Tuesday, December 23, 2008
Action better than talk
Wednesday, December 10, 2008
It'll be a difficult case, say lawyers
Sunday, December 7, 2008
Taking politics out of education
Wednesday, November 26, 2008
Press Release: IBA condemns Fiji Government’s threat against high-level delegation
The IBA is disappointed that the Fijian Government is not supportive of independent reviews of the rule of law and independence of the judiciary. The IBA is also troubled by this latest attempt to thwart the efforts of a non-political professional association to assess the situation.
The IBA is not deterred, however, in carrying out its review. Using other avenues available, the IBA will continue its work to provide an independent assessment of the rule of law and independence of the judiciary in Fiji . A report will be issued in the near future.
The IBA regrets that the Fiji government will not meet with the delegation to present its own views on the rule of law in Fiji .
‘The Fijian Government has again indicated its lack of support for an independent review of the situation in Fiji . The threat made by the Attorney-General against the delegation is unacceptable in a free and democratic society and reflects badly on the state of affairs in Fiji ’, said Mark Ellis , IBA Executive Director.
Fernando Pombo, President of the IBA, stated: ‘The rescheduled visit had attracted the support of a variety of stakeholders including judges, lawyers and non-government organisations. It is deeply saddening to see that the Fijian Government wishes to prevent this visit from taking place in light of the manner in which it has been welcomed by the rest of the community.’
Thursday, November 13, 2008
Kedah’s housing policy should go by the law
THE Kedah Government should have ruled by law and not by administrative policies when it introduced a housing policy of setting aside 50% of every housing development for bumiputras even though land is a state matter.
In fact, such policy is not new as the state governments of Selangor and Malacca had previously even imposed bumiputra quotas of up to 70% in some town areas. Currently, the quotas differ from one state to the other.
These policies are also being implemented haphazardly throughout the country as bumiputras from Sabah and Sarawak have complained that they have been denied discounts when purchasing properties in the peninsula.
In implementing the policy, the state governments would impose and endorse the conditions unto the land titles such as endorsing the word “bumiputra” unto the land title and this means the property can only be owned by and conveyed to a bumiputra. However, the expression “bumiputra” has not been defined either in the Code (National Land Code, 1965) or the Constitution.
In this respect, it must be emphasised that even though section 120 of the National Land Code, 1965 allows the state authority to impose express conditions and restrictions in interest upon land alienation as it deems fit, this section also clearly states that they must be done “conformable to law”.
In other words, section 120 does not give a state authority the carte blanche to impose any condition it deems fit as the supreme law which must be conformed to is Article 8 of the Federal Constitution.
Article 8 provides, inter alia, that except as expressly authorised by the Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in matters such as the administration of any law relating to the “acquisition, holding or disposition of property”.
The express authorisation allowed in the Constitution is with respect to the exclusive rights of Malays to hold Malay reserved land in West Malaysia and such rights are entrenched in Article 89 of the Constitution. A “Malay” is properly defined in the relevant state’s Malay reserved land enactments.
The other express authorisation is contained in Article 161A of the Constitution which provides that Article 89 does not apply to Sabah and Sarawak and Article 8 shall not invalidate or prohibit any state law in Sabah or Sarawak which reserves land for natives of these states or gives them preferential treatment as regards the alienation of land by the states. For this purpose, a native of Sabah and Sarawak is defined in Article 161A(6) of the Constitution.
Hence, the Kedah government must conform to Article 8 of the Constitution and not administer by way of policies.
This is especially so when our courts have consistently ruled that unwarranted use of administrative measures is no substitute for principles of good governance which enjoins all authorities to implement laws and policies guided at all times exclusively by equitable and fair principles.
Published in the The Star, 13 November 2008
Tuesday, November 11, 2008
Renewed resolve on places of worship
by Yong Huey Jiun
Monday, November 3, 2008
Only 23 in Bar Council elections
The elections had attracted more than 30 nominees in previous years.
Tan, who has been a council member since 2004, has served in various positions, notably the deputy chair of IT & Cyberlaws Committee, chairman of the Conveyancing Practice Committee, chairman of the Solicitors Remuneration Order Enforcement Committee and organising chairman of the 14th Malaysian Law Conference.
"I have already given my best in the last four years in serving the Bar.
Sunday, October 12, 2008
Let Magna Carta be our beacon of justice
King John was not only ruthless, but greedy as he extracted extortionate taxes from his people. He even killed his own nephew, Arthur, in 1206 and imprisoned Arthur’s sister, Eleanor to secure his throne, which he ascended on April 6, 1199.
