Bar Leaders from the various jurisdictions,
Members of the Bar,
Ladies and gentlemen.
1. We are most appreciative of your attendance this evening at this dinner in conjunction with the Opening of the Legal Year, an important event in our legal calendar. Thank you all also for participating in the Symposium on Constitutional Law organised jointly by the Commonwealth Lawyers Association and the Bar Council held over the past two days.
2. We find ourselves gathered together in this manner, as a result of certain events that transpired in 2017 and the position that the Bar adopted in respect of these events.
3. Allow me to elaborate. The Opening of the Legal Year Ceremonial Proceedings (OLY) in Putrajaya/Kuala Lumpur has always involved three parties – the Court, the Attorney General’s Chambers and the Malaysian Bar. Since its inception in 2010, the OLY has always, in addition to the speech from the Chief Justice, also included a speech from the Attorney General or his representative and a speech from the President of the Malaysian Bar, as equal partners in the administration of justice. The President of the Malaysian Bar has traditionally used the occasion to reflect on significant events in relation to the rule of law and the administration of justice that have taken place over the preceding year and to speak about the visions and aspirations of the Bar for the new legal year.
4. This year however, we were informed by the Court that at the OLY 2018 Ceremony which is due to take place tomorrow, 12 January 2018, only the Chief Justice will be giving a speech. This change in format – from three speeches to one speech diminishes the involvement and role of the Bar in the OLY. Had we taken part, we would be little more than invited guests. This amounts to a muzzling of the Bar and raises the question of whether this change in format is a result of some concern about what the Bar would say. The Malaysian Bar has always acted and spoken without fear or favour and as such when asked to speak we will endeavour to say what needs to be said.
5. In view of this change in format, the Bar Council after much deliberation decided to decline the invitation from the Court to participate in the OLY 2018. We have notified the Court of our decision and conveyed our hope that the format of OLY 2019 will once again include speeches by the Attorney General, or his or her representative, and the President of the Malaysian Bar.
6. Permit me now to reflect on the year gone before us. Amid some positive developments there were several events that undermined the rule of law. I will address first the independence of the judiciary, the powers of the executive, and the independence of the bar – in considering the various institutions and stakeholders that are involved in the administration of justice and in effecting the rule of law. I will then delve into the importance of strengthening institutions of the state before casting our eyes to the future, in anticipating developments in the law.
2017 Judicial Crisis
7. The 2017 Judicial Crisis arose with the appointments of YAA Tan Sri Dato’ Seri Md Raus Sharif, Chief Justice of the Federal Court of Malaysia and YAA Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin, President of the Court of Appeal, as additional judges purportedly pursuant to Article 122(1A) of the Federal Constitution on the advice of the outgoing Chief Justice YAA Tun Dato’ Seri Arifin bin Zakaria to the Yang di–Pertuan Agong, the King, and the extension of their tenures as the Chief Justice and the President of the Court of Appeal, for a further three and two years respectively, beyond the constitutionally prescribed age limit of 66 years and 6 months.
8. The Malaysian Bar is of the considered view that the appointments are unconstitutional for several reasons.
(i) First, that it is unconstitutional for the former Chief Justice to have advised, on 30 March 2017, on the eve of his retirement, that the current Chief Justice and the current President of the Court of Appeal be appointed, purportedly as additional judges under Article 122(1A) of the Federal Constitution, when the latter two judges were still serving as judges.(ii) Second, that nothing in Article 122(1A) of the Federal Constitution permits an outgoing Chief Justice to advise the Yang di–Pertuan Agong in respect of any appointment of additional judges that is to take effect after he has ceased to be the Chief Justice. Otherwise, an outgoing Chief Justice may, before his retirement, advise on the appointment of additional judges that would take effect when he is no longer the Chief Justice, and even long after; furthermore, nothing in Article 122(1A) of the Federal Constitution permits any advice of an outgoing Chief Justice to be acted upon after his retirement.(iii) Third, that any such advice given by an outgoing Chief Justice would also unconstitutionally encroach upon and usurp the duties and powers of the serving Chief Justice, as the provision in Article 122(1A) of the Federal Constitution should only be exercised, if at all, by the serving Chief Justice, and on the basis of circumstances existing during the time that he is occupying the Office of the Chief Justice.
