Threat by counter groups – Law Speak

From the Sun Daily

THE dialogue on the introduction of the jawi script in schools was banned by a last-minute court order secured by the police. The reason given was that it would cause chaos. A large number of Malay groups had threatened to scuttle the dialogue congress; convened essentially by Chinese educationists with a smattering of others including a representative from the Ministry of Education.

Earlier the prime minister had warned of the potential for reprisals by other groups against the congress.

All well and good. Law and order is everybody’s concern. And a valid consideration in curtailing freedoms guaranteed by the Federal Constitution. Especially when activities impinge on the delicate race and religion issues.

But pause awhile. The basis is that one ethnic group demands that this issue not be discussed. Can a constitutional right that is fundamentally-guaranteed be thus thwarted?

Admittedly, the constitution allows the curtailment of the right to free speech and assembly on grounds of public order and national security. This present ban at the behest of the police implies that (a) the police with its vast panoply of powers is unable to maintain law and order; and threats by others; and (b) the government is powerless to effectively staunch others from disrupting lawful activities.

The police are eminently placed in a worst-case scenario to impose conditions for any assembly to be held. This would relate to time, manner and place. In other words restrictions but not outright ban. Indeed the Peaceful Assembly Act 2012 allows the imposition of such restrictions.

Significantly, if there is a proposal to have a “counter assembly” the OCPD has the power under the Act “if it is evident that the organisation of the counter assembly will cause conflict between the participants of the assemblies” – to get that assembly organised at another date, time or place. Thus the right of all to assemble peacefully is guaranteed in a balanced way.

I recall that a group sought to injunct one Bersih rally on its eve alleging potential disorder by counter assemblies. The High Court threw out the application. Reminiscent of Lord Denning’s exhortation that the courts “should not interfere by interlocutory injunction with the right to demonstrate and to protest any more than they interfere with the right of free speech; provided that everything is done peaceably and in good order”. And “the right to demonstrate and the right to protest on matters of public concern … are rights which it is in the public interest that individuals should possess” and that “history is full of warnings against suppression of these rights” Hubbard v Pitt (1967).

Now, the convening of the congress by all accounts was done legally in complete compliance with the law. There is no suggestion that it intended to break the law. It was a mere dialogue – to discuss, clarify and explain the issues. No threat to the peace. The threat came from others who assumed to themselves the right to prevent others from assembling together.

Clearly, to prevent a lawful assembly from taking place on the basis that it will be met by an unlawful opposition is to give in to lawlessness. Note that the counter group was not given the go-ahead to carry out their demonstrations. Surely, as a general rule, the correct approach must be for the law enforcement agencies to deal with those who are threatening to break the law rather than to act against those who are seeking to comply with it. “If danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who would exercise those rights”. R v Londonderry (1861).

Dealing with a similar threat by a counter group, the revered English judge Lord Denning, speaking for the English Court of Appeal, said:

“The evidence is that if there is any trouble it will not be at the meeting at all. If it does occur, it will be outside caused by opponents … Their members may threaten or assault the members of the National Front; or try to stop their meeting. It would then be the interrupters who would be the destroyers of freedom of speech. They cannot be allowed to disrupt the meeting by mass pickets, or by violent demonstrations, and the like. The police, will, I hope, be present in force to prevent such disruptions”. Verrall v Great Yarmouth BC (1980).

More fundamental issues arise. The ban on this ground engenders, if not exacerbates, ethnic tensions. Any concerted group can prevent the pursuit of legal activity by others, especially minorities. By lodging an avalanche of police reports and contriving a law-and-order threat. Then the very exercise of constitutional freedoms is at stake. Undermining the very ethos of the Rule of Law – a key pillar of our Rukun Negara and proudly declared by the present government as its guiding governance compass. Undermining as well the purpose of the constitution “to restrict the majority’s ability to harm the minority”: James Madison, founding father of the US.

Also, by banning open dialogue, critical matters are then relegated to be dealt with in, perhaps, ill-informed and even insidious cloistered whispers.

