merdeka Stadium, the crowd had swelled to 10,000. And when Tunku shouted Merdeka, Merdeka and Merdeka, their roar tore down the heavens! An air of great expectations of the future hung over the place, an energy that consumed and embraced us all that day.

In his proclamation of independence, Yang Teramat Mulia Tunku Abdul Rahman Al-Haj declared:

PROCLAMATION OF INDEPENDENCE
IN THE NAME OF GOD, the Compassionate, the merciful. Praise be to God, the Lord of the Universe and may the blessings and peace of God be upon his messengers……..

Now in the name of God the Compassionate, the Merciful I, Tengku Abdul Rahman Putra ibni Al-Marhum Sultan Abdul Hamid Halimshah, Prime Minister of the Persekutuan Tanah Melayu, with the concurrence and approval of Their Highnesses the Rulers of the Malay States do hereby proclaim and declare on behalf of the people of the Persekutuan Tanah Melayu that as from the thirty first day of August, nineteen hundred and fifty-seven, the Persekutuan Tanah Melayu comprising the States of Johore, Pahang, Negeri Sembilan, Selangor, Kedah, Perlis, Kelantan, Trengganu, Perak, Malacca and Penang is and with God’s blessing shall be forever a sovereign democratic and independent State founded upon the principle of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations. (Italics mine)
The Tunku expanded on the event in his 1978 book My Viewpoint on page 40:
“Independence was a great occasion for celebration in Malaya and for me it was the greatest achievement of my life. As a politician and Prime Minister I based my policy on common-sense, fairness and justice with my mind on happiness and peace for all, believing deeply that a leader must be able to give peace to the country and happiness to the people.”
Federal Constitution

Our Federal Constitution is the only document in the world framed by non-Malaysians. There were no Malaysians in the Reid Commission whose members were:

• Lord Reid, (British)
• Sir Ivor Jennings, (British)
• Sir William MeKell, (Australian) ;
• Mr. B. Malik, (an Indian Judge) and
• Mr Justice Abdul Hamid (a Pakistani Judge)

The reason for this was that in 1957, Malaya did not have persons with much experience in constitutional affairs. Therefore, now after 50 years, I cannot think of a more ripe time to set up a Commission to take a holistic review of the Federal Constitution and bring it up to speed with how the world has changed. After 50 years of ad hoc changes to the Federal Constitution, we are currently facing a number of problems, such as Islamic Family Law, Labour Law and Child Act. It is reported in the media that more than 400 juveniles are held in prisons.

For example, the American Constitution was drawn by the Americans and the Indian Constitution was drawn up by Indians. Now there are Malaysians of standing – e.g. retired judges, former Bar Council presidents and leading minds with constitutional law experience.

Tun Dr Mohamed Suffian on the Malaysian Constitution

Tun was interviewed by Faridah Hamid for the Malaysian Law News (the October 1994 issue).

Tun Suffian flecks his commentary of the Constitution as it stands today, with humour. He relates a story about an English professor who went to India to buy a book.
“The professor asked the shop-keeper for a copy of the Indian Constitution and the shop-keeper said: Sir, we don’t sell periodicals,” his inimitable chuckle breaking into a laugh.

“Well, our constitution is like a periodical. Every year, sometimes twice a year, its amended. Half the book on the Constitution has been amended, but Parliament keeps on amending and amending. I can’t keep up, you know, so I stopped for a while.”
Allahyarham Tun Dr Mohamed Suffian spoke to Faridah about Tunku Abdul Rahman

The Tunku was adroit at politics and public relations, Tunku was a wonderful man. He is very clever. Dia tahu ambil hati orang. If you go to his house, any time of the day or night, you see people there, laughing and joking. We needed a man like him at that time, because he spread goodwill and friendship. Only he could win independence without bloodshed, and he did it. He kept the different races happy.

