I do not know Hishamuddin Rais. I say this a lot to Malaysians living abroad when they jump me with the question, if I knew the man, as soon as I introduce myself as coming from this part of the world.

It was only late last year when I first shook his hand in introduction. I managed a perfunctory hello. I believe he has the reputation of a film-maker upon his return.

I had heard him speak last year. What he said, I think reflects a sense of frustration of the abuse of electoral processes in many parts of the Third World. The electoral process has evolved into a tool to return the same party in power through manipulation of votes, delineation of constituencies and even sheer terrorism in many places. Some of these abuses are well recorded and material easily available on the Internet.

The recent decision of the Sabah High Court on phantom votes is so affirming especially when year after year, the complaint appears unheeded by the Elections Commission. The decision sends a clear signal that the rot must end sometime. Such abuses undermine the faith in the efficacy of the electoral system as a democratic institution of representative government.

Hishamuddin was ordered on June 2 to be detained for two years without trial under the Internal Security Act (ISA). His detention order alleges that he incited the public to bring down the elected government by unconstitutional means through pilihan jalan raya (street protests) and not pilihan raya (general elections).

Covert despotism

Incitement or artistic licence? The play of words is Hishamuddin-esque. I remember he wrote in a column of a supposed conversation with a magistrate of allegations of his presence at a perhimpunan haram (illegal assembly).

He laments to the imaginary magistrate that this is because there is no perhimpunan yang halal (legal assembly). We need to laugh about our own dilemmas and follies in democracy building.

Shouldn't whatever Hishamuddin may have allegedly said in October 2000 surely be subject to interpretation of a third body, the judiciary? Some quarters may view this as a dangerous proposal, especially in current times with a new head in high judicial office.

If we wish to bandy the Constitution about as the basis of our actions, surely it is a prudent constitutional practice to appeal to the good offices of the judiciary? Why should the Executive be the sole body to determine what is or is not 'national security'?

Legitimate security interests in practice are better protected when the press and the public are able to scrutinise governmental decisions and actions than when governments operate in secret. Secrecy may well lead to covert despotism.

From the point of constitutional practice, when the Executive maintains unfettered control of the house of representatives (and thereby controlling executive accountability and legislation), it must be the judiciary to take the government to task when the liberty of the rakyat is at stake.

Judicial scrutiny allows a transparency of government actions. If the Executive cannot be made accountable to the rakyat in Parliament, it has to answer to the courts of the land.

Impartial arbitration

We might note that judges in India, for example, have taken a very serious view of state censorship of fundamental freedoms.

In C Vaidya v H D'Penha , the Gujarat High Court ruled that to peacefully protest against any governmental action with the immediate object of educating public opinion and the ultimate object of getting the ruling party voted out of power at the next general election is not prejudicial to national security.

Such a public education is the primary need of every democracy. This case had its day in court and the parties had the benefit of telling their side of the story for impartial arbitration.

No constitution, even if it is a written constitution such as the Federal Constitution of Malaysia, can be said to be constituted with a specific democratic society in mind. Constitutional lawyers can only draw up a framework or structure with a view towards the promotion of democratic values.

A well-drawn document may remain a facade constitution if there is no political will to institutionalise the values of the promotion of desired outcomes.

In institutitionalising the desired values we need to consider the whole of our experience, and not merely what happened in 1957 with our founding fathers and the Reid Constitutional Commission. We must consider what we have become and where we want to go.

Frustrated expectations

We live in interesting times. Developments from the streets to the courts in recent months provide testimonies of the change in attitudes and values. Dissent in the last two months alone, whether on the ISA or the MCA takeover of Nanyang , may be construed as reassertions of autonomy, a disassociation from the views of the powers that be.

It is an expectation check of what majority rule is about and what is entailed by representative (and limited) government and rule by consensus.

We have questions about our institutions, our laws, our constitutional arrangements and processes for changing those arrangements. Could it well be that we, the governed and the government, do not have a shared notion on some of the basic issues of our democracy?

These concerns, sometimes manifesting in street protests reflecting frustrated expectations or disappointments over constitutional democracy, should not conjure images of instability and ruin.

The world 'stability' is a value-laden concept and, in addition, ambiguous. Dare we offer an alternative view of 'stability' as not the absence of street protests, but rather the entrenchment of practices that promote political vitality and principles of constitutionalism, human rights, separation of powers and checks and balances?

Testing times

There are admittedly hazards to protests expressed in conscientious objection and civil disobedience. There are historic limits to these and actors should always be aware of the distinction between such acts and ordinary violations.

In turn, the state's unsparing use of force in quelling protests may backfire as only dramatising the violence which the government can command. Compulsion and fear do not ensure belief in the legitimacy of the system.

These times test the moral and political maturity of both the government and the people.