‘Laws grind the poor, rich men rule the law’

The writer with the legendary Lord Denning during his law student days in London. Denning quoted Fuller that ‘Be you ever so high, the law is above you’.

The Sunday Star

by Roger Tan

WHEN I was young, I would recite the Rukun Negara every morning during the primary school assembly.

When I was older, I would lead in the taking of this pledge as the head prefect of the secondary school every other week. This pledge-taking commenced in late 1970, a year after the May 13, 1969, incident. So this year is the golden jubilee of the Rukun Negara. 

Raising our right hands, we would say these words aloud in Bahasa Malaysia: 

“We, the citizens of Malaysia, pledge to concentrate all our energy and efforts on achieving these ambitions based on the following principles: Belief in God; Loyalty to the King and Country; Supremacy of the Constitution; Rule of Law; Courtesy and Morality.  

What are these ambitions? They are: 

> Achieving and fostering better unity amongst the society; 

> Preserving a democratic way of life; > Creating a just society where the prosperity of the country can be enjoyed together in a fair and equitable manner; 

> Ensuring a liberal approach towards the rich and varied cultural traditions; and 

> Building a progressive society that will make use of science and modern technology. 

Of course, we would often spend most of our time memorising the five principles, overlooking the importance of the five national ambitions. 

Then, we were also too young to know the significance of these principles, particularly supremacy of the Constitution and rule of law. 

It was only when I began as a lawyer that I realised the true significance of these third and fourth fundamental principles. 

The supremacy of the Constitution means our Parliament is not supreme, unlike the British Parliament, because our Federal Constitution is the supreme law in that even our Parliament cannot make, amend or unmake any law as it pleases. Article 4(1) of the Federal Constitution declares that the Constitution is the supreme law of the land and any law passed which is inconsistent with the Constitution shall be void. 

The principle of the rule of law, in simple terms, means no one is above or immune from the law. Article 8(1) of the Federal Constitution also declares that all persons are equal before the law and entitled to equal protection of the law. As Sultan Azlan Shah once said in a case when sentencing a prince, “This equality of all in the eyes of law minimises tyranny”. 

It then behoves the public prosecutor and the judiciary to ensure that this nation is governed by the rule of law and not rule the law. Hence, the Attorney General is often called the independent guardian of public interest and protector of public rights; and the judiciary, the fountain of justice and the bulwark of our liberties. 

This is obviously the ideal and a grandiloquent optimism. But in practice, a lot depends on the person who sits at these institutions. 

Senior lawyer: Shake-up a welcome change for now

The Star
by Royce Tan

PETALING JAYA: The rationalisation proposal to make nine agencies independent entities and which reports directly to Parliament is seen as a welcome change by many. 

However, several concerns have been raised, especially in the event of an elective “dictatorship”.

Senior lawyer Datuk Roger Tan said if there was an absolute majority in Parliament one day, the issue of an Executive dominance would arise. 

He called for the Committee of Institutional Reforms to look into how to prevent this from happening. 

“It is a good move to preserve the independence of institutions, such as the Malaysian Anti-Corruption Commission (MACC) and the Election Commission, but it may not necessarily be good if one day the Government has an absolute majority in Parliament. 

“We must have necessary safeguards against any abuse, especially by the Government of the day that controls Parliament. 

“If one day we have an elective dictatorship, the Government will then be able to take control of these institutions,” he said. 

Tan said that posts such as the MACC chief commissioner or the Human Rights Commission of Malaysia (Suhakam) commissioners should be elected by a bipartisan committee, comprising MPs from both divides. 

He said there was also a need to amend the Acts of the respective commissions for them to be appointed by the committee. 

Lawyer: Government can terminate contract of A-G

The Star

By Maizatul Nazlina

KUALA LUMPUR: The Government can terminate the contract of Attorney-General Tan Sri Mohamed Apandi Ali (pic), says senior lawyer Datuk Roger Tan.

This follows after Prime Minister Tun Dr Mahathir Mohamad announced that Apandi has been told to take leave and that his duties will be taken up by the Solicitor-General.

