Lawyers challenge Singapore attempt to use ‘fake news’ law over prison killings claim

From Free Malaysia Today

Lawyers for Liberty adviser N Surendran, flanked by Gurdial Singh Nijar and LFL director Melissa Sasidaran, talking to reporters. Pic from FMT.

Lawyers for Liberty (LFL) is seeking to declare as illegal an order issued by Singapore’s home minister, under its anti-fake news law, over claims by the rights group on brutal extra-legal execution methods carried out at the Changi Prison.

In a suit filed at the High Court registry today, LFL is also seeking a court pronouncement that the minister, or anyone acting under his authority, could not act to enforce any provision of the Protection from Online Falsehoods and Manipulation Act (Pofma).

“A correction direction issued by Singapore under Pofma is illegal, oppressive and an attempt to silence Malaysian citizens from exercising their right to free speech in Malaysia,” they said.

Apart from LFL, the other plaintiffs are its adviser, N Surendran, and director Melissa Sasidaran.

Minister K Shanmugam is named as the defendant.

The swift action came about after LFL claimed it had received evidence of such methods by prison guards in the event the hanging procedure fails during execution.

Surendran, who is also a lawyer, alleged that if the rope broke during a hanging, a prison officer would pull the rope that was around the neck of the prisoner towards him.

“Meanwhile, another prison officer will apply pressure by pulling the body in the opposite direction.” he had said.

Saying the details were shared by a former executioner at Changi Prison, Surendran said prison guards would kick the convict’s back “with great force in order to break it”, while ensuring there would be no tell-tale marks in case there was an autopsy.

Singapore said the claims were “untrue, baseless and preposterous allegations”, adding that all judicial executions in the state were carried out in strict compliance with the law.

It also instructed the Pofma office to issue a “correction direction” against LFL’s statement on its website.

Meanwhile, lawyer Gurdial Singh Nijar said this was an unusual action against Singapore as the penalty for violating Pofma carried a jail term.

“They can issue a warrant of arrest against Surendran and Melissa to face charges there,” he said.

Gurdial, who is taking up the case with Ambiga Sreenevasan, said the minister could rely on sovereign immunity in not responding to the suit but, at the same time, he had encroached into fundamental rights of Malaysian citizens.

“You cannot extend your laws against the citizens of another nation,” Gurdial said, adding that he hoped the minister would contest the action in the Malaysian court.

Meanwhile, Ambiga said it was imperative for the plaintiffs to file this action against the minister as the new Malaysian government has repealed its Anti-Fake News Act.

Meanwhile, in an affidavit in support of the action, the plaintiffs said LFL’s statement issued on Jan 16 was in the public interest as there were many Malaysians facing the death penalty in Singapore.

They said the minister issued an order to do a correction and failure to do so was an offence under Pofma, which carried a fine of up to S$20,000 or a maximum jail sentence of 12 months for individuals.

They said LFL had issued a press statement three days ago dismissing the minister’s stand.

Transparency the key to trust

From the Sundaily

WE the people need to have faith in the government. Believing in what it says and does. And its promises for the future. For this to happen, the government must disclose its plans and policies in a way that is easily understood by the people. And then engage them in a participatory process, seeking their feedback and shaping its policies and plans to accord with the wishes of society. This requires it to be transparent to help strengthen citizens’ trust in policymakers and thus enhance the accountability of public administrations.

In short, transparency is the key to citizens’ trust. This appears to be sadly lacking in the New Malaysia as pointed out at a forum organised by the National Human Rights Society (Hakam) last weekend. It centred around the failure of the government to release the report of the Institutional Reform Committee (IRC). Recall that the reform agenda was central in PH’s election campaign: reforms to ensure that public institutions will be insulated in the future from being subverted. Prime Minister Tun Dr Mahathir Mohamad in his recent Che Det blog posting acknowledged as much. That PH took over from a kleptocratic government, which among other ills, had “destroyed its finances, undermined its administrative agencies and abused the laws … and generally undermined the moral of the people”.

