Who is Roger Tan, the lawyer in Pastor Koh and Amri’s task force?

Senior lawyer Datuk Roger Tan Kor Mee  is one of

the two latest additions to the  special task force probing

the high-profile enforced disappearances of Pastor

Raymond Koh and social activist Amri Che Mat.

— Picture via RTNP.my

Malay Mail

by Ida Lim

KUALA LUMPUR, July 12 — Senior lawyer Datuk Roger Tan Kor Mee is one of the two latest additions to the special task force probing the high-profile enforced disappearances of Pastor Raymond Koh and social activist Amri Che Mat, but who is he? 

Tan is currently serving as a Bar Council member, but his peers and his long list of achievements can easily attest that his appointment is not mere tokenism for better diversity in the government’s seven-man task force. 

Here’s a quick look by Malay Mail at Tan’s background, based on his law firm’s website and publicly available information: 

Tan, who was born in Yong Peng, Johor and has a law firm in his home state, graduated with a law degree from Queen Mary College, University of London and also holds a master of law from the National University of Singapore.

Trained as a barrister of the UK’s Gray’s Inn, Tan was admitted as a lawyer in peninsular Malaysia in October 1989 and is also qualified to practise as a lawyer in Singapore. 

Throughout his 30-year career, Tan had actively contributed to the legal community, including as Bar Council member for the years 2004 to 2009, during which he was also the webmaster for the Malaysian Bar’s website which he went on to redesign. 

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. 

Interview: Of values and water

Roger Tan

The Sunday Star
by Christina Chin
Photo by Abdul Rahman Embong

AFTER eight years of helping to implement and enforce the country’s water supply and sewerage services laws, Datuk Roger Tan served his last day as commissioner of the Water Services Commission (SPAN) on May 31. Tan, a lawyer by trade, was instrumental in putting in place a disciplinary mechanism based on values he lives by – accountability, transparency and integrity.

Former fellow commissioner Datuk Zulkifly Rafique has this to say of Tan’s tenure: “He has discharged his responsibility admirably and is a pillar of strength for the staff and fellow commissioners who looked to him for support and guidance at a very challenging time. A job well done.”

Tan, from Yong Peng, Johor, graduated from the school of hard knocks and he never forgot his roots. 

Describing himself as a “simple man”, he’s pleased that his wife and children are equally grounded. Opening up about his family, Tan says those who rose from poverty, surviving only because of their parents’ resilience and sacrificial love, have no reason to lead an ostentatious life.

An illiterate labourer, his father, Sue Yong, toiled to put food – often porridge with soy sauce or a few slices of preserved bean curd – on the table.

The desire to honour his parents, family and God, is what drives Tan to excel.

An avid photographer, he shares how an image of the All Souls Church in Langham Place, London – with a cross of clouds forming just above the place he used to worship at as a student, is his favourite work. The best photographs are often accidental masterpieces, he muses.

No room for hudud law

The Sunday Star

With All Due Respect by Roger Tan

No political acquiescence: Barisan Nasional component party leaders have resolved to stand against PAS’ Hudud Bill. From left are MCA president Datuk Seri Liow Tiong Lai, SUPP deputy president Datuk Seri Richard Riot Jaem and MCA secretary-general Datuk Seri Ong Ka Chuan.

PAS’ proposed Syariah Courts amendments are no less controversial even when we look at them objectively. The clash of laws will only give rise to another set of headaches to our multi-religious and multi-racial society. PAS’ proposed Syariah Courts Act amendments are no less controversial even when we look at them objectively. The clash of laws will only give rise to another set of headaches to our multi-religious and multi-racial society. 

IT was indeed unusual. On May 26, the Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said moved a motion allowing opposition MP, PAS president Datuk Seri Abdul Hadi Awang’s Private Member’s Bill (PMB) to take precedence over government business. This has enabled Abdul Hadi’s PMB to leapfrog over government matters, thus allowing it to be tabled. Abdul Hadi had tried twice since 2015 and failed, but now his PMB will be debated in the October parliamentary session.

Needless to say, the non-Muslim Barisan Nasional leaders felt slighted as they were obviously caught unawares.

Abdul Hadi’s PMB, entitled the Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016, seeks to amend the Syariah Courts (Criminal Jurisdiction) Act, 1965 (Act 355); as Umno leaders had explained, it was intended to enhance the powers of Syariah Courts.

