Archives for

EMERGENCY ORDINANCE: Preventive Law to Combat Crime Needed

BY the middle of last year, the Emergency Ordinance (EO), a preventive law that allows the police and Home Ministry to detain a person for two years and can be renewed after two years without trial and place him or her in detention centres, was repealed.

Prime Minister Datuk Seri Najib Razak had said the government was ready to make changes in the law. This decision was a victory for human and democratic rights.

However, for the research team on crime and policing at Universiti Sains Malaysia (USM), we knew that the country was going to see a surge in violent crimes, especially those involving gangs and recidivists (repeat offenders), based on our research on this matter.

In 2010, this team, based on a study conducted on crime, recommended that the Restricted Residence Act be repealed as it was ob-solete in modern Malaysia, whereas the EO should be sustained, with amendments to prevent abuse by the authorities.

The EO is a preventive law that was developed to deal with subversive and criminal elements which threatened national security.

Although it has been criticised as draconian, inhumane and undemocratic, it cannot be denied that the EO served its purpose in dealing with terrorists, secret societies, gangs, recidivists and organised crime members since its implementation in 1969.

Most of the detainees under the EO in the last three decades were alleged to have been involved in gang activities, extortion, kidnapping, gaming and executing operations for crime bosses. Almost 2,000 criminals were released after the repeal of the EO last year.

Since then, according to the police and as reported in the media, most of them are back in business.

However, they are now more daring and commit crimes openly. The crimes are violent, inhumane and cruel.

According to reports, these criminals display their gang identities and symbols during funeral processions, community activities and religious events.

They fear no one, including the police, and this means that if anyone happens to be in the wrong place or time, the innocent party may end up injured or killed.

Let us not ponder if we have given up a little of our liberty and democratic rights, so that these criminals could have been prevented from committing crimes.

We, the research team from USM, would like to ask citizens: “To what extent are we willing to give up safety for the sake of liberty and democracy?”

Malaysia is going through a transitional phase from a developing to developed nation.

All sorts of changes are experienced by this nation as we progress.

We have a track record of being a safe nation, but if we do not equip our authorities with tools to deal with criminals, we will not win the war against crime.

A preventive law similar to the EO, with checks and balances and without any room for abuse, must be reconsidered by all.

Even if such a law is implemented, this does not mean that the police and other law enforcement agencies can take crime prevention for granted.

There are many aspects of crime, where offenders can be charged under criminal laws. The law should be used only for specific crimes. This law is not meant to be a shortcut for investigating criminal cases.

It is to keep away violent gang members, recidivists and organised crime members, who are good at beating the criminal justice system.

If we do not act soon, then please be prepared to see the further erosion of safety and peace by criminals.

Associate Professor Dr P. Sundramoorthy, Principal researcher, Research team on crime and policing, Universiti Sains Malaysia, Penang

Read more: EMERGENCY ORDINANCE: Preventive law to combat crime needed – Top News – New Straits Times

Fight corruption on all fronts

IN the ongoing war against corruption, we tend to distinguish between major and minor cases, even though the principle elements are the same.

We get excited over the cases where big names and big sums of money are involved because that is an indication that the graft busters are really going after the big fish.

Smaller cases, the so-called ikan bilis, rarely excite us because we think they are too commonplace and not worth the time and resources spent to nail them.

Two cases reported last week exemplify this scenario.

The first case, which hit the front page of this newspaper, was about chartered arbitrator Yusof Holmes Abdullah being charged with solici­­ting RM6mil from a businessman in George Town.

Entrepreneur Datuk Siaw Teck Hwa was charged with abetting Holmes. Both pleaded not guilty.

It is reportedly the first corruption case involving an arbitrator and the arbitration community is reeling from shock that one of its practitioners has been charged with such a serious offence.

Further inside the newspaper, there was a report about a Malaysian lecturer being sacked by his university after he had pleaded guilty to corruption charges in a magistrate’s court in Perth.

