In defence of the spirit of the Law


The case of Azmi Sharom vs the Federal Court is a battle to save a basic right for all Malaysians. But has it been lost already?

The verdict was delivered on the same week that Dr Azmi Sharom was scheduled to speak at the Nusantara Forum in Penang on October 10, which was jointly organised by Penang Institute and Gerakbudaya. The Federal Court upheld the constitutionality of the Sedition Act, which means that Azmi will have to stand trial later in the month for an allegedly seditious remark.

But that’s not all. That decision also has a larger implication on freedom of expression in Malaysia and affects more than 30 other politicians, activists and ordinary citizens whose cases under the Sedition Act were postponed while the constitutionality of the Sedition Act was being challenged by Azmi and his lawyers.

The decision to uphold the Sedition Act is only one out of four rulings that could have major implications on civil liberty. The other three are: local publisher Ezra Zaid lost his bid to nullify the Selangor state enactment which is being used to charge him for publishing a book deemed to be against the precepts of Islam; the apex court struck down a challenge to ban cross-dressing and thus dealt a major setback to the battle for the rights of the country's transgender community; and, lastly, the court also reversed a lower court’s decision to uphold freedom of assembly.

In Azmi’s words, the judgements “rolled back whatever progress we have made in the past 10 or 20 years.”

A bleak future

Azmi grew up in Penang in a family of teachers. Since he was outspoken and liked to debate, his elders suggested that he should study law, and it was in following that path that he became associate professor at Universiti Malaya (UM). His chosen speciality is environmental and conflict of laws.

But he wasn’t always the flamboyant law professor that we know today. It was only when he moved abroad to do his A-levels that he began to experience a certain awakening and began viewing the situation back home from a more critical perspective. “There’s a lot of distrust, and less interaction. When you have less interaction, it becomes harder to relate to one another.

“In a way, (segregated communities) are natural. You have areas where one ethnic group is predominant. If you grew up as the son of a farmer in Kedah, chances are your friends will be Kedahan Malays. Maybe (you’ll meet) one or two Chinese shopkeepers. But that doesn’t make you a racist. What makes you racist is the inability to see that one person isn’t any better than any other person based on ethnicity.”

The ponytailed professor sees danger in such isolation though. While being within a homogeneous group doesn’t necessarily make you a racist, it tends to make it easier to breed a racist mentality and nurture notions of stereotypes. “When you are in one ethnic group and when you talk about other groups in a toxic manner within that group, it quite easily creates this poisonous racist atmosphere.

“It requires a concerted effort to make people like that. You can see that in children actually, (especially when) their parents talk like that. You can see it in schools. Children don’t care about skin colour until someone makes it an issue.” Azmi puts the blame for worsening ethnic relations on the government. He cites the Red Shirt Rally in September as a case in point: “Those guys are blatantly racists. You have the Prime Minister coming out and openly supporting this group. Then there’s that unending saga of the New Economic Policy.”

He paints a bleak picture of the immediate future, saying the situation is worse now because the regime is insecure. “When they are insecure, they fall back on their primary weapon: racism. The more insecure they are, the more they will push the racial agenda because they want the Malays to feel that only Umno can help them.

“How can you expect to improve racial relations when the economics and politics of this country are not helping, are not conducive and in fact have been making (them) worse for the past 15-20 years?”

“If you are scared, don’t be a judge.”

Looking back on his university years in England, he reminisces over how developments at home added to his political awakening. In 1988 the Mahathir administration sacked the Lord President and carried out Operasi Lalang, an extensive crackdown that resulted in the arrest and imprisonment of hundreds of government critics, activists and politicians.

Recalling the episode now, Azmi, an ardent fan of Tottenham Hotspurs, by the way, says he was studying law at the University of Sheffield at the time. The university is known to be inclined to the left and critical of the establishment. Teachers are free to criticise government policies, and students are free to criticise teachers. “It wasn’t so much what happened in the UK (that left an impact on me), but at home. Watching it from afar, I saw how cruel they can be in the use of the Internal Security Act (ISA) and the sacking of the Lord President.”