The Prime Minister said although the A-G's contract has been recently renewed for another three years, the government would go through the proper process to initiate investigations against Apandi. 

According to Tan, the Government could terminate Apandi's contract before the three years, subject to the terms and conditions.

His contract was extended to 2021, by which time he will be aged 71.

He said unlike former A-G Tan Sri Abdul Gani Patail, Apandi was not a career officer.

Tan explained that Gani was a "legal officer" when he was said to have resigned due to "ill health".

Keep it colour blind

The Sunday Star 
Legally Speaking by Roger Tan
 

Respected figure: The writer with Sultan Azlan.

Our judges, regardless of their race and religion, must always be mindful that they have taken an oath to preserve, protect and defend our Constitution not for some but for all Malaysians.

I HAVE wanted to write this for some time – my tribute to the late Sultan Azlan Shah who passed away on May 28, 2014. Not so much because he had been reading my column, but rather on two occasions which I had the honour of meeting him, he had encouraged me to keep on writing.

I was also troubled that when he passed away, he had not been accorded the appropriate recognition by leaders of our legal profession of his contribution to the administration of justice in this country.

This could be due to some differences with the Sultan’s decision not to call for fresh state elections when Pakatan Rakyat lost the majority control of the Perak state assembly in February, 2009. I had at that time written extensively that the Sultan’s decision was constitutionally correct.

Interestingly, the Federal Court’s judgment which subsequently endorsed the correctness of his royal decision is now being relied upon by his then most vociferous and sometimes insolent critics in Pakatan Rakyat to justify replacement of the embattled Selangor Mentri Besar, Tan Sri Khalid Ibrahim without the need for a state assembly sitting or the dissolution of the assembly.

Sultan Azlan belonged to the generation of great Malaysian jurists including the likes of Tun Mohamed Suffian Hashim and Tan Sri Eusoffe Abdoolcader. He was, after all, the youngest ever appointed High Court Judge and Lord President.

Not many knew that whenever the Malaysian Bar stood up for the independence of the judiciary, he was always there with and for us.

I still remember the keynote address he gave at the 14th Malaysian Law Conference on October 29, 2007; of which I was the organising chairman.

The conference was held one month after 2,000 or so lawyers walked for justice from the Palace of Justice to the Prime Minister’s office to hand over a memorandum asking the government to set up a royal commission of inquiry to investigate the V.K. Lingam video tape which implicated the then chief justice, Tun Ahmad Fairuz Sheikh Abdul Halim.

Religion and the law

The Sunday Star

Legally Speaking by Roger Tan

The Jais raid on the premises of the Bible Society of Malaysia has put into focus the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of SelangorThe Jais raid on the premises of the Bible Society of Malaysia has put into focus the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor.

THE Jan 2 raid by the Selangor Islamic Affairs Department (Jais) on the premises of the Bible Society of Malaysia (BSM), in which 331 copies of Malay and Iban Bibles were seized, has brought to national attention a piece of state legislation hitherto unknown to many Malaysians – the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor (Selangor Enactment).

So far, Jais has argued they were empowered to do so under Section 9 (1) of the Selangor Enactment, which prohibits any non-Muslim to use in writing or speech any of 25 words or any of their derivatives and variations, as stated in Part 1 of the Schedule, pertaining to a non-Islamic religion.

The 25 words are Allah, Firman Allah, Ulama, Hadith, Ibadah, Kaabah, Kadi, Ilahi, Wahyu, Mubaligh, Syariah, Qiblat, Haj, Mufti, Rasul, Iman, Dakwah, Injil, Salat, Khalifah, Wali, Fatwa, Imam, Nabi andSheikh.

Section 9 (2) also prohibits a non-Muslim to use 10 expressions of Islamic origin set out in Part II of the Schedule, including Alhamdulillah and Insyallah.

Non-Muslims can, however, use the words and expressions by way of quotation or reference.

