[Salutations]
1. Allow me firstly to record my appreciation to the Honourable Chief Justice, Tan Sri Arifin bin Zakaria, for the honourto address this third ceremonial Opening of the Legal Year.Once again the legal fraternity of Malaysia comes together to take stock of the year that has been and to lay down milestones for the year ahead.
2. On behalf of the Attorney General’s Chambers, allow me also to extend our warmest congratulations to the Honourable Chief Justice, President and Chief Judge on Your Lordships’ appointments in September 2011. We have every confidence that the administration of justice in Malaysia will continue to flourishunder Your Lordships’able stewardship.
3. Permit me to take this opportunity to also pay a personal tribute to the immediate past Chief Justice, the HonourableTun Dato’ Seri Zaki Tun Azmi, who retired in September 2011 for his leadership, support and guidance. I record also my appreciation to the Honourable Tun Dato’ Seri Zaki Tun Azmi for the revitalization of the legal–judicial service practice of crossovers in pursuit of well–rounded officers. I believe this will enhance our unity of purpose in the service to justice, with due regard for each officer’s individual career path and future. The greatest benefactor will nonetheless be the Judicial and Legal Service itself. As Lord Justice Brougham recognized in Greenough v Gaskell (1833) 1 Myl& K 98, the interest of justice cannot be upheld, nor the administration of justice go on, without the aid of men and women skilled in jurisprudence, in the practice of the courts, and those matters affecting rights and obligations which form the subject of all proceedings.
INTRODUCTION
My Lords, ladies and gentlemen,
4. The year 2011 has been a challenging year for the Attorney General’s Chambers no less than years past. As we strove to deliver professional and efficient legal services, the everyday rigours of drafting, revising and reforming legislation, civil litigation, criminal prosecution and providing legal advice to all branches of the Government remained a central focus.
5. In addition, in 2011 we found ourselves entrusted with realizing the vision of the “new Malaysia” by 2020 through the National Transformation Policy (NTP) (2011–2020). Nowhere has this been more prominent than through the Political Transformation Programme (PTP) launched on 15 September 2011. As the Honourable Prime Minister works to create a “new Malaysia” that, among others, will see the “birth of traditional democracy with constructive dissent”, the Attorney General’s Chambers, and no less the judicial and legal fraternity of Malaysia, will have our respective roles to play.
6. As a contributing proponent of some of these initiatives, I welcome this timely transformational initiative. In my humble opinion, this is a development which augurs well for our nation and its peoples. The critical analysis of our laws, their continuing relevance, and the effectiveness of their implementation, reflects a growing maturity of society. More cogently, it represents an increasing recognition, at the individual level, of our fundamental rights and liberties, as enshrined and guaranteed under the Federal Constitution. No nation losses by close study and in–depth understanding of its own history and constituent documents.
7. Integrity and accountability are increasingly demanded of those who hold public office, including the legal officers of the Attorney General’s Chambers. Asbeneficiaries of a long and proud heritage, it is thus timely, on this occasion of the Opening of the Legal Year 2012, to renew our pledge to collectively uphold the highest ideals of our calling – to use our best legal knowledge and skills to provide appropriate and timely legal advice and services with courage, integrity and candor; or in the more common lawyer’s battle cry, to do our duty without fear or favour.
2011 – A REVIEW
8. As I alluded at the outset, many were the challenges that tested our resolve throughout 2011. Through the dedication, unity and generous cooperation of my officers, the Chambers has come through the fire. The hallowed institution may be slightly singed, but it is all the stronger.
AGC Strategic Transformation Programme (AGCSTP)
9. If I may briefly recall the three–pronged AGC Strategic Transformation Programme (AGCSTP) outlined in my 2011 speech at this eminent forum. The AGCSTP was designed to propel the Attorney General’s Chambers (AGC) towards its vision of becoming a world class public legal organization with internationally recognized legal expertise in specialized areas of law.
10. It is with measured pride that I report the successful establishment of the International Centre for Law and Legal Studies (I–CeLLS) on 8 July 2011. The I–CeLLS was launched by its’ patron, the Honourable Prime Minister of Malaysia, in the presence of eminent guests, legal practitioners and international law experts from at home and abroad.The I–CeLLS, under my chairmanship and the erstwhile guidance of its’ Executive Counsel of seven internationally renowned experts, is already engaged in several legal research and consultancy projects. Foremost of its’ ambitious projects is criminal justice reform for Malaysia and a climate change initiative for the region.We look forward to substantive results for the Centre in the coming year.