One of the challenges of the government is to curb this sort of adversarial ethnic remonstrations. Rather than to succumb to it. For, once mob rule pervades, the “Harapan” for the rest of the citizenry could well recede into oblivion.

Gurdial, is president of Hakam, the National Human Rights Society. 

The case for the constitutionality of vernacular schools

From Malaysiakini

Recently, several groups and individuals have filed suits in court to declare vernacular schools unconstitutional. The argument mounted is that vernacular schools are publicly funded, and when they use Mandarin or Tamil as the main medium of instruction, this contravenes Article 152 which provides that the Malay language is the national language.

In my humble view, vernacular schools are constitutional. This is particularly so when one reads Article 152 of the Federal Constitution in totality and appreciates the historical context of vernacular education in Malaysia.

Protection of use of vernacular languages

Article 152(1) does say that the national language shall be the Malay language – there is no dispute about this.

However, there is an exception which is entrenched in Article 152(1)(a): “provided that no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language”.

It is clear that “using” any other language, besides the Malay language, is protected under the Constitution – provided it is not for “official purposes”.

The key question: can the medium of instruction in vernacular schools be categorised as an “official purpose”?

Article 152(6) defines “official purpose” as “any purpose of the Government, whether Federal or State, and includes any purpose of a public authority”. In turn, a “public authority” is defined in Article 160 as the Yang di-Pertuan Agong, a state ruler, federal government, a state government, a local authority, a statutory authority exercising powers vested in it by federal or state law, all the courts, or any officer appointed by or acting on behalf of such parties.

As one can observe, a vernacular school is not explicitly included as a “public authority”. But could it possibly be categorised as a “statutory authority exercising powers vested in it by federal or state law” within Article 160?

This is when the contentious Merdeka University case comes into the picture. In 1978, Chinese guilds and associations filed a petition to incorporate Merdeka University, which would use Chinese as a medium of instruction.

The education minister rejected the petition on the basis that it was contrary to the national education policy.

The matter was brought to court. In 1982, the Federal Court held that it was not unconstitutional for the government to reject the incorporation of Merdeka University. Its reasoning is as follows:

(i) A university has the requisite public elements – it is subject to some degree of public control in its affairs, involves a number of public appointments to office, acts in the public interest and is eligible for public funding.

(ii) A university is therefore a “public authority” within the meaning of Article 160.

(iii) A university is also a statutory authority exercising powers vested by it under federal law.

(iv) As such, having Chinese as a medium of instruction would be use of the language for an “official purpose”, which use may be prohibited under Article 152(1).

On the surface, it would seem that the Merdeka University case is a basis for arguing that vernacular schools are unconstitutional.

However, there are key differences between the two. Unlike a university under the University and University Colleges Act 1971 (UUCA), vernacular schools are governed quite differently under the Education Act 1996:

Pertinently, the Federal Court in Merdeka University was “greatly influenced by the scheme of the [UUCA], which is peculiar to Malaysia, in that it prohibits the establishment of a university within its context, except in accordance with its provisions (section 5), and that a university, when established thereunder, is deemed to have been established by section 7(1) thereof”.

In contrast, as highlighted above, there is no such prohibitive requirement for vernacular schools which merely need to be registered with the Ministry of Education under the Education Act 1996.

It is, at the very least, arguable that vernacular schools are not a “public authority” or “statutory authority” – therefore the use of Mandarin or Tamil as a medium of instruction is not for an “official purpose” and is protected under Article 152(1)(a).

Right of government to sustain use of vernacular languages

In the alternative, there is a second exception entrenched in Article 152(1)(b): “Nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation.”

In simple terms, if the federal government wishes, it has the power to preserve and sustain the “use” and “study” of Mandarin or Tamil in Malaysia. Such power is not only limited to the “study” of Mandarin or Tamil, i.e. purely Mandarin language classes. This power arguably also extends to the “use” of Mandarin or Tamil, i.e. using Mandarin as a medium of instruction to teach Science, as in vernacular schools.