Foong Tuck Cheong admitted to taking bribes of A$1,500 (RM4,340) and A$3,000 (RM8,680) to raise his students’ marks.

The RM6mil in the first case and the small sums in the second are poles apart, but the fundamental reasons for the giving and the taking remain the same – to manipulate the outcome of a decision.

And that is why the war against corruption must be fought on all fronts.

Whether it is about a student giving a bribe to hike up his marks or a businessman giving a bribe to influence a positive account in an arbitration dispute, we must be firm that such acts of corruption, big or small, will not be tolerated.

We can do our part by not condoning even the smallest infractions, be it a small sum of kopi duit to escape a traffic offence or a couple of hundred ringgit to guarantee a pass in the driving test.

Often, the adults who commit such offences do it in the presence of their children, and so the vicious circle continues.

Let us bear in mind that values are caught, not taught, and the signals we send out hold the key to how seriously we view corruption.

If the right values are passed on, then the war against corruption can be won.


Malaysian Bar wants specific anti-gender discrimination laws


PETALING JAYA: The Malaysian Bar has urged the Government to enact specific anti-gender discrimination laws which would further promote and protect gender equality here.

Its president Christopher Leong called upon the Government to do more in eradicating gender discrimination, pointing out that there was no law prohibiting it apart from a 2001 amendment to include gender in Article 8 of the Federal Constitution.

He added that two court decisions following the amendment did not give full effect to the principles of the Convention of Elimination of All Forms of Discrimination against Women (Cedaw), which Malaysia ratified in July 1995.

Leong also urged the Government to address concerns made by the Committee on the Elimination of Discrimination against Women, which it issued after reviewing Malaysia in May 2006.

“Many of those concerns remain outstanding, notwithstanding the passage of seven years,” he said in a statement yesterday.

Nevertheless, he welcomed the Attorney-General’s decision on Thursday to withdraw the Government’s appeal against a landmark 2011 High Court decision that it was unconstitutional to deny employment due to pregnancy.

Referring to the case of Chayed Basirun & Ors v Noorfadilla Ahmad Saikin, he said it was significant that Shah Alam High Court Justice Zaleha Yusof relied on Cedaw in clarifying what was meant by the terms “equality” and “gender discrimination”.

In the case, the state education department had revoked and withdrew Noorfadilla’s appointment as an untrained relief teacher because she was pregnant.

“The High Court held that this act amounted to gender discrimination and constituted a violation of Article 8(2) of the Federal Constitution, which deals with equality before the law,” he said, commending the appeal withdrawal as a step in the right direction.

The decision was nominated for a Gavel award in Women’s Link Worldwide, an international human rights non-profit organisation which works to ensure gender equality is a reality around the world.

In her judgement, Justice Zaleha had written: “Discrimination on the basis of pregnancy is a form of gender discrimination because a basic biological fact is that only women have the capacity to become pregnant.”


New law needed to solve violent crime

GEORGE TOWN: A criminologist has called for a new preventive law to tackle violent crime as criminals are now openly displaying their gang identity in public.

Assoc Prof Dr P. Sundramoorthy of Universiti Sains Malaysia said many triad members and recidivists (repeat offenders) had returned to their criminal ways after the repealing of the Emergency Ordinance (EO) last year.

He said the new law could be used to deal with those involved in gangland-style executions, extortion, gaming and robberies.

“The brains behind these activities are well-informed and they know how to go about undetected. They have ‘advisers’ to guide them,” he said.

Dr Sundramoorthy proposed that an independent body be set up under the new law to submit recommendations to the authorities after studying case files containing statements from key individuals.

“They can either recommend that the person be detained if a case could be established or recommend that no further action be taken.

“The final review and recommendation should come from them and not the Home Minister.

“Of course, the panel would have the right to redirect the case if it finds elements where the offenders can be charged under existing criminal laws,” he said.

Dr Sundramoorthy, who is principal researcher on crime and policing at the university, added that specific types of crime must be spelt out in the new law.

Dr Sundramoorthy said provisions must also be included to seize assets, property and cash belonging to criminals.