11. Chambers has also embarked on its Human Capital Development programmes. Adopting its own version of the “cradle to grave” approach, the AGC has reached out to recruit the best Malaysian law graduates that legal institutions have to offer. Our efforts appear to have succeeded in raising Chambers’ profile among students and young lawyers. These include opening Chambers to universities for study visits and short–term attachment programmes during semester breaks, holding “open days” at Chambers, and the participation of Chambers’ senior officers to judge moots, and give talks at seminars.It also appears to have made Chambers the “preferred employer” for those interested in furthering their legal education and gaining advocacy and international legal experience. Chambers recognizes that it will need to continue to recruit and retain the best to achieve its vision. More importantly, it will allow those with a talent for the specialized work of Chambers and the passion for upholding justice to serve their country.
12. The career development of serving officers is not forgotten. Continuing legal education to develop specializations and as knowledge refresher/ updating opportunities is provided through focused and self–financing forum, seminars and workshops. In addition, video recordings of these training sessions are uploaded to the AGC Platform for E–Learning(A–PEL) to promote on–line learning, especially for Chambers officers and staff posted outside headquarters. This learning database also contains articles and other course notes contributed by the officers themselves.
13. On the final AGCSTP project, a proposal paper on the strengthening of the appellate litigation arm of Chambers (the Appellate and Trial Division) is under consideration.
14. In tandem with the overall transformation plan, Chambers also launched its Comprehensive Performance Appraisal Scoring System (COMPASS) on 3 October 2011. The COMPASS complements and does not derogate from the existing civil service appraisal system. It operates as a 360 degree appraisal system for all officers of the AGC. It now enables the Upper Management at Chambers to better understand the performance and capabilities of the officers by encompassingthe evaluations of subordinate, peer as well as supervising officers. The initial COMPASS evaluation was completed on 31 October 2011 and its results will be duly considered for the 2011 performance appraisals. Further suggestions for fine–tuning the COMPASS are also under consideration.
15. A further 2011 innovation has been the Chambers “Home Offices”. The pilot phase begun with the setting up of 4 prosecution home offices in selected States, complete with all the necessary security and communication facilities. This project will be expanded with another 10 offices in 2012 as it substantially reduces operating costs and the necessity to establish office premises in the smaller districts.
Leveraging ICT
16. Information communication technology (ICT) is being leveraged to the maximum throughout Chambers, with emphasis on value for money and optimization of resources. It has strategically reduced bureaucratic red tape and increasedoperational efficiency. Additionally it provides an effective means of outreach to the general public. It is a matter of great pride that Chambers own very dedicated Information Technology Section has developed many innovative information management systems according to the needs of the various Divisions without the need for additional budgetary allocations from the Government. Among the more recent accomplishments are the “e–Federal Gazette” portal and the Chambers Virtual Office (CVO).
17. The “e–Federal Gazette” is the official portal for Chambers’ publication of federal legislation. The first phase, commencing 26 April 2011, launched the on–line publication of subsidiary legislation (regulations, rules, orders and notifications). The second phase, which commenced on 2 June 2011, launched the on–line publication of Acts of Parliament enacted from March 2011. These federal legislation are now published within 24 hours of their publication in the federal Gazette. They are accessible from the AGC website at www.agc.gov.my and can be downloaded free of charge by any person.
However users are cautioned that copies of these legislation do not constitute copies of the official Gazette printed by the Government Printers (PercetakanNasional Malaysia Berhad (PNMB) ) as provided under the Interpretation Acts 1948 and 1967 [Act 388]. Therefore, for all official purposes, the authorized versions of these legislation should still be obtained from the Government Printers.
18. The first phase of the Chambers Virtual Office (CVO) became operational at headquarters on 1 December 2011. The CVO has video–conferencing, tele–conferencing, digital forum and digital discussion facilities that allow officers to carry on discussions and consultations with their colleagues without leaving the comfort of their desks.
19. In terms of the aforementioned outreach agenda, I believe the Chambers News Channel (CNC) launched in 2011 has also served Chambers well in providing accurate and timely information to the public on ongoing issues and court cases, among others, without compromising Chambers independence or integrity.
