Function of law put to the test

The three legal issues that arose last week showed how pivotal it is to ensure our laws are enacted, interpreted and enforced accurately and efficiently. If not, these laws will be transformed into an ass.

Three interesting legal issues arose in the last two weeks. First, the Kuala Lumpur High Court (Appellate And Special Powers 4) last Monday ruled that the water concession agreement entered into by the Federal Government, the Selangor state government and Syarikat Bekalan Air Sdn Bhd (Syabas) could be made public, including an audit report which was said to have been presented to the Cabinet.

Second, the proposal by the Domestic Trade, Cooperatives and Consumerism Ministry to amend the Copyright Act, 1987 (Act 332) to hold landlords liable if their tenants have infringed intellectual property and copyright rights on the premises was greeted by an outcry from real estate owners.

Third, the Law Reform Committee headed by the Deputy Minister in the Prime Minister’s Department Datuk V.K. Liew proposed to amend the Statutory Declarations Act, 1960 (Act 13) to forbid Commissioners for Oaths (COs) to attest the execution of any statutory declaration (SD) which is contentious or criminal in nature.

Disclosure of Water Concession Agreement and Audit Report

Last Monday, Judicial Commissioner Hadhariah Syed Ismail allowed the disclosure of the documents to the Malaysian Trades Union Congress (MTUC) and 13 others on two grounds:

> The applicants were adversely affected by the decision of former Energy, Water and Communications Minister Tun Dr Lim Keng Yaik not to make public the documents and thereby they had the locus standi or legal standing to sue; and

> The disclosure would not be detrimental to national security or public interest.

The judge added that the applicants had locus standi because they were paying consumers within the water concession area. As Syabas has monopoly over the distribution of treated water in that area, the applicants would have no choice but to pay for any increase in water tariff as there is no other alternative water distributor there.

She added that as water is essential to life, the applicants’ implied constitutional right to life has also been infringed.

As regards the disclosure of the two documents, the judge said she had read through them and found no information detrimental to national security or public interest. She also took note that the Selangor government and Syabas had indicated no objection to the disclosure, and some of the information relating to the water tariff increase was already known to the media and public.

She also ruled that it was nonsensical to say that any document put before the Cabinet is automatically “RAHSIA” under section 2A of the Official Secrets Act 1972 (Act 88).

This is indeed a landmark judgment for the following reasons:

> Cabinet papers are now not automatically protected by Act 88; and

> The judge had taken a liberal approach in affording legal standing to the applicants.

Based on existing legal authorities, the applicants in this action, known to lawyers as public interest litigation, ought to have first shown they had suffered damage peculiar to them or over and above the remaining water consumers in the area, and that their rights had been “substantially” affected.

If the applicants’ position is no different from the other water consumers, then they could not have been said to have been “adversely affected”. There is a ruling from the apex court which requires this to be a stringent test.

In any event, last Friday the Federal Government had obtained a stay on the disclosure of the documents. It will be interesting to see how our appellate courts deal with the issue of locus standi when the matter goes on appeal.

This decision differs from a 1994 Johor Baru High Court decision which held that the late politician-cum-lawyer Abdul Razak Ahmad was not entitled to examine the privatisation agreement between the Johor state government and the company developing the Johor Baru “floating city” project.

Justice Haidar Mohamed Nor ruled that as there was no legal duty imposed on the Government under the Government Contracts Act, 1949 to consult taxpayers like the applicant in respect of contracts made by the Government, the applicant had no legal right to examine the said agreement.

In fact, there are both good arguments for and against the relaxation on standing rules.

The Government’s most common fear is, of course, that public interest litigation can be turned into a “publicity interested litigation” or “politically interested/inspired/inclined litigation” with the purpose being to embarrass them and stall genuine government business.

But to social activists, too rigid an approach will cause injustice and immunise government decisions from curial scrutiny.

Proposal to amend Copyright Act

I believe the proposed amendment is to hold owners of commercial premises like shopping complexes liable if their tenants have used the premises to sell pirated DVDs and VCDs. If this is not the case, and it extends to private premises, then such amendment is totally unjustified.

