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Resolution on the amendments to the Prevention of Crime Act 1959
Motion proposed by Christopher Leong (Chairman, Bar Council), on behalf of the Bar Council, dated 7 Mar 2014
(1) On 25 September 2013, the Government tabled numerous amendments to the Prevention of Crime Act 1959 (“PCA”), and the amendments were passed by Parliament on 11 October 2103 as the Prevention of Crime (Amendment and Extension) Act 2013 (“amendments”).
(2) The Government holds the view that the amendments are necessary to combat the purported spike in serious and organised crime, which the Government attributes to the repeal of the Internal Security Act 1960 (“ISA”) and the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (“EO”).
(3) The Government’s rationale for the amendments is not substantiated, inasmuch as it has not produced compelling evidence of the purported spike in serious and organised crime occasioned by the repeal of the ISA and the EO.
(4) The joint plea of the Malaysian Bar, Sabah Law Association and Advocates’ Association of Sarawak, all key stakeholders in the administration of justice, on 27 September 2013 to the Government to withdraw the amendments and to engage in genuine consultation with all interested stakeholders and parties was ignored.
(5) The Government rushed the amendments with undue haste and bulldozed them through Parliament, without adequate debate or consideration by our legislators of the draconian ramifications of the amendments to the rule of law, human rights, and fundamental liberties enshrined in the Federal Constitution.
(6) In their sweep, the amendments are indubitably abhorrent, regressive and repugnant to the principles of the rule of law, contrary to universal human rights norms, a breach of due process and natural justice, and a gross violation of the fundamental liberties vouchsafed in Articles 5 and 8 of the Federal Constitution.
(7) The inclusion of Article 149(1) of the Federal Constitution to the preamble to the PCA, by the amendments, is revealing, and has the effect of reintroducing some of the most offensive and reprehensible elements of the ISA and the EO into our laws, contrary to the assurances and promises made by the Prime Minister in 2011 and 2012 (when he announced the repeal of the ISA and the EO).
(8) The objectionable features of the amendments are as follows:
(a) A suspected person is not allowed to be legally represented during the Inquiry conducted by the Inquiry Officer, except when his own evidence is recorded. The Inquiry Officer may take evidence against the suspected person from third parties in the absence of the suspected person or his legal representative. The suspected person is therefore precluded from questioning witnesses who may give evidence adverse to him;
(b) The Inquiry Officer, who is appointed by the Minister, acts as inquisitor, prosecutor and determiner at the said Inquiry, to determine whether the suspected person is a member of a registrable category under the PCA and is therefore liable for a supervision order, or a detention without trial order for up to two years;(c) The suspected person is not provided with the grounds of any adverse findings of the Inquiry Officer upon the conclusion of the Inquiry. The suspected person is only provided with the findings. Any review of the adverse findings to the Prevention of Crime Board (“Board”) under the amendments is therefore doomed to fail;(d) The Board is a reincarnation of the much–maligned Advisory Board under the ISA and EO regime. It may be chaired by a person who is merely qualified to be a judge of the Federal Court, Court of Appeal or High Court, and comprises four other members. The Board determines its own procedures;(e) The Board is bound by the Inquiry findings of the Inquiry Officer, and has no power to conduct its own inquiries or to accord the suspected person the right to be heard before it decides whether to impose a supervision order, or a detention without trial order for up to two years;(f) The suspected person does not have the right to appeal against, or apply for judicial review of, a supervision order by the Board except on the limited grounds of “procedure”, which is in any event illusory as the Board is the master of its own procedures;(g) While the suspected person has the right to impugn the detention without trial order of the Board by judicial review, this right is meaningless as the grounds or reasons for the Inquiry Officer’s findings and the Board’s decision (to order a detention without trial order for up to two years) are not provided to the suspected person;(h) The right to judicial review of a detention without trial order is also severely negated by the express prerogative, conferred on the Inquiry Officer and the Board, to refuse disclosure of information or documents to the court and the suspected person on the grounds of public interest; and(i) The Board may issue a supervision order or detention without trial order on the basis of the Inquiry Officer’s subjective view that the suspected person has committed two or more non–serious offences or two or more serious offences, without the need to prove that the suspected person was convicted for these offences. This obliterates the presumption of innocence and may also well infringe on the principle of double jeopardy.