(iv) Fourth, that the current Chief Justice and the current President of the Court of Appeal continue to hold the positions of Chief Justice and President of the Court of Appeal, for a further three and two years respectively, beyond the constitutionally prescribed age limit.(v) Finally, that the Prime Minister, Dato’ Sri Mohd Najib Tun Abdul Razak acted unconstitutionally, in relying on an erroneous interpretation of the Federal Constitution in advising the Yang di–Pertuan Agong that the current Chief Justice and the current President of the Court of Appeal, who have been appointed purportedly as additional judges in the Federal Court, to continue to hold the positions of Chief Justice and President of the Court of Appeal, respectively, beyond the constitutionally prescribed age limit.
9. In this connection, the Malaysian Bar adopted a resolution at the Extraordinary General Meeting on 3 August 2017, which decided among others, to take any and all steps deemed appropriate regarding the aforesaid unconstitutional appointments, including instituting legal proceedings, for and on behalf of the Malaysian Bar, to challenge the validity of the appointments, and to seek interim as well as permanent reliefs.
10. This resulted in the filing of an originating summons at the Kuala Lumpur High Court on 10 October 2017 against the former Chief Justice, for the advice given on the eve of his retirement, and the current Chief Justice and the current President of the Court of Appeal, seeking declarations that their appointments are void and unconstitutional, and orders seeking their removal from their respective offices. Four constitutional questions surrounding the appointments have now been referred to the Federal Court.
11. The Malaysian Bar undertook this unprecedented course of action as we view the Offices of the Chief Justice and the President of the Court of Appeal as key positions in the Judiciary. It is the Chief Justice and the President of the Court of Appeal who, as leaders of the Judicial branch of the Government, are entrusted with the supreme duty of determining the constitutionality of laws passed by the Legislative branch, and the legality of decisions made by the Executive branch.
12. The unconstitutionality of the appointments calls into question any orders and/or judgments that may be made by panels consisting of both the Chief Justice and/or the President of the Court of Appeal, and this is the antithesis of their solemn oaths of office and allegiance in pledging to “bear true faith and allegiance to Malaysia, and […] preserve, protect and defend its Constitution”. The said unconstitutional appointments have resulted in a severe erosion of confidence of a large section of the public in the Judiciary, and invite an adverse perception as to its independence and integrity. The vital nature of the roles and duties of the Chief Justice and the President of the Court of Appeal under the Federal Constitution requires the circumstances of their appointments to be beyond any controversy.
Role of the Judiciary and Upholding the Rule of Law
13. The role of the judiciary in a system such as ours, founded on the Westminster model, is set out in Principle IV of the Latimer House Principles which states and I quote:
“An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice.”
14. The rule of law is embedded in the Malaysian Federal Constitution, the supreme law of the land. The Federal Constitution has to be properly interpreted in line with principles undergirding the rule of law, and that the rule of law, and not the rule by law, must prevail. Part II of the Federal Constitution provides for the fundamental liberties of all and captures certain fundamental human rights advanced by international law. It can be surmised that the problem is not with the Federal Constitution but the way in which we interpret and breathe life into it. In this respect, the Judiciary plays an all important role in upholding constitutional guarantees and the rule of law.
15. The past year has seen the Courts pronounce landmark decisions, particularly the watershed, unanimous Federal Court decision in Semenyih Jaya Sdn Bhd which found that despite the amendment to Article 121(1) of the Federal Constitution in 1988 to remove the words “the judicial power of the Federation shall be vested in two High Courts”, Parliament does not have the power to amend the Federal Constitution to the effect of undermining the doctrine of separation of powers and the independence of the Judiciary.
