Resolution Regarding the Discovery of "Death Camps" in Perlis
Whereas the Malaysian Bar:
(1) Is outraged by the unprecedented discovery of mass graves and “death camps” within our borders. The more than 150 graves at “death camps” spread across various remote sites in the state of Perlis, near the border with Thailand, as reported by the New Straits Times on 26 May 2015 (Appendix 1), are widely believed to have contained human remains of victims of trafficking or smuggled migrants who died whilst in the custody of traffickers or smugglers;
(2) Is deeply troubled by an article in the New Straits Times on 20 December 2017 (Appendix 2) stating that there had been a “massive, coordinated cover–up” of the mass graves and “death camps” and the investigations surrounding it. The article details various allegations as regards the way in which the discovery was handled, as follows:
Whereas the Malaysian Bar:
(1) Is outraged by the unprecedented discovery of mass graves and “death camps” within our borders. The more than 150 graves at “death camps” spread across various remote sites in the state of Perlis, near the border with Thailand, as reported by the New Straits Times on 26 May 2015 (Appendix 1), are widely believed to have contained human remains of victims of trafficking or smuggled migrants who died whilst in the custody of traffickers or smugglers;
(2) Is deeply troubled by an article in the New Straits Times on 20 December 2017 (Appendix 2) stating that there had been a “massive, coordinated cover–up” of the mass graves and “death camps” and the investigations surrounding it. The article details various allegations as regards the way in which the discovery was handled, as follows:
(a) Two conflicting reports submitted by the police on the events that unfolded on 19 January 2015;
(b) A coordinated cover–up involving complicity, collusion, and corruption of law enforcement agencies with syndicates which perpetuate these acts;
(c) That “… there had been some “serious redacting” in reports and papers filed in the course of investigations.”; and
(d) That “… the local middleman, who had been taken into custody had admitted to greasing the palms of personnel in border security agencies to ensure that his operation could continue unmolested.”;
(b) A coordinated cover–up involving complicity, collusion, and corruption of law enforcement agencies with syndicates which perpetuate these acts;
(c) That “… there had been some “serious redacting” in reports and papers filed in the course of investigations.”; and
(d) That “… the local middleman, who had been taken into custody had admitted to greasing the palms of personnel in border security agencies to ensure that his operation could continue unmolested.”;
(3) Finds that the two New Straits Times articles have resulted in conflicting accounts of the events and raise the following queries:
(a) When exactly were the sites discovered?;
(b) When were the graves found?;
(c) Why was the destruction of the sites ordered before relevant forensic evidence was extracted?; and
(d) How long had the sites been in operation?;
(b) When were the graves found?;
(c) Why was the destruction of the sites ordered before relevant forensic evidence was extracted?; and
(d) How long had the sites been in operation?;
(4) Notes that several Thai nationals, including politicians and an army general, have been found guilty in Thailand pursuant to investigations initiated by the Thai authorities, and sentenced to long periods of imprisonment;1
(5) Is not aware of any reports of any Malaysians charged for these heinous crimes in Malaysia, save for the foreigners already charged and sentenced in court for immigration offences,2 with victims predominantly repatriated. These are crimes that are perpetrated not just by foreigners but in collusion with Malaysian counterparts who have yet to be held to account;3
(6) Notes that Malaysia is obliged to uphold the underlying values of international human rights laws and norms set out in, inter alia, the United Nations Convention Against Transnational Organized Crime (November 2000), the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (December 2000), the Protocol Against the Smuggling of Migrants by Land, Sea and Air (December 2000), and the United Nations Against Corruption (October 2003); and regional obligations, namely the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (November 2015), all of which the Malaysian Government has voted in favour of and/or signed;
(7) Recognises the Government of Malaysia’s commitment to eradicate human trafficking with the implementation of international obligations in the Anti–Trafficking in Persons and Anti–Smuggling of Migrants Act 2007, and the Pelan Tindakan Kebangsaan Antipemerdagangan Orang (2016–2020) by the Majlis Antipemerdagangan Orang ("MAPO"); and
(8) Reiterates that no stone should be left unturned in cleaning up our backyard, as our international reputation is at stake and this incident remains a stain on the fabric of Malaysia. In light of this, as a nation we need to acknowledge and come to terms with these atrocities that have occurred within our borders and ensure that justice is served.
Therefore, it is hereby resolved that:
(A) The Malaysian Bar call upon the Government of Malaysia to take all necessary steps to ensure that such tragedies never recur within our borders, including:
(B) The Malaysian Bar call upon the Government of Malaysia, and specifically the Ministry of Home Affairs, to better resource the implementation of the provisions of the Anti–Trafficking in Persons and Anti–Smuggling of Migrants Act 2007 and the MAPO Pelan Tindakan Kebangsaan Antipemerdagangan Orang (2016–2020), by increasing investigative teams and developing them to become specialist teams dedicated to the identification, apprehension and prosecution of human traffickers and those abetting them; and to work closely at all levels of policy formulation, administration and implementation, with civil society organisations an other stakeholders, to improve public awareness of and eradicate human trafficking;
(C) The Malaysian Bar call upon the Royal Malaysia Police to fully disclose the extent of these crimes and the various personalities involved, and to take all necessary steps to thoroughly investigate and bring those responsible for these heinous atrocities to task; and
(D) The Malaysian Bar call upon the Human Rights Commission of Malaysia (“SUHAKAM”) to exercise its functions and powers pursuant to sections 4(1)(d), 4(2)(d) and 4(2)(f), read with section 12(1), of the Human Rights Commission of Malaysia Act 1999, to carry out an inquiry in respect of the alleged human rights infringements, and produce a report of its investigations, findings and conclusions.
