This item has been updated since initial publication.
Resolution Regarding the Sedition Act 1948
(1) The Resolution adopted at the Extraordinary General Meeting of the Malaysian Bar held at Wisma MCA, Kuala Lumpur on 19 September 2014 (“the September 2014 Resolution”) amongst others called for:
(a) the repeal of the Sedition Act 1948 (“the Act”);
(b) the withdrawal of all pending charges, cases and appeals under the Act; and
(c) a moratorium on the use of the Act.
(2) Six months have passed since the passage of the September 2014 Resolution. Far from a repeal of the Act, on 27 November 2014, the Prime Minister was widely reported as declaring that the Act will not be repealed but will instead be strengthened.
(3) Instead of withdrawing the charges, cases and appeals that were pending under the Act, the Attorney General has actively pursued them:
(a) Since 2013, at least 21 persons have been charged under the Sedition Act 1948, and most of the instances have been listed in Appendix A to the September 2014 Resolution; and
(b) Among the cases that have gone to full trial, activist Adam Adli was convicted and sentenced to 12 months’ imprisonment, activist Safwan Anang was convicted and sentenced to 10 months’ imprisonment, and activist and former ISA detainee Hishamuddin Rais was fined RM5,000. The Attorney General has appealed to increase the sentences in all these cases.
(4) Furthermore, instead of a moratorium on the use of the Act, since the beginning of 2015, the Attorney General and the Inspector General of Police have additionally investigated, arrested, remanded or charged several elected representatives, activists, students, a lawyer and even a cartoonist under the Act, including lawyer Eric Paulsen, cartoonist Zulkiflee Anwar Haque (Zunar), Member of Parliament Rafizi Ramli, Member of Parliament Nga Kor Ming, Parti Sosialis Malaysia Secretary General S. Arutchelvan, State Assemblyman Dr Afif Bahardin, activist Lawrence Jeyaraj, 2 students for posting on Facebook a “firecracker poster” and at least 14 activists from pro–secession group Sabah Sarawak Keluar Malaysia (SSKM).
(5) While the Malaysian Bar does not advocate the use of the Act against any person, it nevertheless condemns the apparent bias with which the Act has been wielded to predominantly suppress the voices of dissent against the government of the day, but not against those whose hate speech and incendiary actions target the minorities in the country. A list of instances of selective non–prosecution by the Attorney General is set out in Appendix C of the September 2014 Resolution. To that list, the following instances are added:
(a) On 5 October 2014, Petaling Jaya Utara Umno deputy division chief Mohamad Azli Mohemed Saad reportedly called for the abolishment of vernacular schools;
(b) On 26 November 2014, Baling Wanita Umno chief Datuk Mashitah Ibrahim reportedly alleged falsely that a Chinese in Kedah had burnt the Quran in a prayer ritual; and
(c) On 2 February 2015, Minister of Agriculture and Agro–Based Industry Datuk Seri Ismail Sabri Yaakob reportedly wrote in a Facebook post that Chinese–owned businesses were raising prices indiscriminately and called for a boycott of Chinese businesses.
(6) Far more disquieting is the manner in which the Inspector General of Police has employed the powers granted his office under the Act and other laws. The act of arrest and the manner of detention seem to have become the tools to punish those who speak and express political dissent; while those who stoke racial and religious discord are accorded deference:
(a) Activist Ali Abdul Jalil had 3 charges levelled against him under the Act. Over the course of approximately 22 days, Ali was repeatedly charged and remanded under the Act and once he posted bail under one charge, he was re–arrested and remanded again under a fresh sedition charge in what can arguably be viewed as a bid to keep him remanded for as long as possible. The ordeal he experienced exemplifies the abject abuse of the Act by the authorities and how it is used as an instrument of oppression against dissenting voices. Ali has since fled the country seeking political asylum in Sweden, saying, “Malaysia is not safe for me”. He has been declared a prisoner of conscience by Amnesty International;
(b) On 12 January 2015, about 20 police officers were deployed to arrest Eric Paulsen under the Act, and his mobile phone and laptop were seized. He was remanded for 2 days during which time the police took him to his house to search for additional laptops;
(c) On 10 February 2015, about 5 police officers were deployed to Zulkiflee Anwar Haque (Zunar)’s house to arrest him under the Act, and he was remanded for 3 days;
(d) On 19 February 2015, about 10 police officers were deployed to S. Arutchelvan’s home to arrest him under the Act, and also seized his computer, modem and mobile phone; and
(e) In contrast, Datuk Seri Ismail Sabri Yaakob was not investigated under the Sedition Act but under the Penal Code. Unlike the others who were arrested in order for statements to be taken, and who would in all likelihood have attended at the police station voluntarily, the police negotiated the setting up of a meeting with Datuk Seri Ismail Sabri Yaakob in order to take his statement.