Agent provocateurs and low-ranking triad members could be roped in as witnesses to link the masterminds of syndicates, he said.

“Similar to the EO, the statements of these people (undercover and eyewitnesses) are vital for the independent body to decide on the fate of the masterminds.

“These masterminds are known to the authorities but the question is how to go about nailing them,” he said.


New Bill risky to kids’ identity due to ease of conversion, says IRF



KUALA LUMPUR: The Islamic Renaissance Front (IRF) is concerned about the precedent the new Administration of the Religion of Islam (Federal Territories) Bill 2013 will set with regard to the conversion of non-Muslim minors.

They are similarly concerned about the Syariah Criminal Procedure (Federal Territories) (Amendment) Bill 2013 and the Syariah Civil Procedure (Federal Territories) (Amendment) Bill 2013 that have been tabled for debate during the first meeting of the 13th Parliament.

“We will be reading the Bills very closely in the coming days but as it stands, we are deeply concerned at the precedent they might set, namely in how it implicates the religious identity of non-Muslim minors who can be easily converted by only one of their parents,” said IRF researcher Ahmad Fuad Rahmat.

“This risks leading to more inter-ethnic and inter-religious complications in the future,” he said.

“Additionally, we remain firm that the Constitution should remain Malaysia’s primary legal framework that cannot be overridden by religious laws,” Ahmad Fuad said when contacted.

He was referring to Section 107 (the old Section 95) in the Administration of the Religion of Islam (Federal Territories) Bill 2013, which relates to the conversion of minors.

This provision became controversial in 1993 – although the English version states a non-Muslim below 18 years of age may convert to Islam if “his parent or guardian consents to his conversion”, the Malay version of Section 95 amended “ibubapa (parents)” to “ibu atau bapa (mother or father)”.

Sisters In Islam (SIS) also joins the Bar Council and others, who have asked why the Government had not amended the “controversial provision, which allows for unilateral conversions” since it is tabling an entirely new Bill.

The Administration of the Religion of Islam (Federal Territories) Bill 2013, if passed by both Houses of Parliament next month, will repeal the Administration of Islamic Law (Federal Territories) Act 1993.

“Given the many experiences of gross injustice faced by Malaysians – both Muslim and non-Muslim – in such cases, Section 107(b) should have been amended,” said SIS programme manager Suri Kempe.

“It is a loophole which allows for the perpetration of injustice and leads to a situation that tears families apart.”

She added that, on the whole, it was difficult to comment on the Bill because so little time had been given to parliamentarians and civil society to scrutinise it.

“In a vibrant democracy, the practice of railroading bills without sufficient discussion, especially one that has repercussions on the lives of millions of Malaysians, cannot be accepted.”





KUALA LUMPUR: Malaysians have been assured of action taken by the Government to assuage concerns over a controversial clause in the Administration of the Religion of Islam (Federal Territories) Bill 2013.

“Just wait for the minister to mention it in Parliament. It is something we will not have to worry about any more,” said Minister in the Prime Minister’s Department Nancy Shukri.

She said this when asked about the Bill after attending a high-level panel meeting on drug policy and public health yesterday.

Politicians from both sides of the divide, civil society groups and the public have described Section 107(b) of the Bill, which allows a minor to be converted with the consent of only one parent, as unconstitutional.

The Bill was tabled for first reading in the Dewan Rakyat on Wednesday.

If passed by both Houses of Parliament next month, the Bill will repeal the Administration of Islamic Law (Federal Territories) Act 1993.

Separately, Home Minister Datuk Seri Dr Ahmad Zahid Hamidi said the Government would be fair to other religions when making amendments to the Bill.

“There will be few amendments to the Bill in tandem with demands by other religions.

“We also have to respect the role of a parent and we can’t force children to follow either the mother or the father who has converted,” he said after opening the Sekolah Izzudin Shah alumni annual general meeting yesterday.