Jais contended that Section 9 (1) had been contravened because the Malay and Iban Bibles contain the word “Allah”. Further, they were entitled to arrest without warrant the BSM chairman, lawyer Lee Min Choon, and manager Sinclair Wong as section 11 provides that all offences and cases under the Selangor Enactment are deemed to be seizable offences and cases under the Criminal Procedure Code (CPC), that is, offenders of seizable offences can be arrested without any warrant of arrest.

A fortiori, as this is a law passed by a state legislature, it has the force of law and quite rightly it can, therefore, override the 10-point solution decided by the Federal Cabinet and communicated via the Prime Minister’s letter dated April 11, 2011 to the Christian Federation of Malaysia.

Freedom from hate speech

The Sunday Star
Legally Speaking by Roger Tan

The debate currently raging in Australia about amending or repealing section 18C of its Racial Discrimination Act, 1975 is rather interesting.

DURING the recent election, Prime Minister Tony Abbott and Attorney-General George Brandis had pledged to repeal section 18C.

It all started after journalist Richard Bolt was found to have contravened the RDA in two of his articles written in 2009 and published in The Herald Sun and on its online site, titled “White fellas in the black” and “White is the new black”.

As reported in the case of Eatock v Bolt, 2011, Eatock had complained that Bolt’s two articles had conveyed offensive messages about her and people like her (that is high profile and fair-skinned Aboriginal people) in that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could avail to the benefits meant for Aboriginal people.

Justice Bromberg ruled that the defences and exemptions allowed under section 18D of the RDA, such as if the act was done reasonably and in good faith for purposes of artistic work or public interest or making a fair comment, had no application because the articles contained factual errors.

Hence, this has now appeared to be the first task of the Abbott government, that is to remove this racial vilification law. In Brandis’ view, repealing section 18C would, in fact, strengthen and restore freedom of speech in Australia.

“You cannot have a situation in a liberal democracy in which the expression of an opinion is rendered unlawful because somebody else ... finds it offensive or insulting,” said Brandis in The Australian recently.

In other words, free speech is about allowing other people to say or write bad and rude things about you which you do not like.

That was exactly what Abbott said in August when he was the Opposition Leader: “If free speech is to mean anything, it’s others’ right to say what you don’t like, not just what you do. It’s the freedom to write badly and rudely. It’s the freedom to be obnoxious and objectionable.”

The stink of injustice

 

Justice not served: Cousins Piya (left) and Prithep Sosothikul with a picture of their late grandmother, Boonsom Boonyanit.

The Sunday Star

by Roger Tan

The police have to explain their tardiness in investigating the most infamous land forgery case in Malaysia.

This is a heart-rending story, a story about an incessant quest for justice by three generations of a Thai family.

It all happened on Dec 12, 1956 when a Thai of Chinese origin, Sie Guan Tjang @ Sie Hang Bok, purchased two pieces of land for investment – Lots 3606 and 3607 of Mukim 18 at Tanjung Bungah, Penang (“the said lands”).

During his lifetime, Sie visited Penang very often with his Thai wife, Boonsom Boonyanit, also known as Sun Yok Eng. They loved Penang and her people so much that they had intended to build their retirement home on the said lands. On Jan 18, 1967, the two lots of land were transferred to Boonsom by way of a memorandum of transfer (“Form 14A”).

Under section 81(3) of the National Land Code (Penang and Malacca Titles) Act 1963 (Act 518), Form 14A was then treated more or less as proof of ownership over the said lands. Section 92 of Act 518 also provides that pending the issuance of a final title, an advance certificate of title (“ACT”) would be issued. Since Jan 18, 1967, Boonsom had been at all times in possession of the Form 14A apart from faithfully paying all the quit rents and assessments due on the said lands.

Some time in June 1989, Boonsom’s eldest son, Phiensak Sosothikul, chanced upon an advertisement in a Thai newspaper, Thairat, dated June 11, 1989, which was inserted by a law firm from Penang, Messrs Khor, Ong & Co (“KOC”). The advertisement requested that any person who had any right to the said lands or any heir to Boonsom residing at a house No. 87, Cantonment Road, Penang, Malaysia to contact KOC. The court was later told that when Boonsom’s accountant did contact KOC, the latter could not give any useful information.