Though he managed to quell the Welsh Uprising of 1211, his position was much weakened after he was excommunicated by Pope Innocent III in 1207 when he challenged the latter’s choice of Archbishop of Canterbury. When he lost in the 12-year War of Bouvines (1202-1214) with King Philip II Augustus of France while trying to reclaim Normandy in the Battle of Bouvines on July 27, 1214, his barons turned against him.
Today, John is perhaps better known as an enemy of the outlaws headed by the archetypical hero of English folklore, Robin Hood. But Winston Churchill best described John’s legacy as follows:
“When the long tally is added, it will be seen that the British nation and the English-speaking world owe far more to the vices of John than to the labours of virtuous sovereigns.”
How true indeed because we lawyers would always recall this date, June 15, 1215 — the day the barons and John met at Runnymede, near London, and there in a meadow, John attached his royal seal on an agreed document called the Great Charter of Liberty or better known as Magna Carta in Latin.
By divine intervention perhaps, John met an early death a year later on Oct 19 just as he was about to join forces with Pope Innocent III to renege on what he had signed. He was succeeded by his 9-year-old son Henry III who was too weak to take on the barons.
Though Magna Carta was signed with the nobles, it sought not only to restrict the powers of the monarch but to protect the rights of “all free men”. It is a document of outstanding importance because it contributed to the early establishment of the constitutional principles of democracy and rule of law.
Even though 793 years have passed, three of its 63 original chapters still have the force of law in England, and two of them are:
“38. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
Hence, Magna Carta influenced the drafting of many constitutions around the world, including that of the United States. Its significance is best summed up by former British prime minister Anthony Eden as follows:
In fact, Chapter 39 of Magna Carta also brought about the remedy against unlawful imprisonment by way of the great writ of habeas corpus when the Habeas Corpus Act was passed in 1679. Habeas corpus means ‘produce the body’ and is said to be the best safeguard of individual liberty because when a writ of habeas corpus is issued by a court of law, the prisoner or détenu (detainee) must be released. Judiciary is, therefore, said to be the bulwark of an Englishman’s freedoms and liberties.
In Malaysia, the right to habeas corpus is incorporated into Article 5(2) of the Federal Constitution.
However, it is ironic that when the British ruled Malaya from 1948 to 1957, Magna Carta was obviously not in their minds when they made Regulation 17 of the Emergency Regulations 1948 to allow the chief secretary to detain, by order, any person for a period not exceeding one year even though Section 4 of the Emergency Regulations Ordinance of 1948, which empowered the British high commissioner to make any regulations he considered desirable in the public interest, expressly stipulated the proviso that “no such regulation shall confer any right to punish by death, fine or imprisonment without trial…”
When the Emergency Regulations ceased after the proclamation of emergency ended on July 29, 1960, Regulation 17 was virtually transplanted into a new statute, called the Internal Security Act 1960 (ISA) which came into force two days later.
But the ISA is not the only preventive law in Malaysia. The other two laws are the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (POPO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA). POPO which came into force on May 16, 1969 after the May 13, 1969 riots allowed the minister to detain without trial any person for up to two years in the interest of public order or in order to suppress violence or prevent crime. Today, there are about 700 detainees under POPO. DDA which came into force on May 30, 1985 allowed the minister to detain without trial any person involved in drug trafficking for up to two years.
Interestingly, preventive laws are permitted under Articles 149 and 150 of the Constitution and such laws are valid notwithstanding that they are inconsistent with Article 5, 9, 10 or 13 of the Constitution or would be outside the legislative power of Parliament.
While it appears that our courts are prepared to order habeas corpus where the detention is made by the police under these laws (see Mohamad Ezam bin Mohd Noor v Ketua Polis Negara, 2002), our courts however will not review a detention order signed by the minister where such law contains a provision ousting the jurisdiction of the courts (see Kerajaan Malaysia & Ors v Nasharuddin bin Nasir, 2004 and Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & Another Appeal, 2002) notwithstanding Article 5(2) of the Constitution. Hence, depending on which side you are on, there will be arguments for and against such preventive laws.
For the government, it is the state’s responsibility to protect national security.
Preventive laws are like pre-emptive strikes against terrorists, gangsters and drug traffickers. Proponents of such laws, including the victims of terrorism and serious crimes, will ask — do we need to wait until the day when Malaysians have to wake up like the Americans did after Sept 11, 2001 to realise that the shock, horror and revulsion caused by these horrendous acts of terrorism indeed justify preventive detention? This is akin to one reading about accidents in newspapers every day. One may only feel sorry for the dead and injured when reading about it, but if the dead and injured are your loved ones, it is a totally different matter altogether.