For the vernacular schools suit, the cabinet has already come out in favour of the existence of vernacular schools. It has instructed the attorney-general to act accordingly. Hence, Article 152(1)(b) acts as an additional bulwark for the continuation of vernacular schools.

In the Merdeka University case, the government was against its incorporation. That is why the scope of Article 152(1)(b) was not explored in detail. The Federal Court may have decided differently if the government had supported the establishment of Merdeka University.

Our constitution

Finally, it can be implied that the drafters of our Constitution intended for the continued existence of vernacular schools that use Mandarin or Tamil as a medium of instruction.

In the years leading up to the drafting of our Constitution, the drafters must have been well aware of the contentious debate on vernacular schools through the 1951 Barnes Report, 1952 Fenn-Wu Report, 1956 Razak Report and the Education Ordinance 1957 – as well as representations by Umno, MCA and MIC from the Alliance Party.

Yet, the Constitution made no reference at all to the gradual abolition of the use of Mandarin or Tamil as a medium of instruction in vernacular schools.

Contrast this with the 10-year grace periods to transition from English to the Malay language for proceedings in Parliament and State Legislative Assembly (Article 152(2)), authoritative texts of Bills and Acts of Parliament (Article 152(3)) and superior courts (Article 152(4)). And for proceedings in subordinate courts, it shall be in English until Parliament provides otherwise (Article 152(5)).

If the drafters of our Constitution intended for such a similar transition for vernacular schools, they would have explicitly mentioned so in Article 152.

This is, of course, not indicative of my views on the relationship between vernacular schools on national unity – that is the subject matter of another long debate.

Suffice to say, the Constitution, in its present form, appears to protect the use of minority languages and the continued existence of vernacular schools.

LIM WEI JIET is a constitutional lawyer and Secretary General of HAKAM.

All within reach of the law – Law Speak

From the Sun Daily

PERHAPS it could be construed as a blight of our justice system when two Court of Appeal decisions struck out actions against Datuk Seri Najib Razak, the then prime minister for alleged wrongdoing in executing his public office. In particular, allegedly pocketing 1MDB funds. On the basis that such actions for misfeasance could only be brought against “public officers”. And, ruled these courts, the prime minister was not such a person.

The decisions raised considerable disquiet in the public mind.

Indeed, the High Court judge deciding the case said rather apologetically that many may find his ruling “most surprising and quite unpalatable to swallow”.

For it then immunises a prime minister from the reach of the law by saying he is not a “public officer” – what else could he be when he draws his salary from public funds; and is entrusted with the task of fulfilling public duties on behalf of the nation?

This renders illusory: “Be ye never so high, the law is above you” – Thomas Fuller’s wisdom cited by courts the world over. By Lord Denning in the 1977 Gouriet case; and our Federal Court in PP v Ottavio (2004).

And recently by a seven-member bench of the Federal Court led by Chief Justice Tan Sri Tengku Maimun in Tony Pua v Najib Abdul Razak. Which overruled the previous decisions.

The Federal Court held that it was wrong to say that the prime minister was not a public officer.

Said Justice Nallini in delivering the Federal Court’s grounds of judgment, it would be a violation of the rule of law to exonerate the prime minister for “outrageous” conduct where he was “alleged to have acted unlawfully, illegally, recklessly and/or knowingly in relation to substantive quantities of funds to the ultimate detriment of … the general public”.

This would be “anathema to the doctrine of the rule of law and the fundamental basis of the Federal Constitution”. Because then a prime minister “can act with impunity, so as to knowingly and/or recklessly dissipate public funds and remain immune to civil action in tort …”. Such a construction of the term “public officer”, which erodes the rule of law, is repugnant and cannot prevail.”

The comprehensive, lucid and admirably analytical judgment had no difficulty in debunking the two Court of Appeal decisions that had held that the prime minister did not come within the definition of a “public officer” under the Interpretation Acts and the Federal Constitution; and could not therefore be sued for the tort of wrongdoing in public office.