Boonsom then engaged the law firm, Messrs Lim Kean Siew & Co (“LKSC”) to conduct investigations which revealed that the said lands had been fraudulently transferred by an impostor claiming to be Boonsom to Adorna Properties Sdn Bhd, then known as Calget Sdn Bhd (“Adorna”) on May 24, 1989.

Boonsom then sued for the return of the said lands. The Penang High Court ruled in favour of Adorna on April 28, 1995. On appeal, the Court of Appeal in its judgment dated March 17, 1997 reversed the High Court’s decision. Adorna then appealed, and the Federal Court comprising Eusoff Chin, Wan Adnan Ismail and Abu Mansor Ali allowed Adorna’s appeal in its judgment dated Dec 13, 2000 and pronounced in open court on Dec 22, 2000 (“Adorna Judgment”). Sadly, Boonsom had already passed away on May 23, 2000.

Boonsom’s second son, Kobchai Sosothikul, being the representative of her estate, soldiered on and filed two separate motions to the Federal Court for review of the Adorna Judgment.

It's time to end the death penalty

Anti-death penalty campaigners staging a demonstration in Los Angeles. Even in other countries, people are protesting against the death penalty. AFP pic

New Straits Times
By Datuk Sri Dr Muhammad Shafee Abdullah 

ABOLITION OF CAPITAL PUNISHMENT: Malaysia should rethink holistically and practically and take the lead and be the proponent in Asean countries to implement this.

THE death penalty is prescribed for several offences, ie murder and waging war against the King (offences under the Penal Code), kidnapping for ransom (an offence under The Kidnapping Act 1960 as opposed to simple kidnapping under the Penal Code), drug trafficking (offences under the Dangerous Drugs Act 1952 and other related drug statutes), certain scheduled offences for activities in relation to possession of firearms and ammunition or explosives [offences under the Firearms (Increased Penalties) Act 1971(FIPA)] and under the Internal Security Act 1960 (ISA) the latter of which was repealed recently.

Most of the death penalties are mandatory upon finding of guilt. This means the trial judge has no discretion in sentencing to consider a range of possible sentences such as life imprisonment or a prescribed jail sentence which could run up to the maximum sentence, being the death penalty, which of those is most suited to be handed down on a convicted person after considering the myriad circumstances in relation to the commission of the offence and/or the offender.

The Malaysian legislature used to entrust judges with this important discretionary function. For instance, we used to give this sort of discretion to the High Court judges in drug trafficking matters. But a previous attorney-general was frustrated with the fact that judges were opting to sentence certain drug trafficking convicted offenders to life imprisonment rather than mete out the death penalty.

Those judges had good reasons in most cases for opting out of the death penalty. In any case, if the judges were wrong there was always the appellate process which the prosecution could resort to press their point for the capital sentence.

But immaturity and myopic considerations seemed to have prevailed then. We have been stuck with this knee-jerk culture of our legislature, a legislature that is not well advised by the parliamentary draftsman and other relevant authorities. As a result amendments made were jaundiced and lack cohesion with the general scheme of the system.

Lawyers must constantly improve skills

The Star

by Roger Tan

The Bar Council will be advocating the CPD scheme at the 66th annual general meeting of the Malaysian Bar, and we, as lawyers, must not be averse to change.

TOMORROW at the 66th annual general meeting of the Malaysian Bar, the Bar Council will attempt for the fourth time, after failing in 2003, 2005 and 2006, to introduce a mandatory Continuing Professional Development (CPD) scheme for all practising lawyers and pupils in Peninsular Malaysia.

Under the proposed CPD scheme, a lawyer will have to chalk up 16 CPD hours or points in each 24-month cycle commencing July 1.

A pupil, on the other hand, has to accumulate eight CPD hours during his nine months of pupillage (training). The CPD points can be earned from participating in a variety of CPD activities - ranging from attending courses and seminars, lecturing, writing law books and articles (such as this I hope) to attending Bar’s general meetings and activities in accordance with a set of CPD Guidelines.