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1 “General among dozens found guilty in Thailand's largest human trafficking trial”, Sydney Morning Herald, 20 July 2017.
2 “Thai man gets five years jail for Wang Kelian human–trafficking”, New Straits Times, 15 December 2016.
3 “12 cops arrested over Perlis migrant mass graves”, Malay Mail Online, 27 May 2015.
The motion was proposed by George Varughese (Chairman, Bar Council), on behalf of the Bar Council.
(5) Is not aware of any reports of any Malaysians charged for these heinous crimes in Malaysia, save for the foreigners already charged and sentenced in court for immigration offences,2 with victims predominantly repatriated. These are crimes that are perpetrated not just by foreigners but in collusion with Malaysian counterparts who have yet to be held to account;3
(6) Notes that Malaysia is obliged to uphold the underlying values of international human rights laws and norms set out in, inter alia, the United Nations Convention Against Transnational Organized Crime (November 2000), the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (December 2000), the Protocol Against the Smuggling of Migrants by Land, Sea and Air (December 2000), and the United Nations Against Corruption (October 2003); and regional obligations, namely the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (November 2015), all of which the Malaysian Government has voted in favour of and/or signed;
(7) Recognises the Government of Malaysia’s commitment to eradicate human trafficking with the implementation of international obligations in the Anti–Trafficking in Persons and Anti–Smuggling of Migrants Act 2007, and the Pelan Tindakan Kebangsaan Antipemerdagangan Orang (2016–2020) by the Majlis Antipemerdagangan Orang ("MAPO"); and
(8) Reiterates that no stone should be left unturned in cleaning up our backyard, as our international reputation is at stake and this incident remains a stain on the fabric of Malaysia. In light of this, as a nation we need to acknowledge and come to terms with these atrocities that have occurred within our borders and ensure that justice is served.
Therefore, it is hereby resolved that:
(A) The Malaysian Bar call upon the Government of Malaysia to take all necessary steps to ensure that such tragedies never recur within our borders, including:
(i) To abide by and uphold the principles of justice, good governance and the rule of law, and to respect, promote and protect the human rights of trafficked persons within Malaysia’s borders;
(ii) To establish a Royal Commission of Inquiry (“RCI”) to investigate the existence of the mass graves and “death camps”, and the allegations of, among others, a cover–up, complicity, collusion, and corruption of law enforcement agencies, and to identify the perpetrators concerned; and
(iii) To adhere to its obligations under international law and thereafter take steps for legal, policy and institutional reform in compliance with the same;
(ii) To establish a Royal Commission of Inquiry (“RCI”) to investigate the existence of the mass graves and “death camps”, and the allegations of, among others, a cover–up, complicity, collusion, and corruption of law enforcement agencies, and to identify the perpetrators concerned; and
(iii) To adhere to its obligations under international law and thereafter take steps for legal, policy and institutional reform in compliance with the same;
(B) The Malaysian Bar call upon the Government of Malaysia, and specifically the Ministry of Home Affairs, to better resource the implementation of the provisions of the Anti–Trafficking in Persons and Anti–Smuggling of Migrants Act 2007 and the MAPO Pelan Tindakan Kebangsaan Antipemerdagangan Orang (2016–2020), by increasing investigative teams and developing them to become specialist teams dedicated to the identification, apprehension and prosecution of human traffickers and those abetting them; and to work closely at all levels of policy formulation, administration and implementation, with civil society organisations an other stakeholders, to improve public awareness of and eradicate human trafficking;
(C) The Malaysian Bar call upon the Royal Malaysia Police to fully disclose the extent of these crimes and the various personalities involved, and to take all necessary steps to thoroughly investigate and bring those responsible for these heinous atrocities to task; and
(D) The Malaysian Bar call upon the Human Rights Commission of Malaysia (“SUHAKAM”) to exercise its functions and powers pursuant to sections 4(1)(d), 4(2)(d) and 4(2)(f), read with section 12(1), of the Human Rights Commission of Malaysia Act 1999, to carry out an inquiry in respect of the alleged human rights infringements, and produce a report of its investigations, findings and conclusions.
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1 “General among dozens found guilty in Thailand's largest human trafficking trial”, Sydney Morning Herald, 20 July 2017.
2 “Thai man gets five years jail for Wang Kelian human–trafficking”, New Straits Times, 15 December 2016.
3 “12 cops arrested over Perlis migrant mass graves”, Malay Mail Online, 27 May 2015.
The motion was proposed by George Varughese (Chairman, Bar Council), on behalf of the Bar Council.