First, said the judgment, any “public officer” can be sued for wrongdoing for the tort of misfeasance under the common law – defined as a body of legal rules that have been made by judges in cases, as distinct from rules and laws made by Parliament or in official statutes.

The essence of this tort is that public power cannot be abused in bad faith.

Hence it applies, said the judgment, to holders of the highest offices in administration who are entrusted with the greatest public power and corresponding duty to exercise it for the public good.

To immunise the prime minister and ministers would be repugnant to common sense and the rule of law.

Secondly, neither the Federal Constitution nor any act specifically modified or abrogated the common law as regards the liability of “public officers” as widely defined to include persons in the position of the prime minister.

The earlier decisions of the Court of Appeal and the High Court had ruled that the prime minister and members of the Cabinet are members of administration and not public officers because they were not included in the list of “public services” in Article 132 of the Federal Constitution.

This reasoning was flawed, ruled the Federal Court. Because Article 132 merely identified the bodies and persons involved in the governance structure of the country. It was not meant to do away with the common law definition of the term “public officer”.

The judgment is remarkable in many respects. It locates the tort of misfeasance in public office as grounded in the rule of law. Thus placing all within the reach of the law.

It reinforces executive accountability to legal authority. It upholds the public interest in bringing public servants guilty of outrageous conduct to book.

It dispels the notion that anyone – no matter how high – who abuses his public office is free to act with impunity. And it accords any citizen the standing to make a claim for the loss suffered when a prime minister entrusted with public funds uses them for his personal benefit – if indeed he or she can prove such damage.

The case will now proceed to trial for the litigant to prove the misappropriation of public funds and the loss suffered.

This is a landmark judgment that resoundingly places the role of the judiciary in preserving the “internal architecture” of our constitution – which comprises the rule of law and the separation of powers.

It will long stand out as a judgment which resonates with the words of Montesquieu – a French judge and philosopher, famous for his articulation of the theory of separation of powers: “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

Gurdial is a former law professor and President of HAKAM. 

IRC Report – why the secrecy?

From the Sun Daily

A CRUCIAL expectation of people in voting out the old and ushering in a new government was the promise of participatory politics. Where the voices of the rakyat will be heard and responded to; with accountability of those in power; the abolishment of all arbitrary laws; and the removal of those who had compromised the public trust.

Indeed the PH government responded brilliantly. With the prompt establishment especially of the Institutional Reform Committee (IRC) comprising persons of impeccable integrity.

The IRC sat through endless hours listening to countless voices: from the professional to ordinary persons clustered in groups. It produced, so says the grapevine, a comprehensive report of moving the nation forward in ways considered anathema in the past.

What should have followed was an active debate of the report and ultimate feedback from all and sundry. And the implementation of those recommendations considered doable. On a scale and time-span: immediate, mid-term and long term.

But the IRC report has yet to be released, thwarting a public discussion.

The reason given by no less than the prime minister himself at a recent forum in response to a question from the floor by past Bersih chairperson, Ambiga Sreenevasan (which question received a thunderous audience response) was that there were parties within the ruling coalition that objected to its release.

Who are these parties? What is their reason for this stance? What do they make of their manifesto promise of an inclusive governance system and institutional reforms to implement just that?

The manifesto promised openness in government. That institutions will be established or strengthened to ensure that future governments will have no space to abuse its powers. And the public will be able to contribute to the making of policy; and the actions of government are properly scrutinised and evaluated and decision-makers held accountable. This makes essential disclosure of the report.

Significantly, the PH manifesto promised to revise the Official Secrets Act; and enact a Freedom of Information Act. Promise of a new ethos of governance.

As Lord Bingham head of the UK judiciary remarked in a 2003 court decision (R v Shayler):

“Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Sometimes, inevitably, those involved in the conduct of government, as in any other walk of life, are guilty of error, incompetence, misbehaviour, dereliction of duty, even dishonesty and malpractice. Those concerned may very strongly wish that the facts relating to such matters are not made public. Publicity may reflect discredit on them or their predecessors. It may embarrass the authorities. It may impede the process of administration. Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant. Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred.”