This scheme will be implemented on a voluntary basis for the first two years. After that, failure to accumulate the requisite CPD points within the stipulated period may result in the lawyer not being able to renew his practising certificate for the following year and the pupil not being able to be admitted to the Bar.

In addition to this, the non-CPD compliant lawyer may also face disciplinary proceedings as this may be tantamount to a “misconduct” within the meaning of section 94(3)(k) of the Legal Profession Act 1976 (LPA).

Bar Council criticised over its stand

New Sunday Times

KUALA LUMPUR: The Bar Council should let justice take its course rather than suggest that the Attorney-General refrain from appealing against Datuk Seri Anwar Ibrahim's acquittal from a sodomy charge.

World Assembly Youth president Datuk Idris Haron said due processes should be followed.

"The provisions are there and we should utilise the resources available.

"Natural justice, the right to be heard and the maxim of innocent until proven guilty should be practised," he said when commenting on Bar Council president Lim Chee Wee's statement urging the A-G not to appeal against Anwar's acquittal as the High Court had ruled fairly in the case.

Lim had said that the case had unnecessarily taken up judicial time and public funds and the A-G should focus on more serious crimes.

The A-G has 14 days to file an appeal from the date of the verdict. Due to the Chinese New Year celebrations next week, the last day to file an appeal is on Jan 25.

Civil disobedience cannot rule the law

The Sunday Star
by Roger Tan

Street Protest: Civil disobedience is becoming a popular tactical weapon used by politicians and civil rights movements to justify their violation of laws.

IN 1996, when my clients and I were negotiating with the Attorney-General’s Chambers, led by its then head of the advisory and international division Tan Sri Abdul Gani Patail, I warned that too high a rate might cause the public to refuse payment to privatised entities out of civil disobedience.

Then, both my learned friends across the table and my own clients were rather amused by my argument.

Today, this term “civil disobedience” appears to be the “in-thing” among politicians, particularly those from the opposition, backed by non-governmental organisations and civil rights and liberties movements.

It is becoming a popular tactical weapon used by them to justify their violation of laws which, in their view, are “unjust”, apart from indulging in some polemics.

Hence, we saw various street protests being held without a police permit in contravention of the Police Act (1967).

So, what is civil disobedience? I would define it as an open and deliberate law-breaking or infringement of rights to get public attention that is often politically motivated, and normally is carried out because the civil disobedients conscientiously feel, whether sincerely or otherwise, that they are morally obliged to do so.

Pressure groups around the world have, over the years, resorted to this means to secure their desired legal and social changes. But for an act to be considered civil disobedience, the disobedients must also be prepared to accept punishment for infracting the laws.

This is, in fact, fine with them as the courtroom will give them the publicity they seek for the causes and issues which they are advancing.

The father of the modern concept of civil disobedience is said to be American Henry David Thoreau (1817-1862). For six years, he refused to pay taxes because of his opposition to slavery and the Mexican-American War. For that, he was thrown into jail in July 1846, but he only spent one night in jail because the next day, his aunt, against his wishes, paid his taxes.

We are undoubtedly more acquainted with celebrated modern-day civil disobedients such as Mahatma Gandhi (1869-1948), Martin Luther King (1929-1968) and Rosa Parks (1913-2005).

Parks was fined for refusing to give up her bus seat to a white passenger but Gandhi and King were jailed for disobeying the law. There is no denying that Gandhi’s Satyagraha and King’s civil rights movements brought immense legal and social changes to India and the United States respectively.

These civil disobedients were much inspired by the words of St Augustine (354-430) that an unjust law is no law at all (lex iniusta non est lex). So, one is under a moral obligation to disobey such a law. King also added that “sometimes a law is just on its face and unjust in its application”.

The story told by Professor Charles Lund Black (1915-2001) of Yale Law School, an outspoken critic of the death penalty, about one Pawnee Indian brave named Peshwataro, best illustrates the operation and benefits of civil disobedience:

“The law of the Pawnee commanded that on the summer solstice there take place the sacrifice of the star maiden. A girl was each year captured from a neighbouring tribe and bound to a stake. At dawn, the Pawnee braves would ride in a circle about her and shoot their arrows into her.

