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Monday, September 17, 2007

Of Flag Burning And Trampled Constitutions

In what has come to be seen by many of us as standard operating procedure, the authorities and Barisan Nasional MPs have sought to divert attention from the core issues of the events at Pantai Batu Buruk, the refusal/rejection of a permit for a peaceful gathering for legitimate purpose, the possible deployment of agent provocateurs and the questionable shooting of unarmed persons. This time, the focus is the burning of the Malaysian flag during the ensuing melee (see, for instance, Anger Over Burning Of Jalur Gemilang, The Star).

Thus far we have heard justification after justification from the authorities as to their actions at Pantai Batu Buruk. The version of events presented by the police appears absolute, if only for the fact that its version has been stated unequivocally. This is surprising in light of the varying accounts of what transpired, in particular as to the shooting. An apparent eye-witness has made statements to the effect that the police officer was shooting over his shoulder as he was running away from a group of unarmed individuals (see here). This contrasts with the description by the Chief of Police, Trengganu of the shooting as having been in self-defence by a police officer who had fallen to ground and was in fear of his life.

We have not heard of a firm commitment from the authorities that an independent and impartial investigation into the event and its causes will be conducted in a transparent manner. We have heard instead of SUHAKAM initiating a fact-finding mission. Some of the rakyat are calling for a Royal Commission. Whatever the case, it is manifest that an impartial and transparent enquiry is essential.

What I fail to see is how and where flag burning fits into all of this. Prosecuting the perpetrator (or perpetrators) does not address the core issues identified above. It does not address the endless complaints about the unnecessary use of force and excessive use of force by the police nor the unconstitutional requirement of a police permit for peaceable public gatherings. It does not in any way address the injuries, both physical and legal, of the victims of the shootings or the others who were injured by use of force when none was required.

And, as to the flag burning itself, though many of us would view the burning as a desecration of the flag and an a highly offensive act we should take a step back and attempt to see whether there is an alternative dimension. I do not mean to refer to the possibility of agent provocateurs having burnt the flag to agitate reactions. I refer instead to the possibility that the flag was burnt as an expression of rejection of the Government for it having abandoned the ideals that Malaysia represents to us all: freedom, justice and equality. Let me expand on this.

The Malayan flag came into existence when Malaya gained independence in 1957. In 1963, with a variation to reflect the entry of Sabah and Sarawak, the Malaysian flag was flown. Farish Noor has written an interesting explanation as to how and why we came to have our very own version of the Stars and Stripes. I can do no better than to refer you to his article, Our Other Flag That Never Was.

Like the Federal Constitution and the national song, Negaraku, the flag was a symbol of the basis of our commitment to self-rule. Malayans saw before them a glorious future in which each of them would have, to quote the Raja Muda of Perak, their "place in the sun". The understood these symbols to represent the commitment of the Government of the day, and all Governments that were to follow, to protect and ensure that glorious future through a strong adherence to the Rule of Law and the fundamental assumptions of democracy: freedom, justice and equality.

I agree that no one can claim rights to the flag. This however has ramification. It means that in as much as an individual cannot claim the flag as his own to do as he or she pleases, neither can the Government. The Malaysian flag, flying as it does over Putrajaya, does not act as a magical prism through which the actions of Government are miraculously justified. Each and every action of the Government must be examined on its own merits. Similarly, flying a Malaysian flag does not symbolize support to the Government.

Our Government however takes a different view. Allegiance to the flag is allegiance to the Barisan Nasional. Patritorism is measured by allegiance to the Barisan Nasional Government (how else can one begin to understand the aku-janji that academics have been asked to sign?). The rhetoric around the flag, and the presumption on the part of the BN government to the effect that ‘BN is the country’ reflects this. It is worth remembering that the term ‘Jalur Gemilang’ only became the official name of the flag in 1997 during the 40th year celebrations.

Having taken and projected that position, it is not surprising that in the minds of some a desecration of the flag can reasonably be interpreted as a rejection of the government of the day and all it stands for. There is absolutely nothing wrong with declaring the view that Government of the day deserves no support. The million dollar question is whether burning the flag as a means of expressing it is acceptable in law.

Fundamental liberties or freedoms mean nothing if they are upheld only when convenient or when it is popular to do so. Freedoms are freedoms because they ensure the means to the kind of life that each of us uniquely aspires to. Defining freedoms by reference to popularity rather than the need to ensure the crystallizing of the unique aspiration is a sure means to tyranny in one form or the other and the destruction of liberty. As Bertrand Russell observed in an essay entitled What Is Freedom? (1952), the “only kind of freedom which is undesirable is that which diminished the freedom of others”.

The freedom of expression is guaranteed under the Federal Constitution (Article 10) in these terms: every citizen has the right to freedom of speech and expression. The word ‘expression’ is not defined but case law from the Common Law world includes expression other than by speech (which is why the guarantee in Article 10 makes a distinction between ‘speech’ and ‘expression’. Flag burning has been declared by the US Supreme Court to be a legitimate form of expression (see US v Eichman (1990) and Texas v Johnson (1989) in striking down anti-burning legislation.

Needless to say, ‘expression’ is not limited to expression that is popular. As the majority in Eichman observed:

While flag desecration - like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures - is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

The rationale of the observation is pithily declared by Voltaire’s oft quoted sentiment, ‘I disapprove of what you say, but I will defend to the death your right to say it.

Were it to be otherwise, then the UMNO supremacist posturing we hear each year would not be permissible. The posturing would be a slur against the freedoms and equality guaranteed by the Federal Constitution. Similarly, the use of ‘kafir’ rhetoric by PAS would similarly be unacceptable. We must not lose sight of the fact that the freedom, and the lack thereof, manifests in our lives in so many different ways. Human rights are indivisible.

And as for the flag burning, should we not be more concerned with the fact that the ideals embodied by the Federal Constitution, in as much as they are symbolized by the flag and the national song, are being trampled on by those who have stewardship of this nation?

All actions must be measured by the same yardstick. That is the essence of democracy. And that is what the Malaysian flag symbolizes.



amreeth said...

well said lad :)
and whilst we are at it... WHAT IS WITH THE UNITY BAND??? (falling over laughing here!)

like when our parents and dada-jis were co-existing with their friends, did they ever make it a point to carefully register with big brother that "we are multi-racial friends happening here"... or that they needed a stupid red plastic band to prove they were united.

forget the symbolism of the flag laddie, we are declining in other waysssssssssssssssss.

arifabdull said...

found that the picture of someone burning flag allegedly at the recent Batu Buruk scene was superimposed.

please do check, here

Anonymous said...

Dear Malik,

The flag burnings are morally wrong as the Jalur Gemilang symbolises Malaysia.

Many patriotic citizens (including myself) consider it treason for anyone to burn the flag.

Mr. Smith said...

Was the flag ever burnt in the first place? Now there is credible evidence that it is a doctored picture.
A desperate BN trying to win over voters by making them hate PAS and the Opposition.
The media is the accomplice.