[Editor’s Note: This is the fourth entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]
—Dian AH Shah, National University of Singapore
In the wee hours of May 10, Tun Dr Mahathir Mohamad convened a press conference declaring that the Pakatan Harapan (PH) coalition had won the 14th General Election, having secured 113 parliamentary seats. Chants of “Hidup Tun!” (“long live Tun!”) accompanied the proclamation, made even before the Election Commission (EC) officially announced the results just hours later. There was a palpable sense of astonishment at the immensity of the occasion – a change in government for the first time since independence – but there was also much anxiety amongst those hopeful about the future. PH’s victory raised expectations for legal and political reforms, with the hope that these would remedy the rapidly declining quality of democracy in Malaysia during the Najib Razak administration.
In that same press conference, Mahathir declared that the new government wished to restore the rule of law. He did not elaborate on what he meant by this or indeed how the new government intends to fulfill the pledge. A month after the new government was installed, there is still no indication of a concrete plan of action to ‘restore the rule of law’, apart from the setting up of the Institutional Reforms Committee. This appears to dovetail PH’s long term election pledges, which include the renewal of main institutions in the country and the proposal to introduce two-term limits to the offices of the prime minister and chief minister. These two pledges raise broader, yet crucial questions about potential constitutional design and reforms following the PH’s victory in the recent elections. In this contribution, however, I shall highlight the prospects and potential challenges in restoring the rule of law by focusing on key constitutional rights issues in the context of a country where race and religion remain socially and politically salient.
An Inherited and Entrenched Decay
There is no mistaking that the decay in the rule of law, as well as deeply rooted institutional problems, have contributed to the slew of problems that Malaysia has faced and continues to face. Aside from the allegations of corruption and financial scandals that have plagued the country for several years, Malaysia has witnessed the passing of controversial laws, which was made possible by Barisan Nasional (BN)’s dominance in the Federal Parliament.
The seeds for the decay – to be sure – had been sown even before former Prime Minister Najib Razak assumed power. For example, judicial independence has been a glaring problem since the executive attack against the judiciary in 1988, which led to the removal of several judges from the then Supreme Court. The Malaysian judiciary has never really recovered from that episode of blatant government interference against it. In addition, the government engineered and passed a constitutional amendment in 1988 which removed a provision that vested judicial power in the judiciary. Against this background, and faced with a dominant (to some extent even authoritarian) executive, the judiciary tended to be rather compliant in cases of restrictions on democratic rights and freedoms.
For decades, there was an emphasis on the need for a powerful executive that also enjoyed a strong legislative majority, on the basis that the government should be able and allowed to rule expediently with little or no ‘irritants’ from dissent, opposition, and even legal limits imposed on exercises of power. With a strong parliamentary majority, little regard was paid to constitutional supremacy or the separation of powers; instead, the constitution and its provisions proved to be malleable to suit the agenda of the government of the day. All this, and more, contributed to the culture of impunity, the sheer lack of accountability, and the deficient checks and balances that we see today. These, in turn, have not only bred corruption and the misuse of public funds; they have also – as I shall explain below – adversely affected the protection of constitutional rights and racial and religious relations in the country.
Reforming Laws on Speech, Expression, and Information
The backdrop to some of the most regressive laws and policies has not only been about deficient rule-of-law institutions, but also explicit constitutional provisions that facilitate the exercise of sweeping powers by the government. Consider the freedom of speech and expression – the exercise of which could encourage the exchange of information, critique, and debate, and serve as an alternative means of checking against the abuse of power. Article 10 of the Federal Constitution of Malaysia guarantees citizens the right to freedom of speech, assembly, and association. Yet, it also confers broad powers and authority on the Parliament to restrict such freedoms on the grounds of public order, national security, and the ‘incitement to any offence’, whenever it ‘deems it necessary and expedient’. In addition, there is Article 11(4) in the religious freedom provision which allows state legislatures to enact laws to restrict propagation of religion among persons professing the religion of Islam.
A lot has been written on the implications of these constitutional provisions. Article 11(4), for example, has facilitated the emergence of laws regulating religious teaching, particularly for the minorities. This includes Muslim minorities such as the Shias and the Ahmadis, but the Malaysian experience has shown that even Sunni Muslims who preach or propagate teachings that do not conform to the state-endorsed version of Islam (which is enforced by requiring preachers to obtain prior authorization from state religious bodies) could be subject to sanctions. We might also recall the ‘Allah’ case, where the use of the word ‘Allah’ in a Catholic publication was seen as a manifestation of religious propagation that could ‘threaten’ Islam. As a result, the Court of Appeal upheld a government regulation prohibiting the Catholic Church from using ‘Allah’ as a reference to God in its publications. These examples illustrate the ways in which the state has utilized formal constitutional provisions to control religious discourse, ostensibly to maintain religious harmony. In reality, however, these policies have not only alienated non-Muslims, they have also constricted the development of Islamic thought and emboldened religious bureaucracies whose exercises of power are rarely questioned so long as they purport to act in the interests of Islam and the Malays.
