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.

MIS

Why A Royal Commission?

There is a call for a Royal Commission. Some of us may be uncertain what such a commission is and how it can help.

A Royal Commission, as it is popularly known, is a commission that is established under the Commissions Of Enquiry Act 1950 (Revised 1973). This Act authorizes the DYMM Yang Dipertuan Agong to, where it appears to him to be expedient so to do, issue a Commission appointing one or more Commissioners and authorizing the Commissioners to enquire into -

• the conduct of any federal officer;

• the conduct or management of any department of the public service of Malaysia;

• the conduct or management of any public institution which is not solely maintained by State funds; or

• any other matter in which an enquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare (other than a matter involving any question relating to the Islamic religion or the Malay custom and/or inquiries for state purposes where Sabah or Sarawak are concerned.
  

What is important for civil society purposes is that it is the YDPA that issues (or establishes) the Commission. In doing so, there is no need for the YDPA to act on advice of the Prime Minister or Cabinet. As such, the establishment of such a commission is not a decision of the Government to take, or not to take, as the case may be.

This is important as it is highly unlikely that the Government would take any step towards an inquiry that could result in an expose of its wrongdoing. One of the more prominent royal commissions in recent times was the commission that conducted an enquiry into the assault on Anwar Ibrahim during his detention. The findings of the enquiry led to the prosecution and conviction of a former IGP.

As the Anwar Ibrahim commission showed, the powers of such a commission to delve into the evidence, through the summoning of witnesses and the holding of hearings, are sufficiently wide so as to allow for the Commission to get to the truth of a matter efficiently and efficaciously. The fact of its ‘royal’ status and the freedom of the YDPA to appoint His Majesty’s commissioners who are more usually retired and respected judges and community leaders, work towards inspiring confidence in such a Commission’s decision making process and the impartiality of its decision.

The terms of reference of a Royal Commission are determined by the YDPA. In this way, such enquiries differ from those conducted by SUHAKAM whose enquiries are more concerned with the question of violations of human rights or civil liberties. A Royal Commission can go deeper into causes than a SUHAKAM commission can and this, and the fact of the ‘royal’ status of the commission may in some circumstances lend more significance to the report of a Royal Commission.

***

As can be seen from the above, a Royal Commission would be an appropriate way in which the matters of Pantai Batu Buruk as well as the matters raised in the Petition Rakyat could be dealt with. This conclusion is premised on the following:

• a Royal Commission is a method in which the YDPA could meaningfully respond to the call of the rakyat
  

• a Royal Commission would be a way in which a seemingly independent and impartial enquiry process could be carried out. The rakyat have confidence in His Majesty. The Royal Commission would be, in effect, a manifestation of His Majesty’s concern for justice and truth, and his compassion for the rakyat, and the enduring truth of the Rule of Law
  

• a Royal Commission could not only enquire into the events of Pantai Batu Buruk but also their causes including:

1. the reasons for the refusal or withdrawal of the necessary permit for assembly;
   
2. the need for such a permit in the first place; the actions of the police including the use of force and the carrying of firearms;
3. the grievances of the rakyat that led to the fracas including serious concerns about the electoral process and the call for electoral reform

MIS

Not Urgent, Mr Speaker?

(Malaysiakini reports today (“Motion to debate “bloody ceramah” rejected; 11.09.2007)) that the Speaker of the Dewan Rakyat rejected for debate an urgent motion moved by Salahudin Ayub (PAS-Kubang Kerian) to debate the tragedy of Pantai Batu Buruk. The primary reason for this rejection was reported as there being no urgency as the matter was “just a riot” that was under investigation by the police. The Speaker however appears to have agreed that it was a matter of public interest)

Violence, aggression and arrogance. These are the walls behind which our leaders claim to be protecting democracy. They are the walls that keep us away from a fair, just and accountable government. From democracy.

Democracy can only flourish on a bed of truth. Information is key to our freedom of choice. The search for truth, if effected by peaceful means, can never amount to a threat to national security.

The suggestion that a peaceful gathering of Malaysians interested in hearing a viewpoint, alternative or otherwise, could be prejudicial to security or a disturbance of the peace is insulting.

It is insult to those who were present at Pantai Batu Buruk. It is an insult against those of who attended the demonstrations against petrol and toll hikes. It is an insult against any right thinking Malaysian who believes in the freedoms our constitution enshrines. It is an insult to those who struggled before us to pave the way to Merdeka.