However, the exhilarated PAS leaders had no hesitation to proclaim that it was to pave the way for the implementation of hudud punishment in Kelantan via the Syariah Criminal Code II (1993) 2015 (SCC) passed by the Kelantan State Legislature on March 19 last year.

The preamble to the SCC clearly states that this state enactment is for the creation of Syariah hudud criminal offences. Under the SCC, there are six types of hudud offences – sariqah (theft), hirabah (robbery), zina (unlawful sexual intercourse such as adultery, pre-marital sex and sodomy), qazaf (accusation of zina which cannot be proven without four witnesses), syurb (consuming liquor or intoxicating drinks), and irtadad or riddah (apostasy).

Emotion aside, let us now look at this controversial subject strictly from the legal perspective.

Case for judicial review

The Sunday Star 
Legally Speaking by Roger Tan

Landmark judgment: In the Nov 7 decision of the Court of Appeal in Muhamad Juzaili Bin Mohd Khamis & Ors v Negri Sembilan State Government, 2014, the court struck down section 66 of the Syariah Criminal Enactment (Negeri Sembilan), 1992 which criminalises Muslim men for cross-dressing, as unconstitutional.

Is judicial review the correct procedure to challenge the validity of a statute? 

IN the last two weeks, two interesting cases relating to homosexual and cross-dressing men were dealt with by the appeals courts in Singapore and Malaysia. However, the manner in which the two courts interpreted the equipollent provisions of our respective Constitution, described as consanguineous with one another as well as that of the United States and India, differed sharply.

In the Singapore case of Lim Meng Suang vs Attorney General, 2014, the highest court in Singapore, the Court of Appeal, ruled in a 101-page judgment on Oct 29 that section 377A of the Penal Code, which criminalises physical intimacy and sex between men, was not unconstitutional.

The appeals were brought by gay couple Lim Meng Suang and Kenneth Chee Mun-Leon who have been in a romantic and sexual relationship for the past 15 years, and Tan Eng Hong who had been arrested for engaging in oral sex with another man in a public toilet cubicle in 2010.

In a nutshell, the appellants had questioned the constitutionality of section 377A on the following grounds:

> that it infringed Article 9 of the Singapore Constitution (SC) that “no person shall be deprived of his life or personal liberty save in accordance with law”;

> that it infringed Article 12 SC in that “all persons are equal before the law and entitled to the equal protection of the law”; and

> that section 377A was a colonial legislation incorporated into the Singapore Penal Code in 1938 when she was a British colony and prior to the promulgation of SC.

Senior Counsel Deborah Barker (daughter of Singapore’s first post-Independence Minister of Law, EW Barker) argued for the gay couple that the right to life and personal liberty under Article 9 should also include a limited right of privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being.

Delivering the judgment of the court, Justice Andrew Phang Boon Leong ruled that the phrase “life or personal liberty” in Article 9 when read in entirety refers only to a person’s freedom from an unlawful deprivation of life and unlawful detention or incarceration. Period.

He went on to caution that foreign cases (with particular references to those decided by the Indian Supreme Court) that have conferred an expansive constitutional right to life and liberty should be approached with circumspection because they were decided in the context of their unique social, political and legal circumstances.

As regards Article 12 SC, the court applied the Malaysian case of Malaysian Bar v Government of Malaysia, 1987 in that to determine the constitutionality of a statute under Article 12 SC, the test is one of reasonable or permissible classification. It is a two-stage test which is applied only if the impugned statute is discriminatory in nature.

In other words, any law that treats people differently can still be held as constitutional if it passes this test.

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.

Justice at all cost for MH17

The Sunday Star

Legally Speaking by Roger Tan

Malaysia Airlines' special multi faith prayer service for the tragic and senseless loss of passengers and crew of MH17, at the Malaysia Airlines Academy in Kelana Jaya. - Filepic

States whose citizens perished in the tragedy can pursue the perpetrators in their domestic courts if their criminal laws have extra-territorial jurisdiction. 

SINCE Thursday, I have been thinking how horrible it must have been, the final moments of their lives, when they knew the plane was going down.

“Did they lock hands with their loved ones, did they hold their children close to their hearts? Did they look each other in the eye, one final time, in a wordless goodbye? We will never know.

“In the last couple of days we have received very disturbing reports, of bodies being moved about, being looted of their possessions.