International outreach
20. The AGC has also begun to realize its’ 2009 initiative to increase links with its counterpart agencies (Attorney General’s Chambers/ Justice Departments) from other jurisdictions to promote cooperation in legal activities. This encompasses the exchange of legislation, best practices, attachment programmes and even cooperation to promote more effective prosecution of cases involving nationals of the said jurisdiction in one case. As at the end of 2011, the AGC had successfully concluded and signed Memoranda of Understanding with Uzbekhistan and the Sultanate of Oman. Proposals for similar Memoranda of Understanding with the Arab Republic of Egypt, the Republic of Maldives, and the Republic of Indonesia are also on the horizon.
These recent initiatives augment the Annual Events of the Attorney General’s Chambers of Brunei Darussalam, Malaysia and Singapore (AEAGC) that has served to build greater camaraderie and cooperation between my Chambers and that of Brunei Darussalam and Singapore since its inauguration in March 2006.
21. Further, to ensure that Malaysia’s interests are advanced and protected, Chambers has also ensured high level participation at key international legal conferences such as the Asian African Legal Consultative Organization (AALCO), the Commonwealth Senior Law Officials and Law Ministers Meetings (CSOLM & CLMM), the ASEAN Senior Officials and Law Ministers Meetings (ASLOM & ALAWMM), the International Association of Prosecutors (IAP) and the China–ASEAN Prosecutors General Meetings.
Appeal Caseload
22. The year 2011 saw a three–fold increase in the number of criminal appeals fixed for hearing before the Court of Appeal and Federal Court as a direct result of the increased efficiency of the High Courts. From some 688 appeals filed in 2010, the then newly formed Appellate and Trial Division was called on to handle 1900 appeals in 2011. Chambers did not shirk its role as a key partner in the administration of justice and met the challenge. Each DPP was assigned more cases to handle and a strict “no postponement” policy was instituted. Consultations were also held with the courts to better handle the disposition of older cases. For its part, the Appellate and Trial Division also adopted a more robust approach to tracing Respondents by networking with the relevant agencies, both public and private. These efforts will continue to be implemented in the coming year to ensure the administration of justice in Malaysia is efficient, transparent and timely.
National security and individual freedom
23. The year in review would not be complete without mention of the legislative initiatives undertaken by Chambers under the Political Transformation Programme (PTP), a water shed in Malaysian history. At the outset, allow me to make it clear beyond reasonable doubt. This “package” of legislative reforms aims to provide greater recognition of specified individual freedoms under the Federal Constitution. However it must by necessity balance these enhanced freedoms against the needs of national security in a multi–racial, multi–cultural nation set in a region that is facing multiple challenges.
24. In brief, this package encompassesfirstly, the revocation of three emergency proclamations which have been in effect for more than four decades. The second component of the “package” is the repeal of several laws relating to security and public order such as the Internal Security Act 1960, the Restricted Residence Act 1933, and the Banishment Act 1959. The third and final component involves the replacement of section 27 and the related provisions of the Police Act 1967 with a more comprehensive regime to regulate public assembly under the new Peaceful Assembly Act 2011. A part of these measures have already been tabled at the last session of Parliament. The remainder, including the introduction of new legislation to deal with national security in anticipation of the repeal of the Internal Security Act 1960, will be forthcoming in 2012. In addition, a review of the Universities and University Colleges Act 1971 and the Printing Presses and Publications Act 1984 are underway and proposed amendments are also expected in 2012.
25. As the Peaceful Assembly Act 2011 has provoked a voracious debate in the Parliament and elsewhere, allow me to clarify and elaborate on a few matters. Firstly, on the issue of consultation. As a general rule all proposed legislation are considered classified material under the Official Secrets Act 1972. Hence, consultation with relevant stakeholders is carried out at the initiative and discretion of the proponent Ministry/ agency. It is neither the role nor function of the Attorney General’s Chambers to lead or carry out such consultation. Nevertheless, in the case of this very important public interest legislation, my Chambers ensured that the necessary consultations were held with all the relevant stakeholders, including the Malaysian Bar Council. All proposals were put to the Government and the Government made the relevant policy decisions where these were warranted.