As I understand, the proposed amendment will also make it a crime for those who purchase even a single pirated copy of DVD or VCD. It follows that a landlord can technically be liable if the tenant of his residential property is caught having in his possession even a pirated DVD or VCD!

To my mind, the Government cannot expect landlords of private premises to police the activities of their tenants. Already, the law as it stands, is not in favour of landlords. The landlord is helpless if a defaulting tenant refuses to vacate the premises because Section 7 of the Specific Relief Act 1950 (Act 137) does not allow a landlord to recover possession of the tenanted property without first having obtained a court order.

Hence, this section has been much abused by recalcitrant and defaulting tenants. In this respect, an amendment to Act 137 is perhaps more urgent.

Proposal to amend Statutory Declarations Act

The debate between Liew and Bar Council chairman Ragunath Kesavan about amending Act 13 is, in fact, much ado about nothing. Some of the duties which Liew had wanted to impose on the COs have in fact already been provided for by law – not under Act 13, but under the Commissioner for Oaths Rules 1993, made under the Courts of Judicature Act, 1964.

Under Rule 13 of the 1993 Rules, a CO is required, among other things:

> To read over and explain the contents of the documents and the exhibits to the maker of the document;

> Not to affix his seal to any document unless the maker of the document signs or affixes his thumbprint before the CO; and

> To refuse to attest to any document if he suspects that the person before him is engaging in deception, fraud, duress, or any other illegal conduct.

If a CO is found guilty of acting in breach of Rule 13, he can be liable to a fine not exceeding RM1,000, imprisonment for a term not exceeding six months, or both.

Hence, it all boils down to enforcement. It is open knowledge that many makers of documents, particularly SDs and affidavits prepared by law firms, do not sign before the COs and these COs would affix their seals and sign the documents when they are brought to them by the clerks from various law firms.

In this regard, Liew’s concern that fraudulent land transactions can occur is not unfounded if a CO affixes his seal on a power of attorney when the makers are not before him.

In conclusion, the above issues go to show how pivotal it is the manner in which our laws are enacted, interpreted and enforced. If their enactment, interpretation and enforcement are not accurate and efficient, then these laws will be transformed into an ass.

Published in The Sunday Star on 04 July 2010.

A virtual breakdown of law and order

THERE is no doubt that the statutory declaration is a much talked-about legal document in recent weeks. Some have now even wryly dubbed it "sextutory" declaration.

What is a statutory declaration?

In simple terms, it is a statement made under oath outside the court before a Sessions Court judge, magistrate or a commissioner for oaths. If it is used for a purpose outside Malaysia, then it must be made before a notary public.

A statutory declaration is often used where documentary evidence is not available, to affirm personal matters relating to an individual such as his identity, marital status, nationality and solvency.

Under the Statutory Declarations Act 1960 ("Act 13"), a statutory declaration must begin with the words "I do hereby solemnly and sincerely declare..." and end with the words "I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960".

In the absence of these words, it has been held by the courts that such a statement is not a statutory declaration.

It follows that a statutory declaration should not contain any hearsay evidence, since the declarant is making a statement under oath "conscientiously believing the same to be true".

Even if the statutory declaration contains hearsay evidence, the declarant should disclose the source of such information.

This brings me to the two conflicting statutory declarations made by private investigator P. Balasubramaniam in a matter of 24 hours. Whatever it is, the statements contained in one of the declarations are obviously untrue.

By resiling from what he has affirmed in the first declaration, Bala's public recantation by way of a second declaration is not only self-incriminating but also constitutes damning evidence that he has lied in the first declaration.

Under Section 3 of Act 13 and Section 199 of the Penal Code, a declarant who makes a false declaration is treated as if he has given false evidence.

Section 193 of the Penal Code provides that: "Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine."

However, Bala has affirmed in the second declaration that he was compelled to make the first declaration under duress, and he ended his second declaration slightly differently from what is required under Act 13, with an additional word, "voluntarily", that is: "I make this solemn declaration voluntarily and conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960."