Resolution Regarding the Continuing Professional Development Scheme
Whereas:
(1) The object and powers of the Bar in section 42(1) of the Legal Profession Act 1976 stipulate that the purpose of the Malaysian Bar shall be, inter alia: “(b) to maintain and improve the standards of conduct and learning of the legal profession in Malaysia”; “(c) to facilitate the acquisition of legal knowledge by members of the legal profession and others”; and “(e) to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia”; and
(2) This motion is pursuant to these objects and powers, and the need for exemplary standards of professional practice, etiquette and conduct to be achieved by Members of the Malaysian Bar (“Members”), and to inculcate a culture of continuing professional development in Members.
(3) At the 70th Annual General Meeting (“AGM”) of the Malaysian Bar held on 19 March 2016, it was resolved that the mandatory Continuing Professional Development (“CPD”) Scheme would be implemented on a staggered basis, with effect from 1 July 2016, for Members and pupils in chambers.
(4) The mandatory CPD Scheme came into effect for Members admitted as advocates and solicitors of the High Court of Malaya on or after 1 July 2011 (“Group One Members”), who are required to obtain a total of 16 CPD points in each 24–month CPD cycle. The current CPD cycle is from 1 July 2016 until 30 June 2018 (inclusive).
(5) Where Group One Members are admitted as advocates and solicitors of the High Court of Malaya after the commencement of any CPD cycle, the CPD points to be obtained during that cycle are prorated based on the table below:
(6) The mandatory CPD Scheme came into effect for pupils in chambers who commenced their pupillage on or after 1 July 2016, who are required to obtain a total of 8 CPD points in the course of their pupillage.
(7) This motion seeks to extend the application of the staggered mandatory CPD Scheme to Members admitted as advocates and solicitors of the High Court of Malaya from 1 July 2006 to 30 June 2011 (inclusive), with effect from 1 July 2018.
(8) The proposed implementation, subject to the decision of the Members at the AGM of the Malaysian Bar in 2020, shall be as follows:
It is hereby resolved that the CPD Scheme shall apply to:
(A) Members Admitted as Advocates and Solicitors of the High Court of Malaya from 1 July 2006 to 30 June 2011 (Inclusive)
(B) Other Members: Members Admitted as Advocates and Solicitors of the High Court of Malaya Before 1 July 2006
(C) Compliance with the CPD Requirements
(D) Non–Compliance with the CPD Requirements
Whereas:
(1) The object and powers of the Bar in section 42(1) of the Legal Profession Act 1976 stipulate that the purpose of the Malaysian Bar shall be, inter alia: “(b) to maintain and improve the standards of conduct and learning of the legal profession in Malaysia”; “(c) to facilitate the acquisition of legal knowledge by members of the legal profession and others”; and “(e) to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia”; and
(2) This motion is pursuant to these objects and powers, and the need for exemplary standards of professional practice, etiquette and conduct to be achieved by Members of the Malaysian Bar (“Members”), and to inculcate a culture of continuing professional development in Members.
(3) At the 70th Annual General Meeting (“AGM”) of the Malaysian Bar held on 19 March 2016, it was resolved that the mandatory Continuing Professional Development (“CPD”) Scheme would be implemented on a staggered basis, with effect from 1 July 2016, for Members and pupils in chambers.
(4) The mandatory CPD Scheme came into effect for Members admitted as advocates and solicitors of the High Court of Malaya on or after 1 July 2011 (“Group One Members”), who are required to obtain a total of 16 CPD points in each 24–month CPD cycle. The current CPD cycle is from 1 July 2016 until 30 June 2018 (inclusive).
(5) Where Group One Members are admitted as advocates and solicitors of the High Court of Malaya after the commencement of any CPD cycle, the CPD points to be obtained during that cycle are prorated based on the table below:
| No | Duration | Prorated CPD Points |
| 1 | 12 to 24 months until end of the current CPD cycle | 16 |
| 2 | More than or equal to 6 months, but less than 12 months, until the end of the current CPD cycle | 8 |
| 3 | More than or equal to 2 months, but less than 6 months, until the end of the current CPD cycle | 4 |
| 4 | Less than 2 months until end of the current CPD cycle | Nil |
(6) The mandatory CPD Scheme came into effect for pupils in chambers who commenced their pupillage on or after 1 July 2016, who are required to obtain a total of 8 CPD points in the course of their pupillage.
(7) This motion seeks to extend the application of the staggered mandatory CPD Scheme to Members admitted as advocates and solicitors of the High Court of Malaya from 1 July 2006 to 30 June 2011 (inclusive), with effect from 1 July 2018.
(8) The proposed implementation, subject to the decision of the Members at the AGM of the Malaysian Bar in 2020, shall be as follows:
| No | CPD becomes mandatory from: | Applicable to Members who commenced legal practice on or after: |
| (1) | 1 July 2020 | 1 July 2001 to 30 June 2006 (inclusive) |
| (2) | 1 July 2022 | 1 July 1996 to 30 June 2001 (inclusive) |
| (3) | 1 July 2024 | 1 July 1991 to 30 June 1996 (inclusive) |
It is hereby resolved that the CPD Scheme shall apply to:
(A) Members Admitted as Advocates and Solicitors of the High Court of Malaya from 1 July 2006 to 30 June 2011 (Inclusive)
(1) The CPD Scheme shall take effect from 1 July 2018 until 30 June 2020 for a 24–month cycle, and continue thereafter;
(2) The CPD Scheme shall apply to all persons who were admitted as advocates and solicitors of the High Court of Malaya between 1 July 2006 to 30 June 2011 (inclusive) (“Group Two Members”);
(3) Group Two Members shall be required to obtain a minimum of 16 CPD points during each 24–month CPD cycle.