(7) The conduct of the Inspector General of Police and those under his command demonstrates that powers granted to them under oppressive laws are being utilised indiscriminately and to intimidate the public. The abuse of the remand process as a means of punishment and the manner of arrest and seizure of property outlined above are a gross abuse of process and the law.
(8) The sum totality of the matters that have occurred since the September 2014 Resolution demonstrates that the Malaysian Government has not heeded the call of the Malaysian Bar, but has instead doubled down on its use of the Act to “quell dissent…constrict and deny democratic space, and…oppress and suppress Malaysians”.
THEREFORE, it is hereby resolved that:
(A) The Malaysian Bar condemns the continued use of the Sedition Act 1948, in particular its excessive and selective use.
(B) The Malaysian Bar condemns the abuse of process by the Inspector General of Police and those under his command in using their powers to intimidate and punish rather than investigate.
(C) The Malaysian Bar calls upon the Malaysian Government to abide by the Prime Minister’s pledge of 11 July 2012 to repeal the Sedition Act 1948, and to forthwith repeal the Sedition Act 1948.
(D) The Malaysian Bar calls on the Attorney General to forthwith withdraw all pending charges, cases and appeals, and to concede to all pending appeals, under the Sedition Act 1948.
(E) The Malaysian Bar calls upon the Judiciary to prevent the systematic abuse of the Sedition Act 1948, and to prevent an abuse of the process of investigation and remand by the police.
(F) The Malaysian Bar calls upon the Attorney General to impose a moratorium on the use of the Sedition Act 1948 pending its repeal, and for the police to cease all investigations pursuant to the Sedition Act 1948.
(G) The Malaysian Bar calls upon the Attorney General and the Inspector–General of Police to respect the liberty of an individual and the people’s right to legitimate dissent and criticism.
(H) The Malaysian Bar calls upon the Attorney General to be a professional, impartial and competent Attorney General by leading the Attorney General’s Chambers in upholding the Constitution and the laws of Malaysia in a fair and equitable manner.
(I) The Malaysian Bar calls upon the Inspector General of Police to be a professional, impartial and competent Inspector General of Police by leading the police force in maintaining law and order, preventing and detecting crimes and apprehending criminals rather than policing social media or speech.
(J) The Malaysian Bar calls upon the Bar Council to monitor the use of the Sedition Act 1948 and to consider comprehensive measures to oppose the Sedition Act 1948.
The motion was proposed by Ambiga Sreenevasan and seconded by Ragunath Kesavan.
Resolution for the Provision of Legal Aid and Assistance to Workers
(1) Workers in Malaysia whose rights are violated have the right to lodge claims with the Human Resource Department (“HRD”) (formerly known as the Labour Department), the Industrial Relations Department (“IRD”) or other available avenues, but workers need legal advice and assistance to be able to effectively determine and document their claims, which would also include identifying and preparing the requisite evidence, be it documentary evidence or available witnesses, to support their claim. Workers generally do not have the capacity, legal knowledge or know–how to be able to do this.
(2) Less than 5 per cent of workers in the private sector are unionised, and as such the majority of the about 13 million workers in Malaysia, of which about 2.9 million are migrant workers, will not have even have access to union assistance. Most unions also do not have the capacity and legal knowledge needed to assist workers with their claims.
(3) After the lodging of complaints, if the matter cannot be resolved by conciliation in the HRD, it proceeds to a hearing before the Labour Court, whereby proceedings are akin to any court proceedings, whereby the workers have the right to be represented by a lawyer. Most employers are currently represented by lawyers but most workers are not. This is an unjust situation.