In George Town, Health Minister Datuk Seri Dr S. Subramaniam said the matter had been discussed extensively in the Cabinet following a case in Seremban in early June where a 29-year-old Hindu mother claimed that her estranged husband converted their two children, aged five and eight, to Islam without her knowledge in April.

“The Cabinet is clear that there must be fairness and justice for everyone, including non-Muslims, particularly when one parent converts.

“It’s not just about the religion of the child but also custody, alimony and protection for the child,” said Dr Subramaniam after launching the Penang Free School Homecoming Carnival yesterday.

In Kota Kinabalu, Tan Sri Bernard Dompok said the contentious Bill should be withdrawn and instead be discussed within Barisan Nasional first.

The United Pasok Momogun Kadazandusun Murut Organisation president said he had asked for the withdrawal of a paper on the Bill from Cabinet discussions because he felt that a Cabinet decision on the Law Reform (Marriage and Divorce) Act 1976 should be implemented first.

“The Cabinet paper was withdrawn and I am therefore surprised that it (the Bill) is now before Parliament,” added Dompok, the former Plantation Industries and Commodities Minister.

Various groups have argued that the provision is not only unconstitutional but goes against an April 2009 Cabinet decision that children of an estranged couple should remain in the common religion of the parents at the time of marriage should one parent convert.

The then de facto law minister and Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz had said that the Cabinet’s decision was made following M. Indira Gandhi’s case where her three children, aged 12, 11 and one, were allegedly converted to Islam by her husband without her consent.

Malaysian Consultative Council Of Buddhism, Christianity, Hinduism, Sikhism and Taoism, in a statement, objected to some of the provisions, which it said affected the rights of non-Muslims, created social injustice and went against the spirit of the Federal Constitution.

Meanwhile, an online portal reported PAS’ Kamarudin Jaafar as saying that the Islamist party would treat the Bill carefully, noting that it would affect the lives of all citizens in the country.

“PAS will discuss it and make our stand known. The party has not yet made a definite decision on the Bill,” he said.


Press Release: Unabated Deaths in Custody — Will They Ever End?

Wednesday, 29 May 2013 12:46pm

The Malaysian Bar welcomes the announcement that the Inspector General of Police, Tan Sri Dato’ Sri Khalid Abu Bakar, will head a special committee established to take measures to prevent deaths in police lockups, which will implement frequent visits by doctors and also visits by Human Rights Commission of Malaysia (“SUHAKAM”) Commissioners. Such measures provide some assurance of the level of seriousness being accorded to the grave issue of deaths in police custody.

The statistics regarding deaths in police custody in Malaysia is a leaf out of the macabre: 156 persons died in police custody between 2000 and February 2011,1 and it has been reported that there were at least six such deaths in 2012,2 with this being the fifth one in 2013.3 This data is alarming, as it points to an average of at least one death in police custody per month since 2000.

The Malaysian Bar is dismayed and saddened by the news of yet another death in police custody, involving 32-year-old N Dharmendran. He was reportedly arrested on 11 May 2013, and died on 21 May 2013 whilst in police remand at the Kuala Lumpur police contingent headquarters.

The death of N Dharmendran is tragic and inexcusable. It is yet another incident that raises serious questions about the treatment and safety of detainees in police custody, and the methods of interrogation used. It underscores the importance of the requirement for those in police custody to have immediate access to legal counsel upon arrest.

In the case of N Dharmendran’s arrest, the protocol prescribed under the Yayasan Bantuan Guaman Kebangsaan (“YBGK”) scheme, which is an initiative made possible by Prime Minister Dato’ Sri Najib Tun Abdul Razak, and supported by the Government, does not appear to have been complied with by the police. The guidelines for enforcement officers stipulate that as soon as an arrest has been made, and before the suspect is questioned, the police officer must inform the suspect’s family (or friend) of the arrest, and must also provide details of the suspect and the arrest to YBGK, who will then despatch a lawyer to offer legal representation to the arrested person.