“Just for one minute, I want to say that I am not addressing you as representatives of your countries, but as husbands and wives, fathers and mothers. Just imagine you first get the news that your husband has been killed, and within two or three days, you see images of some thug removing the wedding band from their hands. Just imagine that this could be your spouse.

“To my dying day, I will not understand that it took so long for rescue workers to be allowed to do their difficult jobs. For human remains to be used in a political game?”

Those were the sad words of the Dutch Foreign Minister, Frans Timmermans, when he delivered his heart-rending speech at the UN Security Council (UNSC) on July 21 on the downing of MH17. More than two thirds of MH17 victims were Dutch.

Almost at the same time, our Prime Minister Datuk Seri Najib Tun Razak managed to pull off a major diplomatic coup by quietly arriving at an agreement with the leader of the pro-Russian separatist group, Alexander Borodai, that finally broke the impasse and secured the release of the black boxes and remains of the victims of MH17.

“In recent days, there were times I wanted to give greater voice to the anger and grief that the Malaysian people feel. And that I feel. But sometimes, we must work quietly in the service of a better outcome,” said Najib.

In this sense, Malaysia’s foreign policy, which is based on non-alignment and neutrality, may have just paid off.

Be that as it may, Malaysia must still register our absolute outrage, in the strongest possible terms, over the shooting down of MH17. At the time of writing this, investigators still do not have unimpeded access to the crash site and remains of some of the victims are reportedly still on the site.

But as the Australian Foreign Minister Julie Bishop put it aptly: “We must have answers, we must have justice, we owe it to the victims and their families to determine what happened and who was responsible.” 

Also, the UNSC Resolution 2166 on MH17 has demanded that “those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability”.

But sadly, men’s greatest sin is always forgetting about tragedies and not learning from them.

On Sept 1, 1983, Korean Airlines Flight 007 was shot down by a Soviet fighter jet near Moneron Island, west of Sakhalin Island over the Sea of Japan. All 269 passengers and crew on board were killed. General Anatoly Kornukov, who was then commander of Dolinsk-Sokol Air Base, Sakhalin, gave the order to shoot down KAL007 without verifying that it was a civilian aircraft.

In 1998, Russia’s president, Boris Yeltsin, even made him chief of the Russian Air Force. The Ukrainian-born Kornukov remained unrepentant throughout. He died early this month. Russia had neither apologised nor made any compensation.

On July 3, 1988, US navy missile cruiser USS Vincennes shot down Iran Air Flight 655 in the Persian Gulf after mistaking it for an Iranian fighter jet. All 290 on board died. President Ronald Reagan and his deputy George Bush Senior refused to apologise. It was not until 1996 that President Bill Clinton’s administration finally expressed “deep regret” over the tragedy and paid the Iranian government US$131.8mil, of which US$61.8mil went to the victim’s families.

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.”

Custodial deaths a national shame

Justice served: Kugan’s mother Indra Nalathamby leaving the court. Kugan’s family was awarded RM751,709 in damages and another RM50,000 in costs.

The Sunday Star

Legally Speaking by Roger Tan

Our enforcement officers must appreciate, if not be made to appreciate, that it is the cornerstone of our criminal justice system that a person, including a suspect, is innocent until proven guilty.

ON June 28, Justice Datuk V.T. Singham indeed retired with a bang! Two days before his retirement, he awarded RM751,709 in damages and another RM50,000 in costs to the family of Kugan Ananthan who died while in police custody on Jan 20, 2009. 

Singham held that the then Selangor police chief Tan Sri Khalid Abu Bakar, now the Inspector-General of Police, had committed misfeasance in public office. 

In delivering his judgment, he also reportedly urged the government to urgently set up the Independent Police Complaints and Misconduct Commission (IPCMC) as recommended by the 2005 Royal Commission to enhance the operation and management of the Royal Malaysia Police (RCI).

However, at the time of writing this piece, his written judgment is still not available. In any event, the government and the IGP are expected to appeal against his decision.

This reminds me of the case of Mohd Anuar Sharip who vomited blood, collapsed and died in a police cell on Aug 19, 1999. In June, 2010, Justice Lee Swee Seng awarded about RM1.6mil in damages to his widow, Suzana Mohamad Aris. However, Lee’s decision was subsequently reversed by the Court of Appeal. In October 2010, Suzana failed to obtain leave from the Federal Court to appeal against the decision of the Court of Appeal. 