16. In the case of Muhammad Safwan Bin Anang, who was charged under section 4(1) of the Sedition Act 1948 which provides for the offence of sedition, the Court of Appeal upheld the freedom of speech and expression. The unanimous decision of the Court of Appeal suggested that courts should take the “tooth comb” approach in deciding whether the impugned words have “a seditious tendency”. The Court went on to state, inter alia, that “…the Court must scrutinize and independently evaluate the impugned statement to see whether the language used comes within the bounds of sedition rather than free speech; and failure to do so, by the Court in our view amounts to a serious misdirection in law which would render a conviction unsafe”.
17. Then, in the case commonly referred to as the “bin Abdullah” case, the Court of Appeal in considering whether the Director–General of the National Registration Department had power under the Births and Deaths Registration Act 1957 to ascribe the patronymic surname of “bin Abdullah” to an illegitimate Muslim child in place of his father’s name and against his wish, held that the relevant legal provision “allows for the surname of the illegitimate child to be in the name of the person acknowledging himself to be the father of the child”. The Court went on to state that “[a] fatwa or a religious edict issued by a religious body has no force of law unless the fatwa or edict has been made or adopted as federal law by an Act of Parliament”, as the National Registration Department had based their practices on two fatwas issued by the National Fatwa Committee.
18. Such decisions give life to the comment by Indian jurist and former Attorney–General, Soli Sorabjee, that “…constitutional provisions must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges.”
19. On the other hand, the position taken by the Federal Court in Semenyih Jaya that the judicial power of the federation is vested in the judiciary did not carry through in the Malaysian Bar’s application for judicial review in relation to the decision of the Attorney–General, in holding, among others, that no criminal offence had been committed by the Prime Minister as regards the transfer of the RM2.6 billion into his personal bank accounts; and in instructing the Malaysian Anti–Corruption Commission to close the connected investigations. The application by the Bar was in respect of the Attorney–General’s discretion to institute, conduct, or discontinue any proceedings for an offence pursuant to Article 145(3) of the Federal Constitution. In dismissing the appeal of the Bar, the Federal Court missed the opportunity to review the Attorney–General’s powers in his capacity as public prosecutor. This is unfortunate in light of judicial pronouncements in other Commonwealth jurisdictions like Singapore that the public prosecutor’s powers could be reviewed by the court.
20. Next, the constitutional guarantee of a right to a fair trial was also undermined in the unanimous decision of the Federal Court upholding the constitutionality of Section 62 of the Malaysian Anti–Corruption Commission Act 2009, in the case of Public Prosecutor v Lim Guan Eng. Section 62 of the MACC Act 2009 provides that a defendant is obliged to disclose their defence statements and documents to the prosecution before the beginning of the trial. The Court of Appeal had held that the provision was in fact unconstitutional and in direct contravention of Articles 5(1) and 8(1) of the Federal Constitution which enshrines the right to a fair trial. The Federal Court found that this was not the case, on the grounds that despite the requirements of section 62, as it does not deprive the defence from submitting additional documents during trial as per the Evidence Act 1950.
21. Earlier this week, the Federal Court overturned the landmark decision of the Court of Appeal in the case of Mat Shuhaimi bin Shafiei, finding that the prosecution need not prove intention when charging a person with sedition under the Sedition Act 1948. It was reported that the Federal Court declined to consider the constitutionality of section 3(3) on the irrelevance of intention, thus missing the opportunity to espouse the principles that all persons are equal before the law, and that every citizen has the right to freedom of speech and expression, as preserved in Articles 8(1) and 10 of the Federal Constitution.
22. And in the decision of the Court of Appeal in relation to the case against the Election Commission brought by seven voters representing voters in the state of Melaka in seeking to challenge the redelineation exercise, the Court of Appeal did not recognise the width of its powers under the Courts of Judicature Act 1964. The Act provides that the Court has the power to issue administrative orders against any authority or the enforcement of the rights conferred by Part II of the Constitution. Instead, the Court of Appeal stated that the Election Commission need only be accountable to Parliament. This decision effectively leaves aggrieved parties without legal recourse.