Making the case for preventive detention

The Sunday Star 

by Roger Tan

In the proposed laws to replace the ISA, the government must balance, and balance it well, the state’s duty to protect national security with a citizen’s cherished liberty and human right of access to courts.

I JUST turned half a century old yesterday. But the Internal Security Act, 1960 (ISA) is older still.

In fact, the original preventive detention provision was contained in Regulation 17 of the Emergency Regulations 1948 which allowed the chief secretary to detain, by order, any person for a period not exceeding one year. Interestingly, it was made notwithstanding Section 4 of the Emergency Regulations Ordinance of 1948 which stated that the British high commissioner could make any regulations he considered desirable in the public interest provided that “no such regulation shall confer any right to punish by death, fine or imprisonment without trial…”

When the Emergency Regulations 1948 ceased after the proclamation of emergency ended on July 29, 1960, Regulation 17 was transplanted into a new statute, called the ISA which came into force on August 1, 1960.

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 (EO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA).

The EO, 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. Currently, there are few hundreds of detainees placed under the EO.

On the other hand, the 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.

The reason why these preventive laws still exist today and have not been invalidated by our courts is simply because they are permitted under Articles 149 and 150 of the Federal Constitution even though they are inconsistent with the fundamental liberties provisions stated in Articles 5, 9, 10 and 13 of the Constitution.

In this respect, Prime Minister Datuk Seri Najib Tun Razak should be commended for his bold move to repeal the ISA and the EO.

High time for a new Bar

A common evaluation system is needed urgently to check the declining quality and standard of new lawyers in the country.

It is a matter of grave concern that with about 1000 law graduates entering the legal profession every year, there is no common evaluation system to ascertain and ensure their levels of competence.

The Bar Council has been advocating a Common Bar Course and Examination (CBE) since the 1980s as a single entry point to the legal profession for both local and foreign law graduates.

It is understood that the delay in implementing the CBE is partly due to objections from local universities.

But it cannot be gainsaid that the quality and standard of lawyers have also declined significantly since the 1980s. There is a common feeling among senior legal practitioners that there is an “abject absence of rudimentary legal skills” among the new entrants.

In 2008, a senior judge lamented on the poor quality of locally trained lawyers, describing their standard as ranging from the “good to the grotesque”. (However, some senior lawyers had also opined that the learned judge’s assessment applied equally to the quality of judges since the 1980s.)

For example, one senior lawyer related this incident to me involving a senior assistant registrar (SAR) and lawyers for both the plaintiff and defendant. The SAR was tasked to read the judge’s order relating to costs. Both lawyers recorded the amount of costs with interest at the rate of 80%!

When the senior lawyer asked his assistant, who was the counsel for the plaintiff, about it, the latter said he did not understand why the SAR had mentioned the interest at 80%. He added that when he checked with the counsel for the defendant; the latter said it was common for the court to grant interest at 80%, which is, of course, erroneous!

Hence, the point is, how could one have walked out of the court without even understanding the court’s order? If the parties were not able to understand the order, then they would also not be able to draft the order later. If what the plaintiff’s counsel had said about the SAR and the other counsel was true, then indeed all the three legally trained officers – SAR and the two lawyers - were indeed half-past-six professionals!

Besides the decline in lawyering quality, there is an abysmal language skill especially the command of the English language among the new entrants for practice at the Bar. I have personally received a letter from a young lawyer asking me to “ensure that (our) clients would be executed the documents!”

It follows that it is not unjustified to require the new entrants to also pass an English Language Qualifying Examination. Whilst we can blame this decline on our education system, we cannot ignore the fact that we are living in an increasingly competitive global environment where international business is transacted primarily in English.

It is also in the national interest for us to build up a pool of competent practitioners in international law so that we can put across our nation’s case in international forums and courts, which is made all the more necessary after the Pulau Batu Puteh case before the International Court of Justice.

In fact, there were 13,350 practising lawyers in Peninsular Malaysia as of Dec 31 last year, with more than half having obtained their basic law degree overseas.