However, we understand that YBGK did not receive any notification from the police about N Dharmendran’s arrest. We regret to note that this is the second occasion that we are aware of where YBGK was not notified of an arrest, and the detainee later died in police custody. In the first incident, 32-year-old K Nagarajan had been found dead on 24 Dec 2012 in the Dang Wangi police station lockup.

The present state of affairs has led to much public outrage and an erosion of confidence in the police. The police must be proactive in ensuring that the wrongful actions of some amongst them do not tarnish the standing of the whole force. Unless this is addressed, the police force will unfortunately remain a diminished institution in the eyes of the public.

The unabated deaths in police custody reinforce the Malaysian Bar’s repeated calls for the Government to implement the recommendation of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police, in its report published in May 2005, for the setting up of an Independent Police Complaints and Misconduct Commission (“IPCMC”) to function as an independent and external oversight body to investigate complaints about police personnel.

It is untenable for the Government to continue to ignore the dire need for the IPCMC, in the face of continuing cases of deaths in police custody.

The Malaysian Bar takes the view that every death in custody must be thoroughly and impartially investigated. Although Chapter XXXII of the Criminal Procedure Code requires that all custodial deaths be investigated by way of inquest, no inquest is held in most instances. Thus, the Malaysian Bar calls on the authorities to urgently implement comprehensive structural reform where inquests are concerned. The few recent enquiries into deaths of persons that occurred whilst in the custody of, or in or around the premises of, law enforcement agencies, have resulted in “open” verdicts. In this regard, the Malaysian Bar urges the Government to introduce a Coroners’ Act, and establish a Coroners’ Court with the following features:

(1) A clearly-stated aim, which will focus on identifying the deceased and ascertaining how, when and where the person died;

(2) The creation of an official position of a State Coroner, and Coroners. These would be appointed by the Prime Minister upon the recommendation of the Chief Justice. The State Coroner must be a Sessions Court Judge, ie a more senior position than that of a Magistrate, who currently conducts the inquests;

(3) The Coroner would be specially trained and be responsible for supervising investigations by the police, ensuring that all relevant evidence is gathered, presiding over enquiries, and making findings; and

(4) The specific use of pathologists and forensic pathologists. Only pathologists, or medical practitioners supervised by pathologists, may conduct post-mortems.

In the meantime, the Malaysian Bar calls for an immediate inquest into N Dharmendran’s death, as a matter of public interest warranting the highest level of priority. The police must render every assistance to the inquest and undertake a prompt and transparent investigation into the incident. In this regard, we are encouraged by the statement of the police authorities that they have set up a special task force to investigate the matter.

Those responsible for N Dharmendran’s death must be identified and be made to face the full force of the law immediately. The key question is who the culprits responsible for this heinous crime are. The police force owes it to the families of the deceased, the public and itself, to do all that is required to ensure that such incidents do not occur again. It is incumbent upon the police to continuously work to establish the confidence and trust of the public whom they are duty-bound to serve and protect.

As stated by the Supreme Court of India, death in police custody is “. . . one of the worst kinds of crime in a civilised society governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens . . . . and is an affront to human dignity. . . .”4 It is shocking that detainees continue to die under questionable circumstances while in the custody of the police.

The Malaysian Bar hopes that N Dharmendran’s death will not be relegated to a mere footnote in the disturbing history of custodial deaths in our country.

The Malaysian Bar expresses its deepest condolences to the family and friends of N Dharmendran.

Christopher Leong
Malaysian Bar

29 May 2013

Press Release: Recent Arrests and Actions by the Authorities are a Closing of Democratic Space

Friday, 24 May 2013 09:34pm

The Malaysian Bar is appalled by the recent arrests of several individuals pursuant to the Sedition Act 1948. The Sedition Act, as with its predecessor the Sedition Ordinance, was conceived and designed by a colonial government to stifle fundamental rights and liberties, oppress the rakyat and deny them democratic space. Its sole purpose was to suppress and persecute the citizenry. The Sedition Act has no place in our modern democratic society and should have been discarded at Merdeka. The time for it to be dumped into the dustbin of history is long overdue.