Twenty-seven years later, his affection for the rule of law and separation of power hasn’t deteriorated. As the conversation steers towards the role of the judiciary in safeguarding the Constitution, Azmi’s tone becomes increasingly frustrated – one of a disappointed idealist. Citing Ezra Zaid’s case, he says the judges have abdicated their responsibility to uphold the Constitution and, instead, are sticking to a literalist interpretation of the law.

Ezra was charged under a state enactment (the Selangor Enactment on Syariah Offences) for publishing a Malay translation of Irshad Manji’s book, Allah, Liberty and Love, which was deemed to be against the precepts of Islam. He then brought the case to the civil court to argue that the Selangor enactment was unconstitutional.

His lawyers took the same approach as Azmi’s lawyers: they both argued that the Selangor enactment and the Sedition Act are unconstitutional because they are not legislated by Parliament. According to the Constitution, only Parliament, being the country’s only democratically elected national legislative body, can make laws to restrict expression.

Azmi says that the judges ruled that the Selangor Enactment was not about expression as such, and more about the punishing of acts that go against the “precepts of Islam”, which the states are allowed to do. And this, he claims, is tantamount to taking a literal interpretation of the Constitution without upholding its spirit and purpose.

As Azmi sees it, the law as it is written cannot be separated from the consequences that it has on fundamental rights. “You can call it whatever you want, but if it affects expression, it is against the Constitution. (In Ezra’s case) it affects publication and therefore expressions.”

Azmi speaking at the Nusantara Forum at The Star Pitt Street in October.

Going into the parallel existence of civil and syariah courts, we discuss its implications on equality among citizens. Malaysia has distinct laws applying to Muslims and non-Muslims. Whether it’s freedom of expression or freedom of religion, Muslims are bound to restrictions imposed by state enactments and federal laws. Does this violate Article 8 of the Constitution, which states that all persons are equal before the law and entitled to the equal protection of the law?

“You have to be very careful here,” says Azmi. “The laws you are allowed to make under the syariah court are very specific: divorce, marriage, inheritance, wakaf, land, etc. They are (outlined) in Schedule 9 of the Constitution. The issue is that one line with regards to protecting the precepts of Islam – that can mean anything and can infringe the fundamental liberties in the Constitution. Once it violates that, it cannot be accepted,” he adds.

The law professor argues that so far, the courts have not been decisive in adhering to that demarcation of jurisdiction and the limits of restricting liberty under the name of religion. “If you are scared, don’t be a judge. The judges have a duty to protect the Constitution, not personal beliefs.”

He is also quick to remind us that the syariah court derived its legitimacy from the Constitution. “Every syariah court is a creature of the Constitution, and not the other way around. It doesn’t exist outside the Constitution; it is subservient to the Constitution.” He is adamant that revisionist history, and the attempts to rewrite and reinterpret the Constitution without actually reading it in detail, is a recipe for disaster. “Once the Constitution and the law become a joke, people (don’t take it seriously) and start to do unlawful things.”

I ask him whether he agrees that the broader and vaguer a law is, the more likely it is that it is a bad law. He answers with a big yes, explaining that the broad scope can easily be abused. “Look at (those persecuted under) the Security Offences Act (Sosma) and Section 124B. What they did was totally remote from terrorism. When they passed 124B under the then de facto Law Minister, Datuk Seri Nazri Aziz, they promised that the law was meant for terrorism. Look what’s happening now.”

Our dystopia

Thus far, Azmi says he has been enjoying support from his students, dean and colleagues in the law faculty, although the university itself has never come out in support of him or of academic freedom.

He has a regular column in The Star titled “Brave New World”. I gamble on the fact that the name must have been derived from Aldous Huxley’s description of dystopia. Towards the end of our conversation, I ask him about a perennial debate in the literary world: 1984 or Brave New World? Who gets it right in depicting Malaysian authorities – George Orwell or Aldous Huxley?

He laughs and says, “More like 1984, because in Brave New World, at least people are deluded into happiness. They don’t even bother to delude us.”

Ooi Kok Hin is a research analyst at Penang Institute and president of Universiti Terbuka Anak Muda (Utam). He graduated from The Ohio State University with a degree in Political Science and Philosophy, and is also the author of the book, Aku Kafir, Kau Siapa, published by DuBook Press.

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