Secrecy begets arbitrariness and misgovernment. It deprives the electorate of information about the processes of government. As the past reveals: an AG dismissed, investigative committees and other institutions scuttled or undermined. So, processes “where they are bad remain bad and get worse in the dark”.

When the 1980s scandal surrounding the massive losses of Bank Bumiputra Finance in Hong Kong emerged, the Inquiry Committee Report was not made public, raising allegations of whitewash and complicity. Given that Bank Bumi is government-owned and monitored by the Ministry of Finance and Bank Negara. It took massive public reaction and even a court action before the report was finally released.

Of course for cogent reasons (national security and the like) specific parts can be redacted.

The electorate is now savvy and reacts unkindly to what it perceives as cover-ups or broken or delayed promises. Secrecy fans these perceptions. The Blair government’s concealment of proper information on weapons of mass destruction led to Britain’s participation in the Iraq war. For which several young British soldiers paid dearly with their lives.

So a timely reminder. “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them”: Patrick Henry, renowned American colonial revolutionary.

Gurdial a former law professor is currently president of Hakam, the national Human Rights Society.

Recent Myanmar/Bangladesh ICC decision reinforces flaws in alleged academics’ presentation to Rulers – Lim Wei Jiet 

From Malay Mail Online

Yesterday, the International Criminal Court’s Pre-Trial Chamber III announced its “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar,” whereby the ICC authorised the Prosecutor to commence investigations into crimes in Myanmar/Bangladesh.

For context, under Article 13 of the Rome Statute, there are 3 ways to trigger the ICC’s jurisdiction in respect of the crimes listed in Article 5 (genocide, crimes against humanity, war crimes & the crimes of aggression):

(a) a referral by a State Party to the Prosecutor;

(b) a referral by the United Nations Security Council to the Prosecutor; and

(c) the Prosecutor itself initiates an investigation (investigation proprio motu).

In this instance, the third method was triggered – the Prosecutor sought to initiate an investigation proprio motu. It is a requirement under Article 15 of the Rome Statute for the Prosecutor to seek authorisation from the ICC beforehand.

At this stage, the ICC needs to consider two factors in order to decide whether authorization should be given:

(i) if the case appears to fall within the jurisdiction of the Court; and

(ii) if there is a “reasonable basis” to proceed with an investigation

The ICC found that both factors have been fufliled. Consequently, the ICC authorised the Prosecutor to commence investigation propio motu.

While the ICC decision must be celebrated, it also reinforces the flaws contained in the alleged academic presentation to the Council of Rulers dated 2 nd April 2019 (I have previously critiqued on the presentation here.  The Malaysian Government withdrew from the Rome Statute on April 5, 2019 The presentation was leaked to the public by a student activist on April 7, 2019.

The Crime of ‘Deportation’

The alleged academic presentation to the Council of Rulers boldly asserts as follows: “Malaysia yang tidak terjejas apa-apa dengan jenayah ini dan tidak terkat dengan krisis Rohingya di Myanmar tidak boleh memaksa ICC untuk mengambil tindakan ke atas Myanmar walaupun selepas menjadi ahil statut Rom. Hanya Myanmar sahaja yang boleh membawa kes ini ke ICC dengan sendirinya oleh kerana jenayah berlaku di dalam wilayahnya. Tetapi kemungkinan kes ini dibawa oleh Myanmar ke ICC adalah sangat rendah…”

The first flaw: This statement is based on an erroneous assumption that crimes were conducted exclusively within the borders of Myanmar (a non-State party) and not within the borders of any State party, and hence no State party can refer the matter to the ICC. In other words, there is no territorial link.

The academics completely failed to take into account the crime of “deportation,” which is a “crime against humanity” under Article 7(d) of the Rome Statute. The crime of “deportation” happens when the perpetrator deports without grounds persons to another State or location, by expulsion or other coercive acts.

The ICC’s recent decision, in essence, held that it has territorial jurisdiction over Myanmar’s alleged “deportation” of Rohingya people because the victims crossed into the borders of Bangladesh (a State Party) — the crime may have began in Myanmar but was “completed” when the victims entered Bangladesh.