(2) The CPD Scheme shall apply to all persons who were admitted as advocates and solicitors of the High Court of Malaya between 1 July 2006 to 30 June 2011 (inclusive) (“Group Two Members”);
(3) Group Two Members shall be required to obtain a minimum of 16 CPD points during each 24–month CPD cycle.
(B) Other Members: Members Admitted as Advocates and Solicitors of the High Court of Malaya Before 1 July 2006
(1) The CPD Scheme shall take effect on other Members (either in totality or for a selected group), subject to the decision of the Members at the AGM of the Malaysian Bar in 2020.
(C) Compliance with the CPD Requirements
(1) Compliance by Group Two Members with the requisite CPD points within the CPD Cycle shall result in Group Two Members receiving one Event Voucher for selected Bar Council and/or State Bar Committee professional development events, which will be valid for one year from the date of issue.
(D) Non–Compliance with the CPD Requirements
(1) Non–attainment of the required CPD Points in any CPD cycle shall result in:
(a) an automatic six–month extension to obtain the required CPD points for that cycle; and
(b) a further extension not exceeding three months may be granted by the Professional Standards and Development Committee of the Bar Council and/or the Bar Council, if the required CPD points are not obtained within the six–month extension period.
(b) a further extension not exceeding three months may be granted by the Professional Standards and Development Committee of the Bar Council and/or the Bar Council, if the required CPD points are not obtained within the six–month extension period.
The granting of an extension will not affect the number of CPD points that Group Two Members will be required to obtain in any subsequent cycle.
(2) In the event of non–compliance upon the expiry of the extension(s) granted under D(1) above, the following penalties will be applicable:
| No | Status of CPD point(s) at the end of the extension period(s) |
Amount of fine |
| (1) | Between 9 to15 CPD points (inclusive) | RM100 |
| (2) | Between 1 to 8 CPD points (inclusive) | RM200 |
| (3) | No CPD point | RM500 |
In this regard, the Bar Council shall be authorised to do all acts as it may consider to be necessary or appropriate to implement D(2) above including through the making of Rules or Rulings, or through amendments to the Legal Profession Act 1976.
(E) Ancillary Matters
(1) The Bar Council shall be authorised to take all necessary steps towards the implementation and enforcement of the CPD Scheme, including, if considered necessary:
(a) adopting the CPD Guidelines, as shall be updated from time to time;
(b) accrediting courses, seminars, workshops, conferences and other appropriate events for the CPD Scheme;
(c) organising courses, seminars, workshops, conferences and other appropriate events for the CPD Scheme;
(d) putting in place measures to ensure participation in the CPD Scheme and to inculcate a culture of continuing professional development amongst Members and pupils; and
(e) doing all such other things that are incidental or conducive to the successful achievement or betterment of the CPD Scheme.
(b) accrediting courses, seminars, workshops, conferences and other appropriate events for the CPD Scheme;
(c) organising courses, seminars, workshops, conferences and other appropriate events for the CPD Scheme;
(d) putting in place measures to ensure participation in the CPD Scheme and to inculcate a culture of continuing professional development amongst Members and pupils; and
(e) doing all such other things that are incidental or conducive to the successful achievement or betterment of the CPD Scheme.
(2) The Professional Standards and Development Committee will report on the progress of the CPD Scheme at each subsequent AGM.
The motion was proposed by George Varughese (Chairman, Bar Council), on behalf of the Bar Council.
Resolution Calling for the Total Abolition of the Death Penalty
Whereas:
(1) The Malaysian Bar opposes the death penalty because it takes the view that life is sacred, and every person has an inherent right to life. This is vouchsafed in Article 5(1) of the Federal Constitution of Malaysia, which eschews the arbitrary deprivation of life. The right to life is a fundamental right that is absolute, inalienable and universal, and must be held inviolate, irrespective of the crime committed by the accused person;
(2) The Malaysian Bar has always taken the view that there is no empirical evidence or data that confirms that the death penalty serves as an effective deterrent to the commission of crimes. There has been no significant reduction in the incidence of crimes for which the death penalty is currently available as a sentence, whether mandatory or discretionary in nature;
(3) The Malaysian Bar has at its Annual or Extraordinary General Meetings in 1985, 2006, 2012 and 2015 passed resolutions condemning the use of the death penalty and/or calling for its abolition;
(4) Ten persons were reportedly sentenced to the death penalty since the passage of the Dangerous Drugs (Amendment) Act 2017 by the Dewan Rakyat on 30 November 2017, before it finally came into force on 15 March 2018; and
(5) The death penalty is still mandatory for persons convicted of murder and discharging a firearm in the commission of various crimes (even where no one is hurt).
