(1) Resolution for the Report of the Committee for Institutional Reforms to be Made Public
Whereas the Malaysian Bar:
(1) Reaffirming the principles of democracy that underpin the formation of this country and that are integral to the Federal Constitution.
(2) Reaffirming that the independence and proper functioning of key state institutions, which include the Judiciary, Parliament, Election Commission and the relevant investigative bodies, are pivotal to any functioning democracy.
(3) Recalling that the Malaysian Bar has on numerous occasions stood up and called for the independence of the Judiciary.
(4) Recalling that the Pakatan Harapan Government in its manifesto before the 14th General Election entitled “Buku Harapan”, had unequivocally promised that “we will stop the rot in key national institutions and we will return the rule of law by ensuring the independence and integrity of important government agencies” and, to that end, made a number of specific promises on reforms to key state institutions.
(5) Recalling that the Federal Government had established the Council of Eminent Persons (“CEP”) on 12 May 2018, which in turn established the Committee for Institutional Reforms (“CIR”) on 15 May 2018 consisting of five eminent persons, in recognising the importance of institutional reforms.
(6) Recalling that the terms of reference of the CIR included the making of “recommendations to the government through the Council of Eminent Persons for the reform of the various institutions so as to ensure their independence and to ensure that adequate checks and balances are in place”.
(7) Recalling that the CIR consulted various stakeholders, including the Malaysian Bar, in drawing up their proposals for reforms to key institutions, including the Judiciary, Parliament, Election Commission, Attorney General’s Office, Police, and the Malaysian Anti–Corruption Commission (“MACC”).
(8) Recalling that the CIR had on 19 June 2018 submitted seven recommendations for immediate institutional reform to the CEP.
(9) Recalling that the CIR had on 17 July 2018 submitted its final report to the CEP (“Final Report”), which was then handed to the Prime Minister.
(10) Recalling that the CIR had met the Prime Minister on 19 July 2018 to brief him on the Final Report.
(11) Recalling that the Minister in the Prime Minister’s Department (Law), YB Datuk Liew Vui Keong had, on 7 August 2018 in the Dewan Rakyat said that the Federal Cabinet is reviewing the Final Report and that “the decision to make this report known to the public will be made after the report is discussed in detail by the Cabinet in the near future”.
(12) Noting with regret that since then, the Federal Government has not released the Final Report nor provided any updates as to the status of implementing the proposal put forth in the Final Report.
(13) Recalling that Dato’ Ambiga Sreenevasan, a member of the CIR, had called for the Final Report to be made public.
(14) Reaffirming that Article 10(1)(a) of the Federal Constitution guarantees all citizens the freedom of speech and expression, which includes the freedom of information.
(15) Reaffirming that the principles of a participatory democracy that are entrenched in Article 10(1)(a) and Article 119(1) of the Federal Constitution require that all citizens be allowed to participate in the development of the nation and to be part of the discussion concerning key state institutions.
Therefore, it is hereby resolved that the Malaysian Bar:
(A) Call upon the Federal Government to release the Final Report to the public, so that the public can hold the Federal Government accountable for its promises.
(B) Call upon the Federal Government to immediately act on institutional reforms, especially in the key state institutions such as the Judiciary, Parliament, Election Commission, Attorney General’s Office, Police, and MACC.
(C) Mandate the Bar Council to take all necessary or appropriate action to urge the Federal Government to release the Final Report and act on its promise for institutional reforms.
Whereas the Malaysian Bar:
(1) Reaffirming the principles of democracy that underpin the formation of this country and that are integral to the Federal Constitution.
(2) Reaffirming that the independence and proper functioning of key state institutions, which include the Judiciary, Parliament, Election Commission and the relevant investigative bodies, are pivotal to any functioning democracy.
(3) Recalling that the Malaysian Bar has on numerous occasions stood up and called for the independence of the Judiciary.
(4) Recalling that the Pakatan Harapan Government in its manifesto before the 14th General Election entitled “Buku Harapan”, had unequivocally promised that “we will stop the rot in key national institutions and we will return the rule of law by ensuring the independence and integrity of important government agencies” and, to that end, made a number of specific promises on reforms to key state institutions.
