State of emergency thrives on imaginary crises

Four states of emergency are still in operation in Malaysia, and the laws framed under them are being wielded by the government to tackle the ‘threat from inside’

To a government headed by a self-styled champion of the inscrutable values cherished by ‘Asian societies’, the Human Rights Commission of Malaysia, or SUHAKAM, had this to say - “Based upon the numerous memoranda presented to SUHAKAM, the Commission concludes that there is an increasing demand for a more transparent and accountable government that protects and promotes human rights… Detention without trial, the continuous state of emergency, discrimination against women, native customary rights and the ratification of various international human rights instruments are all issues that SUHAKAM have identified as deserving its priority attention.”

Malaysian Prime Minister Mahathir Mohamad for his part employs several tools to safeguard his values. Among these are the Emergency Regulations framed under the various states of emergency declared throughout Malaysia’s history.

Since independence, five states of emergency have been declared under Article 150 of the Federal Constitution. The first was the only one to have been revoked. The remaining four are still in operation. The second state of emergency was proclaimed in September 1964 when the country was faced with a campaign of violence from Indonesia. Although the threat ceased within less than two years, the state of emergency was never revoked.

The next state of emergency was declared on 14 September 1966 following the dismissal of the Chief Minister of the state of Sarawak. No violence - or threat of violence - resulted from the crisis. The government nevertheless proclaimed an emergency, confined to Sarawak. And although the crisis was soon resolved, the state of emergency was not revoked.

The fourth proclamation came on 15 May 1969 following large-scale rioting and racial violence in the capital, Kuala Lumpur, during a general election. The violence led to several hundred casualties. As a result, further elections were postponed and parts of the Constitution suspended. Normalcy was restored soon - the legislature was reconvened and normal constitutional government restored in February 1971. However, the state of emergency was never revoked.

On 8 November 1977, the fifth Emergency, limited to the state of Kelantan, was declared following a political crisis.

For most of its post-independence history, therefore, Malaysia has been in a continuous state of emergency. SUHAKAM, in its maiden report submitted to Parliament on 19 April 2001, noted that none of the four proclamations of emergency in 1964, 1966, 1969 and 1977 had been revoked and that this “perpetual state of emergency” continues although the reasons that led to the proclamations no longer exist.

Notably, the Proclamations also enable the Government to promulgate emergency regulations even when both Houses of Parliament are in session.

Several Acts, decrees and other exceptional laws were passed under each of these Proclamations. Some of the key regulations- used more widely and frequently than the rest - were framed under the Proclamation of 1969.

Ninety-two Ordinances were promulgated under the Proclamation of 1969. The most visible case brought under this regulation was that of former Deputy Prime Minister Anwar Ibrahim. Anwar charged under Section 2(1) of the Emergency Ordinance 22 (Essential Powers) of 1970 with alleged abuse of power while in office, convicted, and sentenced to six years in prison in April 1999.

Another key regulation brought under the 1969 Proclamation was the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The Ordinance is one of the three laws - the other two being the Internal Security Act 1960 and the Dangerous Drugs Act (Special Preventive Measures) 1985 - which permit the Government to detain suspects without judicial review or the filing of formal charges. Under the Ordinance, police officers have the power (i) to arrest without warrant and (ii) to detain for up to 60 days any person who may be suspected of acting prejudicially to public order or whose detention is necessary for the “suppression of violence, or the prevention of crimes involving violence.”

The number of those detained under the 1969 Emergency Ordinance has risen significantly - in 1995, there were 447 persons in detention under the Ordinance, up from 200 in 1994. By 2000, this figure had grown to 31,418 - nearly 60 times the number in 1995.

Also promulgated under the 1969 Proclamation was the Essential (Security Cases) Regulations 1975. The Regulations classified certain offences as “security offences” and prescribed modified procedures for the arrest, detention and trial of persons suspected of committing such offences.

The Essential (Security Cases) Regulations governing trial procedure normally apply only in firearm cases. In cases tried under these regulations, the standards for accepting self-incriminating statements by defendants as evidence are less stringent than in normal criminal cases. Also, the authorities may hold the accused for an unspecified time before making formal charges. The Attorney General has the authority to invoke these regulations in other criminal cases if the Government determines that the crime involves national security considerations, but such cases are rare.

