Who is undermining parliamentary democracy?

By Sherilyn Goh

The way in which Section 124B of the Penal Code has been used recently, ostensibly to protect parliamentary democracy, raises the question of whether it actually does the opposite instead. Hence Tiger asks: What is really detrimental to parliamentary democracy?

Tiger watches with amusement how fast the tides turn around in politics, that despite being equipped with the innate dexterity and predatorial instincts of a feline, sometimes Tiger has to but concede defeat in making sense of political developments in this country.

Just take this one bizarre human concoction known as 1Malaysia Development Bhd or 1MDB for instance, a self-styled strategic development company or so Tiger was told. It was reported to have cooked up RM42 billion in debts in a convoluted manner with allegations of major corruption involved. And then the last Tiger checked, it was clarified that the RM2.6 billion channelled to the prime minister’s account is in the form of a ‘donation’ of which the source is undisclosed.  But the powers that be say it was unrelated to 1MDB and did not come from there.

And so, on one fine day, perhaps in a move to finally win over public perception, the fingers are all pointed at 1MDB, with an investigation task force comprising the Malaysian Anti-Corruption Commission (MACC), along with the police, Bank Negara and Attorney-General’s Chambers vowing to get to the bottom of the issue. Drum rolls, anyone?

To recount, the past week has seen the attorney-general Abdul Gani Patail sacked, the special task force all but disbanded, a sitting deputy prime minister replaced and not to forget, a complete cabinet reshuffle.

The Parliament’s  speaker has now declared that the Public Accounts Committee (PAC) cannot continue with its actions because its chief has been made a deputy minister not to mention the other three PAC members, one of whom became a full cabinet minister while two others were ordained deputy ministers. Why, congratulations but the PAC cannot continue with its investigations into 1MDB until it is reconstituted.

With the PAC currently crippled,  for now we won’t be hearing from the main actors who were instrumental in this billion-ringgit saga namely 1MDB CEO Arul Kanda, former CEOs Shahrol Halmi and Hazem Abdul Rahman and billionaire businessman Jho Low.

The first three were respectively scheduled to testify before the PAC this week while Low apparently is ‘uncontactable’. They presumably will be called after the PAC is reconstituted which cannot happen until after Parliament reconvenes in October. How convenient – two months of time has been bought.

And now the investigative task force is effectively crippled because the new attorney-general has said that the individual constituents of the task force can continue with their investigations independently of the task force. That means the task force is effectively disbanded.

Despite having their investigations crippled by police raids looking for evidence of leaks, MACC has vowed to press on the investigation alone, but its deputy director Mustafar Ali had later on conceded that police actions were impeding its probe.

The MACC investigators are now finding themselves apprehended instead in relation to leaked documents said to be connected to the investigations. At writing time seven MACC officials have also been investigated under Section 124B of the Penal Code, on the provision for activities detrimental to parliamentary democracy. Wait, what?

What is detrimental to parliamentary democracy?

Do not be taken aback if you have not heard of it before, as the provision has yet to be enforced until recently in place of its more notorious predecessor, the Sedition Act and before that the repealed infamous Internal Security Act.  Section 124B of the Penal Code states: “Whoever, by any means, directly or indirectly, commits an activity detrimental to parliamentary democracy shall be punished with imprisonment for a term which may extend to twenty years.”

It is worthwhile mentioning that this section was added to the Penal Code quietly in 2012. After all, who could be opposed to the benign provision which seems to be added to uphold parliamentary democracy. But no one apparently anticipated that it could be used in ways that could well be detrimental to parliamentary democracy.

The punishment is severe, up to twenty years in prison. Thus offenders can be put away for a long period of time, more serious than other crimes such as rape and murder even under some circumstances.

Section  130A of the Penal Code was also substituted in 2012 to insert the definition of “activity detrimental to parliamentary democracy” as follows: “…an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means.”