The Malaysian Bar hereby resolves:
(A) That the death penalty as a punishment for any crime under Malaysian law, whether mandatory or discretionary, be immediately abolished;
(B) To call upon the Malaysian Government to further amend the Dangerous Drugs Act 1952 so as to remove any fetter on, or circumscription of, the discretion of the trial judge to impose a sentence other than the death penalty;
(C) To call upon the Malaysian Government to act swiftly to abolish the death penalty for all crimes, stop all further executions, undertake a review of all cases of those sentenced to death prior to the coming into force of legislation removing the death penalty as a punishment, and to commute or recommend the commutation of each such death sentence to one of a term of imprisonment commensurate with the circumstances of each case; and
(D) That the Bar Council be mandated to take all such action as may be necessary, prudent or desirable, including engaging and collaborating with other stakeholders, in pursuance of the aims of this resolution.
Whereas:
(1) The Malaysian Bar opposes the death penalty because it takes the view that life is sacred, and every person has an inherent right to life. This is vouchsafed in Article 5(1) of the Federal Constitution of Malaysia, which eschews the arbitrary deprivation of life. The right to life is a fundamental right that is absolute, inalienable and universal, and must be held inviolate, irrespective of the crime committed by the accused person;
(2) The Malaysian Bar has always taken the view that there is no empirical evidence or data that confirms that the death penalty serves as an effective deterrent to the commission of crimes. There has been no significant reduction in the incidence of crimes for which the death penalty is currently available as a sentence, whether mandatory or discretionary in nature;
(3) The Malaysian Bar has at its Annual or Extraordinary General Meetings in 1985, 2006, 2012 and 2015 passed resolutions condemning the use of the death penalty and/or calling for its abolition;
(4) Ten persons were reportedly sentenced to the death penalty since the passage of the Dangerous Drugs (Amendment) Act 2017 by the Dewan Rakyat on 30 November 2017, before it finally came into force on 15 March 2018; and
(5) The death penalty is still mandatory for persons convicted of murder and discharging a firearm in the commission of various crimes (even where no one is hurt).
The Malaysian Bar hereby resolves:
(A) That the death penalty as a punishment for any crime under Malaysian law, whether mandatory or discretionary, be immediately abolished;
(B) To call upon the Malaysian Government to further amend the Dangerous Drugs Act 1952 so as to remove any fetter on, or circumscription of, the discretion of the trial judge to impose a sentence other than the death penalty;
(C) To call upon the Malaysian Government to act swiftly to abolish the death penalty for all crimes, stop all further executions, undertake a review of all cases of those sentenced to death prior to the coming into force of legislation removing the death penalty as a punishment, and to commute or recommend the commutation of each such death sentence to one of a term of imprisonment commensurate with the circumstances of each case; and
(D) That the Bar Council be mandated to take all such action as may be necessary, prudent or desirable, including engaging and collaborating with other stakeholders, in pursuance of the aims of this resolution.
The motion was proposed by George Varughese (Chairman, Bar Council), on behalf of the Bar Council.
Resolution on Dangerous Drugs Act 1952 — More Sentencing Discretion to Judges and Disappointment about Delay in Putting into Force
Whereas:
(1) The Dangerous Drugs (Amendment) Act 2017 (“DDAA 2017”), which was passed by Parliament and received royal assent on 27 Dec 2017, cannot now be used by judges to consider alternatives to the death sentence for the offence of drug trafficking until the Minister does the needful that will enable this possible life–saving law to come into force;
(2) A perusal of the Attorney General’s Chambers’ Official Portal e–Federal Gazette on 8 Mar 2018 shows that the DDDA 2017 is still not in force, despite repeated calls from many human rights and civil society groups;
(3) The mandatory death penalty for drug trafficking will be abolished when the new DDAA 2017 comes into force, giving judges sentencing discretion between the death penalty or life imprisonment with whipping of not less than 15 strokes;
(4) To date, based on media reports only, there are at least 10 persons (5 Malaysians and 5 foreign nationals) who have suffered grave injustice by being convicted and sentenced to death simply because of the Minister’s delay in doing the needful:
(5) Not all cases get reported in the media, and as such there may be many more victims. Until the law is in force, judges can only impose the mandatory death penalty;
(6) The DDAA 2017, when it comes into force, will only be applicable for persons who have yet to be convicted and, as such, speed is of the essence. Those already convicted before this law comes into force will still be subject to the mandatory death penalty, and the appellate courts will also thereafter not have the power to review the death sentence;
(7) It is noted that there are still flaws in the new DDAA 2017, including the limits imposed on the matters that judges can (or must) consider before sentencing but, be that as it may, it will still return judicial discretion and importantly, the option of not imposing the mandatory death penalty, to judges. Existing flaws can always be dealt with by future amendments. The DDAA 2017 should therefore be immediately put in force to save lives;
(8) The Minister in the Prime Minister’s Department, Dato’ Sri Azalina Othman, the new de facto Law Minister, during the Parliamentary session on 2 Nov 2016 clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalty offences (The Sun Daily, 3 Nov 2016);
(9) Currently in Malaysia, even after the mandatory death penalty is abolished for drug trafficking, about 11 other offences remain that provide for the mandatory death penalty, while about 20 other offences are punishable by a discretionary death penalty. Some of these mandatory death penalty offences are offences that do not even cause the loss of life or grievous bodily harm; and
(10) The DDAA 2017 just came into force on 15 Mar 2018, whereby the required gazette notification dated 8 Mar 2018 appointing the date the DDAA 2017 comes into operation was signed by the Minister of Health, Datuk Seri Dr S Subramaniam. This was odd, when one would have expected this to be done by the Minister in the Prime Minister’s Department, Dato’ Sri Azalina Othman, and/or the Home Minister.