(5) Recalling that the Federal Government had established the Council of Eminent Persons (“CEP”) on 12 May 2018, which in turn established the Committee for Institutional Reforms (“CIR”) on 15 May 2018 consisting of five eminent persons, in recognising the importance of institutional reforms.
(6) Recalling that the terms of reference of the CIR included the making of “recommendations to the government through the Council of Eminent Persons for the reform of the various institutions so as to ensure their independence and to ensure that adequate checks and balances are in place”.
(7) Recalling that the CIR consulted various stakeholders, including the Malaysian Bar, in drawing up their proposals for reforms to key institutions, including the Judiciary, Parliament, Election Commission, Attorney General’s Office, Police, and the Malaysian Anti–Corruption Commission (“MACC”).
(8) Recalling that the CIR had on 19 June 2018 submitted seven recommendations for immediate institutional reform to the CEP.
(9) Recalling that the CIR had on 17 July 2018 submitted its final report to the CEP (“Final Report”), which was then handed to the Prime Minister.
(10) Recalling that the CIR had met the Prime Minister on 19 July 2018 to brief him on the Final Report.
(11) Recalling that the Minister in the Prime Minister’s Department (Law), YB Datuk Liew Vui Keong had, on 7 August 2018 in the Dewan Rakyat said that the Federal Cabinet is reviewing the Final Report and that “the decision to make this report known to the public will be made after the report is discussed in detail by the Cabinet in the near future”.
(12) Noting with regret that since then, the Federal Government has not released the Final Report nor provided any updates as to the status of implementing the proposal put forth in the Final Report.
(13) Recalling that Dato’ Ambiga Sreenevasan, a member of the CIR, had called for the Final Report to be made public.
(14) Reaffirming that Article 10(1)(a) of the Federal Constitution guarantees all citizens the freedom of speech and expression, which includes the freedom of information.
(15) Reaffirming that the principles of a participatory democracy that are entrenched in Article 10(1)(a) and Article 119(1) of the Federal Constitution require that all citizens be allowed to participate in the development of the nation and to be part of the discussion concerning key state institutions.
Therefore, it is hereby resolved that the Malaysian Bar:
(A) Call upon the Federal Government to release the Final Report to the public, so that the public can hold the Federal Government accountable for its promises.
(B) Call upon the Federal Government to immediately act on institutional reforms, especially in the key state institutions such as the Judiciary, Parliament, Election Commission, Attorney General’s Office, Police, and MACC.
(C) Mandate the Bar Council to take all necessary or appropriate action to urge the Federal Government to release the Final Report and act on its promise for institutional reforms.
The motion was proposed by George Varughese (Chairman, Bar Council), on behalf of the Bar Council.
(2) Resolution for the Immediate Abolition / Repeal of Draconian Legislative Provisions
Whereas:
(1) Article 5(1) of the Federal Constitution guarantees that no person shall be deprived of life and personal liberty, save in accordance with the law.
(2) Article 8(1) of the Federal Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law.
(3) There remain on the statute books of Malaysia, legislation and provisions of legislation that are abhorrent to the liberty of the individual, violate the rule of law and undermine the administration of justice.
(4) The existence of such legislation and legislative provisions are a real and present danger to the safety and security of Malaysia, in that they have given rise to repeated incidents of abuse and misuse by law enforcement and prosecutorial authorities, and their continued existence constitute an affront to the enjoyment of the fundamental liberties as enshrined in the Federal Constitution.
(5) In certain cases, legislation cannot be saved or salvaged in any meaningful way by amendment or reform of offending provisions since in their basic intent and effect, they represent a spirit of authoritarianism, oppression and repression, and are draconian in nature.
(6) In certain other cases, legislative provisions are heinous, offensive and regressive, and in total disregard to international human rights norms and standards.
(7) The Pakatan Harapan Government had pledged, under Pillar 2 of its election manifesto, “Buku Harapan”, on “Institutional and Political Reform”, to revoke and/or abolish draconian provisions in several acts.
(8) The Government has been procrastinating on delivering on its pledges in this regard.
Therefore, it is hereby resolved that the Malaysian Bar:
(A) Call for the immediate abolition of the following draconian legislation:
(B) Call for the immediate repeal of the following draconian legislative provisions:
(C) Mandate the Bar Council to take all such action as may be necessary or appropriate to achieve the implementation of the aims of this resolution.
