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. 

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.

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.

Of pleading guilty and going topless

The Sunday Star

by Roger Tan

 

Two newsworthy headlines in recent weeks merit some comments.

ON Sept 11 when I was taking a flight at Changi Airport, I came across the news report that a former Singapore prosecutor and crime buster, Glenn Knight, had apologised to former MCA president Tan Koon Swan for wrongly prosecuting him in the Pan-El crisis in 1986 (Koon Swan case ‘a mistake’, The Star, Sept 11).

I thought such a move was rather strange but then I was not able to get hold of a copy of the book, The Prosecutor, at the airport. Now that I have sighted it, some observations should be made.

Among other things, Knight wrote in his book, “He (Koon Swan) was charged in 1985 before Justice Lai Kew Chai and pleaded guilty to the charge. He was also given a two-year jail sentence. And a S$1 million fine, which he immediately appealed ...

“A similar CBT case came up for hearing, and Chief Justice Yong Pung How, who had replaced Justice Wee Chong Jin as Chief Justice in 1990, concluded that I was wrong to charge Koon Swan for the offence which got him convicted. Chief Justice Yong was of the opinion that the section that I had charged Koon Swan with was wrong in law, for we could not charge a person for stealing from a company because as a director, it was not a breach of the law in that sense ...

“In the United Kingdom, such a landmark judgment would have set aside Koon Swan’s conviction, but our jurisprudence does not allow for this, though technically Koon Swan could still have been granted a pardon ... The judgment meant that Koon Swan had been wrongly convicted and he was technically an innocent man.”

Firstly, there are some factual errors. Koon Swan was actually charged and he pleaded guilty in 1986, not 1985. Justice Lai’s decision was delivered on Aug 26, 1986. Apart from the two-year jail sentence, he was actually fined S$500,000, not S$1mil.

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.

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.