Perhaps, finally, Blair has come of age

ON Aug 1, when delivering the 22nd Sultan Azlan Shah Lecture, former British prime minister Tony Blair said the rule of law was more relevant than ever in today's era of globalisation.

"Although the rule of law is an initiation of political leaders, like me, it is also a vital component for political success as it ensures an orderly society," Blair said when presenting the lecture entitled "Upholding The Rule of Law: A Reflection".

I must say I could not agree more with him. We lawyers are often reminded of the celebrated words of the English pamphleteer Thomas Paine (1737-1809): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

Likewise, the law governing international relations is the United Nations Charter. Indeed, international rule of law is a vital component for peace as it ensures an orderly world.

However, by supporting and participating in the 2003 United States-led invasion and occupation of Iraq, I wonder whether Britain, being the world's oldest democracy, still possesses moral authority in a comity of nations to lecture on the principle of rule of law.

On Sept 14 last year, Opinion Research Business, an independent polling agency in London, released estimates of the total war casualties in Iraq at over 1,220,580 deaths. Thousands more were maimed and scarred for life.

According to the report, the number exceeded even the 800,000 to 900,000 deaths in the Rwandan genocide in 1994, and may even overtake the 1.7 million casualties of Cambodia's killing fields in the 1970s, two great crimes of the last century.

Of course, the debate rages on whether the invasion of Iraq was a breach of international law.

Under international law, there are probably two grounds where the use of force is justified.

The first is provided for under Article 51 of the UN Charter, which confers an inherent right upon a state to use force in self-defence.

The other is when the use of force is authorised by the Security Council under Article 42 of the Charter.

It is interesting to note that both camps seem to rely on the UN Security Council Resolutions 678 and 1441 to justify their arguments for and against the invasion.

Resolution 678 was passed on Nov 29, 1990, then giving Iraq one final opportunity to withdraw from Kuwait by Jan 15, 1991, failing which members of the UN in cooperation with the government of Kuwait were authorised to use "all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area".

UN Security Council Resolution 660 demanded that Iraq withdraw its forces unconditionally to the positions in which they were located before they invaded Kuwait on Aug 1, 1990.

Resolution 1441, passed unanimously on Nov 8, 2002, offered Iraq "a final opportunity to comply with its disarmament obligations".

The United States seemed to hold the view that Resolution 678, backed by Resolution 1441, was sufficient, without the need for any further resolution, to clothe it with the legal authority to use force against Iraq.

But how was that possible when there was no threat of an armed attack or act of aggression from Iraq, whether actual or imminent?

Similarly, the UN Charter does not permit such notion of pre-emptive strike or preventive war in international law as advanced by the US and its allies.

Iraq obviously did not commit or threaten to commit any act of "aggression" as defined by the UN General Assembly Resolution 3314 (XXIX).

In fact, during a 2004 interview with the BBC, the then UN Secretary-General Kofi Annan had this to say: "I have indicated it is not in conformity with the UN Charter, from our point of view, and from the Charter point of view it was illegal."

Similarly, the so-called "shock and awe" blitzkrieg to secure Iraq's compliance with its disarmament obligations was a totally disproportionate response, causing huge civilian casualties in breach of the Geneva Conventions of 1949 and their 1977 protocols.

It has now become abundantly clear that the infamous invasion was intended to remove Saddam Hussein, who in the eyes of the US and its allies was a recalcitrant dictator.

It is also abundantly clear that the UN inspectors who scoured Iraq for weapons of mass destruction did not eventually find any.

It is unfortunate that as a permanent member of the Security Council, Britain, then headed by Blair, did not stand up to this flagrant disregard of international law by the Bush administration.

Instead, Blair led Britain to join the US in this illegal war.

This went against the very foundation in which the UN Charter came into being after World War 2, that is, as stated in its preamble, "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" .

Unless one has been bereft of loved ones before, one may not appreciate why parents, widows and orphans shriek and thump their chests crying to high heaven and pleading for justice in agony, misery and sorrow when their innocent children, spouses and parents perish in a war.

The preamble to the Charter also reaffirms faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small in order to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.

Hence, the manner in which suspected terrorists are treated and incarcerated speaks volumes of the US's record of respecting basic human rights.

Today and like before, history seems to be repeating itself. The Bush administration is now saying that any withdrawal of the US and allied troops will plunge Iraq into a civil war.

Looking back at history, when Britain invaded Iraq in 1917, the British, too, claimed to be the liberators and not conquerors of the Iraqis.

The reason was the same, that is, to set up democracy in Iraq. The then prime minister, Lloyd George, too, warned that if British troops should leave Iraq there would be civil war.

Abandoned Iraq, they did, and the Baath Party led by Saddam Hussein then took over.

Sadly, the mess now created in Iraq is the result of failure and refusal by powerful nations to respect and commit to international rule of law.

The invasion and continued occupation of Iraq have never been expressly authorised by the UN Security Council.

Winston Churchill once put it aptly: "The whole history of the world is summed up in the fact that, when nations are strong, they are not always just, and when they wish to be just, they are no longer strong."

As the UN is powerless to act and enforce international law when the culprits are the world's powerful nations, one can only leave it to history to judge whether Bush, Blair, John Howard and the others are saviours or butchers of the Iraqis.

Published in New Straits Times, 10 August 2008

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.

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.