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Thursday, April 16, 2009

The ISA and the Rights of the Majority

Malaysia Today published a piece of news from The Daily Express today (16th April 2009). Among others, it reports that "the Home Ministry will ensure that a balance is struck between the individual right and the right of the majority in any changes to laws under it, including the Internal Security Act (ISA)."

Our new Home Minister, Hishamuddin Hussein was quoted as saying :

"People always talk about the right of the individual only but in any change, the right of the majority is just as important. It's a principle that I will uphold without fear or favour."

It is regrettable that there seems to be a conceptual misunderstanding on an issue which strikes at the core of a civil society, namely, the fundamental rights of the people. The real issue is not the balancing of the rights of the majority and the rights of the individual. If that was the case, the logical conclusion would be the majority should be able to do whatever they like at all times and in any manner they wish.

To my mind that would be an abuse of Bentham's utilitarian principle. That principle - although positing that an act or policy which brings the greatest pleasure or happiness to the greatest number will be a good act or policy - is never about the majority in a society riding roughshod over the minority. Bentham was never the author of "The All And Be All Of The Majority" if you get what I mean. In actual fact, he warned that certain unnecessary laws or punishments may just bring with them new and more dangerous vices than those which were supposed to be suppressed in the first place!

The Home Minister, with all due respect, don't seem to grasp the issue well enough. In the first place, nobody, and I mean NOBODY has ever questioned the fact that certain individual rights must be given away to the state in exchange for the benefit of the state and the people it comprises. I for one, am not questioning the fact that certain individual liberties are to be sacrificed for the greater good of the state or society in which we live. That is beyond doubt.

The question is how those individual liberties are to be taken away? The answer is simple. They must and should only be taken away with due process of the law. That would entail the trial by the Court. The individual in question should be produced in Court. He should be charged. He should then be given the opportunity to defend himself. The Court then makes a decision on whether to deprive him or her of certain liberties for whatever wrong he or she has been PROVEN to have committed. That is the issue. It has got NOTHING to do with balancing the rights of the majority and the rights of the individual.

The ISA is a vile piece of legislation. It deprives the very basic right of the people. That right is the right to be heard. The right to be heard consists of the right to a fair trial. And this right is ingrained, embedded and cast in every democracy and modern society. It is in our Federal Constitution. Without this right, the people would live in fear of being kidnapped and executed in the middle of the night in some basement bunker.

This right is premised upon the whole concept of liberty. What liberty is there when the state could incarcerate its people without a fair trial? This goes to the core of societal benefit. Would the benefits that the people derive from the state be sufficient enough a reason for surrendering their liberty without a fair trial? Would any right thinking individual agree to this?

No. This is not about the right of the majority. This is about UNIVERSAL RIGHTS. Rights which are so basic to human beings so much so that the taking away of those rights would render all of us non human.

No number of majority would empower such rights to be taken away from the minority or from whoever.

12 comments:

Kris said...

As always, you clarify what in essence are simple truths. The problem has always been that we have politicians who lack a grasp of the basic fundamentals of a civil society. Or worse deliberately attempt to misdirect or muddy the waters. Due process, the right to trial and the right to representation and defense, these are basic fundamental liberties. The ISA strips us of that. A truly vile piece of legislation which by it's very nature is abusive through it's use. It has to be done away with.

Anonymous said...

Dear Art,

Kudos! Your explanation is simple and easy to understand by ordinary citizen.

What surprise me is that the current Home Minister is a trained lawyer (if i'm not mistaken) and his predecessor too but they failed to comprehend fundamental issues.

Perhaps they have 'forgotten' once they sit on that 'mighty chair'.

donplaypuks® said...

Any law that gives a Minister absolute power to make decisions without recourse to the Courts for the defendant is absolutely Unconstitutional.

More so, when all the Minister has to bleat is 'National Security' to lock up a person indefinitely when what he really means is it is his Party whose popularity is at stake and the purpose of his action is to stifle legitimate Opposition to Government policies and actions!

The pricipal tenet is that Parliament shall not pass any law that removes a fundamental right of Citizens as guaranteed in the Constitution. Can the Constitution be legally amended. No, not if it removes a fundamental human and citizen's rights.

Everyone and his uncle knows the ISA is Unconstitutional especially since it was amended to remove the right of our Courts to review the basis of the Minister's decisions.

What we need is a CJ and Judges who have Cojones and who are not afraid to stake the security of their job tenure and throw this evil piece of legislation out of the windows of our Federal Court.

And that's really where the problem lies. When Judges can be bought, we have little hope. When the appointment of a CJ can be manipulated by the ruling party, then we have little hope. So, instead of protecting the People, they protect the Rulers!