The Essential Regulations were invoked in September at the beginning of the trial of the 29 members of the Al-Ma’unah sect who were accused of having stolen weapons and ammunition from two military camps by impersonating army officers in July 2000. They were charged under Section 121 of the Penal Code for “waging war” against the King, which carries the punishment of death or life sentence, or a fine, if found guilty. The judge ruled that the use of the emergency regulation to prosecute the Al Ma’unah members for 'treason' was valid. Three members of the sect were sentenced to death in December 2001.

Finally, the Emergency (Essential Powers) Act 1979 [Act 216 of 1979] enacted as a statute the Emergency (Essential Powers) Ordinance 1969 and validated all legislation under that Ordinance, some of which had been held to be invalid by the Privy Council. This Act also immunised from judicial review any law passed under Part XI of the Federal Constitution. The Emergency Essential Powers Act also prevents any suit from being brought against a police officer over any action by him during an emergency period, as long as he can show that his action was in “good faith.”

This facilitates rights violations such as extrajudicial killings, as in the case of Selvamalar Natarajan. On 2 October 2, 1998, Selvamalar, 32 weeks pregnant at the time, was shot dead inside her house, along with her husband, another young woman and two men. According to the police, the deceased were wanted in a kidnapping case and the approaching SWAT team was shot at from inside the house, forcing the police to return fire. The children of Selvamalar, who died of a shot to the head, sued the police for negligence and wrongful killing. In its defence, the government had invoked the Emergency (Essential Powers) Act 1979.

The emergency regulations thus sweep across a vast spectrum of fundamental rights and liberties. Under international law, states can sometimes justify non-compliance with some human rights guarantees on the basis of a public emergency that threatens the life of a nation. The current situation in Malaysia does not warrant any deviation from human rights norms, let alone a state of emergency.

Any declaration of a state of emergency, and thereby derogation of other human rights, must comply with four requirements: an exceptional situation must exist which involves imminent danger; the emergency must be officially proclaimed and of temporary duration; the adoption of exceptional measures must be one of after other means have failed; and the measures adopted must be proportional to the danger. The essence of these principles is enshrined in Article 4 of the International Covenant on Civil and Political Rights (ICCPR). More generally, the UN Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 1988/24 - Question of Human Rights and States of Emergency (E/CN.4/1989/3) in September 1988 in which it reaffirmed the basic principles pertaining to states of emergency.

There are currently no exceptional circumstances in Malaysia that would warrant a state of emergency or the use of emergency powers. No such threats to the State exist, whether internal or external. In fact, seven general elections and numerous state elections have been held since the last nationwide emergency was declared in May 1969.

Along with other draconian legislation such as the Internal Security Act (ISA) and certain clauses in the Criminal Procedure Code, the emergency regulations often serve to further political interests. The Anwar Ibrahim trial, for example, brought into sharp focus the arbitrary nature of laws such as the ISA and the Emergency (Essential Powers) Ordinance, and the ease with which they can be used to crack down on political dissent.

The Government's disregard for basic human rights is also evident in its dogged refusal to sign and ratify key international instruments. It is yet to sign and ratify the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Political Rights (ICESCR). Of the 25 major international human rights instruments, Malaysia has ratified only five, while one has been signed, but not ratified.

The Government's defence rests on the specious theory of ‘Asian values’ which emphasises ‘duties’ instead of rights on the grounds that human rights is a Western concept out of tune in Asian societies that place the community ahead of the individual. Propounded by Mahathir among others, the theory is regularly used to dismiss concerns about the human rights situation in Malaysia and other non-Western countries, but in reality is simply an excuse for authoritarianism. In a recent interview, Mahathir stated he believed the multiracial, multireligious, multicultural and multilingual differences among Malaysians made open debate dangerous. He continued: “The threat is from the inside... so we have to be armed, so to speak. Not with guns, but with the necessary laws to make sure the country remains stable.”

With not one but four Proclamations of emergency running concurrently, Mahathir has ensured that there is no dearth of weaponry to choose from. Whether the growing armoury of laws will tackle ‘internal threats’ remains to be seen. For now, however, the State and its apparatus have taken Mahathir’s declaration to heart.