What is now taking the wind out of the sails of reform is the refusal of the government to release the reports not just of IRC but as well that of its superior body – the Council of Eminent Persons. The people participated in these processes with an unrestrained gush of passion and enthusiasm. And the IRC’s panel worked tirelessly to produce its recommendations.

The expectation was that this new participatory process would form the new ethos of good governance. Resonating with the caution delivered by Lord Bingham head of the UK judiciary in a 2003 court decision (R v Shayler): “There can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Experience shows that publicity is a powerful disinfectant”.

You can hardly blame the electorate for handing a litany of by-election defeats to PH and its allies. An unconditional declaration of its disillusionment. And, charitably, the expectation that the government will heed the signals and return to the path of delivering on its promises with public involvement. Promises which roused the electorate to sweep it into power.

Let’s survey the “disenchantment landscape”. First, the laws either enacted or employed by the previous government in its twilight years to suppress the people – laws like Sosma and the Sedition Act.

All are very much alive and kicking under the new regime. I remain convinced that the IRC made concrete and incredibly useful recommendations for reform, which the government has kept under wraps. The peoples’ disenchantment was reflected in a well-patronised vigil last Saturday against the continued use of these laws.

Then there is a cheerful and optimistic forecast of the economy. When the reality may not be quite that – with ministers telling us that all is hunky-dory, as a columnist wrote in the Sunday Star. The cost of living is the biggest problem. On the ground, SMEs, retailers and hawkers will tell you their business is bad, by one account. The cost of doing business is high, they complain. There have yet to be solutions proffered, discussed and implemented that inspire confidence in the rakyat that all will turn out for the better sometime soon.

Then the lack of verve and commitment to curb strident voices spewing hatred that spawns racial disunity and religious animosity. Racial and religious disunity is at an all-time high.

An opposition leader recently spoke of ministers talking without a clear policy and considerations of the viability of the projects they propose. And that Cabinet ministers leave meetings saying they do not agree with some decisions. While there may be little truth in these allegations, yet these views gain currency when the people are delinked from policy formulation and implementation.

Such is the frustration that it led Ambiga, a member of the IRC, to announce at Hakam’s forum that people will take to the streets if the promised reforms fail to materialise timeously.

The message is clear. Gain the trust through transparency. The quality of transparency, like “mercy” in Shakespeare’s Merchant of Venice “… is not strained. It droppeth as a gentle rain from heaven upon the place beneath. It is twice blessed. It blesseth him that gives and him that takes”. So it benefits the government and the governed.

Trust and accountability go hand in hand. Trust in political institutions is a key element of representative democracies. Trust in the rule of law is also the basis for democratic participation of citizens. All clear indications that trust is an essential condition of good governance.

Dato’ Dr. Gurdial Singh Nijar is the President of HAKAM.

Institutional Reform Committee (IRC) Report: Why the Secrecy? HAKAM Forum dated 18 January 2020

“IRC Report: Why the Secrecy?” was the first HAKAM forum of 2020, held on 18 January 2020 at the KL and Selangor Chinese Assembly Hall. The well-attended forum started at 10:00 am and was led by a panel of distinguished guests, who all had been involved and well-informed of the IRC process; Dato’ Ambiga Sreenevasan (IRC member and former President of HAKAM), Ms. Siti Kasim (Maju), and Mr. Sevan Doraisamy (Suaram) and the panel was moderated by Dato’ Dr. Gurdial Singh Nijar (HAKAM President). The presentations of the forum speakers were followed by a Q&A session, and the forum ended at 12:00 pm.

In October last year, prime minister Tun Dr Mahathir Mohamad said the confidential report by the IRC and its seven recommendations that have been passed to the quasi-official Council of Eminent Persons can only be made public once all Pakatan Harapan (PH) component parties agree to it.