(9) The unmasked objectives of the amendments are therefore to revive some of the most offensive and reprehensible elements of the ISA and the EO, namely detention without trial, repeated renewals of such detention without trial, the denial of the right of suspected persons to due process of law (such as the right to legal representation and the right to be heard before any adverse direction or decision is made), and the ouster of the curial or supervisory jurisdiction of the Judiciary.
(10) The Malaysian Bar recognises and affirms:
(a) Article 5 of the Federal Constitution and Section 28A of the Criminal Procedure Code that guarantees the access to legal representation to any detained person; and(b) Articles 9 and 10 of the Universal Declaration of Human Rights 1948 that states that no person shall be subject to arbitrary arrest or detention.
(11) The amendments are also an affront to the independence of the Judiciary and a frontal assault on the separation of powers doctrine in the Federal Constitution, as judicial scrutiny of the Board’s power to direct a supervision order is placed beyond the pale of judicial review (save for compliance with procedures that the Board has the power to determine), and the right of judicial review of a detention without trial order is impaired, if not seriously restricted, so as to render the remedy ineffective.
(12) The Malaysian Bar has on numerous occasions condemned all forms of detention without trial laws as a violation of the rule of law, obverse to all human rights norms, and unconstitutional under the Federal Constitution.
(13) There is no justification to rely on detention without trial laws in the fight against serious and organised crime. Our own experience in the recent “Special Ops Cantas” (which, according to the Government, resulted in a 8.7% drop in serious crime) establishes that detention without trial is unnecessary to combat serious and organised crime. Moreover, it has not been resorted to in any other jurisdiction (such as Australia, Hong Kong, the United Kingdom, and the United States of America).
(14) It cannot be denied that serious and organised crime existed before the repeal of the ISA and the EO, and continues to plague our society. However, the menace of serious and organised crime should not be dealt with by re–introducing laws that allow for detention without trial and diminish our adherence to the rule of law, human rights, and constitutional safeguards.
(15) The key to dealing with serious and organised crime is to have an able, competent and professional police force that is above corruption or political influence, and not in prescribing meaningless knee–jerk measures that do not address the problem but merely serve to stunt the development of the policing ability and skill of the police force, as well as to render them addicted to, or dependent on, draconian and regressive laws.
(16) There are ample provisions in our laws that allow for a just and fair trial in the criminal justice system of persons suspected of serious and organised crimes, and thus these suspected persons should be prosecuted in the courts and accorded the full array of due process, including the right to confront the allegations made against them.
(17) The amendments do not represent the state of crime in our country, but are a reflection of the inadequacies and inability of the police force, which continues to resist the implementation of the recommendations of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in its report published in May 2005, and that defies the establishment of the Independent Police Complaints and Misconduct Commission, to redress standards of policing and to restore public confidence in the police.
Therefore, it is hereby resolved that:
(1) The Malaysian Bar calls upon the Government:
(a) not to bring into force the amendments to the Prevention of Crime Act 1959 through the Prevention of Crime (Amendment and Extension) Act 2013;(b) to move Parliament to repeal the said amendments to the Prevention of Crime Act 1959; and(c) to engage in genuine and meaningful dialogue with all relevant stakeholders, including the Malaysian Bar, on measures to combat serious and organised crime.
(2) The Malaysian Bar further calls upon the Government to:
(a) reaffirm and abide by its commitment to the rule of law, human rights, due process and natural justice, and the protection of fundamental liberties in the Federal Constitution;(b) resist and eschew any attempt to resurrect and impose the detention without trial regime that existed under the ISA and the EO; and
(c) immediately implement the recommendations of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police 2005, and establish the Independent Police Complaints and Misconduct Commission, to redress standards of policing and to restore public confidence in the police.