The Legal Profession Act, 1976 (LPA) governs the admission of new entrants from various streams to the legal profession as an advocate and solicitor.

To be admitted to the Malaysian Bar, one has to be a “qualified person” as defined in the LPA; attain the age of 18; be of good character and not been adjudicated bankrupt or convicted of any offence; be a citizen or permanent resident of Malaysia; have served nine months of pupillage under a lawyer of at least seven years’ experience; and have passed, or be exempted from, the Bahasa Malaysia Qualifying Examination.

Three tables containing the relevant information of the legal practitioners and their qualifications have been provided, and let me expound on it a little.

A bargain for justice

The authorities must always bear in mind that when implementing plea bargaining, the system is open to possible abuses. It is important to ensure the system is more advantageous than disadvantageous for all the stakeholders in our criminal justice system to practise it.

CHIEF Justice Tun Zaki Azmi announced on Monday that plea bargaining will be implemented soon. The plea bargaining will allow those who plead guilty to serve a prison term which is not more than half of the maximum punishment imposed under the law for the offence for which an accused has been convicted.

This is made possible after Parliament passed the Criminal Procedure Code (Amendment) Act 2010 (Act A1378). Royal assent was obtained on June 2, and Act A1378 was gazetted on June 10. It will now come into operation on the date to be fixed by Home Minister Datuk Seri Hishammuddin Tun Hussein.

What then is a plea bargain? In simple terms, it is an agreement reached after negotiation between the prosecutor and the accused in a criminal case whereby, if the accused agrees to plead guilty, the prosecutor will reduce the original criminal charge to a lesser charge or withdraw any other remaining charges or the accused will receive a lighter sentence if he faces the original criminal charge.

It is said that plea bargaining existed as far back as 1485 involving an English statute prohibiting unlawful hunting. The statute stated that an accused would be convicted only of a summary offence if he pleaded guilty; otherwise, he would be charged with a felony offence punishable by imprisonment.

In Malaysia, plea bargaining hitherto is done in an indirect way whereby the accused’s counsel will make representation to the Public Prosecutor to reduce the charge, for example, from a murder charge to a charge of culpable homicide not amounting to murder if the accused pleads guilty.

However, the court is not involved in this process, and sentencing remains the sole prerogative of the presiding judge. As put trenchantly by Justice Wan Yahya in New Tuck Shen v Public Prosecutor (1982):

“This court does not consider it bound by the private bargaining between the prosecution and the defence in respect of which bargaining it is not a party and in which it has been judicially prohibited to participate. The right to impose punishment on a guilty party is absolutely the discretion of the court. It will exercise that power judicially but will not tolerate any encroachment or even semblance of encroachment either by the prosecution or the defence in respect of such right.

“An agreement between the prosecution and the defence as to the nature of sentence to be imposed on the accused creates no obligation on the court and is good only for pricking the conscience of the defaulting party.”

In fact, this is still the current position practised in common law jurisdictions such as England, Canada and Singapore, albeit plea bargaining is now statutorily permitted in Pakistan and India since 1999 and 2006, respectively.

A Grave Injustice

Lives are lost but there is no recourse, thanks to diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations.

In a quick succession of two hit-and-run accidents in the early hours of Dec 15 last year, an inebriated Romanian diplomat, Dr Silviu Ionescu, 49, beat traffic lights and knocked down three men along Bukit Panjang Road in Singapore. One of them was Malaysian Tong Kok Wai, 30. He died on Christmas Day after his newly-wed wife Yenni Young, 31, grievingly had to take him off life support when the doctors declared him brain dead three days after the accident.

Ionescu, the man behind the wheel of the Romanian Embassy’s Audi A6, later claimed that the car had been stolen. He fled to his home in Romania three days later. Despite pleas from the Singaporean authorities for him to return to assist in the investigations, he refused and further claimed that he had been set up by the Singapore government. He had also been suspended from his duties by the Romanian Foreign Affairs Ministry.

A coroner’s inquiry was held last month with more than 50 witnesses coming forward to testify over a period of six days. It was revealed in the inquest that Ionescu was a regular at a KTV lounge and had been drinking alcohol before the accident.