Key points from the forum on the issue of the release of the IRC Report to the public included:

  • Dato’ Ambiga suggested a pilot pilot project by “releasing just one set of recommendations [by IRC] and see whether the government falls down the next day.”
  • Dato’ Ambiga said she does not know the real reason why PH did not want it to be released but she would “charitably” assume that it is because of public and voters’ perception towards the already much-criticised administration.
  • By withholding the report, the government has denied the public and their own supporters the opportunity to be involved in making the country a better place, something that was promised by PH when they rolled out their election manifesto before 2018 election.
  • Siti Kasim pointed out that transparency is the cornerstone of good governance, hence the Pakatan Harapan (PH) government should make public the Institutional Reforms Committee (IRC) report.
  • Sevan suggested that all CSO and NGOs who have contributed to the making of the report, can release their own recommendations to the IRC, which in effect is a major part of what the IRC has referred to in its process, and this way the public can have access to the institutional problems pointed out and recommended reforms.
  • Dato’ Dr. Gurdial mentioned that HAKAM has been following up the release of the Report with the PM, Tun Dr. Mahathir Mohamad and will continue to do so until the people can know the content of the report.

Gallery:

HAKAM wishes to thank everyone who came to the forum and the media for covering the event. See you all next time!

HAKAM Forum Media Coverage:

The Malay Mail Online

Malaysiakini

Malaysiakini

The Malaysian Insight

Sinar Harian

 

Disclosure of audio clips by MACC: Legal or not? Statement Dated 11 Jan 2020

Statement published in Malaysiakini

HAKAM Statement on Release of Audio by MACC Dated 11 Jan 2020

The recent disclosure of a clutch of videos by the MACC chief Latheefa Koya has predictably attracted wide public comments. Concerns raised include such issues as the right to privacy, right of an accused to a fair trial. In short, issues that deal with human rights, which are within the remit of this society.

Two matters are of direct relevance. First, the legality of the disclosure. Secondly, the issue of transparency.

Legality

The MACC is invested with the power to receive complaints and pursue investigations. It then can forward the papers to the relevant authority for further action, which could be to further the investigations or to prosecute any alleged offender.

In this case, it is obvious that the MACC had embarked on investigations. For example, it confirmed the authenticity of the tapes as well as the actors.

It also made a preliminary assessment that the contents had potentially violated various laws: including the Official Secrets Act 1972, abuse of power, subverting the course of justice and corruption. Some involve its jurisdiction; others that of the police. Hence it passed the papers on to the police as well to continue with investigations for matters within their scope. So the MACC acted squarely within its statutory powers.

Public disclosure

Some say that there should not have been any public airing of the tapes. And that the MACC should abide by the outcome of the investigations and present this video evidence in court if anyone is charged.

The issue then is: whether this disclosure by the relevant authority wrong in law.

It is not unusual for the disclosure of evidence in relation to ongoing investigations by the relevant authorities – even before investigations are completed and any charges levied. For example, the US Department of Justice publicly outlined in great detail the facts and evidence in relation to the 1MDB money-laundering matter – before any action was instituted.

Granted that this is not normally done. But here we are dealing with matters of grave public concern – involving an erstwhile PM who holds the position of public trust. He is accountable to the country and its people. Any breach or compromise of that trust must necessarily be of immediate public concern and interest.

Such information ought not to be kept under wraps. Else it may suffer the fate of the earlier 1MDB scandal investigations. Which, as we now know, were scuttled by the investigating authorities at the behest of high authority. The then head of MACC was if these tapes are to be believed and proved, complicit. As were many others. Essentially to stultify action against wrongdoing. But for the change of government, all alleged high crimes would have been dead and buried.

Surely that is not what we should wish to revert to. Opaque transparency which leads to the subversion of the course of justice.

Not normal crimes

This case must necessarily be distinguished from normal crimes – even heinous ones committed by individuals. Crimes such as murder and the like. These are essentially between private persons.

But in cases involving the wider public interest – involving the head of government, different considerations apply. Examples abound throughout the world. In the US in three recent cases where the president was alleged to have been involved in illegal activity, the entire facts of the investigations as they proceeded, were laid bare to the public.

Recall the Watergate scandal involving illegal wiretapping at the behest of President Nixon – which led to his resignation. Also, the Monica Lewinsky sex scandal involving president Bill Clinton. Currently, there is the ongoing disclosure of allegations against President Donald Trump regarding his alleged conduct involving trading favours with the Ukraine president.