Peaceful gatherings are a means of expression throughout the world. This is more so where other forms of expression have been curtailed. It is only in nations where there is no rule of law or the rule of law has broken down that peaceful gatherings are deemed to be a threat to national security. We appear to be such a nation. Time and time again, reports have been issued about the use of force to disperse peaceable gatherings. Time and time again, these reports have alluded to the underlying freedom to assemble and express. Time and time again we have only had more violence in response.

Two Malaysians were shot for making the mistake of assuming that they had a right to defend their constitutional right to free choice. A right to defend themselves against the violence used to quash their freedoms. We are told that they were shot as a matter of self-defence. The question is whose?

Does it matter that they and the hundreds who were trampled under jack-boots, pummeled with batons, pulverized by high pressure water jets laced with chemical additives even as they struggled against the tear-gas did not have the means to defend themselves? Does it matter that the police waged a campaign of aggression as a part of a strategised campaign and given the means to participate?

The struggle for merdeka began long before the Union Jack was lowered. It began long before the diplomacy began. The struggle for merdeka began as an understanding in the hearts of those who saw a life beyond colonization. In attempting to map out their vision, some of them risked arrest, prosecution and brutality at the hands of the colonial authorities then. They accepted that risk, paving the way for the negotiations that gave us our freedom. That gave us Merdeka.

And does it matter that the tragedy of Pantai Batu Buruk would not have happened if the powers that be had allowed these Malaysians to do what it is that they had come to do? To listen.

Malaysians are not the enemy. Our blood, sweat and tears nourish the soil we stand on. Tanah tumpahnya darah ku. The blood shed - be it from having been beaten by batons, or pummeled with fists, or kicked with boots and now from a gunshot - is being shed by Malaysia. For when we bleed it is the nation that bleeds.

Guns, water-cannons, tear-gas canisters, batons, shields, sticks and stones. Prosecutions, jail, detention without trial. They cannot, must not be allowed to, stand in the way of truth.

Freedom is our birthright. Malaysian blood is being shed over that freedom. Is that not a matter of urgency?

MIS

Riot? What riot?

Once again we have the government condemning the so called rioters at Pantai Batu Buruk. We hear of a need for stern action.

The government’s response is typically what it always is in situations like this. Sweeping, muddling and having a tendency towards obscuring the truth of the matter rather than accounting for it.

Could what happened on Saturday night and early Sunday morning be characterised as rioting? Is an expression of disagreement with government policies articulated through state machinery an act of rioting? More so where the laws are enforced in way which is undermining of the very freedoms the State is bound to protect.

Consider this:

• The people gather to hear viewpoints.

• These viewpoints are matters which they are guaranteed a right to hear. These viewpoints are matters which go to the freedom to choose so essential to democracy.

• The people do not have access to these truths due to restrictive policies where the media is concerned and a bias against any views other than those of the government.

• Laws are designed to restrict access to such viewpoints.

• As a result, citizens have no real and meaningful avenues to get these viewpoints other than to attend events like the BERSIH event on Saturday night.

• The event, and other such events, are impeded by a unconstitutional permit application processes.

Where do the people turn to? What choices do they have?

I do not countenance the use of force, any force. But I am hard-pressed to conceive of any practical alternative those who made the effort to make their way to Pantai Batu Buruk had. It would appear that all attempts to reason with the police had failed. Were it not the case, there would have been no reason for the police, who had been present from as early as 5 pm, to have engaged with water cannons and tear gas at 10.30 pm. The fact that the crowd remained until that point time clearly demonstrated their desire to have the event proceed. The fact that the police only engaged at 10.30 shows that there was no disturbance before then.

What does one do when one’s democratic rights are wrenched away through authoritarian measures? If it was an enemy of the state who had done so, those who reacted on Saturday night would have been given medals and called ‘freedom fighters’.

Further if it is true, as the Opposition claims, that there were ‘agents provocateurs’ who incited the events that took place, could the events at Pantai Batu Buruk be condemned as they have been? When it is the police force itself that engages in the use of methods designed to agitate and create unrest, can the unrest instigated in this way be properly made the basis of aggressive response of the kind that we saw over the weekend, and at a high number of peaceful civil society public gathering over the last two years?

‘Agent provocateurs’ incite crimes. They cannot be equated with undercover agents. The actions of the former more usually create the criminal intent later made the basis of action, either by response through the use of force or through prosecution. The actions of the latter however do not create the criminal intent and instead more usually allow in the uncovering of the criminal intent. Agent provocateurs are criminals themselves.

Who is to be blamed, if the accusation of the Opposition is true?

The human condition should not be put to test by the authorities when they know that there is a high probability of a response. It is like playing with fire.

MIS