If we need a Prevention of Terrorism act, then abrogate the ISA and formulate an appropriate piece of legislation. Even then, a Minister SHALL NOT have an absolute right to lock anyone up indefinitely without the right of recourse to the Courts for the defendant.

A fundamental human right cannot be compromised or legialated out! Why?

Because that's God's gift to us, and what God has joined together, no man shall put asunder!

The ISA shall stand as testimony to the evil perpetuated by UMNO/BN regimes since Independence!
http://donplaypuks.blogspot.

Anonymous said...

Just started reading a book by John Grisham titled "The Appeal". Now I know why some judges , lawyers and ministers are enslaved to the government. They seemed to make judgements that defies logic and against due process. Justice is blind, but in Malaysia justice is a puppet that is being manipulated to serve the executive.

LAT said...

Qouted "People always talk about the right of the individual only but in any change, the right of the MAJORITY is just as important."

The so called 'MAJORITY' referred to by the new home minister point to the Rakyat-Electorate ? or the Judiciary ? or the Legislature ? or the Body of the Legal Profession ?

It is full of "Ambiguity" and is subjected to many arguments until and unless it is explicitly clarified by the relevant home minister !

well, he may just refers to the majority members of the "Executive" or "Home Ministry".

Quoted: "It's a principle that I WILL UPHOLD WITHOUT FEAR OR FAVOUR."

The word "I" is very "egoistic" and connotes an excessively high opinion of oneself. And i trust he really means what he said.

Antares said...

Thank you, Art! You're among the few who have actually benefited from learning the law. So many have fallen to their moral death through unplugged loopholes!

Anonymous said...

Hi Art,
Another wonderful article. I believe you must have studied law in the States.

Their 5th amendment (If I'm not wrong) to their constitution states the right of every individual to Life, Liberty and the Pursuit of happiness.

I so wish that this can be put in our constitution.

Richard Loh said...

That is the problem with our present leadership. They want to set their own law by circumventing the existing laws to suit their agenda. The worst of it is that no one can do anything about it. With all the YES MEN all their own interpreted laws are justified and pass through.

telur dua said...

I'll rephrase.

'The Home Minstrel is pon-defecating.'

telur dua said...

Court: Sivakumar has no power to suspend Zambry, excos.
---------------------

Is the Judge saying Sivakumar is not the Speaker? If not Sivakumar then who?

If Sivakumar is the legitimate Speaker and can't suspend Zambry & Co, who does?

So, if this judgement is accepted, then can Gobind Singh take the Parliament Speaker to court quoting the Perak case as precedent? Want to hazard a guess on the outcome if it ever goes to court?

LOL.

Singam said...

So if the majority want slavery, it can become legal? What crap!

But then, intelligence has never been a prerequisite for being the Home Minister. Or any minister, for that matter. Kissass seems to work for all occasions.

flyer168 said...

Dear Art,

Kudos to you on the interesting article.

This nation's rayaat & I share the "Despair & Hopelessness."

God Almighty “Hears & Feels” the Call, the Pain & the Despair of our “Defenders” of Truth to restore Justice, Equality, Human Rights & Freedom for this nation's downtrodden rayaat.

The Muslim Hadhari UMNO Ketuanan/BN Leaders are “Bankrupt of Intelligent, Legal, Constitutional, Political, Financial, Economic, etc SOLUTIONS”....

Desperate People, at Desperate Times, will RESORT to Desperate Actions even if it means “Destroying” their “Honourable Family Legacy”, our National/State Constitution, our Monarchy, All this nation’s Institutions, Pillars of Democracy & the Rule of Law, their own “MALAY MUSLIM HADHARI” party “UMNO” beyond “Redemption”, their Own Kind, this country & its Rayaat!

They & their “Mercenaries” will always be in Denial & therefore resort to “Alternative Tactics” which can only be found in their Gutter Politics & Law of the Jungle “Holy Book”!

Party promotions based on “patronisation, nepotism, money politics, etc” without “Meritocracy and Proven Track Records” leads to “Leaders” that UMNO is inheriting

- “Elite, Ketuanan UMNO BEGGARS”.

The only “Language they Speak & Understand” is “HEADS WE WIN, TAILS YOU LOSE”....

It will only get "Worst"...

With their Arrogance & Denials they have now caused "Diplomatic Tensions" with their Asean partners!

Remember “What goes round, will come round to these Desperate UMNO/BN Ketuanan Beggars” - Past, Present & Future.

UMNO Baru is too deep in its 4th stage “Terminal Cancer” NOW, to be CURED”....Period!

Every new day will be another “New Divine Revelation” to reveal the “Truth” towards their Auto- Pilot “Self Destruct Implosion.”....

This may happen sooner rather than later…

The “Opressors” will “FAIL” & God Almighty will ensure “Justice” will be done.

Let us all sit back & watch the fun “Fireworks & Implosion”....

Cheers.