At the outset, whenever a crime of “deportation” occurs or is completed within the territory of a State party, then any State party to the Rome Statute can refer the matter to the Prosecutor for further action (see Article 14).

This means that, even if Bangladesh as a State party does not refer the matter to the Prosecutor, Malaysia as a State party can refer the matter to the Prosecutor. It is a symbolic fact that all States have an interest in the repression of international crimes.

But even if we accept the academics’ line of reasoning that a State party can only make a reference if a crime occurs within its territory, there is good ground to believe — based on the ICC’s recent decision — that Malaysia does indeed have territorial link to the crime of “deportation” of Rohingya people.

Tens of thousands of Rohingya people have since crossed by boats into Malaysian territory and have remained in our borders for refuge. Tun Dr Mahathir Mohamad confirmed in his speech to the United Nation’s General Assembly on September 25, 2019 that “we are also hosting close to 100,000 registered Rohingya refugees. There are many more unregistered. While this may seem like a small number compared to those in Bangladesh, plenty of resources have been dedicated to allow them a decent life while they await relocation to a third country.”

In other words, if Malaysia ratifies the Rome Statute, there is a solid case to argue that it can refer the matter directly to the Prosecutor under Article 13(a) to trigger a case for the crime of “aggression” by Myanmar against the Rohingya people. The academics’ views that Malaysia is “tidak terjejas” and cannot make a difference to the Rohingya people before the ICC is hence fundamentally wrong.

The Complementarity Principle

The second flaw of the alleged academic presentation is when they made this statement: “Di dalam konteks Malaysia, tafsiran “tidak mahu atau tidak mampu” untuk menyiasat atau mendakwa hanyalah berdasarkan keputusan Pendakwa ICC semata-mata.”

This is highly problematic from the onset. Article 17 of the Rome Statute clearly provides that it is the ICC — and not the Prosecutor — which decides whether the “unable or unwilling” principle has been fulfilled.

The ICC noted that Myanmar has thus far not raised any objections to the admissibility of this case on the complementarity principle, and said that it may receive such objections in the future and will decide accordingly. The ICC in its recent judgement reaffirms that the ICC, not the Prosecutor, is the sole adjudicator on whether the “unable or unwilling” (“tidak mahu atau tidak mampu”) principle is complied with (see para 115-117).

The impression given by the academics if Malaysia is a State party, it may be at the mercy of a biased Prosecutor who may unilaterally decide on whether our local criminal justice system has been able and willing to prosecute Rome Statute crimes. But that is not the case at all — that decision lies ultimately on a panel of independent ICC judges who will give parties a right to be heard.

Conclusion

One must recall that the abovementioned ICC’s recent decision regarding jurisdiction in respect of the crime of “deportation” and the complementarity principle are not novel. They are trite principles in international law — the ICC’s recent decision merely reinforced the same.

In fact, the ICC’s Pre-Trial Chamber I decision dated September 6, 2018 on “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” decided on these same issues — many months before the alleged

academic presentation dated April 2, 2019.

It is deeply unfortunate and saddening that the abovementioned perspectives were not brought to the attention of the powers-that-be, particularly when ratification of the Rome Statute was such an important foreign policy agenda for Malaysia.

* Lim Wei Jiet is a constitutional lawyer and secretary-general of the National Human Rights Society (Hakam).

 

Pastor Koh and Amri: 1000 days of disappearance

The following speech was given by HAKAM President, Dato’ Dr. Gurdial Singh Nijar, at the memorial held for the 1000th day of Pastor Koh and Amri Che Mat disappearance, on 16th November 2019.

Pastor Raymond Koh, and Amri Che Mat.

1000 days of disappearance

This event marks one of the most tragic developments in the law and order and governance history of the country. It has introduced a word in our vocabulary that was completely alien to us. The word: “enforced disappearance”. Even lawyers are slowly coming to terms with what it really encompasses. Stripped of legalese it means that the State (through any of its agencies) abducts a person and makes him disappear.