The government will no doubt find support in the celebrated words of Lord Denning in R v Secretary of State for the Home Department, ex parte Hosenball, 1977 that “when the state itself is endangered, our cherished freedoms may have to take second place”.
Employing the same argument, if you or your loved ones are the incarcerated, you will cry to high heaven when access to courts and justice is denied. This is particularly so when they are innocent or these preventive laws are abused not for their original intention. And when the matter is taken to the courts, the courts will tell you that in the absence of any ambiguity, the preambles to such laws are of no help in interpreting their substantive provisions (see Re Tan Boon Liat, 1976).
Unless one or one’s loved ones are victims of such travesty of justice, one may not appreciate why the fundamental rights to life and justice as enunciated as far back as Magna Carta are sacred and cannot be overridden.
The right to habeas corpus under Article 5(2) is not a “mere rope of sand”. Perhaps the real threat to the life of a nation is not the detainee but the law itself because it undermines civil liberties as there can never be such a thing as 100 per cent security.
Article 152 provides that the board must be chaired by a judge or a person qualified to be one. Sadly, the strict rules of procedure and proof do not apply to hearings before the board, and the detainee’s counsel had been denied before the right to cross-examine witnesses.
In the US and the UK, despite the governments there having passed laws after 9/11 to allow preventive detention, the US Supreme Court and the British House of Lords have fiercely stood their ground against any attempt to remove the right to habeas corpus, citing Magna Carta.
I can do no better by ending with the words of Lord Hoffman in the latter case: “Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.”
Sunday, September 14, 2008
When hope is gone, seek help
Thinking that somebody might be trying to break in, I rushed to the window to see if there was anything or somebody at the balcony. There was no one.
Then, to my horror, I spied sprawled on the ground a body clad in a white T-shirt and shorts in a pool of blood. It was a gory and yet poignant sight. The thought that immediately came to mind was that a man had jumped to his death.
Looking back now at this sad incident, which happened two months ago, I am amazed at how I plucked up the courage to run around in the middle of the night, with the body lying within sight, to look for the guards and other residents for help.
It turned out that it was actually a young woman who had fallen from the 12th floor. She was still alive because she fell through a glassed walkway without hitting the ground directly. But her hips and legs were broken with some bones protruding out. Her mother, when she rushed to the scene, wailed loudly and her cries broke the stillness of the night. It was heart-wrenching.
I was rather traumatised by the incident: this ghastly scene kept flashing through my mind for a few weeks. I guess the experience could have been worse had it taken place during the just-concluded Hungry Ghost month.
Suicide is the antithesis of life and I find it ironic that a person who had no courage to face life had the courage to face a painful death.
It is said that for every person who commits suicide, at least five other people will suffer as they try to come to terms with the suicide of their loved ones. Studies have shown that children whose parents committed suicide could grow up to be depressed and, sometimes, suicidal adults if they do not receive proper care.
This explains why the wails of that grief-stricken mother still reverberate through my mind.
It is, therefore, disappointing to note that Sept 10, World Suicide Prevention Day, went past without any mention in our local media about suicide when it is a serious public health problem that is fast becoming our country's number two killer after heart disease.
Each year, nearly a million people around the globe commit suicide while 10 to 20 million attempt suicide at the same time.
Most religions do not approve of suicide as they view suicide as a sinful act of taking one's life which only God can take away.
It is interesting to note that only by this December will Malaysia know for the first time how prevalent suicides are when the first official data consisting of all suicide cases reported since July last year will be released by the National Suicide Registry of Malaysia.
However, from the little research I did, I discovered some disturbing facts about suicide in Malaysia and elsewhere:
- Between 1990 and 1995, about 400 people were admitted annually to University Hospital for injuries sustained in suicide attempts.
- In 2000, 53 children under the age of 11 and 1,837 people above the age of 12 attempted suicide and the youth suicide rate in Malaysia was estimated to be three in every 100,000.
- According to a Ministry of Health booklet published in 2004 entitled "Guidelines in the Management of Psychiatric Disorders", between 10 and 15 per cent of suicide bidders eventually succeeded in killing themselves and males were twice as likely to try again as females. The risk was particularly high in the first year after a failed attempt.
It also recorded that suicide rates increased with age with the highest among the elderly. Among men aged 65 and above, the suicide rate was 40 per 100,000, two to four times higher than the rate among women.
Among women, the findings revealed that most attempted suicides were in the 15-24 age group (283 per 100,000) and among men, the 25-34 age group (199 per 100,000). ("Unemployment driving men to attempt suicide" -- NST, Oct 31, 2004.)