Whereas:
(1) Article 5(1) of the Federal Constitution guarantees that no person shall be deprived of life and personal liberty, save in accordance with the law.
(2) Article 8(1) of the Federal Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law.
(3) There remain on the statute books of Malaysia, legislation and provisions of legislation that are abhorrent to the liberty of the individual, violate the rule of law and undermine the administration of justice.
(4) The existence of such legislation and legislative provisions are a real and present danger to the safety and security of Malaysia, in that they have given rise to repeated incidents of abuse and misuse by law enforcement and prosecutorial authorities, and their continued existence constitute an affront to the enjoyment of the fundamental liberties as enshrined in the Federal Constitution.
(5) In certain cases, legislation cannot be saved or salvaged in any meaningful way by amendment or reform of offending provisions since in their basic intent and effect, they represent a spirit of authoritarianism, oppression and repression, and are draconian in nature.
(6) In certain other cases, legislative provisions are heinous, offensive and regressive, and in total disregard to international human rights norms and standards.
(7) The Pakatan Harapan Government had pledged, under Pillar 2 of its election manifesto, “Buku Harapan”, on “Institutional and Political Reform”, to revoke and/or abolish draconian provisions in several acts.
(8) The Government has been procrastinating on delivering on its pledges in this regard.
Therefore, it is hereby resolved that the Malaysian Bar:
(A) Call for the immediate abolition of the following draconian legislation:
(i) Sedition Act 1948;1
(ii) Prevention of Crime Act 1959;2
(iii) Universities and University Colleges Act 1971;3
(iv) Printing Presses and Publications Act 1984;4
(v) Dangerous Drugs (Special Preventive Measures) Act 1985;5
(vi) Security Offences (Special Measures) Act 2012;6
(vii) Prevention of Terrorism Act 2015;7 and
(viii) National Security Council Act 2015.8
(ii) Prevention of Crime Act 1959;2
(iii) Universities and University Colleges Act 1971;3
(iv) Printing Presses and Publications Act 1984;4
(v) Dangerous Drugs (Special Preventive Measures) Act 1985;5
(vi) Security Offences (Special Measures) Act 2012;6
(vii) Prevention of Terrorism Act 2015;7 and
(viii) National Security Council Act 2015.8
(B) Call for the immediate repeal of the following draconian legislative provisions:
(i) Penal Code, sections 124B to 124J;
(ii) Communications and Multimedia Act 1998, in relation to sections 233, 263, and other vague provisions;9
(iii) Official Secrets Act 1972, sections 2A, 2B and 16A;10
(iv) Film Censorship Act 2002, sections 23(2) and 48;11 and
(v) Peaceful Assembly Act 2012, section 4.12
(ii) Communications and Multimedia Act 1998, in relation to sections 233, 263, and other vague provisions;9
(iii) Official Secrets Act 1972, sections 2A, 2B and 16A;10
(iv) Film Censorship Act 2002, sections 23(2) and 48;11 and
(v) Peaceful Assembly Act 2012, section 4.12
(C) Mandate the Bar Council to take all such action as may be necessary or appropriate to achieve the implementation of the aims of this resolution.
–––––––––––––––––––––––––––––––––
[1] Position of the Bar Council submitted to the Committee for Institutional Reforms 2018 (“CIR 2018”): Total repeal of the Sedition Act 1948; Resolution adopted at the Malaysian Bar Annual General Meeting (“Resolution AGM”) 2015: Total repeal; Resolution adopted at the Malaysian Bar Extraordinary General Meeting (“Resolution EGM”) 2014: Total repeal.
[2] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[3] CIR 2018: Total repeal and enact new legislation to standardise the establishment of universities, etc.
[4] CIR 2018: Total repeal.
[5] Resolution AGM 2017: Total repeal; Resolution AGM 2008: Total repeal.
[6] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[7] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[8] CIR 2018: Total repeal; Resolution AGM 2017: Rejected passing of the Bill, and calls upon the Government not to bring the NSC Bill into force without first making extensive revisions to its provisions.