26. As pertinently recognized by Lord Neuberger of Abbotsbury, Master of the Rolls in his lecture “General, Equal and Certain: Law Reform Today and Tomorrow” to the Statute Law Society, Lord Renton Lecture 2011 in London on 28 November 2011 (at para 27), in the course of drafting any piece of legislation, there are many potential party interests. Those interests shape legislative aims and guide policy choices. However, they should not intervene in the process to render less clear and certain the scope and application of the proposed legislation.
27. At a certain point, an executive decision based on best knowledge of available facts at the relevant time needs to be made. Perhaps with the wisdom of hindsight, these noble decisions will be found wanting. As Lord Carswell stated in Smith v Smith [2006] UKHL 35, [2006] 1 WLR 2024:
“In a judicial utopia every statute or statutory instrument would be expressed with such clarity and would cover every contingency so effectively that interpretation would be straightforward and the only task of the courts would be to apply their terms. Utopia has not yet arrived, however.”
28. Be that as it may, in order for drafting instructions to be issued and carried out satisfactorily, decisions have to be made and consultations cannot be carried out endlessly in an attempt to satisfy all interested parties.
29. The bottom line is that there can never be “perfect” legislation. It can only ever hope to be the “right” legislation to meet the exigencies of the time. Nevertheless, all legislation must be proportionate. They must be necessary. And most important of all, they must promote and retain the confidence of those who are to be regulated.
30. Thus the Peaceful Assembly Act 2011, as enacted, assures an individual’s freedom to assemble peacefully as part of the right of expression enshrined in Article 10 of the Federal Constitution. This includesthe right to organize and participate in assembliespeaceably and without arms. This broad assurance is nevertheless necessarily circumscribed by certain restrictions and conditions that are considered necessary and expedient in the interest of the security and public order of Malaysia and its peoples.
31. Based on the hard and expensive lessons learned over the recent years, the Act makes street protests an offence. A street protest under the Act means an open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes. Thus if a peaceful assembly is held and remains at a designated place or approved non–designated place, there will be no offence committed.
32. The Ministry of Home Affairs will prescribe the designated places where peaceful assemblies can be held without need for advance notice or any other approvals. Only if such peaceful assembly is proposed to be held at a non–designated place, will the notification requirement under the Act apply.
33. Under this notification requirement, the organizers of the assembly must give a notice to the Officer in Charge of the Police District where the assembly is to be held of their intention to hold an assembly at leastten (10) days before the proposed date of the assembly. The notice will need to contain particulars such as the name and details of the organizer of the assembly, the purpose of the assembly, the date, time and place of the assembly and also the expected number of participants. The notice and the information are required to enable the police to carry out necessary consultation with the relevant stakeholders in the proposed area for the assembly and to ensure that necessary security measures can be taken for both the assembling group and persons and property in its vicinity. It is stressed that theseother persons who have interests (e.g. shopkeepers, home owners, residents) may raise their concerns or objections to the assembly in the non–designated area.
34. After due consideration of all relevant factors, the police may impose any or all of the specified restrictions and conditions in the Act such as on the date, time and duration of the assembly, the place of the assembly, the manner of the assembly, the conduct of the participants during the assemblyand the payment of clean–up costs arising out of the holding of the assembly.These restrictions and conditions are not meant to place any unnecessary burden or hardship on the organizers and participants of the peaceful assemblies at non–designated places. Nor are they aimed to discourage the holding of peaceful assemblies at the designated places. Rather, they are considered necessary to protect the rights and freedoms of the organizers, the participants and also the public alike. This includes the right to peaceful enjoyment of ones’own possessions, to movement, to enjoy the natural environment and to carry on business.
35. It is further stressed that organizers that elect to organize assemblies at non–designated places that are not happy with the restrictions and conditions imposed by the police have the opportunity to appeal to the Minister against the conditions and restrictions imposed. The Minister is also required to make a decision within a specified period.
36. The Act also absolutely prohibits the holding of an assembly at certain places such as places of worship, kindergartens and schools, hospitals, petrol stations, hospitals, fire stations and railways. The reasons should be self–evident to a reasonable man.
37. In the best interest of the child, the Act also prohibits children under the age of 15 from participating or being brought to an assembly, with the exception of religious assemblies, funeral processions, assemblies related to custom and assemblies approved by the Minister.