In other words, Bala is saying he was not coerced into making the second declaration, and that the first declaration can now be treated as arrant nonsense.

In any event, if Bala is charged with giving false evidence, duress can be a defence but he has to produce evidence to that effect to exculpate himself. It is, however, inappropriate to discuss here the effect of his ignominious statutory declarations on the evidence he earlier gave and his position as a witness.

However, what concerns me is not so much the two statutory declarations but rather how a separate trial is being conducted by the media and bloggers when the actual murder trial is ongoing.

Little regard is had to the rule of sub judice. There appears to be a virtual breakdown of law and order as statements are constantly being made outside court by various parties which, in other cases, would have constituted contempt and interference with the due process.

But so far no party, especially the prosecution, has seen the need yet to apply for any gag order to stop these pernicious activities.

It seems to me now that after the March 8 elections, our mainstream media are prepared to take sides over several issues. This is good in the name of press freedom.

But we cannot throw out of the window long-established practices, one of which is never to prejudge a case before the completion of police investigation.

Likewise, our media are expected to undertake self-censorship and would not publish explicit remarks that would malign the dead, and words like "Altantuya Shaariibuu was susceptible to a certain form of sex" would not have seen the day unless uttered in a court of law.

Similarly, in any complaint, we do not go after the complainant treating the victim as if he/she is the villain before the conclusion of investigations.

It is, therefore, sad to note the growing trend these days, that whenever a case involves an intersection of sex, crime and politics, the media are prepared to form a judgment and our people are also quick to draw conclusions.

It is hoped that, notwithstanding that some of us may have already made up our minds on the innocence or guilt of those who accused and those being accused, we will not, in our haste to do so, sacrifice the principle upon which our nation is founded: the rule of law.

Bala could face perjury charge

The Star

by Chelsea L.Y. Ng, Manjit Kaur and Andrea Filmer

PETALING JAYA: A statutory declaration is evidence given under oath which cannot be retracted, said a serving judge and several senior members of the legal fraternity.

They believed private investigator P. Balasubramaniam’s act of retracting his initial declaration, which made serious accusations against Deputy Prime Minister Datuk Seri Najib Tun Razak, could open the former to perjury charges.

According to the judge, who is an authority in criminal law, affirming a statutory declaration was akin to giving evidence in court.

“Under the normal rule of evidence, one cannot withdraw it unless he has very strong reasons. Those reasons must be included in the withdrawal or else he would be committing perjury,” he said.

He said if one was citing duress as a reason for making false accusations in a statutory declaration, he must present proof of such pressure.

“He must show that the pressure was serious like it’s life-threatening to him or his family members.

“He cannot just say that he is withdrawing the statutory statement because he had earlier been forced to do it. Someone can now lodge a police report against him and he could face a perjury charge,” he said.

Balasubramaniam announced yesterday that he had retracted the entire content of his statutory declaration that alleged police had omitted vital information in the Altantuya Shaariibuu murder case barely 24 hours after he made it public on Thursday.

Bar Council chairman Datuk Ambiga Sreenevasan said a statutory declaration was basically evidence on oath that, once given, could not be retracted.

She, however, said a person could add or correct the statutory declaration to file a further declaration.

“Because it is evidence on oath, and if there are untrue statements, then there is the possibility of a person having given a false statement.”

Bar Council’s criminal law committee deputy chairman Datuk V. Sithambaran said that under the law, two inconsistent statements meant that a person had most likely committed perjury.

“Such an act under the case law suggests that a person is guilty of perjury,” he said.

Senior lawyer Roger Tan said once a statutory declaration was made it could not be cancelled midway because it was a sworn statement of fact.

Tan said Section 3 of the Statutory Declarations Act 1960 provided that a false declaration was punishable.

Veteran lawyer Karpal Singh said the retraction amounted to an offence under Section 193 of the Penal Code.

“Under the section, making a false statutory declaration carries the penalty of not more than seven years' imprisonment or fine or both,” said the DAP chairman.

He also urged the private eye to make public the nature of the alleged duress.