[9] CIR 2018: Repeal of sections 233 and 263; Resolution AGM 2016: Repeal of sections 233 and 263, and other vague provisions.
[10] CIR 2018: Amend the Official Secrets Act 1972; in tandem with the introduction of a Freedom to Information legislation.
[11] CIR 2018: Repeal of all ouster clauses in all legislation. This includes the Film Censorship Act 2002.
[12] Malaysian Bar Memorandum on Peaceful Assembly Bill, 24 November 2011: Suggested several improvements; Press Release, 22 November 2011 (“Peaceful Assembly Bill is More Restrictive Than Present Law and Must be Improved”): Suggested several improvements.
[1] Position of the Bar Council submitted to the Committee for Institutional Reforms 2018 (“CIR 2018”): Total repeal of the Sedition Act 1948; Resolution adopted at the Malaysian Bar Annual General Meeting (“Resolution AGM”) 2015: Total repeal; Resolution adopted at the Malaysian Bar Extraordinary General Meeting (“Resolution EGM”) 2014: Total repeal.
[2] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[3] CIR 2018: Total repeal and enact new legislation to standardise the establishment of universities, etc.
[4] CIR 2018: Total repeal.
[5] Resolution AGM 2017: Total repeal; Resolution AGM 2008: Total repeal.
[6] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[7] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[8] CIR 2018: Total repeal; Resolution AGM 2017: Rejected passing of the Bill, and calls upon the Government not to bring the NSC Bill into force without first making extensive revisions to its provisions.
[9] CIR 2018: Repeal of sections 233 and 263; Resolution AGM 2016: Repeal of sections 233 and 263, and other vague provisions.
[10] CIR 2018: Amend the Official Secrets Act 1972; in tandem with the introduction of a Freedom to Information legislation.
[11] CIR 2018: Repeal of all ouster clauses in all legislation. This includes the Film Censorship Act 2002.
[12] Malaysian Bar Memorandum on Peaceful Assembly Bill, 24 November 2011: Suggested several improvements; Press Release, 22 November 2011 (“Peaceful Assembly Bill is More Restrictive Than Present Law and Must be Improved”): Suggested several improvements.
The motion was proposed by George Varughese (Chairman, Bar Council), on behalf of the Bar Council.
(3) Resolution of Dissatisfaction on the Delay in Abolition of Draconian Laws, and Call for Moratorium on Use of Such Laws Pending Abolition
Whereas
1. The Pakatan Harapan General Election Manifesto, being the ‘Buku Harapan – Rebuilding Our Nation Fulfilling Our Hopes’ gave the undertaking that the ‘…Pakatan Harapan Government will revoke the following laws: •Sedition Act 1948 •Prevention of Crime Act 1959 •Universities and University Colleges Act 1971 •Printing Presses and Publications Act 1984 •National Security Council Act 2016..’
2. It also said that the ‘Pakatan Harapan Government will also abolish draconian provisions in the following Acts: •Penal Code 1997 especially on peaceful assembly and activities harmful to democracy •Communications and Multimedia Act 1998 •Security Offences (special measures) Act 2012 (SOSMA) •Peaceful Assembly Act 2012 •Prevention of Terrorism Act (POTA) 2015’
3. It also promised ‘…To ensure an effective check and balance, the Pakatan Harapan Government will revoke all clauses that prevent the Court from reviewing decisions of the Government or the laws introduced by the Government…’
4. Almost 9 months have passed, since the Pakatan Harapan became government, after successfully ousting the UMNO–Barisan Nasional Government, which have been in power since Malaysia’s independence in 1957, and the promises of repeal and amendments have yet to happen, and in fact, sadly some of these laws including the Sedition Act is still being used;
5. On 26/2/2018, the Inspector General of Police was reported saying that Barisan Nasional secretary–general Datuk Seri Nazri Aziz was being investigated under Sedition Act.
Detention Without Trial laws
6. Likewise, the draconian Detention Without Trial(DWT) laws like Prevention of Crime Act 1959(POCA) and Prevention of Terrorism Act (POTA) 2015(POTA) continue to be used.
7. It must be noted that these DWT laws, not only allows for Detentions and Restrictions without trial, it also does not allow innocent victims to challenge the reasons/justifications for its usage against the victim.