What is this function about? It is a reminder – a stark reminder – of how low we have spiralled down into a terrible abyss in our law and order framework. It mars the governance and Rule of Law ethos that New Malaysia is seeking to establish as part of its reform agenda.

Let me recount some significant milestones and events in the incidents.

  1. There was a certain amount of inertia by the authorities when the initial disappearance was reported on the same day shortly by a witness to the abduction – a law chambering person Roshan. Only the strenuous efforts of the children Esther and Jonathan yielded the smoking gun – a video that showed a 50-second professionally-executed abduction operation by a convoy of 7 vehicles – replete with 15 or so masked baclava clad personnel. And in the morning in a well-known residential area.

 

  1. The follow up seemed to lack the rigour and robustness that our special branch and police have a reputation for. Each time the investigations ended in an un-penetrate-able blank wall.

 

  1. To its credit, it was SUHAKAM that took up the cudgels to initiate hearings into the inexplicable disappearances of our fellow human beings.

 

  1. The hearings were characterised by some extraordinary events. The more significant ones:

 

  1. Early on in the hearing, there was a threat to open investigation papers against the lawyers for misleading the enquiry into implicating the police. This ended with an apology by the police when it was established that the alleged misleading evidence was an extract from the webpage of the police.
  2. Midway through the hearing, at a critical stage as evidence was mounting showing complicity, the then IGP issued a letter to say that SUHAKAM cease the hearing as they had now found a person – one Lam Chang Nam – which their investigations showed had kidnapped the good Pastor. Along with several others at large. This letter was on 15 January 2018. The SUHAKAM Act does say that once criminal proceedings commence its hearings and proceedings should cease.
  3. What was remarkable about this dramatic turn of events was that high police officials had testified earlier on oath that the special task force had established that Lam was a liar who was trying to extort money from the family by falsely alleging that he had information where to find the Pastor. And was being prosecuted for that.
  4. Former and then IGP Tan Sri Khalid said that Lam was not involved in the abduction. And that the abduction was tied up with some group in Thailand.
  5. It took sometime but we successfully convinced SUHAKAM to continue with the enquiry. On the basis that the charge against Lam and the issue of enforced disappearance were different. The latter was about whether or not the state (or any agency) was involved in the abduction, regardless of who had carried it out. SUHAKAM delivered a comprehensive and remarkably lucid judgment on this point.
  6. This charge against Lam: There is an incredulous paucity of information on the pace this case against Lam is proceeding. And a distinct lack of publicity. He is charged under section 365 of the Penal Code, which reads: Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. This implies that the police investigations show that Lam has secretly confined the person. What and where?

The Findings

  1. SUHAKAM found that:

 

  1. Both Amri and Pastor Koh were victims of enforced disappearance;
  2. The abduction was executed by or with the support of state agents -the Special Branch;
  3. Both were targeted for allegedly being anti-Islam.

The follow-up

  1. SUHAKAM’s long and thorough inquiry had established the ‘what’. And ‘how’. What remained was the ‘who’; who authorised it and who carried it out.

 

  1. The logical follow-up should have been to carry out an independent and thorough investigation focused on who perpetrated it and flushing out the culprits; and taking appropriate action.

 

  1. However, the government at first dithered, then appointed a taskforce whose membership raised grave concerns; and finally after the removal and resignation of some members, the taskforce seems to be on track to conduct and conclude their work.

 

  1. Nonetheless there are feedbacks of disquieting features as to the way the inquiry is being conducted. As a preliminary observation there seems to be no publicity as to its proceedings. What happened to the requirement for transparency and accountability?

As to other facets – prudence being the better part of valour – we need not air here as there could well be potential legal redress contemplated if there is dissatisfaction with the process and outcome of the taskforce in its investigation into the clear and damning findings of SUHAKAM.

Conclusion

1000 days of an unsolved clear crime is a grave blot to any functioning democracy. The government must leave no stone unturned to get to the bottom of this and restore Pastor Koh and Amri to the fold of his family and friends – which include all of us gathered here today.