Therefore, it is hereby resolved:
(A) That the Malaysian Bar is disappointed with the unexplained delay of the Minister to put into force the DDA 2017, to immediately give judges discretion in sentencing, enabling judges to impose sentences other than the current mandatory death penalty for drug trafficking, which resulted in at least 10 persons being unjustly sentenced to death in 2018, until 15 Mar 2018 when the law finally came into force;
(B) That the Malaysian Bar calls for the Dangerous Drugs Act 1952 to be further amended promptly to remedy flaws, including the restoration of full judicial discretion in sentencing, which must allow consideration of all relevant facts and circumstances of each case;
(C) That the Malaysian Bar calls for the immediate abolition of the death penalty, especially the mandatory death penalty; and
(D) That the Malaysian Bar calls for a moratorium on executions pending the abolition of the death penalty.
Whereas:
(1) The Dangerous Drugs (Amendment) Act 2017 (“DDAA 2017”), which was passed by Parliament and received royal assent on 27 Dec 2017, cannot now be used by judges to consider alternatives to the death sentence for the offence of drug trafficking until the Minister does the needful that will enable this possible life–saving law to come into force;
(2) A perusal of the Attorney General’s Chambers’ Official Portal e–Federal Gazette on 8 Mar 2018 shows that the DDDA 2017 is still not in force, despite repeated calls from many human rights and civil society groups;
(3) The mandatory death penalty for drug trafficking will be abolished when the new DDAA 2017 comes into force, giving judges sentencing discretion between the death penalty or life imprisonment with whipping of not less than 15 strokes;
(4) To date, based on media reports only, there are at least 10 persons (5 Malaysians and 5 foreign nationals) who have suffered grave injustice by being convicted and sentenced to death simply because of the Minister’s delay in doing the needful:
(a) S Pragasam (30): Ipoh High Court (The Malay Mail, 9 Feb 2018);
(b) Ong Cheng Yaw (33) and San Kim Huat (38): Kuala Lumpur High Court (The Malaysian Insight, 8 Feb 2018);
(c) Jonas Chihurumnanya (Nigerian): Kuching High Court (The Borneo Post, 30 Jan 2018);
(d) S Gopi Kumar (33): Kuala Lumpur High Court (The Sun Daily, 24 Jan 2018); and
(e) A Sargunan (42), and four Indian nationals, namely Sumesh Sudhakaran (30), Alex Aby Jacob Alexander (37), Renjith Raveendran (28), and Sajith Sadanandan (29): Shah Alam High Court (The Sun Daily, 22 Jan 2018);
(b) Ong Cheng Yaw (33) and San Kim Huat (38): Kuala Lumpur High Court (The Malaysian Insight, 8 Feb 2018);
(c) Jonas Chihurumnanya (Nigerian): Kuching High Court (The Borneo Post, 30 Jan 2018);
(d) S Gopi Kumar (33): Kuala Lumpur High Court (The Sun Daily, 24 Jan 2018); and
(e) A Sargunan (42), and four Indian nationals, namely Sumesh Sudhakaran (30), Alex Aby Jacob Alexander (37), Renjith Raveendran (28), and Sajith Sadanandan (29): Shah Alam High Court (The Sun Daily, 22 Jan 2018);
(5) Not all cases get reported in the media, and as such there may be many more victims. Until the law is in force, judges can only impose the mandatory death penalty;
(6) The DDAA 2017, when it comes into force, will only be applicable for persons who have yet to be convicted and, as such, speed is of the essence. Those already convicted before this law comes into force will still be subject to the mandatory death penalty, and the appellate courts will also thereafter not have the power to review the death sentence;
(7) It is noted that there are still flaws in the new DDAA 2017, including the limits imposed on the matters that judges can (or must) consider before sentencing but, be that as it may, it will still return judicial discretion and importantly, the option of not imposing the mandatory death penalty, to judges. Existing flaws can always be dealt with by future amendments. The DDAA 2017 should therefore be immediately put in force to save lives;
(8) The Minister in the Prime Minister’s Department, Dato’ Sri Azalina Othman, the new de facto Law Minister, during the Parliamentary session on 2 Nov 2016 clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalty offences (The Sun Daily, 3 Nov 2016);
(9) Currently in Malaysia, even after the mandatory death penalty is abolished for drug trafficking, about 11 other offences remain that provide for the mandatory death penalty, while about 20 other offences are punishable by a discretionary death penalty. Some of these mandatory death penalty offences are offences that do not even cause the loss of life or grievous bodily harm; and
(10) The DDAA 2017 just came into force on 15 Mar 2018, whereby the required gazette notification dated 8 Mar 2018 appointing the date the DDAA 2017 comes into operation was signed by the Minister of Health, Datuk Seri Dr S Subramaniam. This was odd, when one would have expected this to be done by the Minister in the Prime Minister’s Department, Dato’ Sri Azalina Othman, and/or the Home Minister.