8. It is stated in Section 15B(1) of POCA that ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ In 15B(3) it stated that "judicial review" includes proceedings instituted by way of…(ba) a writ of habeas corpus…’
9. Section 19(1) POTA states that ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision…’ Similarly, "judicial review" here also includes proceedings instituted by way of… a writ of habeas corpus…’
10. The same be the case for the Dangerous Drugs(Special Preventive Measures) Act 1985, whereby section 11C(1) states, ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di–Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ Section 11D also states that ‘judicial review’ includes the writ of habeas corpus.
11. At the Universal Periodic Review of, that was held on 8 November 2018 ‘Malaysia stated that the Prevention of Crime Act and the Prevention of Terrorism Act were not arbitrarily used against any person or group, and that no person would be arrested or detained solely for his or her political belief for political activity. A number of safeguards protected the rights of detainees, such as the requirement to immediately notify the detainee’s next of kin, the right to file a writ of habeas corpus and the right to make representations to the Advisory Board. Various measures had been put in place to protect the rights of detained minors.’
12. Malaysia’s response about Detention Without Trial laws was misleading. It failed to highlight that the fundamental question as to why such laws was used against a particular victim was not subject to judicial review. Judicial review was only on technical matters of compliance with procedures.
13. The Advisory Board is not the Judiciary, but merely an administrative body under the Executive, whose decisions cannot be subject to judicial review making it such that an innocent person cannot even challenge the wrong or false reasons used to justify his arrest, detention and/or restriction.
14. Pakatan Harapan committed to the revocation of all clauses that prevent the Court from reviewing decisions of the Government.
15. The POCA, as noted is no more just for alleged suspects involved in gangs or triads, involved in violent crime but is now so wide that it even applies to all crimes under the Penal Code allegedly committed by 2 or more persons.
16. Having in these DWT laws, the provision that no person would be arrested and detained solely for their political belief and/or activity is certainly no assurance for the reasons used for their arrest/detention/restrictions cannot be challenged in court.
17. Note also, that detention and/or restrictions served under these DWT laws, does not protect these victims from future prosecution, conviction and sentence.
18. As such, all Detention Without Trial laws must be abolished, and every person must be entitled to the right to a fair trial. The presumption of innocence until convicted by court must apply.
Security Offences (Special Measures) Act 2012 (SOSMA)
19. Security Offences (Special Measures) Act 2012 (SOSMA) is akin to the Essential (Security Cases) Regulations 1975 (ESCAR), and it allows for the use of lesser evidential and procedural standards, as required for in ordinary criminal trials. It is an affront to the constitutional guarantee that is stated in Article 8(1) ‘All persons are equal before the law and entitled to the equal protection of the law’.
20. It undermines one’s right to a fair trial. It deprives one to the right to bail. Evidential and criminal procedural requirements/standards in the administration of justice are in place to ensure a fair trial, and everyone deserves the same fair trial.
21. SOSMA allows the evidence normally not admissible like the evidence of child of tender years. Section 19 states that, ‘A conviction obtained based on the uncorroborated testimony of a child of tender years is not illegal, though not given under oath, if the court is of the opinion that the child is possessed of sufficient intelligence and understands the duty of speaking the truth.’
22. All statements made by the accused is also admissible. In Malaysia, since 2007, statements made by accused whilst in police custody cannot be used by the prosecution. The concern that brought about this amendment could be torture.
23. SOSMA also allows for witnesses for the prosecution who refuses to have his identity disclosed and wishes to give evidence in such a manner that he would not be seen or heard by both the accused and his counsel, and also for evidence to be taken without the presence of accused or counsel.
24. SOSMA is worse, as it can be used for so many more security offences as listed in the Act. Now SOSMA can only be used for so many ‘security offences’, which now includes over 60 offences in the Penal Code, including the newly introduced draconian offences criminalizing all forms of ‘activity detrimental to parliamentary democracy’(section 124B–J Penal Code) which is also under Chapter VI – Offences Against The State.