23. The importance of an independent and robust judiciary is unquestionable in championing the rule of law. In our constitutional scheme, the judiciary is the primary independent institution with the noble responsibility of vigilance against all forms of non–government or misgovernment. In discharging this constitutional duty, it has been observed by Lord Donaldson that “Judges are without constituency and answerable to no one except to their consciences and the law.”
24. It is to the Courts that everyone looks for justice. The Courts represent the final bastion of justice and the last line of legal recourse available to aggrieved persons. The duty to ensure the dispensation of justice is recognised as onerous, and it should therefore only be done with utmost care. The oft–quoted adage that “not only must Justice be done; it must also be seen to be done” has never rung truer.
25. As aptly stated by renowned constitutional expert Durga Das Basu, “A declaration of fundamental rights is meaningless unless there are effective remedies for their enforcement.” The focus therefore must be on reinforcing the role of the Courts in fostering the rule of law, as opposed to a rule by law.
Role of the Executive
26. Piecemeal applications and inconsistent interpretations of the fundamental liberties enshrined in the Federal Constitution lead to the undermining of and serious challenges to the rule of law. Such interpretations and in silo readings of the Federal Constitution are in breach of Article 4, as it allows one Article to assume, or to be given, greater standing or importance than another. Applications of the Federal Constitution to legislation or issues that are in direct contravention of fundamental liberties give rise to opportunities for abuse and political pandering, rendering the people victims.
27. This is seen for example with respect to the surname “bin Abdullah” imposed on illegitimate Muslim children. In such cases, the National Registration Department has given force of law to fatwas issued by the National Fatwa Committee over the provisions of the Births and Deaths Registration Act 1957, resulting in an arbitrary stigmatisation of innocent children.
28. Next, I turn to the suppression of contrary views, muzzling of press freedoms, and denial of democratic space under the Communications and Multimedia Act 1998. The use of sections 233(1)(a) and 263(2) of the Act allows for a serious encroachment on the freedom of speech and expression guaranteed under Article 10(1)(a) of the Federal Constitution and, more critically, the freedom of opinion and thought. Section 233(1)(a) of the Act criminalises, among others, the use of network facilities or network services by a person to transmit any communication that is deemed to be offensive and could cause annoyance to another person, and section 263(2), which provides for the barring of public access to websites. Such resort to the Act by the authorities has a chilling effect on the freedom of opinion and thought, and creates a climate of fear that suffocates freedom of expression and threatens to silence Malaysians; and has also been perceived as intimidation and harassment of the media.
29. The past year also saw the strengthening of detention without trial provisions. This violation of the fundamental liberties protected under Article 5 of the Federal Constitution and the principles of natural justice took the form of the renewal of the provision for pre–charge detention for up to 28 days, pursuant to the Security Offences (Special Measures) Act 2012 for a further five–year period; as well as the passing of the Prevention of Crime (Amendment) Act 2017 which takes away the right of a detainee to appear and make his/her case, for non–detention, before an Inquiry Officer appointed by the Ministry of Home Affairs. There is also no right of a detainee’s legal counsel to make representations or to appear either before the Inquiry Officer or the Prevention of Crime Board.
The Importance of Independent and Strong/Robust Institutions
30. How mature we are as a nation is gauged by the conduct of our institutions of state – which include inter alia the judiciary, the Attorney–General's Chambers and our enforcement and regulatory agencies. And the litmus test of how well they are performing is determined by examining their conduct in relation to powerful persons in society.