Aside from these cases, there is a host of statutes that have generated a culture of impunity and restricted government accountability by curbing freedom of expression and greater access to information. The Communications and Multimedia Act 1998, the Official Secrets Act 1972 (OSA), and the Sedition Act 1948 have long been used to stifle dissent and silence government critics. The latter two are remnants of Malaysia’s colonial past, and in the case of the Sedition Act, the Najib Razak government had previously promised to abolish the law. This, of course, never happened; instead, there was a surge of sedition charges against opposition politicians, academics, activists, and journalists in 2015 to 2016. In 2016, an opposition politician – Rafizi Ramli – was charged and convicted under the OSA. His crime was releasing classified information relating to the 1Malaysia Development Berhad (1MDB) financial scandal. Rafizi was then sentenced to 18 months in jail for exposing a page of 1MDB’s audit report on his website and the custodial sentence meant that he could not contest in the recent general elections. Most recently, the Anti-Fake News Act, which was swiftly passed in Parliament just two weeks before the elections, dealt another blow to freedom of expression. The Act is broadly worded, and the vague definition of what amounts to ‘fake news’ means that the government wields considerable powers to suppress speech or opinion. While the previous government maintained that the Act targets news and information prejudicial to racial and religious harmony, and furthers national security (purportedly by protecting the country from foreign interference), critics are concerned that law would be used to silence discussions on contentious issues ahead of the elections, such as the 1MDB scandal.
Thus, in thinking about potential reforms as Malaysia enters its ‘new dawn’, it is crucial to identify the different sources of decline in the rule of law and quality of democracy. Decades of institutional degeneration is one factor, but it is also worth noting that aspects of the Federal Constitution itself are not hospitable to a strong regime of rights protections, separation of powers, and checks and balances. There are laws implicating speech that are ripe for amendment or even complete repeal, but the new government could also capitalize on the momentum and euphoria for change by initiating constitutional amendments to strengthen the Malaysian democracy. My point – to put it more bluntly – is that aside from thinking about institutional renovation, reforming laws on speech, expression, and access to information, which form the bedrock of a healthy democracy, should also be prioritized.
The question is how? Important lessons may be drawn from democratic transitions and political change in the region; closest to home, Indonesia could provide an instructive example. Although Indonesia has experienced serious democratic backsliding in recent years, its achievements in democratization and political reform after the fall of Soeharto remain one of the ‘great success stories’ of the third wave of democratization. In the early stages of democratic transition, the Majelis Permusyawaratan Rakyat introduced decisive electoral reforms, passed Law No. 39/1999 on Human Rights, liberalized laws regulating the press, and powered through four years of constitutional amendments, which led to the inclusion a comprehensive set of fundamental rights guarantees and the birth of the Constitutional Court. For the first time, Indonesians began to enjoy meaningful freedom of speech and expression without violent suppression from the government; and the previously-muzzled press was afforded space to critique government policy. By many accounts, the Indonesian experience was of course imperfect, and the quality of its democracy remains debatable. But the reforms not only triggered the development of a vibrant media landscape in Indonesia and encouraged the exchange of information; it also introduced alternative means of holding the government to account and rejuvenated intellectual discourses on social and political issues.
Going back to the Malaysian case, there are indications that the new government is committed to encouraging the free flow of opinions, debates, and ideas, as well as enhancing government accountability. The Minister of Communication’s announcement that the PH government would propose a repeal of the Anti-Fake News Act is a step in the right direction. He has also pledged to allow greater media freedom, revamp the role of RTM (Radio Televisyen Malaysia) – the state media outlet that has traditionally been tightly controlled and served as a tool for government propaganda – and propose to constitutionalize the right to internet access. The latter, if realized, could mark a significant milestone in Malaysian democratic development, especially as it could afford Malaysians alternative spaces and sources for information. In that vein, if the PH government is indeed dedicated to the rule of law, good governance, and transparency, it is worth thinking about instituting a right to information regime that would allow citizens to demand information from a public authority on matters of crucial public importance.
The Politics of Reforms?