38. Participants of the assembly, whether at designated or approved non–designated places, are prohibited from behaving offensively or abusively towards any person, causing damage to any property, doing any act or making any statement which has a tendency to promote feelings of ill–will, discontent or hostility amongst the public at large, doing anything which will disturb public tranquility or committing any offence under any written law. They must also adhere to orders given by the police or organizers to ensure the orderly conduct of the assembly. If the orders of the police are not complied with, the police may issue an order to disperse the assembly.
39. It cannot be over–emphasized thatthe prohibitions, restrictions and conditions contained in the Peaceful Assembly Act 2011 have been included as necessary precautions to ensure the safety and well–being of participants of the assembly as well as the public and community at large alike.
THE YEAR AHEAD –THOUGHTS FOR 2012
40. The Attorney General’s Chambers fully expects 2012 to be paved with cobblestones and lined with tripwires. New national security, public order and other constitutionally–related legislation will be enacted to further advance Malaysia towards civilized democracy and democratic governance according to international standards. But this political advancement cannot be gained by sacrificing rule of law. As cautioned by Brian Tamanaha in his book, On the Rule of Law (as quoted by Lord Neuberger of Abbotsbury, Master of the Rolls in his earlier mentioned lecture):
“The relationship between the rule of law and democracy is asymmetrical: the rule of law can exist without democracy, but democracy needs the rule of law, for otherwise democratically established laws may be eviscerated at the stage of application by not being followed.”
41. This year will also see the full implementation of certain pre–trial processes initiated in 2010to expedite the dispensation of criminal justice. Pre–trial conferences, case management and plea bargaining have been fine–tuned through further amendments to the Criminal Procedure Code(CPC)in 2011 which were drafted in consultation with the Bench and Bar. The introduction of these pre–trial processes will undoubtedly have far reaching implications for the prosecutor, the accused, the defence counsel as well as the courts.
42. In view of this, permit me to briefly summarize the changes made by the 2011 amendments. Under the amendments to section 172B of the CPC (which deals with the case management process), exhibits may be admitted and marked by the court even at the case management stage so long as it is consented to by the parties. The amendment also makes it clear that the sole purpose of the time limitations introduced in the case management process wastoexpedite the trial process and overcome the backlog of cases. It should not be misconstrued or misapplied to invalidate a charge, a prosecution case or the merits of a case. Therefore,any failure of the court to commence the case management process or the trial within the time stipulated under the section shall not render the charge and prosecution against the accused defective or invalid. Nor shall it be considered as a ground for appeal, review or revision.
43. The amendment to section 172D of the CPC clarifies that the lighter sentence that the court is empowered to impose in a plea bargaining of sentence is only in respect of imprisonment. It does not extend to offenders who commit offences which are punishable only with a fine, or are punishable with life imprisonment. Plea bargaining also does not apply to sexual offences, offences against children,offenders who have previous convictions for serious offences or offences to be prescribed by the Public Prosecutor by order published in the Gazette.
44. A new section 172G is introduced to allow an accused who pleads guilty at any time before the commencement of his trial to be sentenced in accordance with section 172D even though he did not make an application for plea bargaining.
45. The 2011 amendment also introduces a new section 183A on Victim Impact Statements. It safeguards the interest of a victim of an offence and his/her family by making it compulsory for the court to call the victim or a member of his/her family to provide a statement on the impact of the offence on the victim or the family if the victim or family so requests.
46. Last but not least, under the amendment to subsection 426(1) of the CPC, prosecution costsare to be recovered from the convicted person upon application by the Public Prosecutor in cases where the evidence was obtained pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 or where the convicted person has obtained pecuniary gain. The sum of the prosecution costsare to be determined by the court as may be agreed by the Public Prosecutor.
CONCLUSION
My Lords, ladies and gentlemen,
47. In conclusion it is hoped that our efforts and noble intentions will always, in the words of the Dalai Lama, be guided by the good core of our human character – which cherishes truth, peace and freedom.
48. Finally, on behalf of my colleagues in the Attorney General’s Chambers, I assure the Honourable Chief Justice of my Chambers continued support, cooperation and assistance in the task of upholding the rule of law and dispensing justice in Malaysia for all Malaysians. May I also wish the Honourable Chief Justice and brethren all the best for the coming year.
Thank you.