It has been reported that Adam Adli, Tian Chua, Tamrin Ghafar and Haris Ibrahim were arrested for purportedly making seditious statements at a forum held on 13 May 2013. The continued use of the Sedition Act by the authorities directly contradicts the promise made less than a year ago by Prime Minister Dato’ Sri Mohd Najib Tun Abdul Razak in July 2012, that the 64-year-old law will be repealed and replaced in 2013 by a National Harmony Act. This was a clear admission and recognition by the Government that the Sedition Act was an anachronistic and repressive colonial law. The Prime Minister further stated that the new law will not prevent members of the public from criticising the government, quoting John Locke who said, “…the end of law is not to abolish or restrain, but to preserve and enlarge freedom.”

The decision to arrest Adam Adli, Tian Chua, Tamrin Ghafar and Haris Ibrahim is therefore an unacceptable repudiation of the promise made by the Prime Minister. It further raises questions over the Government’s sincerity in pursuing transformation and greater civil liberties through legislative reforms.

The test of a genuine democracy is to allow words to be said even when we disagree with them. As much as one may not agree with the calls for public demonstrations to oppose the Government and question its electoral legitimacy, citizens nevertheless have a fundamental right to express themselves in such manner so long as they do so peacefully and there is no call for the use of violence. The authorities would be wrong to assume that a call to overthrow the government must necessarily be only by violent means. Time and again, the rakyat have shown that they can gather in public assembly in large numbers, yet peacefully. It is therefore unjustifiable and premature to preempt the exercise of fundamental rights and freedoms with assumptions or postulations of the use of violence. As much as dissent and opposition may be unpalatable, these must not be criminalised and silenced, but countered with open and healthy debate, reforms and concrete changes.

The Malaysian Bar is equally troubled by the arrest of 18 persons holding a peaceful candlelight vigil outside the Jinjang Police Detention Centre on 22 May 2013. The Malaysian Bar is disappointed that the police have said that they can no longer tolerate such candlelight vigils. It is not the role of the police to tolerate or otherwise, but it is their duty to facilitate the exercise of democratic freedoms. The police must bring themselves into the 21st century and cease suppressing the rights of the rakyat. The Malaysian Bar is concerned that these incidents may also signal a lurch towards greater authoritarianism, fascism and persecution of those whose viewpoints differ from those of the Government. It feeds an already widely held belief that there is an unhealthy symbiotic relationship between the police on the one hand, and Government on the other. In simple terms, “You protect me, I defend you”.

This may be seen from the failure of the authorities to take similar action in other obvious cases that more clearly evidence utterances and publications exhibiting seditious tendencies. It is inexplicable that there has been no similar prosecution against the likes of:

(a) Ibrahim Ali, for allegedly inciting the burning of Malay language bibles;
(b) Ridhuan Tee Abdullah and Zulkifli Noordin, for allegedly disparaging the Hindu religion and insulting adherents of the religion;
(c) The racial rhetoric of the Prime Minister in his allegation of a “Chinese tsunami”, followed by the Utusan Malaysia article entitled “Apa lagi orang Cina mahu?”; and
(d) Datuk Mohd Noor Abdullah, a former Court of Appeal judge, for allegedly accusing a racial group of treason and warning of retribution by another racial group.

While the Malaysian Bar is not advocating the use of the Sedition Act against these individuals, we abhor the discrepancies in treatment and the selective prosecution by the authorities in this regard. Further, the police should not have made an application for the remand of Tian Chua, Tamrin Ghafar and Haris Ibrahim, because it was an abuse of the process of the law. Given that the alleged incident occurred 11 days ago, the police should already have evidence of what was allegedly said. We commend the Magistrate for having refused the application for remand.