Resolution on environment and climate change: Government to ensure effective enforcement of environmental laws and to uphold its pledges to the international community to reduce Malaysia’s carbon emissions by 40% by the year 2020
Motion jointly proposed by Roger Chan Weng Keng and Chew Swee Yoke (Co–Chairpersons, Bar Council Environment and Climate Change Committee) and seconded by Hon Kai Ping (Deputy Chairperson, Bar Council Environment and Climate Change Committee), on behalf of the Bar Council, dated 7 Mar 2014
The Malaysian Bar:
(1) Concerned that, according to the Climate Change 2013 Report of the United Nations Intergovernmental Panel on Climate Change (“IPCC”), carbon dioxide has reached levels unprecedented in at least 800,000 years and scientists are 95% certain that humankind is to blame for global warming. Global warming is known to have caused the following manifestations:
(a) Sea levels have risen by 19 cm since 1901, and are expected to rise a further 26 to 82 cm by the end of the century, with the rate of increase higher than in the previous two millennia;(b) There are islands, such as the Fiji Islands in the Pacific, which have lost so much land due to rising sea levels that they have relocated whole villages elsewhere, while the island nation of Kiribati was reported in March 2012 as negotiating with Fiji to buy up to 5,000 acres of freehold land in order to relocate their citizens in the future;(c) The rise in sea levels and climate change have resulted in the death of endangered animal and plant life; and(d) Each of the past three decades has been successively warmer than any preceding decade since 1850;
(2) Heeding the emergency summit of the world’s Nobel Laureates in 2009, which issued the St James’s Palace Memorandum warning that unless predicted temperature rise is kept at or below 2 degrees Celsius (35.6 degrees Fahrenheit), the temperature rise on Planet Earth will reach life–threatening degrees and the consequences of not acting would be comparable to a nuclear fallout causing a 80–metre rise in sea level, and cities like London, Paris and Copenhagen would disappear;
(3) Noting that the Malaysian Bar’s ongoing commitment to champion the rights of the indigenous peoples of Malaysia to prevent deforestation on the aboriginal lands is part of the holistic battle against the threat to the survival of Planet Earth, as deforestation causes one fifth of carbon emissions every year;
(4) Noting further that the said holistic battle requires the Malaysian Bar to strengthen its ongoing commitment to fight all activities, including toxic industrial activities, which have adverse and irreversible effects on the environment and the health of present and future generations of Malaysians;
(5) Reaffirming the Malaysian Bar’s statutory duty under Section 42(g) of the Legal Profession Act 1976, which includes “to protect and assist the public in all matters touching ancillary or incidental to the law”;
(6) Acknowledging and supporting the reminder by the Chief Justice, Tun Arifin bin Zakaria, at the Opening of the Legal Year 2014 of the recent Colloquium on Environmental Rule of Law, in which the aim was to define a new future for environmental justice in the Asia and Pacific region;
(7) Noting that the Government of Malaysia had, at the United Nations Climate Change Conference in 2009 (known as the Copenhagen Summit) made a commitment to reduce Malaysia’s carbon emission by 40% by the year 2020, and that the Government of Malaysia has not made sufficient progress in realising this commitment;
(8) Noting that environmental concerns have moved from the periphery to the centre of human efforts to pursue economic and social development since the beginning of the environmental movement in 1960s, which eventually triggered the call for commitment via the Rio Declaration on Environment and Development 1992, the Millennium Development Goals (in particular Goal 7), and the Rio+20 Declaration, towards an economically, socially and environmentally sustainable future for our planet and for present and future generations;
(9) Noting that global leaders have argued at the World Economic Forum in Davos in January 2014 that efforts to eradicate poverty must be linked to climate change, saying that rising temperatures will have a widespread effect on everything from food supplies to education;
(10) Noting that environmental rights — ie rights understood as related to environmental protection — encompass not only the right to a healthy environment but also human rights vulnerable to environmental harm (such as right to life) and human rights vital to environmental policy–making (such as right to information and participation in decision–making processes); and
(11) Noting that of all environmental problems, climate change is emerging as potentially the biggest single threat to human rights on a scale of unprecedented proportions, and realising the urgent need for meaningful action towards environmental protection at the local, regional and international level.