31. The first example is Malaysia’s response to the 2015 discovery of a reported 139 grave sites found at numerous “death camps” in the remote jungles of northern state of Perlis, near the border with Thailand. The graves were widely believed to have contained human remains of victims of trafficking or smuggled migrants who died whilst in the custody of traffickers or smugglers. This discovery was met with international outrage as it exposed the occurrence of unspeakable acts of extreme cruelty and barbarism within our borders. To the best of our knowledge, no charges have been proffered against any member of the Malaysian security forces or the authorities.
32. An investigative report by mainstream newspaper, the New Straits Times, detailed the discovery of evidence of a “massive, coordinated cover–up” exposing the systemic weaknesses of the Malaysian criminal justice system, and Malaysia’s approach towards asylum seekers and refugees, as well as the perpetrators and victims of human trafficking and migrant smuggling.
33. Another example, is the calling for a Royal Commission of Inquiry, into Malaysia’s Central Bank, Bank Negara Malaysia’s, losses due to foreign exchange dealings between 1992 and 1994. The call for an RCI nearly 25 years after the alleged wrongdoings came in the wake of the former–Prime Minister, Tun Dr Mahathir Mohamad’s recent re–emergence in politics. The RCI has since concluded its work, tabling its Report in Parliament. It is reported that the RCI Report implicates the then–Prime Minister, Finance Minister, as well as Tan Sri Nor Mohamed Yakcop, who was in charge of the central bank’s foreign exchange dealings at the time.
34. The circumstances surrounding the calling for the RCI and the findings of the Report raise more questions than answers. It is odd that if such significant wrongdoings had occurred over 25 years ago, why was no action taken then? If in fact there is a clear cut case of criminal breach of trust, how is it possible that the relevant agencies did nothing to address it at that time? The inability to address such issues then, and to rehash them now, draws into sharp focus the lack of institutional independence and confidence of our justice system.
35. This systemic weakness in institutions has also seen allegations of wrongdoings in relation to the 1Malaysia Development Berhad, or 1MDB, scandal going unexamined and unpunished. For example, the investigation report by the Public Accounts Committee called for action to be taken against the then–management of 1MDB – to our knowledge, no such action has been taken to date.
36. Instead, various agents of the Government have been reported as saying that there is no further need to probe 1MDB. These circumstances give rise to the impression that our institutions are beholden to the ruling power, indicating political partisanship.
37. It is unfortunate that we are not as mature or well developed as we ought to be. This buttresses the fact that more needs to be done to afford the system the strength to stand on its own and to promote fidelity to the rule of law. An independent judiciary and an independent bar which will hold the executive and institutions accountable is a fundamental aspect of the rule of law and the separation of powers. It is the rule of law and the separation of powers that give effect to constitutional safeguards. It is only when all three branches work in harmony and for the betterment of society that we are able to consider our justice system effective.
Role of Lawyers: Independence of the Bar
38. It is in light of these serious rule of law challenges, human rights violations and weak national institutions, that we recall our role as lawyers in the upholding of the rule of law and the administration of justice. As lawyers, we stand between the might of the Executive and the interests of the people. Together with the Judiciary, our role has been to uphold the rule of law and perform our statutory duties as mandated by section 42(1) of the Legal Profession Act 1976.
39. To this end, Justice Khanna of the Indian Supreme Court has said, “If there are three prime requisites for the rule of law, they are a strong bar, an independent judiciary and an enlightened public opinion. There can indeed be no greater indication of decay in the rule of law than a docile bar, a subversive judiciary and a society with a choked or coarsened conscience.”
40. The Malaysian Bar has never shied away from taking a stand when it comes to preserving and protecting the rule of law, and upholding the supremacy of the Constitution. This has meant that we find ourselves in unenviable positions: as we are in today having dinner at the Lake Club. Our consistent defence of the rule of law has resulted in constant threats to amend the Legal Profession Act 1976, our founding charter, the latest episode of which began in 2016. It is worrying that the authorities have questioned provisions in the Act that relate to the internal management of the Bar, which has always been the sole responsibility of the Bar. It is unacceptable for non–members or any external parties to determine or interfere with the internal management processes of an independent Bar.
