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Monday November 30, 2009

Remains of the day

The Emergency gave rise to a number of regulations.

THE Emergency proclamation of July 13, 1948, leaves behind a string of legacies that remains to this day.

In his book Document Of Destiny: The Constitution Of The Federation Of Malaysia, constitutional law expert Prof Datuk Dr Shad Saleem Faruqi notes that the Emergency established many restrictive regulations. These include preventive detention of up to two years, establishment of New Villages to supervise the rural Chinese population, imposing restrictions on citizens’ movements, and ordering the closure of shops and schools.

The proclamation ended 12 years later on July 29, 1960. But it left behind several laws and organisations that were controversial and function beyond their original aims and purposes. Below are some of the legacies of the Emergency.

Internal Security Act (ISA)

Under the 1948 Ordinance, detention of persons was allowed for a period not exceeding one year. This was to counter acts of violence and meant to be temporary in nature. When the Emergency ended in 1960, the powers contained in that ordinance was removed as it was repealed.

But the Malaysian government decided in the same year to enact a law that gave powers of preventive detention without recourse to trial, namely the Internal Security Act (ISA) under Article 149 of the Federal Constitution.

Preventive detention: Persons arrested under the Internal Security Act are detained and interrogated at Kamunting Detention Centre.

A person may be held by the police for up to 60 days without trial. After the 60 days, the Home Ministry may release a detainee on restrictive orders, or order further detention without trial for a term of two years. If a two-year detention order is signed, the detainee is taken to the Kamunting Detention Centre, Perak, to serve the term. The law allows the Home Minister to renew the two-year detention indefinitely.

The ISA was enacted to combat the communist threat but it has now been extended to detain just about anyone, even passport forgers. Bar Council president Ragunath Kesavan said in The Star, its use evolved from communists to issues of race and religion after 1969, to religious extremism after 9/11.

In an interview with The Star in 2001, the drafter of the Act, Hugh Hickling, said he was instructed to do so by then Deputy Prime Minister and Home Minister Tun Abdul Razak on behalf of the Cabinet. He said the ISA was needed then because of the remnants of communists but he never thought it would still be around more than 40 years later.

The ISA’s powers have been extended through 20 amendments since 1960, and includes removal of judicial review in 1989. “We would never have dreamt of doing that,’’ said Hickling.

He noted that even in 1960, they thought the law needed checks and balances. With the removal of judicial review, the executive can do anything it wants.

Hickling said the Act was never aimed at politicians and ordinary people. The first Prime Minister Tunku Abdul Rahman had in 1987 also given an affidavit in court to this effect. Hickling had also suggested annual parliamentary review of the law.

Since its inception till 2005, 10,662 people have been arrested under the ISA.

Emergency Ordinances

Following the Emergency in 1948, all Malaysians were required to carry some form of identification for security purposes.

The Emergency was officially over in 1960. But as Prof Shad said in his book, the dark shadow of the insurgency still hung over the land while the Constitution was being drafted. For that reason, the drafters of the Constitution armed Parliament and the Executive with overriding powers to combat emergencies.

This power is vested under Article 150 of the Constitution. Under it, “emergency” refers to threats to the security, economic life or public order of the federation or any part thereof. There need not be actual violence or breach of peace; threat or imminent danger are enough. A proclamation of emergency may be issued before the actual occurrence of the threat.

The Privy Council, after a suit against the Government, broadened the concept of emergency to include wars, famines, earthquakes, floods, epidemics and collapse of civil government.

Under Article 150 (1) of the Federal Constitution, the Yang di-Pertuan Agong may issue a proclamation of Emergency if he is satisfied a grave emergency exists where security, economic life or public order is threatened.

And under Article 150 (2B), if the two Houses of Parliament are not sitting concurrently when emergency is declared, the King may act to promulgate ordinances having the force of law. As Prof Shad notes, once promulgated, an Emergency Ordinance can continue until it is repealed by the King or annulled by Parliament but in practice, such annulments never take place.

Article 150 has an exclusion clause where the power of Parliament and of the King under Emergency powers does not extend to matters of Islamic law, customs of the Malays, native law or customs in Sabah and Sarawak, citizenship and language.

Since independence in 1957, four proclamations of emergency had been issued: the Confrontation with Indonesia (1964), the May 13 racial riots (1969), the Sarawak State Emergency (the deadlock between then state Chief Minister and the Governor in 1966), and the Kelantan State Emergency due to the collapse of the state government (1977).

While the latter two have been revoked, the first two national emergencies were not. So technically we are still in a state of emergency!

According to Prof Shad, an addition to clause 150 (2A) to the Constitution states that more than one proclamation of emergency can exist concurrently.

Senior lawyer Datuk Dr Cyrus Das noted that Acts passed under Emergency power were valid even if they were inconsistent with the Federal Constitution. He pointed out that the whole chunk of the May 1969 emergency regulations was revalidated under the 1979 Emergency (Essential Powers) Act made by Parliament.

“There is no need to get a new Proclamation of Emergency because the 1979 Act gives you all the powers you would require under an emergency,’’ said Das.

And it stipulates that it is predicated on the continued existence of the proclamation of emergency. What this means is that if the 1969 Emergency rule is revoked, the 1979 Emergency (Essential Powers) Act and the platform on which it is enacted will fall and all emergency legislations made under it will cease to apply.

Prof Shad added that under Article 150 (7), emergency laws would cease to operate, six months after the lifting of emergency rule.

So that perhaps answers why the Government has to date refused to revoke the proclamation of Emergency.

There have been many Emergency Ordinances put in place since then. Among them are the Emergency (Public Order and Crime Prevention) Ordinance 1969, the Essential (Community Self-Reliance) Regulation 1975 (for setting up the Rukun Tetangga), and the Emergency (Essential Powers) Ordinance 1969 (Ordinance 1) which suspended all elections to and meetings of state assemblies.

Special Branch

Before the Communist insurgency, much of the security/secret service work of the Police was undertaken by the Malayan Security Service (which was actually the Civil Security Service formed in 1919 but had a name change in 1939).

According to former senior police officer Leon Comber in his book, Malaysia’s Secret Police 1945-60: The Role Of The Special Branch In The Malayan Emergency, there were many shortcomings in the Security Service in combating the communist threat, mainly because of the lack of Chinese-speaking staff.

With the formation of the Special Branch (SB), many Chinese and Chinese-speaking officers successfully infiltrated enemy lines. Much of the success of the campaign against the Communists have been credited to the SB. They received plaudits from all over the world as being one of the most efficient intelligence units in Asia. Now the SB is the primary intelligence unit of the Royal Malaysian Police Force.

Back to the future

Another entity that was formed in 1969 during the second communist insurgency was the elite police jungle unit called the VAT69. They are sometimes referred to as our country’s version of the British SAS (Special Air Services). In fact, they were intially trained by the SAS themselves.

VAT stood for Very Able Troopers and 1969 was the year the unit was formed. On Oct 20, 1997, the proud unit of VAT69 was merged with the Special Action Unit (Unit Tindakan Khas) under the Special Operations Force of the police, which operates as an elite high-profile counter terrorism unit.

We all carry our identity cards with us. And that is the one legacy of the Emergency that no citizen can escape from. As a result of the Emergency in 1948, everyone was required to have some form of identification (under the 1948 Emergency Ordinance) for security purposes.

The National Registration Act 1959 was enacted for the issuance of ICs. On Aug 2, 1960, the very first IC under the Federation of Malaya was issued.

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