25. The continued use of the all other draconian laws that were supposed to be abolished is also most disturbing.
THEREFORE, it is hereby resolved that:
A. The Malaysian Bar urge the Malaysian government to speedily abolish all draconian laws without any further delay, and immediately impose a moratorium on using these laws pending abolition;
B. The Malaysian Bar call on the Malaysian government to abolish all Detention Without Trial Laws including Prevention of Crime Act 1959, Prevention of Terrorism Act (POTA) 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985;
C. The Malaysian Bar call on the Malaysian government to abolish Security Offences (Special Measures) Act 2012;
D. The Bar Council, noting also past Bar Resolutions, continue to act with resolve to ensure that all draconian and unjust legislations are repealed.
Whereas
1. The Pakatan Harapan General Election Manifesto, being the ‘Buku Harapan – Rebuilding Our Nation Fulfilling Our Hopes’ gave the undertaking that the ‘…Pakatan Harapan Government will revoke the following laws: •Sedition Act 1948 •Prevention of Crime Act 1959 •Universities and University Colleges Act 1971 •Printing Presses and Publications Act 1984 •National Security Council Act 2016..’
2. It also said that the ‘Pakatan Harapan Government will also abolish draconian provisions in the following Acts: •Penal Code 1997 especially on peaceful assembly and activities harmful to democracy •Communications and Multimedia Act 1998 •Security Offences (special measures) Act 2012 (SOSMA) •Peaceful Assembly Act 2012 •Prevention of Terrorism Act (POTA) 2015’
3. It also promised ‘…To ensure an effective check and balance, the Pakatan Harapan Government will revoke all clauses that prevent the Court from reviewing decisions of the Government or the laws introduced by the Government…’
4. Almost 9 months have passed, since the Pakatan Harapan became government, after successfully ousting the UMNO–Barisan Nasional Government, which have been in power since Malaysia’s independence in 1957, and the promises of repeal and amendments have yet to happen, and in fact, sadly some of these laws including the Sedition Act is still being used;
5. On 26/2/2018, the Inspector General of Police was reported saying that Barisan Nasional secretary–general Datuk Seri Nazri Aziz was being investigated under Sedition Act.
Detention Without Trial laws
6. Likewise, the draconian Detention Without Trial(DWT) laws like Prevention of Crime Act 1959(POCA) and Prevention of Terrorism Act (POTA) 2015(POTA) continue to be used.
7. It must be noted that these DWT laws, not only allows for Detentions and Restrictions without trial, it also does not allow innocent victims to challenge the reasons/justifications for its usage against the victim.
8. It is stated in Section 15B(1) of POCA that ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ In 15B(3) it stated that "judicial review" includes proceedings instituted by way of…(ba) a writ of habeas corpus…’
9. Section 19(1) POTA states that ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision…’ Similarly, "judicial review" here also includes proceedings instituted by way of… a writ of habeas corpus…’
10. The same be the case for the Dangerous Drugs(Special Preventive Measures) Act 1985, whereby section 11C(1) states, ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di–Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ Section 11D also states that ‘judicial review’ includes the writ of habeas corpus.
11. At the Universal Periodic Review of, that was held on 8 November 2018 ‘Malaysia stated that the Prevention of Crime Act and the Prevention of Terrorism Act were not arbitrarily used against any person or group, and that no person would be arrested or detained solely for his or her political belief for political activity. A number of safeguards protected the rights of detainees, such as the requirement to immediately notify the detainee’s next of kin, the right to file a writ of habeas corpus and the right to make representations to the Advisory Board. Various measures had been put in place to protect the rights of detained minors.’
12. Malaysia’s response about Detention Without Trial laws was misleading. It failed to highlight that the fundamental question as to why such laws was used against a particular victim was not subject to judicial review. Judicial review was only on technical matters of compliance with procedures.
13. The Advisory Board is not the Judiciary, but merely an administrative body under the Executive, whose decisions cannot be subject to judicial review making it such that an innocent person cannot even challenge the wrong or false reasons used to justify his arrest, detention and/or restriction.
14. Pakatan Harapan committed to the revocation of all clauses that prevent the Court from reviewing decisions of the Government.
15. The POCA, as noted is no more just for alleged suspects involved in gangs or triads, involved in violent crime but is now so wide that it even applies to all crimes under the Penal Code allegedly committed by 2 or more persons.