- According to a 2006 estimate, 13 Malaysians in 100,000 kill themselves as opposed to eight in the 1980s. Of these, the suicide rate in the Indian community is the highest with 30 to 35 attempting suicide compared with 15 Chinese and six Malays in every 100,000.
However, the rates could even be higher as some cases were either unreported or under-reported due either to stigma and shame attached to suicide or because the deceased's life insurance would normally contain a clause denying payments on the ground of self-inflicted death.
- In Singapore, the total number of suicides in 2003 was 346. This went up to 419 in 2006 but it came down to 374 in 2007. Among those aged 65 years and above, suicides increased from 69 in 2006 to 87 last year. There, the suicide rate was 10.3 per 100,000 in 2006 and 9.15 per 100,000 last year.
- Kuwait and Iran have the lowest suicide rates in the world at two per 100,000 residents. Lithuania has the highest at 43 per 100,000 residents.
- In 2002, 18 out of every 100,000 Koreans committed suicide.
- In Japan, 30,000 people take their lives annually. This is about 90 suicides a day, which is the highest among developed countries.
It is said that the suicide rate is usually higher during an economic recession. Other common factors include stress, mental disorders, anxiety, depression, ailments, relationship problems, divorce, physical abuse, unemployment, drugs, bankruptcy and ageing.
The vast majority of those who committed suicide took poisons such as pesticides, jumped from high-rise buildings or hanged themselves.
Nevertheless, suicide is, in fact, a preventable death. Suicide is essentially due to a total loss of hope, which drives people wanting to rather die than live. Some experts have also described suicide happening when pain exceeds the resources of coping with it.
At the same time, many experts have advised that if we can get those who have suicidal thoughts to talk about their problems, there is still hope of preventing death.
Here, I find the information on the website of the Befrienders (www.befrienders.org.my) rather informative. According to the website, two of the many fallacies of suicide need to be debunked:
Firstly, persons who talk about suicide do not commit suicide. The fact is, of any 10 persons who will commit it, eight have given definite warnings of their suicidal intentions.
The second myth is that suicide happens without warning. Studies have revealed that suicidal persons give many clues and warnings regarding their suicidal intentions.
In this respect, it is good for the public to know the warning signs. The San Francisco Suicide Prevention Crisis Line has listed the following as possible warning signs:
- Talking about dying -- any mention of dying, disappearing, jumping, shooting oneself or other types of self harm.
- Recent loss -- through death, divorce, separation, broken relationship; loss of job, money, status, self-confidence, self-esteem, religious faith; and loss of interest in friends, sex, hobbies or activities previously enjoyed.
- Change in personality -- sad, withdrawn, irritable, anxious, tired, indecisive or apathetic.
- Change in behaviour -- can't concentrate at school, work or on routine tasks.
- Change in sleep patterns -- insomnia, often with early waking or oversleeping, or nightmares.
- Change in eating habits -- loss of appetite and weight, or overeating.
- Diminished sexual interest -- impotence or menstrual abnormalities (often missed periods).
- Fear of losing control -- going crazy, harming self or others.
- Low self esteem -- feeling worthless, shame, overwhelming guilt, self-hatred, or "everyone would be better off without me".
- No hope for the future -- believing things will never get better; that nothing will ever change.
- Other things to watch for -- suicidal impulses, statements, plans; giving away favourite things; and previous suicide attempts, substance abuse, making out wills, arranging for the care of pets, extravagant spending, agitation, hyperactivity, restlessness or lethargy.
It follows that our professional counsellors and rescuers must be well equipped and trained to prevent suicide attempts, especially those wanting to jump from high rise buildings.
I remember in 2001, a 32-year-old woman plunged to her death from her 16th floor apartment at Plaza DNP, Johor Baru, after she was allegedly taunted by a member of the public to jump as he thought the woman could be frightened off from jumping.
A fireman from the Larkin Fire and Rescue Department managed to grab her hand but lost his grip due to a struggle.
The rescue operation was hampered as the department did not have any airbags or safety net to break her fall. Four airbags were immediately purchased after that.
All in all, if any reader reading this is feeling suicidal, I pray you will seek help or talk to someone. You owe it to yourself and family to do so.
Always remember that no one on this earth is devoid of stress or personal problems. There are many secular bodies out there that are waiting to help you.
Otherwise, in your quiet moments, you can also turn to God for God loves you. There is nothing impossible or insurmountable with God and I am sure when you seek Him, He will grant you spiritual healing.
Always remember too that where there is life, there is hope. So do not give up hope and the precious life that God has given you.
Published in the New Sunday Times, 14 September 2008
Thursday, September 11, 2008
The Bar joins Qualifying Board's evaluation team to UUM and MMU
Sunday, August 24, 2008
The mind games we can do without
A day later, my mother-in-law died peacefully at her home in Yong Peng at the age of 89.