Therefore, it is hereby resolved:
(A) That the Malaysian Bar is disappointed with the unexplained delay of the Minister to put into force the DDA 2017, to immediately give judges discretion in sentencing, enabling judges to impose sentences other than the current mandatory death penalty for drug trafficking, which resulted in at least 10 persons being unjustly sentenced to death in 2018, until 15 Mar 2018 when the law finally came into force;
(B) That the Malaysian Bar calls for the Dangerous Drugs Act 1952 to be further amended promptly to remedy flaws, including the restoration of full judicial discretion in sentencing, which must allow consideration of all relevant facts and circumstances of each case;
(C) That the Malaysian Bar calls for the immediate abolition of the death penalty, especially the mandatory death penalty; and
(D) That the Malaysian Bar calls for a moratorium on executions pending the abolition of the death penalty.
The motion was proposed by Charles Hector Fernandez, Francis Pereira, Shanmugam a/l Ramasamy and Ngeow Chow Ying.
Resolution for the Introduction of “Anticipatory Bail” under the Malaysian Criminal Procedure Code
Whereas:
(1) Where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail;
(2) Anticipatory bail intends to exclude humiliation and harassment of being subject to custody, while the same does not influence the investigation;
(3) In the Indian case of Bal Chand Jain v State of M. P. [1977] AIR SC 366, it was observed that the expression “anticipatory bail” is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants “anticipatory bail”, it makes an order that in the event of the arrest, a person shall be released on bail. Manifestly, there is no question of a person being released on bail unless the person is arrested and, therefore, it is only upon an arrest that the order granting “anticipatory bail” becomes operative;
Proposed Principles to be Adopted in an Application for “Anticipatory Bail”
(4) An application for anticipatory bail may be submitted to the Honourable Court when a person has reasons to believe that he/she may be arrested on accusation(s) of having committed an offence, and has yet to be arrested for the said accusation(s);
(5) A lodgement of a police report against the applicant is not the sole condition that renders the filing of an application for anticipatory bail. Instead, the likelihood of an arrest, supported by a reasonable ground to believe that such a likelihood will arise, is a ground to move the Honourable Court to grant an order for anticipatory bail;
(6) An application for anticipatory bail:
(7) Non–compliance of the interim order is tantamount to contempt of court;
(8) The mere filing of an application for anticipatory bail does not automatically entitle one to an interim order for anticipatory bail. There must be circumstances to satisfy the Honourable Court that, the bail, if granted, will not disrupt the course of investigation. The proposed conditions that the Honourable Court must be satisfied with are as follows:
(9) The High Court is free to impose any condition(s) as it deems fit, to secure the integrity of the investigation carried out against the applicant. The organic growth of common law will introduce relevant conditions as it deems proper and fit;
(10) The applicant himself/herself will not be required to be present during the hearing of his/her application;
(11) There shall not be a blanket order for anticipatory bail. There must be specific accusations. A blanket order will cause serious and unwarranted interference with the function of the enforcement agencies in the country;
(12) An application for anticipatory bail only allows the applicant to be excluded from custodial experiences. The applicant shall be required to submit his/her presence to the relevant authority, if so required; and
(13) The order for anticipatory bail shall cease to be in operation once the applicant is charged in Court. From thereon, the normal course of proceedings will be applicable.
Therefore, it is hereby resolved:
(A) That the Malaysian Bar call on the Malaysian Government to amend the Criminal Procedure Code for the purpose of introducing anticipatory bail; and
(B) That the Bar Council take all necessary steps that anticipatory bail is introduced and included in the Criminal Procedure Code.
Whereas:
(1) Where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail;
(2) Anticipatory bail intends to exclude humiliation and harassment of being subject to custody, while the same does not influence the investigation;
(3) In the Indian case of Bal Chand Jain v State of M. P. [1977] AIR SC 366, it was observed that the expression “anticipatory bail” is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants “anticipatory bail”, it makes an order that in the event of the arrest, a person shall be released on bail. Manifestly, there is no question of a person being released on bail unless the person is arrested and, therefore, it is only upon an arrest that the order granting “anticipatory bail” becomes operative;
Proposed Principles to be Adopted in an Application for “Anticipatory Bail”
(4) An application for anticipatory bail may be submitted to the Honourable Court when a person has reasons to believe that he/she may be arrested on accusation(s) of having committed an offence, and has yet to be arrested for the said accusation(s);
(5) A lodgement of a police report against the applicant is not the sole condition that renders the filing of an application for anticipatory bail. Instead, the likelihood of an arrest, supported by a reasonable ground to believe that such a likelihood will arise, is a ground to move the Honourable Court to grant an order for anticipatory bail;
(6) An application for anticipatory bail:
(a) Should be made by way of ex parte Notice of Motion to the High Court.