Citing the arrest of #DemiMalaysia protesters calling for the resignation of the PM last Saturday, co-chairperson of Bar Council’s human rights committee, Andrew Khoo has written that a non-violent call for the arrest or resignation of a prime minister, or a minister, or even an entire government, cannot be an activity designed to overthrow or undermine parliamentary democracy.

“A call for a change of ministers, or of government, is not equivalent to an overthrow or undermining of parliamentary democracy,” wrote Khoo.

As Tiger is no legal expert, we shall not delve upon the technicalities of the legislation or intimidate ourselves further with legal jargon. But surely, it does not take a cat with its nine lives to tell you that the way in which MACC’s investigation, or even PAC’s hearing is being high-handedly sabotaged is appalling to say the least.

Even minister in the prime minister’s department Paul Low, made a statement against the high-handedness of the police in the way they treated MACC officers during their investigations: “”The police are showing high-handedness in handling this issue. It is important that this institution (MACC) do what they need to do, because the people are expecting the probe to be completed to a satisfactory conclusion,” he was quoted as saying.

One agitated MACC special operations division director, Bahri Mohamad Zain, even swore to get to the bottom of the investigations by the police into MACC officers who are investigating the case of RM2.6 billion going into the prime minister’s personal accounts.

“I will find the perpetrators who are ordering the arrests. By God, I will find the perpetrators till kingdom come,” he was quoted as telling Malaysiakini.

While we may have criticised MACC in the past for its dismal track record in dealing with high profile corruption, it is undeniable that the act of interfering with these supposedly independent institutions is in itself a complete disregard for parliamentary democracy.

The term  ‘trias politica’ or separation of powers was coined by 18th century French political and social philosopher Baron de Montesquieu. In layman’s term, it simply means check-and-balance in which one branch of the government shall not interfere with the other. The way Tiger sees it, this whole 1MDB saga sheds light exactly on a very fundamental flaw in our parliamentary democracy.

To lend credence to the investigation, the prime minister should have ensured that there is absolutely no question of any interference with the investigations.  With all the shuffling of cards done during this period, it is certainly does nothing to rectify public perception and to clear himself of guilt, in the court of public opinion at least.

Had we been a properly functioning parliamentary democracy, PAC as a parliamentary select committee would be allowed to continue with its independent hearing without interference. It comes as a great disappointment that former head of PAC, Nur Jazlan Mohamed who was bent on getting to the bottom of the issue of 1MDB changed his priorities ever just so quickly.

It is also of extreme irony that it had been Parliament speaker Pandikar Amin Mulia ruled the PAC should be reconstituted before investigations can go on, after having called for parliamentary reform just earlier this year citing interference from the Prime Minister’s office. Tiger judges you all.

MACC too should be accorded constitutional protection to carry out its mandate instead of having their hands tied, and made subject to the parliament instead of the prime minister as it currently is. The MACC should also be given prosecution power without having to go through the AG’s chambers, given how an incumbent AG can be so easily removed from office by the PM. The entire 1MDB saga is only adding a new tune to an old song calling for MACC reform.

We can’t have a task force that takes orders from the suspect, or can we?

Not to mention the detestable crackdown on media pertaining to the reporting of 1MDB, which also saw others similarly investigated under Section 124B, while Sarawak Report editor Clare Rewcastle Brown has been named as one of them.

How are reporting on the facts and demanding for truth and accountability detrimental to parliamentary democracy? Well, unless the truth does not want to be known, that is.

As one of America’s founding fathers Thomas Paine had once said, “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”

Parliamentary democracy goes beyond the government of the day, which incidentally happens to be the Barisan Nasional government, but it does not mean that they are untouchable and do not have to be held accountable to the electorate for their actions.

To ask questions is not undermining parliamentary democracy, but the act of preventing questions from being asked is just the contrary, as the saying goes, dissent is the highest form of patriotism, and because the truth will certainly stand the test of question.

The way Tiger sees it, to impede investigations with state tools in order to keep oneself in office, and to silence dissent is an act detrimental to parliamentary democracy itself. Even Tiger can only turn to heavens for strength right now, when it comes to where democracy is headed in this country.

GRRRRR!!!