For the last year, my mother-in-law was patiently attended to by a local doctor, Dr Mutalib Mohamed. Dr Mutalib had been going to the house a few times a week after she became bedridden to clean and dress her wounds arising from bed sores.
Each time, he had to painstakingly incise the dead cells and dress the sores, some of which were the size of a small crater. He did not charge much even though the job was distasteful. But he did it. Alas, my mother-in-law lapsed into a semi-comatose state three months ago after a stroke, but Dr Mutalib continued to monitor her. He also had to change the Ryle's tube regularly so that she could be fed. There were also a few emergency occasions when his services were willingly rendered.
By going around this predominantly Chinese community to attend to other aged patients like my mother-in-law, the urbane and good-looking Dr Mutalib no doubt earned the respect and admiration of many.
But the Malays are not only polite and forgiving. They are a grateful people, too. I remember in 2004, I represented for free Al-Yatama Bhd which runs orphanages in Johor in a four-year court battle.
When we successfully obtained a court order to compensate Al-Yatama for RM65 million and to repossess their 1,092ha of land after entering into a failed joint venture in 1996 ( "Charity firm recovers land in suit" -- NST, Feb 3, 2004), two septuagenarian directors of its board, Abdul Rahman Abbas and Sulaiman Hassan, were ever so grateful.
They cried with joy and hugged me outside the courtroom. Grabbing my hands, they cried in Malay: "Mr Roger, Allah will bless you!" I was touched by their kind words.
While it cannot be denied that religion occupies a central place in the lives of the Malays, I thought what the protesters did on Aug 9 did not fairly and kindly portray the amiable side of the ordinary Malay folk. I was rather alarmed by what I saw in the videos taken of the incident.
One of their leaders, Zulkifli Nordin, a former one-term Bar Council member himself, allegedly urged the already agitated protesters to storm the building if he and a few others did not re-emerge to inform the rest that they had stopped the forum. Two kerosene-filled bottles were also left outside.
Zulklifi's explanation that he was there to defend his religion was wholly misplaced. Islam was never challenged let alone attacked in this multiracial forum. Some of the speakers and participants who took part in the forum were Muslims, and quite correctly, they took to the floor to speak for Islam in a mature, respectable and civilised manner.
One of them was Professor Mehrun Siraj, wife of former Bar Council chairman Sulaiman Abdullah. Though small in build, she was obviously not a pusillanimous lady when she stood up to the imperious Zulklifi and gang, saying: "Muslims must act based on the Quran and Sunnah. We must behave well. Muslims must not be rude. I am ashamed of your behaviour. Islam does not condone this."
Sadly, by stoking racial sentiments and hurling racist remarks, the raucous protesters had only tarnished the good name of Islam. Zulklifi's actions have also opened the eyes of the people to see how Parti Keadilan Rakyat could govern this country when their members hold divergent views on race and religion.
Zulklifi's other oft-repeated statement that the Quran is more important than the Federal Constitution also runs contrary to the views held even by the many human rights activists within his own party, PKR. This gave rise to the impression, wrongly or correctly, that Zulklifi advocates a government based on syariah.
Of course, the Bar Council will not lodge any police report against them for holding an illegal assembly or for the seditious words that they had uttered. Neither will the Bar Council seek an apology from PKR, Pas or Umno. To do so would be against the stand taken by the Bar all this while on freedom of expression and assembly and the Sedition Act.
In a way, Aug 9 should be celebrated as a day in which democracy flourished in this country if not for the protesters who, when exercising their right to object to the forum, had also sought to prevent others from expressing their similar right to hold it, even though their views differed on the matter.
It is now apposite to stress that the Bar Council is not anti-Islam or any religion at all. Like the cabinet, members of the Bar Council are bound by the principle of collective responsibility.
When the Bar Council gave the green light to its Family Committee to hold the forum, little did we realise that it would be so grossly misinterpreted. After all, this was not the first time the council had organised a forum on this vexed issue.
The council had innocuously thought the composition of the panellists was rather balanced as two of the original speakers were former syariah judge Dr Mohd Naim Mokhtar, and Institut Kefahaman Islam Malaysia (Ikim) Syariah Law Centre director Dr Wan Azhar Wan Ahmad.
In hindsight, we could have titled the forum more appropriately. In this sense, I personally acknowledge that we could have been more sensitive. Perhaps a title like "Conflict of civil and syariah laws after Subashini and Shamala" would have been more apt.
Unfortunately, in these days, we are caught in the mind game that perception is more important than practice and fact.