It is hereby resolved that:
(1) The Malaysian Bar, and lawyers in general, take immediate action in their professional and personal activities to reduce their collective and personal carbon footprints, so as to reflect the Malaysian realisation of the dangers of climate change and global warming to the future of the world;
(2) The Malaysian Bar strongly calls upon the Government to take immediate action to ensure effective enforcement of environmental laws, and to undertake urgent law reform, where required, including ensuring transparency and proper public consultation with all stakeholders and independent specialised assessment of safety aspects of industrial processes, and not allowing ouster clauses to prevent judicial review for better enforcement and more effective punishment for offences against the environment, which increase global warming and threaten Planet Earth; and
(3) The Malaysian Bar calls upon the Government to uphold its pledges to the international community to do its part to reduce global warming, and other pledges connected and incidental to the above–mentioned holistic battle against the threat to the survival of Planet Earth.
Resolution regarding retired judges of the superior courts appearing as counsel in court
Motion jointly proposed by V C George and Razlan Hadri Zulkifli, dated 5 Mar 2014
(A) WHEREAS it is a fundamental principle of the Malaysian legal system that not only must justice be done, it must be seen to be done; thus perceptions and appearances matter.
(B) WHEREAS it is a principle of antiquity in common law jurisdictions that a retired judge of a superior court should not practise as counsel before the judges who were previously his colleagues or his junior to him on the Bench.
(C) WHEREAS that tradition and convention was likewise observed in Malaysia for decades, until in recent years.
(D) WHEREAS retired judges now frequently appear as counsel, not only in the superior courts, but also in the subordinate courts and even to argue chamber applications.
(E) WHEREAS such conduct may involve the retired judge/counsel purporting to rely upon, distinguishing or criticising decisions made by him while he was on the Bench; worse, there could arise a situation of such a retired judge invoking the principle of stare decisis to submit that the Court is bound by some decision of his handed down when he was a judge.
(F) WHEREAS such conduct may have the effect of intimidating the Bench and worse, it could give the perception that the said retired judge/counsel and his client have an advantage over other counsel and adverse parties.
(G) WHEREAS such conduct may adversely affect public perception as to the administration of justice.
(H) WHEREAS the co–proposer of this motion, Tan Sri V C George and five other retired Judges of the superior courts have written a letter to the President of the Malaysian Bar dated 2 March 2014, expressing their view, concern and objection with the practice of some retired Judges of the superior courts appearing as counsel in Court.
(I) In the context, retired Judges of the superior court having failed to honour tradition and convention by appearing as counsel, they must now be prohibited or restricted by law from continuing with such unacceptable conduct.
The Malaysian Bar therefore resolves:
(1) That a retired judge of the superior courts should be prohibited or restricted by law from appearing as counsel in court, and to achieve that objective calls on the incoming Bar Council to propose an amendment of the Legal Profession Act 1976 to the Attorney General for urgent presentation to Parliament; and
(2) The Bar Council takes all reasonable steps to educate the public on the reasons for the proposed amendment to the law.
Resolution on domestic inquiry, misconduct, and respect of worker and trade union rights in Malaysia
Motion proposed by Charles Hector Fernandez, dated 6 Mar 2014
(1) It is disturbing how many worker and trade union rights are not protected by law in Malaysia, and the recent embarrassing failures of government–linked companies (“GLCs”) to be the best example in the protecting and respecting of worker and trade union rights.
(2) In May 2013, 18 workers from 2 DRB HICOM, a GLC, were terminated by reason arising from the fact that they handed over a Malaysian Trade Union Congress (“MTUC”) memorandum demanding commitment to worker and trade union rights during last General Elections. The workers exercised their rights as citizens when they handed this MTUC memorandum not during working hours. Amongst the terminated were union leaders, where one of them was also MTUC Pahang President.