(b) The High Court, upon hearing the Notice of Motion, and if deems fit, shall grant an interim order for anticipatory bail and direct the applicant to serve all relevant cause papers on the Public Prosecutor.
(c) Thereafter, an inter partes hearing shall take place.
(d) The interim order shall not be more than 14 days.
(e) An application to convert the interim order into an ad interim order shall be made by the applicant if the inter partes hearing cannot be concluded within 14 days from the date of the interim order;
(b) The High Court, upon hearing the Notice of Motion, and if deems fit, shall grant an interim order for anticipatory bail and direct the applicant to serve all relevant cause papers on the Public Prosecutor.
(c) Thereafter, an inter partes hearing shall take place.
(d) The interim order shall not be more than 14 days.
(e) An application to convert the interim order into an ad interim order shall be made by the applicant if the inter partes hearing cannot be concluded within 14 days from the date of the interim order;
(7) Non–compliance of the interim order is tantamount to contempt of court;
(8) The mere filing of an application for anticipatory bail does not automatically entitle one to an interim order for anticipatory bail. There must be circumstances to satisfy the Honourable Court that, the bail, if granted, will not disrupt the course of investigation. The proposed conditions that the Honourable Court must be satisfied with are as follows:
(a) The likelihood of the applicant absconding on being released on anticipatory bail;
(b) Whether he/she is likely to misuse his/her liberty;
(c) The gravity and nature of the crime that the applicant was accused of committing;
(d) Whether, if allowed to be free without being detained in custody, the applicant would be wholly indifferent towards the investigation;
(e) The possibility that witnesses will be tampered with; and
(f) All other relevant facts and circumstances surrounding the application;
(b) Whether he/she is likely to misuse his/her liberty;
(c) The gravity and nature of the crime that the applicant was accused of committing;
(d) Whether, if allowed to be free without being detained in custody, the applicant would be wholly indifferent towards the investigation;
(e) The possibility that witnesses will be tampered with; and
(f) All other relevant facts and circumstances surrounding the application;
(9) The High Court is free to impose any condition(s) as it deems fit, to secure the integrity of the investigation carried out against the applicant. The organic growth of common law will introduce relevant conditions as it deems proper and fit;
(10) The applicant himself/herself will not be required to be present during the hearing of his/her application;
(11) There shall not be a blanket order for anticipatory bail. There must be specific accusations. A blanket order will cause serious and unwarranted interference with the function of the enforcement agencies in the country;
(12) An application for anticipatory bail only allows the applicant to be excluded from custodial experiences. The applicant shall be required to submit his/her presence to the relevant authority, if so required; and
(13) The order for anticipatory bail shall cease to be in operation once the applicant is charged in Court. From thereon, the normal course of proceedings will be applicable.
Therefore, it is hereby resolved:
(A) That the Malaysian Bar call on the Malaysian Government to amend the Criminal Procedure Code for the purpose of introducing anticipatory bail; and
(B) That the Bar Council take all necessary steps that anticipatory bail is introduced and included in the Criminal Procedure Code.
The motion was proposed by P Taneswaran, and seconded by Sathyananthan Sinnappan and Alex Anton Netto.
Resolution on Electronic Voting (E–Voting)
WHEREAS
1) Annual elections of members of the Bar Council is by postal ballots,
2) For the past 5 years, the percentage of members casting these postal ballots have been less than 25% of the total number of members eligibleto vote,
3) E–voting is an accepted practice by some legal associations around the world,
4) The Malaysian Bar has a website with a “members only” area which is restricted to active members, accessible only with an individual unique username and password, and this list of active members is updated daily,and
5) The Malaysian Bar has an official mobile app which also has the same “members only” area;
THEREFORE
A. To enhance the election process with a view of encouraging more members of the Malaysian Bar to participate in voting for their representatives to the Bar Council, and
B. To ensure that as many members of the Malaysian Bar participate in the election process;
It is hereby RESOLVED that:–
The Bar Council do forthwith take all necessary steps to make the appropriate inquiries, research, and/or survey, independently or with the assistance of third parties, and prepare a REPORT on the viability (or otherwise) of implementing e–voting to supplement the current postal ballot system.
WHEREAS
1) Annual elections of members of the Bar Council is by postal ballots,
2) For the past 5 years, the percentage of members casting these postal ballots have been less than 25% of the total number of members eligibleto vote,
3) E–voting is an accepted practice by some legal associations around the world,
4) The Malaysian Bar has a website with a “members only” area which is restricted to active members, accessible only with an individual unique username and password, and this list of active members is updated daily,and
5) The Malaysian Bar has an official mobile app which also has the same “members only” area;
THEREFORE
A. To enhance the election process with a view of encouraging more members of the Malaysian Bar to participate in voting for their representatives to the Bar Council, and
B. To ensure that as many members of the Malaysian Bar participate in the election process;
It is hereby RESOLVED that:–
The Bar Council do forthwith take all necessary steps to make the appropriate inquiries, research, and/or survey, independently or with the assistance of third parties, and prepare a REPORT on the viability (or otherwise) of implementing e–voting to supplement the current postal ballot system.
The motion was proposed by Jason Kay Kit Leon.