Nearer home, the public has routinely demanded answers from the investigating authorities on the disappearance of pastor Raymond Koh, Amri Che Mat, Ruth Stepu and Joshua Helmi.

Nature of the alleged wrongdoing

The alleged wrongdoings are huge. First, subverting the course of justice. Seeking to cover up a crime by manipulated contrivances – such as creating evidence to justify an alleged wrong is a grave crime. It is an offence separate and distinct from the ongoing 1MDB or SRC criminal prosecutions.

It works like this. An accused seeks to tamper or subvert witnesses or evidence in relation to a case by asking them to lie or create false documentation. This is after a prosecution has been commenced. Law reports are studded with a litany of successful prosecutions in such cases.

Then there is a case of seeking favours from the head of another country. Favours given must be returned. This could well impact the country’s sovereignty. It is in this context that the spectre of national security was raised by Latheefa. Note that Trump’s impeachment proceedings were commenced precisely on this national security concern.

The disclosure by the DPP seconded to MACC from the AG’s chambers (later made its chief) of ongoing investigations to the alleged wrongdoer compromises the integrity of the MACC and the government.

Latheefa’s public disclosure of these alleged offences now insulates them from any manipulation by anyone. In short, no one can now surreptitiously interfere. The public will be effective gatekeepers.

Is it sub judice?

As indicated, the facts disclose offences that are distinct from the ongoing prosecutions. Hence no question of sub judice arises. In any event, sub judice arises when disclosure will prejudice the mind of the judge.

Our judges are trained to decide cases on the facts as adduced in court. Any failure to evaluate the evidence and consider with cogent reasons the evidence presented by an accused is routinely corrected by our appellate courts.

Is it contempt?

Contempt happens when one interferes or jeopardises the administration of justice. For the reasons aforesaid, there is hardly any basis for contempt. Indeed the disclosures reveal an attempt to interfere with the due administration of justice.

Disclosing investigations to potential wrongdoers so that they can cover up their tracks; or to solicit documentation to justify money laundering is what strikes at the due administration of justice.

Is reliance on the tapes legal?

Quite obviously, the tapes have been provided by a whistleblower. Any person who discloses any alleged crime to the authorities such as the police or the MACC is protected by the Whistleblower Protection Act 2010. He or she is entitled to confidentiality and is also protected against any retaliatory action.

Latheefa is hence justified in not disclosing the source of the videos as yet. Interestingly, Trump’s efforts to get the name of the whistleblower who provided tapes of his conversations relating to the Ukranian president has been consistently refused by the House of Representatives.

Right to privacy

Indeed this is an invaluable right that ought to be protected – although it is noted that there is no such right in the law of tort recognised as yet in Malaysia. In any event, the right to privacy has to yield to the wider public interest in upholding the rule of law. The right to privacy cannot prevail to prevent the disclosure of a crime.

Bank Bumiputra Malaysia Berhad (BBMB) founder Lorraine Osman’s efforts to prevent the disclosure of evidence (including of monies held in lawyers’ accounts) was rejected by our courts as there is no protection or privilege from disclosure of any communication made in furtherance of any illegal purpose or of a fact showing that any crime or fraud has been committed. See AG Hong Kong v Lorraine Osman [1993].

Significantly, taped conversations of potential terrorist acts have been relied upon routinely in curbing such acts by almost all functioning democracies. Ultimately, in any prosecution, the accused can question the authenticity of the tapes and the purport of its contents.

Motive

Finally, aspersions have been cast on Latheefa’s motive for the disclosure. Including a tie-up with a pending by-election. This is a red herring. One should address the legal issues; which this statement seeks to do.

Conclusion

It is understandable that concerns have been raised for this rather unusual and dramatic disclosure of the tapes. But given its legality, as explained, should not we applaud the MACC for disclosing the acts that seem to compromise the trust and fiduciary duty placed in our leaders?

After all, transparency, which leads to accountability, is pivotal to the Rule of Law.

 


GURDIAL SINGH NIJAR is the president of the National Human Rights Society (Hakam) and former law lecturer at Universiti Malaya.