But it is worthy to reiterate Lee’s words when he handed down his judgment: “Let the message go forth from this place that any more deaths in police custody would be one too many! Those with power to arrest and detain must ensure that the basic human rights (sic) of a detainee to seek medical treatment while in custody, is immediately attended to. There should be no more wanton and wasted loss of life in police custody for every life is precious … The safest place to be in should not by default be turned into the most dangerous place to be taken to.”

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.

Bar must be apolitical

The Star
by Roger Tan

I KNEW this was coming because as I said it would be painful for some lawyers to read what I wrote in “Unswayed by fear or favour” (Sunday Star, May 20).

I am indeed not wrong with my prognostication.

However, I am surprised that it was even necessary for the eight Loyarburoks to come together to give a 2,700-word response to something they felt were just mere fallacies being spun by me.

In a tweet sent out early yesterday morning, one of the eight, K. Shanmuga tweeted that their joint statement, “Bar’s resolution proper”, (The Star, May 23) was issued because my aforesaid article had got all of them so annoyed.

Hence, because I emphatise with them, I would oblige them in the best tradition of the Bar with a short reply which should suffice.

Firstly, my concern on the independence of the 80 monitors from the Bar is not totally unfounded. Of the 80 monitors, I personally know at least one whom I follow on Twitter.

Fallacies spun by critics of the Bar — LoyarBurokkers (loyarburok.com)

MAY 22 — The Bar Council and the Malaysian Bar (“the Bar”) have been criticised recently as being pro-opposition. This is because of the Bar’s press statements and its extraordinary general meeting resolution regarding the police brutality shown at the Bersih 3.0 sit-down rally. The common theme adopted by critics of the Bar is that the Bar was not fair, or even-handed, as the Bar were more critical of the police than it was of the other parties involved.

Some of the more popular criticisms were summarised in Roger Tan’s article “Unswayed by fear or favour” which was also published in the Sunday Star on May 20, 2012. In summary, he says the following:

1. The Bar in condemning the police brutality must be equally aggressive in its condemnation against the protestors who “behaved like rioters and anarchists”.

2. The Bar had prejudged the issues by passing the resolution because by doing so “the Bar had already come to a conclusion that all those acts listed therein had been committed by the police”.

3. The Bar should have demanded an apology from Datuk Seri Anwar Ibrahim because “it was his men who were reportedly the ones who removed the barrier” which was “the trigger point”.

This statement is written immediately in response to Roger Tan’s article, but also addresses others who have been critical of the Bar on this issue. We intend to address the second criticism first, then the third and first criticisms. Our reason for this will become apparent as our reply develops.

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.

Najib delivers promise on political transformation

The Borneo Post

KUALA LUMPUR: When Prime Minister Datuk Seri Najib Tun Razak took over as the sixth prime minister on April 3, 2009, he set his sights on resolving domestic economic issues and tackling political reform.

In his maiden speech over television as the nation’s premier, Najib even pledged to conduct a comprehensive review of the Internal Security Act (ISA) which allowed for the indefinite detention of people without trial, and even announced the release of 13 people held under the draconian act.

He then unveiled the Government Transformation Programme (GTP), Economic Transformation Programme (ETP) and Political Transformation Plan (PTP), a reflection of his integrated and visionary push to transform Malaysia into a truly developed nation by 2020.

For political transformation, Najib even suggested that the Barisan Nasional (BN) charter be amended to allow direct membership into the ruling coalition through four new kinds of membership in BN — affiliate membership, associate membership, Friends of BN and fourth, the BN Rakan Muda club.

But the biggest transformation since he took over and regarded as Najib’s boldest step in political reform was the repealing of the ISA.

In other words, the prime minister has delivered on his promise.

According to MIC secretary-general S Murugessan, the prime minister would be remembered as one who was willing to make such a bold decision.

“It would be a lasting legacy of Datuk Seri Najib. As a lawyer, I feel relieved (about the repealing of the ISA),” he said.

Senior lawyer Roger Tan said Najib’s courageous decision to repeal the ISA was the right thing to do and it showed that the government was receptive to the feelings on the ground.

Raja Aziz Addruse: A gentleman who believed in honesty and fair play

The Star

 by Roger Tan

THE social media was quickly overwhelmed with tributes and accolades for one of our nation's most renowned lawyers, Raja Aziz Addruse the moment news came in that he had passed away yesterday afternoon.

Ungku, as he was fondly known within the legal fraternity, was indubitably a legal luminary and a doyen of the Malaysian Bar.