The fact is that the Malaysian Bar has spoken up for Muslims, too. We are a loud critic of the Iraq war as well as the mistreatment of suspected terrorists in Guantanamo Bay, Cuba. Further, the only religious event organised by the Bar committees is the buka puasa.
Similarly, the police are caught in this problem with perception. No doubt, their actions on Aug 9 will be compared with the efforts they took to break up the Bersih and Hindraf demonstrations.
But the fact is after the March 8 general election, there appeared to be a more tolerant approach in the way in which the authorities viewed public demonstrations. What the authorities must always bear in mind is that their response to any similar event must be consistent when upholding the rule of law.
Having said that, as we approach yet another Merdeka, I believe we Malaysians can progress further and learn to look at sensitive issues in a civilised and mature manner. It may take time, but the Bar Council, being entrusted to uphold the cause of justice without fear or favour, will continue to promote this practice of civil dialogue.
Published in the New Straits Times, 24 August 2008
Saturday, August 16, 2008
Hundreds turn up to bid farewell to Teo
|Loved by all: Family, relatives and friends bade farewell to Teo at her funeral service on Thursday.|
Sunday, August 10, 2008
Perhaps, finally, Blair has come of age
"Although the rule of law is an initiation of political leaders, like me, it is also a vital component for political success as it ensures an orderly society," Blair said when presenting the lecture entitled "Upholding The Rule of Law: A Reflection".
I must say I could not agree more with him. We lawyers are often reminded of the celebrated words of the English pamphleteer Thomas Paine (1737-1809): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."
Likewise, the law governing international relations is the United Nations Charter. Indeed, international rule of law is a vital component for peace as it ensures an orderly world.
However, by supporting and participating in the 2003 United States-led invasion and occupation of Iraq, I wonder whether Britain, being the world's oldest democracy, still possesses moral authority in a comity of nations to lecture on the principle of rule of law.
On Sept 14 last year, Opinion Research Business, an independent polling agency in London, released estimates of the total war casualties in Iraq at over 1,220,580 deaths. Thousands more were maimed and scarred for life.
According to the report, the number exceeded even the 800,000 to 900,000 deaths in the Rwandan genocide in 1994, and may even overtake the 1.7 million casualties of Cambodia's killing fields in the 1970s, two great crimes of the last century.
Of course, the debate rages on whether the invasion of Iraq was a breach of international law.
Under international law, there are probably two grounds where the use of force is justified.
The first is provided for under Article 51 of the UN Charter, which confers an inherent right upon a state to use force in self-defence.
The other is when the use of force is authorised by the Security Council under Article 42 of the Charter.
It is interesting to note that both camps seem to rely on the UN Security Council Resolutions 678 and 1441 to justify their arguments for and against the invasion.
Resolution 678 was passed on Nov 29, 1990, then giving Iraq one final opportunity to withdraw from Kuwait by Jan 15, 1991, failing which members of the UN in cooperation with the government of Kuwait were authorised to use "all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area".
UN Security Council Resolution 660 demanded that Iraq withdraw its forces unconditionally to the positions in which they were located before they invaded Kuwait on Aug 1, 1990.
Resolution 1441, passed unanimously on Nov 8, 2002, offered Iraq "a final opportunity to comply with its disarmament obligations".
The United States seemed to hold the view that Resolution 678, backed by Resolution 1441, was sufficient, without the need for any further resolution, to clothe it with the legal authority to use force against Iraq.
But how was that possible when there was no threat of an armed attack or act of aggression from Iraq, whether actual or imminent?
Similarly, the UN Charter does not permit such notion of pre-emptive strike or preventive war in international law as advanced by the US and its allies.
Iraq obviously did not commit or threaten to commit any act of "aggression" as defined by the UN General Assembly Resolution 3314 (XXIX).
In fact, during a 2004 interview with the BBC, the then UN Secretary-General Kofi Annan had this to say: "I have indicated it is not in conformity with the UN Charter, from our point of view, and from the Charter point of view it was illegal."
Similarly, the so-called "shock and awe" blitzkrieg to secure Iraq's compliance with its disarmament obligations was a totally disproportionate response, causing huge civilian casualties in breach of the Geneva Conventions of 1949 and their 1977 protocols.
It has now become abundantly clear that the infamous invasion was intended to remove Saddam Hussein, who in the eyes of the US and its allies was a recalcitrant dictator.
It is also abundantly clear that the UN inspectors who scoured Iraq for weapons of mass destruction did not eventually find any.
It is unfortunate that as a permanent member of the Security Council, Britain, then headed by Blair, did not stand up to this flagrant disregard of international law by the Bush administration.