The Malaysian Bar strongly urges the authorities to withdraw the charge against Adam Adli, and not to prosecute Tian Chua, Tamrin Ghafar, Haris Ibrahim and the 18 individuals arrested at the candlelight vigil. We urge them to respect the freedom of speech and assembly as enshrined in the Federal Constitution. The Malaysian Bar also urges the Government to resist the temptation to quell dissenting voices by resorting to archaic and oppressive legislation. Otherwise, the promise of freedoms made by the Prime Minister will be nothing more than a mere platitude.

The Malaysian Bar deplores the seizure of copies of Harakah, Suara Keadilan and The Rocket, the newspapers of political parties PAS, PKR and DAP, respectively. We reiterate that the Printing Presses and Publications Act 1984 should be abolished. The condition imposed by the authorities on these three publications — prohibiting their sale and distribution to members of the public at large — is unconstitutional, as it breaches the right of the publishers to the freedom of expression. It is also a breach of the constitutional rights of the public to receive such information.

The recent arrests, prosecutions and confiscations by the authorities are manifestations of regressive and undemocratic conduct. The current environment is not reflective of a government aspiring to achieve world-class democracy. Rather than bringing about a society that is at ease with itself, it is instead creating an environment of grave concern.

The Malaysian Bar calls upon the newly elected Government to demonstrate its commitment to a continuing course of transformation and democratic reforms, not by rhetoric alone but by sincere and genuine action. To promote greater democracy, the Government should welcome diversity of opinion, not close democratic space.

Christopher Leong
Malaysian Bar

24 May 2013

Press Release: The Malaysian Bar Commends and Supports MACC’s Proposals

Thursday, 23 May 2013 08:17pm

The Malaysian Bar commends and supports the initiatives by the Malaysian Anti-Corruption Commission (“MACC”) headed by its Chief Commissioner Dato’ Sri Haji Abu Kassim bin Mohamed. The MACC is an important and indispensable institution in the fight against corrupt practices and for the prevention of corruption.

The recent proposal by the MACC, through its Consultation and Corruption Prevention Panel (“CCPP”), as reported in the news media on 21 May 2013, that all elected representatives in Parliament and State Assemblies should declare their assets every three years, is a positive step towards promoting good governance, integrity and the rule of law.

In this context, the Malaysian Bar proposes that the need to make such declarations not be confined to elected representatives in Parliament and State Assemblies, but be extended to include all public officials.

The definition of “public official” under Article 2(a) of the United Nations Convention Against Corruption (“UNCAC”), which Malaysia signed on 9 December 2003, and subsequently ratified on 24 September 2008, should be adopted. It defines “public official” as:

(a) any person holding a legislative, executive, administrative or judicial office; and
(b) whether elected or appointed, whether permanent or temporary, whether paid or unpaid, and irrespective of that person’s seniority.

In this regard, the Malaysian Bar had applauded the announcement, made by the Chief Justice in January 2012, that superior court judges will be required to declare their assets.

The extension of the need for such declaration of assets to include all public officials would ensure that our practices are consistent with UNCAC standards. It would serve to encourage and create an environment and culture of transparency and accountability by public officials. It would also strengthen the various institutions in which these public officials serve.

The Malaysian Bar further supports the MACC’s call for:

(a) A total prohibition against family members and all government administrators, including cabinet ministers, chief ministers and state executive councillors, from bidding for government contracts; and
(b) An implementation and enforcing of a cooling-off period before retired civil servants are permitted to hold positions in the corporate sector or professional practice.

The Malaysian Bar however proposes that the cooling-off period be at least two years instead of one year, and that it be applicable not only to retired civil servants, but to all retired public officials of senior positions.

The Malaysian Bar calls upon the Government to introduce the relevant legislation to provide for mandatory compliance of the above proposals, and to empower MACC to have wide investigative powers to verify and audit the declarations of assets. At present, MACC only has powers of investigation when it has reason to suspect the commission of an offence, following a report of an offence made to it or from information it receives.

MACC should be given the fullest support in its work, and the Government should introduce further legislative provisions to provide for:

(a) MACC to have independent prosecutorial discretion and power, that is, it should have discretion to institute prosecutions and to conduct such prosecutions;
(b) MACC to report directly to Parliament; and
(c) MACC to have an independent Service Commission.