16. Having in these DWT laws, the provision that no person would be arrested and detained solely for their political belief and/or activity is certainly no assurance for the reasons used for their arrest/detention/restrictions cannot be challenged in court.
17. Note also, that detention and/or restrictions served under these DWT laws, does not protect these victims from future prosecution, conviction and sentence.
18. As such, all Detention Without Trial laws must be abolished, and every person must be entitled to the right to a fair trial. The presumption of innocence until convicted by court must apply.
Security Offences (Special Measures) Act 2012 (SOSMA)
19. Security Offences (Special Measures) Act 2012 (SOSMA) is akin to the Essential (Security Cases) Regulations 1975 (ESCAR), and it allows for the use of lesser evidential and procedural standards, as required for in ordinary criminal trials. It is an affront to the constitutional guarantee that is stated in Article 8(1) ‘All persons are equal before the law and entitled to the equal protection of the law’.
20. It undermines one’s right to a fair trial. It deprives one to the right to bail. Evidential and criminal procedural requirements/standards in the administration of justice are in place to ensure a fair trial, and everyone deserves the same fair trial.
21. SOSMA allows the evidence normally not admissible like the evidence of child of tender years. Section 19 states that, ‘A conviction obtained based on the uncorroborated testimony of a child of tender years is not illegal, though not given under oath, if the court is of the opinion that the child is possessed of sufficient intelligence and understands the duty of speaking the truth.’
22. All statements made by the accused is also admissible. In Malaysia, since 2007, statements made by accused whilst in police custody cannot be used by the prosecution. The concern that brought about this amendment could be torture.
23. SOSMA also allows for witnesses for the prosecution who refuses to have his identity disclosed and wishes to give evidence in such a manner that he would not be seen or heard by both the accused and his counsel, and also for evidence to be taken without the presence of accused or counsel.
24. SOSMA is worse, as it can be used for so many more security offences as listed in the Act. Now SOSMA can only be used for so many ‘security offences’, which now includes over 60 offences in the Penal Code, including the newly introduced draconian offences criminalizing all forms of ‘activity detrimental to parliamentary democracy’(section 124B–J Penal Code) which is also under Chapter VI – Offences Against The State.
25. The continued use of the all other draconian laws that were supposed to be abolished is also most disturbing.
THEREFORE, it is hereby resolved that:
A. The Malaysian Bar urge the Malaysian government to speedily abolish all draconian laws without any further delay, and immediately impose a moratorium on using these laws pending abolition;
B. The Malaysian Bar call on the Malaysian government to abolish all Detention Without Trial Laws including Prevention of Crime Act 1959, Prevention of Terrorism Act (POTA) 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985;
C. The Malaysian Bar call on the Malaysian government to abolish Security Offences (Special Measures) Act 2012;
D. The Bar Council, noting also past Bar Resolutions, continue to act with resolve to ensure that all draconian and unjust legislations are repealed.
The motion was proposed by Charles Hector Fernandez, Francis Pereira and Shanmugam a/l Ramasamy.
WHEREAS:
(1) Justice Hamid Sultan Bin Abu Backer at paragraphs 22 and 50 of the said Affidavit stated the following:
Paragraph 22
“The Opportunity only came immediately after the election where a Judge who sat at the Court of Appeal coram that decided the case of Karpal Singh Ram Singh v Pp and Another Appeal [2016] 8 CLJ 15 voluntarily confessed to me that the verdict in favour of the late Karpal Singh was directed to be changed. The Judge who told me was a senior most Judge of the Court of Appeal. He was well respected for his passion and knowledge in criminal law.”
Paragraph 50
“The second information was actually a confession of a constitutional crime orchestrated by ARLC. The Judge who had informed me was a coram member of Karpal’s appeal in the sedition case. He said the decision of the Court of Appeal before pronouncement was an acquittal by majority. However, one top Judge called the coram requesting to dismiss the appeal, which means the conviction to stand. The lady Judge who was a coram member and was in the majority refused to abide. However, the others agreed to change acquittal to conviction. In consequence the majority affirmed the conviction.”;
(3) The Malaysian Bar is perturbed by such extremely serious and shocking allegations coming from a sitting Judge of the Court of Appeal;
(4) The said extremely serious and shocking allegations strike at the root of the administration of justice in Malaysia;
(5) The said allegations, if true, are an affront to the independence of Judges, and to their oath of office to uphold and to protect the Federal Constitution; and
(6) Judges of all levels of the Judiciary must act without fear or favour, and make decisions premised solely on the law without direction, instruction, interference, influence or pressure from any party.