Instead, Blair led Britain to join the US in this illegal war.
This went against the very foundation in which the UN Charter came into being after World War 2, that is, as stated in its preamble, "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" .
Unless one has been bereft of loved ones before, one may not appreciate why parents, widows and orphans shriek and thump their chests crying to high heaven and pleading for justice in agony, misery and sorrow when their innocent children, spouses and parents perish in a war.
The preamble to the Charter also reaffirms faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small in order to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.
Hence, the manner in which suspected terrorists are treated and incarcerated speaks volumes of the US's record of respecting basic human rights.
Today and like before, history seems to be repeating itself. The Bush administration is now saying that any withdrawal of the US and allied troops will plunge Iraq into a civil war.
Looking back at history, when Britain invaded Iraq in 1917, the British, too, claimed to be the liberators and not conquerors of the Iraqis.
The reason was the same, that is, to set up democracy in Iraq. The then prime minister, Lloyd George, too, warned that if British troops should leave Iraq there would be civil war.
Abandoned Iraq, they did, and the Baath Party led by Saddam Hussein then took over.
Sadly, the mess now created in Iraq is the result of failure and refusal by powerful nations to respect and commit to international rule of law.
The invasion and continued occupation of Iraq have never been expressly authorised by the UN Security Council.
Winston Churchill once put it aptly: "The whole history of the world is summed up in the fact that, when nations are strong, they are not always just, and when they wish to be just, they are no longer strong."
As the UN is powerless to act and enforce international law when the culprits are the world's powerful nations, one can only leave it to history to judge whether Bush, Blair, John Howard and the others are saviours or butchers of the Iraqis.
Published in New Straits Times, 10 August 2008
Wednesday, July 16, 2008
The ACA and the power to prosecute
LAST Friday, the Anti-Corruption Agency announced that it has been given full powers to prosecute anyone for corruption. This means it no longer needs to refer to the Attorney-General’s Chambers after completing its investigations.
According to news reports, the A-G’s Chambers will now second a senior officer to be a director at the ACA, giving him powers to prosecute cases. This officer will report directly to the director-general of the ACA.
In Malaysia, Article 145(3) of the Federal Constitution expressly states that the attorney-general shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a syariah court, a native court, or a court martial.
Section 376 of the Criminal Procedure Code (CPC) also expressly states that the attorney-general shall be the public prosecutor and shall have the control and direction of all criminal prosecutions and proceedings. To assist him, the public prosecutor may appoint and authorise other persons such as the assistant and deputy public prosecutors, advocates, police officers, officers of any government department, local authority or any statutory authority to conduct criminal prosecutions before any court or any inquiry before a magistrate.
Hence, the public prosecutor is the alter ego of the attorney-general, in that these two positions are held by one and the same person.
In 1999, Justice Datuk Gopal Sri Ram, sitting as a High Court judge, decided in Repco Holdings Bhd v PP that Article 145(3) gives the attorney-general the sole and exclusive authority to institute and conduct any criminal proceedings, although neither the word “sole” nor “exclusive ” appears in Article 145(3).
He therefore held that any law that confers prosecution powers upon any other person is unconstitutional, and that the attorney-general’s exercise of discretion in this matter is not subject to judicial review.
Even though High Court judges like Justice Datuk Ian Chin in PP v Lee Ming & Anor (1999) and Justice Datuk Abdul Wahab Patail in Rajendran a/l Gurusamy v PP (2000) and Datuk Seri S.Samy Vellu v S. Nadarajah (2000) have expressed their reservations on the correctness of Sri Ram’s interpretation of Article 145(3), the latter’s decision has however been followed by the Court of Appeal on several occasions.
It follows that Repco’s decision essentially means the following:
• The attorney-general and the public prosecutor must be the same person. If the public prosecutor is not the attorney-general, then Section 376 of the CPC is unconstitutional.
•Any law similar to Section 39(2) of the Securities Commission Act 1993 that provides that any officer of the Securities Commission (SC) authorised in writing by the SC chairman may conduct any prosecution of any offence under the said Act will be struck down as unconstitutional. (Section 39(2) was subsequently repealed on Sept 28, 2007.)
It is therefore respectfully submitted that without any amendment being effected to Article 145(3), and so long as the decision in Repco still stands, the ACA’s legal officers who report to the ACA chief are still the attorney-general’s subordinates. The attorney-general can always overrule them anytime. In this sense, it cannot be said the ACA now possesses independent prosecution powers.
Further, it is a mistake to broadcast to the whole world that the legal officers now report to the ACA chief over prosecution matters.