(4) The workers’ claims at the HRD generally are small and not very large, and employing the services of a lawyer would mean paying more than the amount claimed for, or a significant percentage of the total claim. Lawyers ordinarily will not be likely to take up such cases.
(5) At present, when a worker is successful in a claim at the HRD or Labour Court (“HR Court”), what he will get is only the amount that the employer should have originally paid him but failed to. In proceeding with the claim, the worker loses monies in terms of transport and even lost days of work. Hence, at the end of the day, the worker loses out. When an employer cheats the workers by, amongst others, the non–payment of monies due, the law should provide deterrence in the form of maybe requiring the said employer to pay double or triple the amount payable to the worker.
(6) The Bar Council Legal Aid Centres have the capacity and the ability to assist, provide legal assistance and even representation for workers from the point before the worker lodges any complaints/claims to the point of the final settlement of the claim, and this legal aid should be provided to all workers, including migrant workers, especially those whose basic wages do not exceed RM3,000.
(7) National Legal Aid Foundation, at present, does not extend its services to claims for worker rights.
We hereby resolve:
(1) That the Malaysian Bar, through its Legal Aid Centres, extends the services of providing advice, assistance and legal representation for workers from the point of intending to file a complaint at the Human Resource Departments (Labour Offices) or other avenues of justice, to the full settlement of the said cases.
(2) That the Malaysian Bar shall also do the needful to make the National Legal Aid Foundation extend its services to also worker rights violations.
(3) That the Bar Council also do the needful to create awareness of, and if possible, provide training on, worker rights, including how to use all available channels to access for justice for workers, including providing necessary training for lawyers, workers and trade unions.
(4) That the Bar Council shall call upon Malaysia to review all existing labour legislation, also with a view of providing more deterrent penalties for employers and just remedies for workers who have been exploited or cheated by employers.
The motion was proposed by Charles Hector Fernandez.
Resolution on Royal Pardon and the Death Penalty
(1) Article 42(1) of the Federal Constitution provides that:
The Yang di–Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court–martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di–Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.
(2) Article 42(3) of the Federal Constitution also states that:
Where an offence was committed wholly or partly outside the Federation or in more than one State or in circumstances which make it doubtful where it was committed, it shall be treated for the purposes of this Article as having been committed in the State in which it was tried….
(3) Anyone can move the Yang di–Pertuan Agong, Ruler or Yang di–Pertua Negeri of a State to exercise this power to grant pardons, reprieves and respites, including commuting the sentence of death.
(4) Mindful that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable, and the other arguments that have been advanced for the abolition of the death penalty are good reasons for the Yang di–Pertuan Agong, Ruler or Yang di–Pertua Negeri of a State to exercise their powers to commute the death sentence to one of imprisonment.
(5) In Thailand, Royal Pardon has resulted in 90 per cent or more persons sentenced to death having their sentence commuted to imprisonment.
(6) Information about the whole process of application for pardon is not easily available to the public. Neither are the principles or the considerations that are relevant in making or considering such application.
(7) It is known that Malaysia has commuted the death penalty for some foreign nationals, possibly on the application of foreign nation states, possibly by reason of some diplomatic consideration. If there are different standards applicable for the commuting of the death penalty, then this will be considered discriminatory against local Malaysian death row inmates and those from less influential nation states. The statistics of persons whose death sentence had been commuted need to be obtained, and the reasons for this need to be studied, analysed and considered.
(8) On 18 December 2014, the United Nations General Assembly (“UNGA”) adopted a Resolution to establish a moratorium on executions with a view to abolishing the death penalty. This is the fifth time this resolution has been tabled since the first in 2007. 117 member states voted in favour of the 2014 resolution, indicating the continuing growing global support for the abolition of the death penalty.
We hereby resolve:
That the Bar Council do the needful to study and increase awareness about all aspects of the procedures relating to the application for pardon.
The motion was proposed by Charles Hector Fernandez.