His unequivocal commitment to the independence of the Bar and the independence of the judiciary - which are two essentials of the rule of law - is legendary. It is, therefore, not surprising that his departure is deeply felt by many lawyers, young and old, as Ungku could always be depended upon to speak up courageously for the Bar, and fairness and justice without fear and favour.

It is no wonder that by popular request he became the president of the Bar three times between 1976-1978, 1988-1989 and 1992-1993. He was also a member of the Bar Council intermittently for 21 years.

Born in Chemor, Perak on Feb 10, 1936, Ungku left for England in 1954 to read law at the University of Bristol.

He was called to the English Bar by the Honourable Society of Lincoln's Inn in 1960. He returned to Malaya the same year to join the Federal Judicial and Legal Services as a deputy public prosecutor and later a Deputy Parliamentary Draftsman.

Six years later, he resigned and entered private practice after having been admitted to the Malaysian Bar on Jan 8, 1966.

When he became the president of the Bar in March 1988, it was also one of the most tumultuous periods of the Bar with the dismissal of the then Lord President, Tun Salleh Abas and two senior judges of the Supreme Court as well as the suspension of three others.

He not only represented Tun Salleh but stuck to his principle by refusing to appear in the Supreme Court when Tun Hamid Omar was Tun Salleh's successor albeit he was a senior counsel often sought after by many for major cases at the apex court.

Though small in built, he was a giant of a man both in personality and character. He was always able to bring across his points of arguments forcefully and effectively but in a soft-spoken and courteous manner.

Legal aid centres lack funding

The Star
by P. Aruna and Wong Pek Mei

PETALING JAYA: The Bar Council has been struggling to provide aid through its 15 legal aid centres nationwide due to lack of funding and a shortage of lawyers willing to provide free service.

President Ragunath Kesavan said it was difficult to cope with the demand as lawyers could not sacrifice much time to do pro bono work as they had a heavy workload of their own.

In welcoming the National Legal Aid Foundation launched by Prime Minister Datuk Seri Najib Tun Razak on Friday, he said the RM5mil grant provided by the Government would assist the foundation in paying lawyers for their work.

He said the foundation would also facilitate the process of providing legal aid with the cooperation of the police.

“There will now be a ‘duty lawyer’ for every police station,” he said, adding that the police could contact the lawyers “on call” to inform them of new cases which needed legal aid.

The foundation aims to provide legal aid for the low-income group from the day they are charged with an offence until the trial stage.

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.

Time to break the impasse

By not confronting racial and religious issues, civil court judges have abdicated their duty to uphold the people’s constitutional rights to equality and freedom of religion.

ON Nov 12, much to the dismay of many Malaysians, the Federal Court declined to answer five constitutional questions of public importance on unilateral conversion of children to Islam by one parent who has embraced Islam.

The case involved Shamala Sathiyaseelan, 38, and Dr Jeyaganesh Mogarajah, 42. The couple were married on Nov 5, 1998 according to Hindu rites in Alor Setar and the marriage was registered under the Law Reform (Marriage and Divorce) Act, 1976 (Act 164). Their sons, Saktiswaran and Theiviswaran – born in 1999 and 2001 – were Hindus at the time of their birth.

On Nov 19, 2002, Jeyaganesh converted to Islam. As a ‘saudara baru’ or muallaf, he is known as Muhammad Ridzwan bin Mogarajah. On Nov 25, 2002, Jeyaganesh converted the two minors to Islam without the knowledge or consent of Shamala. Saktiswaran’s Muslim name is Muhammad Firdaus Jeya while Theiviswaran is named Muhammad Asraf Jeya.

Shamala then went to the Kuala Lumpur High Court to challenge the conversions and seek custody of the minors. Justice Faiza Tamby Chik held on April 13, 2004 that since the two minors were now muallafs, Shamala should take them to Majlis Agama Islam Wilayah Persekutuan for help and advice to resolve the issue because under Article 121(1A) of the Federal Constitution, the civil court had no competency to determine the status of the minors’ conversion.

Meanwhile, Jeyaganesh had also obtained hadhanah (custody) of the two minors from the Mahkamah Tinggi Syariah Selangor on May 8, 2003. However, on July 20, 2004, in addition to an interim order made earlier in favour of Shamala on April 17, 2003, the High Court granted Shamala ‘actual custody’ or actual care and control, and the husband, ‘legal custody’ of the children.

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.