This is not only wrong in the light of Repco’s case, but it will now certainly prompt every accused’s counsel in a corruption trial to raise a preliminary issue of whether the attorney-general’s consent has been obtained before a charge is preferred against his client. This is because Section 50 of the Anti-Corruption Act 1997 expressly provides that no prosecution under the said 1997 Act shall be instituted except by or with the consent of the public prosecutor.
Hence, the latest move, though viewed by many as a step in the right direction, may just turn out to be a façade in our haste to please the court of public opinion.
To my mind, if the government is really serious about establishing a “full-fledged” Malaysian Commission on Anti-Corruption by the end of this year, we must do things properly so that we can rebuild the legal structure of ACA to make it a totally independent anti-corruption enforcement body.
It is, therefore, always a danger to vest absolute powers in one person alone. To this aim, Article 145(3) can be amended to make it clear that it does not confer upon the attorney-general sole and exclusive power to institute and conduct prosecutions.
In so doing, the office of the public prosecutor can be assumed by another officer independent of the attorney-general, so that day-to-day prosecutions are personally conducted by the public prosecutor and other statutorily appointed officers.
The attorney-general can still have supervisory, but not exclusive, powers over prosecutions so that he can concentrate on his role, and rightly so, as the chief legal adviser to the government.
Tuesday, July 8, 2008
A virtual breakdown of law and order
THERE is no doubt that the statutory declaration is a much talked-about legal document in recent weeks. Some have now even wryly dubbed it "sextutory" declaration.
What is a statutory declaration?
In simple terms, it is a statement made under oath outside the court before a Sessions Court judge, magistrate or a commissioner for oaths. If it is used for a purpose outside Malaysia, then it must be made before a notary public.
A statutory declaration is often used where documentary evidence is not available, to affirm personal matters relating to an individual such as his identity, marital status, nationality and solvency.
Under the Statutory Declarations Act 1960 ("Act 13"), a statutory declaration must begin with the words "I do hereby solemnly and sincerely declare..." and end with the words "I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960".
It follows that a statutory declaration should not contain any hearsay evidence, since the declarant is making a statement under oath "conscientiously believing the same to be true".
Even if the statutory declaration contains hearsay evidence, the declarant should disclose the source of such information.
This brings me to the two conflicting statutory declarations made by private investigator P. Balasubramaniam in a matter of 24 hours. Whatever it is, the statements contained in one of the declarations are obviously untrue.
By resiling from what he has affirmed in the first declaration, Bala's public recantation by way of a second declaration is not only self-incriminating but also constitutes damning evidence that he has lied in the first declaration.
Under Section 3 of Act 13 and Section 199 of the Penal Code, a declarant who makes a false declaration is treated as if he has given false evidence.
Section 193 of the Penal Code provides that: "Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine."
However, Bala has affirmed in the second declaration that he was compelled to make the first declaration under duress, and he ended his second declaration slightly differently from what is required under Act 13, with an additional word, "voluntarily", that is: "I make this solemn declaration voluntarily and conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960."
In other words, Bala is saying he was not coerced into making the second declaration, and that the first declaration can now be treated as arrant nonsense.
In any event, if Bala is charged with giving false evidence, duress can be a defence but he has to produce evidence to that effect to exculpate himself. It is, however, inappropriate to discuss here the effect of his ignominious statutory declarations on the evidence he earlier gave and his position as a witness.
However, what concerns me is not so much the two statutory declarations but rather how a separate trial is being conducted by the media and bloggers when the actual murder trial is ongoing.
Little regard is had to the rule of sub judice. There appears to be a virtual breakdown of law and order as statements are constantly being made outside court by various parties which, in other cases, would have constituted contempt and interference with the due process.
But so far no party, especially the prosecution, has seen the need yet to apply for any gag order to stop these pernicious activities.
It seems to me now that after the March 8 elections, our mainstream media are prepared to take sides over several issues. This is good in the name of press freedom.
But we cannot throw out of the window long-established practices, one of which is never to prejudge a case before the completion of police investigation.
Likewise, our media are expected to undertake self-censorship and would not publish explicit remarks that would malign the dead, and words like "Altantuya Shaariibuu was susceptible to a certain form of sex" would not have seen the day unless uttered in a court of law.
Similarly, in any complaint, we do not go after the complainant treating the victim as if he/she is the villain before the conclusion of investigations.
It is, therefore, sad to note the growing trend these days, that whenever a case involves an intersection of sex, crime and politics, the media are prepared to form a judgment and our people are also quick to draw conclusions.
It is hoped that, notwithstanding that some of us may have already made up our minds on the innocence or guilt of those who accused and those being accused, we will not, in our haste to do so, sacrifice the principle upon which our nation is founded: the rule of law.