As it stands, the PH government has the necessary numbers in the Federal Parliament to move policies and reforms on ordinary laws. Constitutional amendments, however, require a two-thirds vote, which means that cross-coalition support would be necessary. In any case, as potential legal, institutional, and political reforms are contemplated and set in motion, we also have to be mindful of continuing salience of ethnic (i.e., race and religion) politics in the country. Indeed, the flagrant politicization of race and religion – which has been particularly marked in the past decade – has narrowed the space for critical discussion of racial and religious issues. The upshot is that in some cases, such politicization has defined the boundaries of the exercise of rights (such as the ‘Allah’ case); where there was pressure to maintain or expand political power by appealing to the dominant ethnic group, it has emboldened majoritarianism and alienated minorities; and where there were cases implicating decision-making of public authorities representing particular racial and/or religious significance, such politicization has prevented scrutiny of the use of public power and resources. All this has conspired to undermine democracy and cultivate intolerance in social and political life.
Compounding this is the prospect of an UMNO-PAS alliance in parliament to advance a majoritarian, ethno-centric agenda as they seek to destabilize and discredit the PH’s interethnic coalition. Indeed, even as the Cabinet line-up was announced, opposition-linked commentators attempted to stir ethnic animosities by claiming that the government would soon be dictated by the non-Malays and non-Muslims. Any course of reforms, therefore, will inevitably face and could potentially be shaped by the dynamics of ethnic politics. For example, could the Sedition Act be amended or repealed, given that it has been used to stifle critical discussions about special bumiputera (sons of the soil) privileges spelled out in Article 153 of the Constitution? Could the government initiate reforms of religious institutions (such as JAKIM – the federal body tasked to oversee Islamic affairs and development) so as to subject them to higher standards of financial and decision-making accountability? These questions and issues loom in the horizon for the new government and it remains to be seen whether it will meet (or exceed) the hopes and expectations placed upon it.
Suggested citation: Dian AH Shah, Restoring the Rule of Law: Constitutional Rights in the Face of Ethnic Politics, Int’l J. Const. L. Blog, Jun. 25, 2018, at: http://www.iconnectblog.com/2018/06/restoring-the-rule-of-law-constitutional-rights-in-the-face-of-ethnic-politics/
 See Andrew Harding, The Constitution of Malaysia (Hart Publishing 2012) 213-215.
 An example is the case of a former Mufti of the state of Perlis, Dr Mohd Asri Zainul Abidin, who was detained and investigated by the Selangor Religious Affairs Department in 2009 for preaching without authorization (tauliah). See ‘Former Perlis mufti to be probed, no charges yet’, The Edge (2 November 2009), http://www.theedgemarkets.com/article/updated-former-perlis-mufti-be-probed-no-charges-yet
 Jaclyn Neo, ‘What’s in a name? Malaysia’s “Allah” controversy and the judicial intertwining of Islam with ethnic identity’ 12(3) International Journal of Constitutional Law (2014) 751; Dian AH Shah ‘The ‘Allah’ Case: Implications for Religious Practice and Expression in Malaysia’, 4(1) Oxford Journal of Law and Religion (2015) 141.
 Menteri Dalam Negeri & Others v. Titular Roman Catholic Archbishop of Kuala Lumpur, (2013) 6 Malayan Law Journal 468
 Human Rights Watch, Creating a Culture of Fear: The Criminalization of Peaceful Expression in Malaysia (New York: Human Rights Watch, 2015), https://www.hrw.org/report/2015/10/26/creating-culture-fear/criminalization-peaceful-expression-malaysia.
 Rafizi subsequently appealed to the Court of Appeal, which substituted the jail sentence with a good behavior bond. See ‘Rafizi gets good behavior bond instead of jail’, The Star Online (2 June 2018), https://www.thestar.com.my/news/nation/2018/06/02/rafizi-gets-good-behaviour-bond-instead-of-jail/.
 Section 2 of the Anti-Fake News Act 2018 (Act 803) defines ‘fake news’ as ‘any news, information, data and reports, which is or are wholly or partly false’. Interestingly, the Act provides a list of illustrations of offences. One instructive example is as follows: ‘A publishes an advertisement containing a caricature of Z depicting Z as a successful investor in an investment scheme knowing that Z is not involved in the investment scheme. A is guilty of an offence under this section.’ (section 4(3)(d)).
 See Edward Aspinall, ‘Twenty years of Indonesian democracy—how many more?’, New Mandala (24 May 2018), available at: http://www.newmandala.org/20-years-reformasi/; Donald L. Horowitz, Constitutional Change and Democracy in Indonesia (Cambridge University Press 2013).
 See Aspinall, ibid.