On March 31, State Coroner Victor Yeo concluded that Ionescu was a liar in the entire tragedy. In his 42-page finding, Yeo described Ionescu’s conduct as “not only cowardly and irresponsible, to say the least, but utterly deplorable”.

Yeo went on to say that despite knocking down three men, Ionescu did not have the human decency to stop and help, and yet had the audacity to slow down, wind down his window and scold an eyewitness who tried to stop him from fleeing the scene. Yeo added that Ionescu lied because he was “motivated by his guilt for driving recklessly and causing the two accidents”.

The Singapore Straits Times also reported that when contacted by telephone, Ionescu dismissed the verdict as “bull****”. “Honestly, I don’t believe in the court of Singapore,” Ionescu was reported to have said.

The Singapore government is likely to press a set of 13 charges against Ionescu this week, ranging from causing Tong’s death and grievous hurt to two others by reckless driving to failing to stop, render assistance and lodge a police report after the accidents.

Singapore and Romania do not have an extradition treaty and the Romanian authorities have so far indicated that they have no power to compel Ionescu to return to Singa­pore as the latter has been suspended.

But the Singapore Foreign Affairs Ministry has also rebutted that despite his suspension, Ionescu has not been dismissed and is still an employee of the Romanian Foreign Affairs Ministry. However, even if Ionescu returns to Singapore and is charged, he still enjoys diplomatic immunity from prosecution under the 1961 Vienna Convention on Diplomatic Relations unless this is lifted by the Romanian government.

In fact, this case is rather similar to a 1998 case involving a Russian, Alexander Kashin, who was paralysed from the neck down after a car collision with the then US Consulate General in Vladivostok, Douglas Barry Kent. The US diplomat who was drunk at the time of the accident had earlier jumped three traffic lights before coming out of the car laughing. Witnesses then saw Kent fleeing to a nearby club where its owner alleged that Kent still managed to have a great time there, taking down the panties of a stripper with his teeth! Sadly, the US government did not lift his diplomatic immunity and Kent is still serving overseas while Kashin is still seeking justice and compensation from the US government.

To my mind, the callous attitude of both the Romanian and the US governments in these two cases involving their scofflaw diplomats is disgraceful. It is high time that the international community take a hard look at the 1961 Convention to curb further abuse of this ancient principle of immunity.

In this age when human rights, fairness and justice override everything else, innocent victims must be accorded recourse against personal abuses of immunity. The sending states must ensure that their representatives have the highest standards of personal conduct and character, and are ready to lift the immunity for any personal wrongs committed by their diplomats in the receiving states.

To quote a Singapore taxi driver Koh Beng Pheng, 55: “He (Ionescu) flirts and lies – how is a man with such poor character even fit to be a diplomat?”

As for the conduct of the Singapore government, I have nothing but praise for their authorities in ensuring that there is a due process of law. As a Malaysian, I am touched by the determination and resolve of the people and government of Singapore in their pursuits for justice for our countryman Tong.

However, I am rather embarrassed by the muted response from our own Foreign Affairs Ministry in this matter.

Tong’s family had earlier sought help from the MCA Public Services and Complaints Department, but our Foreign Affairs Ministry officials responded that they would not interfere as this was an internal matter (The Star, Jan 13, 2010: “Mum seeks justice for son knocked down by envoy’s car”). If Tong had been a citizen of a developed nation, the response from his government would have been different. Their representatives in Singapore would be at hand to assist Tong’s family. But here we did not see any representative of our Malaysian High Commission in Singapore present or render any assistance to Tong’s family during the Coroner’s Inquiry.

It is hoped that the Malaysian Government will convey our outrage to the Romanian government over this matter. Likewise, we expect our government to send a strong message to the international community that the life of a Malaysian is priceless, and that justice will be served in cases of this nature.

In this regard, our government must support the Singapore government by putting pressure on the Romanian government to waive Ionescu’s immunity and ensure that Ionescu will stand trial in Singapore for causing Tong’s death and grievous injuries to two others.

*Published in The Sunday Star, 04 April 2010.

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.