Resolution to Increase Building Fund Levy from RM100 to RM250 Per Annum for a Period of 15 years
(1) The Bar Council had in March 1979 exercised its powers under section 46(3) of the Legal Profession Act 1976 to fix the amount of the current levy for the Building Fund at RM100 per annum;
(2) Since 1979, the Malaysian Bar has acquired its current Bar Council Secretariat building, as well as buildings for all State Bar Committees except for Kuala Lumpur, Perlis and Terengganu;
(3) When we moved into the current Bar Council Secretariat premises in 2004, the constraint of space was already a problem. The building was already occupied to its brim by the Bar Council Secretariat, and hence the Kuala Lumpur Bar Committee (“KLBC”), Bar Council Legal Aid Centre (Kuala Lumpur) (“LAC KL”), and Advocates and Solicitors Disciplinary Board (“ASDB”) could not be housed within the same premises;
(4) The Bar Council Risk Management and Professional Indemnity Insurance Department is currently renting premises at Wisma Maran at a rate of RM39,000 per annum;
(5) ASDB is also renting premises at Wisma Maran, at a rate of RM330,000 per annum;
(6) The membership of the Malaysian Bar has increased manyfold since 1979, and currently stands at approximately 15,750 Members;
(7) Commensurate with the increased membership, there has been a correlative increase in the number of staff working at the Bar Council Secretariat to serve the Members of the Malaysian Bar, as well as to cater to the needs and demands of the Malaysian Bar and its wide range of activities;
(8) This increase in the number of staff and activities has resulted in an acute shortage of space at the Bar Council Secretariat;
(9) On 15 July 2014, the Bar Council was constrained to shift its Raja Aziz Addruse Auditorium from the Bar Council Secretariat building to the Straits Trading Building to facilitate additional space for its staff, at a rental rate of RM248,268 per annum. The facilities at the Straits Trading Building — collectively called the Bar Council Malaysia Professional Standards and Development Centre — are used by and shared with KLBC and LAC KL;
(10) An eviction notice was served on KLBC and LAC KL at their Wisma Kraftangan premises in 2014, requiring both KLBC and LAC KL to relocate to alternative premises;
(11) In September 2014, both KLBC and LAC KL relocated to Wisma Hangsam, where the rental cost amounts to RM169,646 per annum and RM115,080 per annum, respectively. This represents an aggregated increase of RM105,276 per annum;
(12) The accumulative rental paid out for all the aforesaid rented premises amounts to RM901,994 per annum, which represents “thrown–away expenditure” in that there is no capital return derived;
(13) It is financially prudent and in the mid– to long–term interest of the Malaysian Bar to enable the Malaysian Bar to own (including by purchasing or by constructing) a building in order to house the Bar Council Secretariat, Raja Aziz Addruse Auditorium, Risk Management and Professional Indemnity Insurance Department, KLBC, LAC KL, as well as ASDB, under one roof, or alternatively to enable the Malaysian Bar to own (including by purchasing or by constructing) more than one building in order to house all these entities, departments and facilities in separate buildings;
(14) It is financially prudent and in the mid– to long–term interest of the Malaysian Bar that appropriate premises are acquired:
(a) To accommodate the Bar Council Secretariat, Raja Aziz Addruse Auditorium, Risk Management and Professional Indemnity Insurance Department, KLBC, LAC KL, as well as ASDB;
(b) That would provide sufficient space for any future needs;
(c) That would result in capital appreciation accruing to the Bar;
(d) That would be an income–generating property for the Bar that could hopefully meet, at least partially if not wholly, the operating costs of the building, and even the Bar; and
(e) That would provide a source of income to the Bar other than subscription income;
(15) In addition to the KLBC, there is a further need to purchase and provide buildings for the Perlis Bar Committee and the Terengganu Bar Committee; and
(16) The current amounts of subscription and levies payable by each Member of the Bar per annum are:
|Legal Aid Fund
THEREFORE, it is hereby resolved that:
(1) Pursuant to section 46(4) of the Legal Profession Act 1976, the levy for the Building Fund shall be increased from RM100 to RM250 per annum, with effect from 1 January 2015, for a period of 15 years; and
(2) The Bar Council is hereby mandated to take any and all such further action as it deems appropriate or necessary in order to fulfil the purposes set out above.
The motion was proposed by Christopher Leong (Chairman, Bar Council), on behalf of the Bar Council.