With these proposals in place, the Malaysian Bar is confident MACC will be strengthened and better placed to investigate every allegation raised of corruption. The Malaysian Bar is prepared to render its assistance to, and cooperate with, MACC to achieve the objective of preventing corrupt practices.

Christopher Leong
Malaysian Bar

23 May 2013

Press Release: Yayasan Bantuan Guaman Kebangsaan Concludes Groundbreaking First Year

Wednesday, 15 May 2013 01:46pm

The Malaysian Bar was pleased to observe the first anniversary of the commencement of operations of Yayasan Bantuan Guaman Kebangsaan (“YBGK”) on 2 April 2013, which marked the conclusion of a dynamic inaugural year. Also known as the National Legal Aid Foundation, the groundbreaking YBGK had been launched by the Prime Minister of Malaysia on 25 February 2011.

The Malaysian Bar acknowledges the Government’s role in this bold initiative, and its commitment and support for the scheme.

YBGK represents a major milestone for the Malaysian criminal justice system, as it gives real meaning to constitutionally-enshrined rights such as access to justice and equality before the law. Under this scheme, free legal assistance is provided to all Malaysians — irrespective of their financial means — at the police station, the remand hearing and when they are charged in court. The existence of YBGK, one of the most successful public-private partnerships in Malaysia, means that every arrested person is given the right to consult, and subsequently be defended by, a legal practitioner.

In Peninsular Malaysia, the YBGK programme is administered through the network of Bar Council Legal Aid Centres that exist in each state. In Sabah and Sarawak, Jabatan Bantuan Guaman — the Government’s Legal Aid Department — works together with the Sabah Law Association and the Advocates’ Association of Sarawak to assist YBGK in its delivery of services.

Since its inception, YBGK has trained a total of 896 lawyers in Peninsular Malaysia, and 1,007 nationwide, over the course of 31 training sessions conducted throughout the country. In Peninsular Malaysia, YBGK operations have covered a total of 66 (out of 106) district police headquarters (Ibu Pejabat Daerah), and over 66 (out of 90) remand courts. YBGK assisted over 37,800 Malaysians in its first 10 months of operation. YBGK lawyers, who are paid for the legal services they render, are now involved in approximately 5,500 remands per month. This figure accounts for roughly 37 per cent of all remands in Peninsular Malaysia.

Prior to the establishment of YBGK, the vast majority of Malaysians were unrepresented during remand, resulting primarily from their lack of financial means to engage a lawyer. The fact that one in three remanded Malaysians now has access to legal representation is a testament to the dedication of Members of the Bar who do YBGK work, and the cooperation of law enforcement agencies — particularly the police — and the Judiciary.

Notwithstanding these achievements, a number of concerns remain, including the continuing difficulty faced by YBGK lawyers in gaining access to persons in police custody, and the lack of time and proper facilities at police stations, remand centres and courts for the YBGK lawyers to meet with the accused persons in private. These constraints adversely affect and detract from the full scope of accused’s constitutional right to legal representation.

The Malaysian Bar urges the Government to address the various shortcomings that have been raised, as the YBGK moves into its second year of operation. The Bar also calls for the YBGK to expand its ambit to serve non-citizens, in order to give meaning to the principles of non-discrimination and equal protection of the law, and to strengthen the rule of law.

The Malaysian Bar records its deepest appreciation to the Attorney General and his Chambers, Judiciary, Jabatan Bantuan Guaman, law enforcement agencies (notably the police), Advocates’ Association of Sarawak, Sabah Law Association, YBGK lawyers, and Bar Council Legal Aid Centres, for their diligence and cooperation, and for rising to the occasion in their efforts to ensure the successful implementation of the YBGK initiative.

The Malaysian Bar looks forward to the Government’s continuing support to ensure the success and sustainability of this comprehensive legal aid programme for those ensnared in the criminal justice system.

Christopher Leong
Malaysian Bar

15 May 2013