(3) The misconduct levelled against these workers are (a) undermining the image or good name of the company orally, in writing or by action, and (b) bringing about or trying to bring about any form of influence or outside pressure to submit or support any external claim that is related to service be it an individual claim or claims of other employees.
(4) The second misconduct, in particular, is absurd for rightly in the fighting against injustice, workers and their unions would certainly try to lobby and get support from fellow workers, members of the public and others in an effort to end injustice or rights violations.
(5) There was a domestic inquiry in the case of the 18 workers, but they were denied the right to be represented by their National Union – they were only allowed the right to be represented by a fellow worker from their workplace. The Collective Bargaining Agreement was between the National Union and the said DRB HICOM companies.
(6) On 29 Nov 2013, the President of the National Union of Flight Attendants Malaysia (“NUFAM”) was terminated. He had issued a statement to the media in his capacity as president of the Union, and Malaysian Airlines (“MAS”), a GLC, alleged that Ismail Nasaruddin, the Union President, had acted in contradiction with his duties as a chief steward of the airline by issuing the statement. (Malaysiakini, 14 Nov 2011, MAS suspends chief steward for criticising CEO). He was terminated without even a domestic inquiry.
(7) In February 2014, MAS issued show cause letters to about 30 employees by reason of their alleged participation in an “illegal gathering” at the Human Resources Ministry. This is absurd given the reason that it is a fundamental right for workers and/or their unions to file complaints and make representation to the government, including the Human Resources Minister.
(8) Disciplinary actions have also been commenced against workers for comments made in closed Facebook pages of their unions.
(9) The trend seems to be to try to control workers even during their free time, their ability to highlight rights violations and injustice, their freedom of expression, opinion and peaceful assembly.
(10) Companies and businesses should never terminate a worker for reasons other than matters that relate to work performance and/or their conduct as a worker save in very exceptional cases, for example when a worker is convicted of a criminal offence. The Industrial Relations Act 1967 also prohibits employers from discriminating against, threatening or terminating workers by reasons of involvement in trade unions.
(11) Natural justice demands that no worker should also be terminated without a domestic inquiry, without being accorded, amongst others, the right to be heard, and the right to be defended by a lawyer, a union representative or a fellow worker of their choice. The Employment Act 1955 only provides for “due inquiry” but alas it is insufficient to ensure that this right is accorded to all workers. It fails to set out clearly that this means domestic inquiry and how it is to be conducted, including the rights to be represented by a lawyer or union. The failure of the employer to have a “due inquiry” or domestic inquiry is not at all considered by the Industrial Court in wrongful dismissal cases.
(12) Misconduct is also not clearly defined, or set out in law, and this is urgent need given the trend that some employers have just been extending the number of misconducts – some even extending beyond the workplace infringing into personal liberties and rights.
(13) Wrongful dismissal cases, which affect the worker and their families, take too long to be resolved, sometimes even 10 years, and at the end of the day, the Courts are not ordering reinstatement. This emboldens employers to wrongly terminate workers, especially union or worker leaders, and those that claim rights knowing that they have effectively gotten rid of these workers.
(14) Malaysia, being a member of the international community, must also act in accordance with International Standards including Ruggie’s Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, whereby in cases of GLCs like MAS and DRB HICOM, the obligation is even greater. The Guiding Principles state that “States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State...”.
(15) No worker, group of workers or unions should be barred from making public statements to the media or otherwise in the struggle for worker rights and human rights. This right is clearly acknowledged in the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, commonly known today as the UN Human Rights Defenders Declaration.
We hereby resolve:
(1) That the Malaysian Government ensures that all employers, especially GLCs, respect worker and trade union rights;
(2) That the Malaysian Government takes additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State...”; and
(3) That Malaysia immediately ratifies ILO Convention No 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) and other important labour conventions.