While I have the floor, may I also add that as President of HAKAM, the National Human Rights Society (incidentally founded by our first and third Prime Ministers), and on its behalf we add our voice and commitment to the quest for the search for truth and justice in maintaining and upholding human rights; which includes our utter abhorrence and condemnation of this crime of ‘enforced disappearance’.

May this 1000 days’ event trigger a fresh resolve and impetus to banish from our body politic and country the scourge represented by the enforced disappearance of Pastor Koh and Amri.

 

Gurdial Singh Nijar (Dato’, Dr.)

16 November 2019

Hope for refugees in the new Malaysia? — Dennis Ignatius

Source: Free Malaysia Today

By Dennis Ignatius

One of the great failures of the former BN regime when it came to human rights was its dismal record in honouring its moral and legal obligations towards those fleeing political, religious or ethnic persecution in their homelands. For BN, it was all about political expediency instead of respect for sacrosanct principles.

Many genuine refugees and asylum seekers were hastily handed back into the hands of their tormentors, never to be heard of again. For quite a few, it resulted in long years of incarceration, torture, persecution and great anguish. That our nation was party to such terrible acts will forever be to our shame.

Among the more infamous cases were that of a Saudi blogger fleeing to New Zealand who was apprehended in Malaysia and sent back to Jeddah, several Turkish nationals living in Malaysia who were arrested in almost clandestine fashion and handed over to President Erdogan’s secret police, and dozens of Uighurs who were deported to China despite being registered with the office of the United Nations High Commissioner for Refugees. Read more

Call to make Internet access a constitutional right should be supported — Lawyers for Liberty

Source: Malay Mail

BY LAWYERS FOR LIBERTY

JUNE 12 — Lawyers for Liberty supports the recent call by Communications and Multimedia Minister Gobind Singh Deo to make Internet access a constitutional right, or at the very least a legal right.

Should this proposal become a reality, Malaysia will be the first Asian country to join the ranks of a growing group of mostly European states such as Estonia, Finland, Spain and France in ensuring that all citizens have a legal right to broadband access. More recently in 2016, the UN Human Rights Council declared Internet access a basic human right. Read more

AG’s appointment: Lessons learnt — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

AS THE saying goes, the greater the storm, the brighter the rainbow. Smiling colours beamed when the Yang di-Pertuan Agong finally consented to the appointment of lawyer Tommy Thomas as the 10th attorney-general of Malaysia/Federation of Malaya. After a cliffhanger thriller to the finish – as royalty prevaricated in the face of the prime minister’s insistence that the government’s choice was not negotiable.

The short announcement on behalf of His Majesty alluded to the King’s “disappointment and worry about inaccurate and negative media reports of late which could threaten peace and harmony in the country”. The country – barely over the euphoria of a change of government – heaved a welcome sigh of relief. A potential constitutional crisis saved from the brink.

Are there lessons to be drawn from this episode? Several, I believe.

Read more

Five stateless persons’ case postponed as AGC seeks Home Ministry’s instructions

Source: The Malay Mail

KUALA LUMPUR, June 4 — The Federal Court has deferred hearing five cases where five Malaysia-born persons want recognition as citizens, as the Attorney General’s Chambers (AGC) has asked for time to seek new instructions from the Home Ministry on how to proceed.

Senior federal counsel Suzana Atan, who represented the government and Ministry of Home Affairs, today told the court that the AGC was seeking an “adjournment for all matters pending fresh instructions from the Ministry of Home Affairs”.

The Federal Court’s five-man panel, which was chaired by Chief Judge of Malaya Tan Sri Ahmad Maarop, granted an adjournment of the hearing.

The other judges on the panel today are Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, Tan Sri Azahar Mohamed, Tan Sri Zaharah Ibrahim and Tan Sri Aziah Ali.

The hearing has now been fixed for July 23 and July 24.

Today was initially fixed for hearing of the five cases after it was rescheduled from May 30 and May 31, and also after several adjournments previously. Read more