Bar: Karpal fit to be counsel

The Star

By M. Mageswari

Meanwhile, senior lawyer Roger Tan said it was for the courts and the disciplinary board to decide whether Karpal Singh was in breach of ethics, adding that the Bar Council should not prejudge the issue.

“It’s unacceptable to describe any member of the Bar raising the issue as mischievous,” he said in a tweet. 

PETALING JAYA: There are no grounds for DAP chairman Karpal Singh to be called as a witness in the ongoing sodomy trial of Opposition Leader Datuk Seri Anwar Ibrahim, the Bar Council said.

Its president Ragunath Kesavan said there was also no basis for misgivings regarding the legal and moral standing of the veteran lawyer to serve as a defence counsel in the trial.

“It is therefore mischievous of any party, let alone members of the Bar, to now intimate that Karpal should be disqualified on the basis of his access to so-called knowledge in the previous sodomy trial,” he said.

“The issues that have been raised in recent days might have been relevant in that earlier trial, had the then Public Prosecutor voiced any opposition to Karpal’s role as a potential prosecution witness, and his subsequent appearance as defence counsel.

Separate politics from civil service

Politicians should learn to work with the civil servants by winning their hearts and minds, just as in the United States and in the United Kingdom, whenever there is a change in government.

THE recent brouhaha over the appointment of former Selangor Jais director Datuk Mohd Khusrin Munawi as the new Selangor state secretary is really much ado about nothing.

In my humble opinion, the appointment made by the Federal Public Services Commission (PSC) under Article 52(1) of the Selangor State Constitution (SSC) is constitutional and lawful.

Let me explain.

Article 52(1) expressly provides as follows: “There shall be constituted the offices of State Secretary, State Legal Adviser and State Financial Officer; and the appointments thereto shall be made by the appropriate Service Commission from amongst members of any of the relevant public services.”

Taking the words of Article 52(1) literally, it would appear that the sole appointing authority of the three Selangor State officers is the “appropriate Service Commission”. The provision does not mention the need to consult or even obtain the prior consent of any other person, including the Selangor Sultan and Mentri Besar.

If at all the Service Commission had consulted or obtained the consent of the Sultan or Mentri Besar, then this was done out of courtesy but certainly not out of any legal obligation.

However, the position would have been different had the older version of Article 52(1) not been amended by the Constitution of Selangor (Second Part) (Amendment) Enactment, 1993.

The old version read as follows: “His Highness shall on the recommendation of the appropriate Service Commission by instrument under His Sign Manual and the State Seal appoint a person holding whole time office in the public services to be the State Secretary, the State Legal Adviser and the State Financial Officer respectively: Provided that before acting on the recommendation of the Service Commission His Highness shall consider the advice of the Mentri Bear and may once refer the recommendation back to the Commission in order that it may be reconsidered.”

The 1993 Constitution Amendment Enactment, which was brought about by the 1993 constitutional crisis, also deleted Article 51(6) which read: “In the event of there being no Service Commission having jurisdiction in respect of any appointment of any officers mentioned in Clause (1) such appointment may be made by His Highness acting in His discretion.”

Suffer the children

Mummy, please don't go!

The Sunday Star

By Hariati Azizan

Interviews have become the common practice by family court judges in Malaysia to resolve intractable custody disputes. However, many family law practitioners believe that this can be detrimental to the children as the judges are not experts in child psychology and counselling.

A FAMILY court judge ruled that the custody of Child A should be awarded to her mother after she convinced him in a one hour-interview in his chambers that she would be happier with her mother.

In another case, Child B pleaded and cried to stay with her father but she was ordered to go and live with her mother. The judge presiding over her case did not believe her testimony and was convinced that she had been brainwashed by her father and his relatives.

Interviews have become the common practice by family court judges in Malaysia to resolve intractable custody disputes.

However, many family law practitioners believe that this can be detrimental to the children as the judges are not experts in child psychology and counselling.

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.