THEREFORE, the Malaysian Bar hereby resolves:
(A) That the Government of Malaysia:
(B) Upon the Royal Commission of Inquiry being set up, that the Bar Council forthwith instruct counsel to appear before the Royal Commission, with leave of the Royal Commission, if necessary, during the proceedings, to:
(C) To hold a watching brief on behalf of the Malaysian Bar in the appeal of the representative of the late YB Karpal Singh against the impugned decision of the Court of Appeal in the Federal Court.
The motion was proposed by Balwant Singh Sidhu.
(A) That the Government of Malaysia:
(i) immediately implement the decision to set up a Royal Commission of Inquiry or, if already set up, to then immediately commence to investigate the aforesaid allegations;
(ii) if the investigation by the Royal Commission of Inquiry finds any act of direction, instruction, interference, influence or pressure from any party with the independence of or decision made by any individual Judge(s), take and / or institute appropriate action against such person(s) who is / have been found to have committed such acts; and
(iii) take all necessary action(s) to uphold, preserve and protect the independence and integrity of the Judiciary and Judges in carrying out their duties in accordance with their oath of office;
(ii) if the investigation by the Royal Commission of Inquiry finds any act of direction, instruction, interference, influence or pressure from any party with the independence of or decision made by any individual Judge(s), take and / or institute appropriate action against such person(s) who is / have been found to have committed such acts; and
(iii) take all necessary action(s) to uphold, preserve and protect the independence and integrity of the Judiciary and Judges in carrying out their duties in accordance with their oath of office;
(B) Upon the Royal Commission of Inquiry being set up, that the Bar Council forthwith instruct counsel to appear before the Royal Commission, with leave of the Royal Commission, if necessary, during the proceedings, to:
(i) hold a watching brief on behalf of the Malaysian Bar; and
(ii) render any assistance that the Royal Commission may require; and
(ii) render any assistance that the Royal Commission may require; and
(C) To hold a watching brief on behalf of the Malaysian Bar in the appeal of the representative of the late YB Karpal Singh against the impugned decision of the Court of Appeal in the Federal Court.
The motion was proposed by Balwant Singh Sidhu.
Whereas:
(1) Cases fixed for disposal in the Court of Appeal are heard by a panel comprising at least three Judges;
(2) Cases fixed for disposal in the Federal Court involving leave to appeal applications are often heard by a panel comprising three Judges, and for substantive appeals the panel often comprises five Judges, and in Constitutional and matters of public interest, the Federal Court panel may comprise seven or even more Judges;
(3) When a panel comprises more than one Judge, it is expected that each and every Judge do independently read the records and submissions and bring his own independent mind to bear in the disposal of the matter;
(4) Litigants have to undergo the time-consuming process of compiling the appeal records which may run into thousands of pages, put up written submissions supported by legal materials including case authorities, and pay the requisite fees;
(5) It is not uncommon for appeals to be struck off without the merits being heard because certain documents are left out of the appeal records;
(6) It is also not uncommon for panels of Judges making up the Court of Appeal and the Federal Court to be tasked with hearing multiple appeals in any one particular sitting or with an appellate Judge or Judges being empanelled on short notice resulting in parties and litigants wondering whether the Judges have the time to read all the appeal records, written submissions and bundle of authorities filed in court; and
(7) A Royal Commission of Inquiry is being convened to look into the workings of the Judiciary.
With the view to promoting transparency on the workings of the appellate courts made up of panels comprising more than one Judge, and if necessary to review and reform the same, the Malaysian Bar resolves that:
The Malaysian Bar respectfully call upon the Yang di-Pertuan Agong when setting up the Royal Commission of Inquiry inquiring into the workings of the Judiciary (“the RCI”) to include as a term of reference that the RCI do inquire into how the appellate Court Judges who sit in panels comprising more than one are assigned and allocated cases, and whether the current system requires any revision.
The motion was proposed by Su Tiang Joo.