Expectations for 2018
41. While we expect therefore to still contend with the residual effects of these attacks on the rule of law for years to come, it is important to focus on several developments that we look forward to this year. As a partner in the administration of justice, it is imperative that we do not tire of the work that we do, and that which is still left to be done. It falls on us to do our best to reconcile the tranches before us. As the former President of the Supreme Court of the United Kingdom, Lord Neuberger, said “… a professional, expert, respected, and independent advocates profession, which faces up to its responsibilities represents a very precious asset to a modern civilised society. Indeed, it is a vital component of a modern civilised society.”
Abolition of the Death Penalty
42. With this in mind, and with an optimistic outlook, the Bar looks forward to the complete abolition of the death penalty in Malaysia. To–date, several positive steps have been taken by the Government to do away with this mode of punishment, including amending the Dangerous Drugs Act 1952 to allow for an alternative sentence instead of the mandatory death penalty.
43. The Bar is steadfast in our 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, which eschews the arbitrary deprivation of life. The right to life is a fundamental right that must be absolute, inalienable and universal, irrespective of the crime committed by the accused person.
Sexual Offences Against Children Act 2017
44. The Bar is heartened by the enactment of the Sexual Offences Against Children Act 2017 which marks progress for child protection in Malaysia by bringing our laws closer in line with international standards, and towards fulfilling our obligations as a State Party to the United Nations Convention on the Rights of the Child.
45. However, it is the Bar’s position that such a step must not be tainted by the inclusion of provisions for whipping in the Act. The Bar therefore calls on the Government to repeal the provisions for whipping in the Act as well as in all legislation, and forthwith accede to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Holistic Amendments to Law Reform (Marriage and Divorce) Act 1976
46. The Bar also looks forward to the amendments in the Law Reform (Marriage and Divorce) Act 1976 which provides for the dissolution of civil marriages, particularly where one party has converted to Islam, to be decided only by the civil courts, among other positive steps.
47. The Bar is hopeful that the Government will also address the issue of unilateral conversion of children, in order to give effect to equality of parental rights, to allow both parents to decide on the religion of their child and to take into account the wishes of the child, in line with the Convention on the Rights of the Child, which Malaysia is a signatory to.
Institutional Reform: Promoting Independence
48. The Bar welcomes also the proposal of a separate head for each branch of the Judicial and Legal Service Commission. The Judicial and Legal Service Commission exercises jurisdiction, and consequently control, over legal officers as well as judicial officers in all matters governing their service, promotion, discipline and transfer, including their removal from office.
49. Legal officers should be headed by the Attorney–General, as they currently are, and judicial officers should be headed by the Chief Registrar of the Federal Court. This would eliminate the prospect or appearance of bias, strengthen the independence of judicial officers, and promote public confidence in the Judiciary.
50. There should also be a separation of the office of the Attorney–General from the office of the Public Prosecutor. The Attorney–General of Malaysia has two separate and distinct roles under the Federal Constitution. He is the principal legal adviser to the Government under Article 145(2), and he is also the Public Prosecutor under Article 145(3).
51. The inherent conflict of interest that arises in light of the powers of the Attorney–General qua advisor to the Government and also as Public Prosecutor is antithetical to natural justice and must be remedied.
52. Our gathering this evening has given me the opportunity to contemplate particularly on our role as lawyers, on those that have come before us and those that are to come. I touched on the necessity of an independent judiciary, an independent bar, and an executive that is bound by checks and balances, for the fostering of the rule of law as embedded in our Constitution. The Malaysian Bar has come a long way since its inception and has faced its challenges and threats without fear or favour and will continue to do so.
53. We will continue to work closely with the Judiciary, and the Attorney General’s Chambers — as partners in the administration of justice — to preserve and protect the rule of law, and to uphold the supremacy of the Federal Constitution.
54. With that, ladies and gentlemen, I wish you all here present, all the very best in the year ahead.
55. Thank you.