My public service

Two years before independence, I joined the Public Service in 1955 as a stenographer and was posted to the Ministry of Agriculture and Fisheries. The ministry had only 10 staff – the Minister (Allahyarrham Aziz Ishak), Secretary General F G Fathers, one assistant secretary, one executive secretary, one personal assistant, three clerks, one stenographer and office boy. Now, there are probably thousands in the same Ministry. When F G Fathers retired the ministry staff gave him a farewell dinner at a restaurant next to the Odeon Theatre.

In 1987, I had the opportunity to meet the beloved YTM Tunku Abdul Rahman at his Residence in Kuala Lumpur. He was very kind to receive me and my son Nasser. I handed the Tunku a book on Malaysian Constitution and The Malaysian Law Dictionary written by me in 1986. It was one of the proudest moments in my life. He was a humble and most gracious host. The meeting was peppered with many instances of laughter as he had a great sense of humour.

Law reform

Many people will be surprised to know that most of our laws are Indian Laws, e.g. the Evidence Act, The Criminal Procedure Code, the Penal and the Contracts Act and so on. In an article I wrote on law reform in Malaysia in the Malaysian Law News, which appeared in 1992, I stressed the need for a permanent Law Reform Commission (LRC), which could look into outmoded existing laws and update them. All the Commonwealth countries in the world have LRCs.

Currently, in Malaysia, this function is performed by one person in the Attorney-General’s Chambers. He has no authority to ‘reform’ the law. His power is limited to simple grammatical matters and to consolidate the amendments. Please click here for further information on law reform commissions.

Economic development

There are some who shout from roof tops that the Malaysian economy is at its peak and that we are a developed country. But all one needs to do is look at the news and see that this ‘development’ is generally not tempered with sensitivity to the environment and happens in market centre pockets (KL, JB). Poverty, crime, and underdevelopment are commonplace.

What about a fair and just public service delivery system, a dynamic education system, family and social values? All you need to do is ask any Malaysian, and they will admit these ‘human’ developments are paid lip-service and are on a dramatic decline. The government media should also focus on the kampong poverty.

State of Emergency!

Although Emergency officially ended in 1960, a number of rules and regulations continue in the statute books They have not been repealed. Therefore, we are even today under Emergency rule. – see Governments and Crisis Powers by Dato Dr. Cyrus Das CLJ (1996):
“Since independence, Malaysia has been under a continuous state of Emergency except for the short period between July 1960 and September 1964…. The emergency provisions of the Malaysian Constitution are therefore amongst its most overworked Parts.” – page 43
Internal Security Act, 1960

This Act was originally meant for a short period only but it has been in existence for nearly 47 years. According to YTM Tunku Abdul Rahman, the ISA was :
“…designed and meant to be used solely against communists … ISA would never be used to stifle legitimate opposition and silence lawful dissent”– Far Easter Economic Review, 3 Dec 1987
To honour the Tunku’s promise and to fulfil the above statement, the government should repeal this obnoxious piece of legislation which was not supposed to be permanent but only as a temporary measure and release all political detainees so that they can also celebrate the Golden Jubilee of Merdeka.

Crime rate

In 1957, there was practically no crime – but what is the position today? There have even been allegations against the ACA chief and the IGP – two people whose character must be above any reproach.

If we look at the media daily, we see that there is murder, rape, incest and all sorts of crimes including commercial crime (white collar crime). Apart from this the government is losing billions of dollars in tax evasion, customs duties. The loopholes in the law should be plugged.

Deaths in police custody

In an article in the Malayan Law Journal, Gerald Gomez, a senior Advocate and Solicitor, wrote that a number of people had died in police custody. There are also decided judgments on this issue. Currently, the government is also being sued by many people affected. See [2003] 2 MLJA 129.

In conclusion, in the name of Merdeka, let us remember the very foundations on which this great nation was founded, lest we forget that:
“The accumulation of all powers - legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” - James Madison,The Federalist Papers.

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