Motion of no confidence against PM explained

From Focus Malaysia

THE Speaker of the House of Representatives (Dewan Rakyat) has accepted a motion by Tun Dr Mahathir Mohamad, MP for Langkawi, that the present prime minister (PM), Tan Sri Muhyiddin Yassin, does not command the confidence of the majority of the Dewan. 

The speaker said he made this decision to be fair and just and to uphold the integrity of the Dewan and Parliament. He is perfectly within his rights to so decide.

What next?

The motion must be put (tabled) at the sitting of the Dewan. There will be a debate on the motion, at the end of which there will be a vote by MPs present in the Dewan.

If the motion is carried, by a simple majority of those present and voting, then the PM must tender his resignation together with that of his Cabinet.

The PM may also, instead of tendering his resignation, request the King to dissolve Parliament. The King is not obliged to agree to the request. Recall that the then sitting MB of Perak made this request to the then Sultan Azlan Shah of Perak in the Perak State Assembly crisis. The request was not acceded to. Read more

State vs federal impasse over conditional MCO

From Focus Malaysia

THE federal government has relaxed the Movement Control Order, essentially to allow businesses to operate, subject to certain conditions. This was done through fresh regulations (No 5) under the Prevention and Control of Infectious Diseases Act 1988. The prohibition for the conduct of certain business activities was removed.

Several state governments have issued their own orders. The effect is to prohibit certain activities that have been allowed under the federal regulations (No 5).

This brings into sharp focus the issue of whether the state governments can issue such orders.

Under the Federal Constitution (Article 81), state governments are obliged to make sure that states comply with federal law, and that their action does “not impede or prejudice” the federal government’s authority.

In short, they must comply with regulations as these are part of federal law, or it will be a violation of the state’s constitutional obligation.

So, any abridgement of the federal law’s reach, or orders that are inconsistent with it, will constitute as non-compliance. Read more

Kenyataan Atas Siasatan Polis Tashny Sukumaran – HAKAM Youth

Pemuda HAKAM merakamkan solidariti untuk wartawan South China Morning Post (SCMP), Tashny Sukumaran yang kini sedang disiasat oleh pihak polis di bawah Seksyen 504 Kanun Keseksaan dan Seksyen 233 Akta Komunikasi dan Multimedia 1998 selepas menerbitkan suatu artikel pada 1 Mei 2020. Artikel tersebut adalah berkenaan serbuan yang dijalankan oleh pihak berkuasa ke atas warga migran dan pelarian secara besar-besaran semasa pandemik COVID-19.

Artikel Cik Tashny yang dikatakan “membangkitkan pecah keamanan” merupakan artikel yang penuh berfakta. Operasi serbuan yang dijalankan baru-baru ini telah mengundang pelbagai kritikan kerana tidak mematuhi langkah penjarakan sosial sempena pelaksanaan Perintah Kawalan Pergerakan. Beratus-ratus orang termasuk kanak-kanak telah ditahan dan dibawa ke pusat penahanan yang penuh sesak, maka potensi peningkatan risiko jangkitan virus dan pembentukan kluster baru menjadi tinggi. Ironinya, pihak berkuasa menerangkan bahawa operasi tersebut diperlukan untuk mengelakkan migran yang tidak berdokumen daripada bergerak ke kawasan lain supaya perebakan virus dapat dihentikan. Read more

Punitive versus facilitative police action – Statement dd 4/3/2020

Last week a number of people were shown being bundled off in police vans. All handcuffed. Later remanded in police lockups. And subsequently, charged in court. Facing potential punishment of fines and even imprisonment.

Photo from the Star Online

Even earlier, I am sure many were startled to see the police pdfleading an accused down a court stairway. Shirt ruffled, hands behind his back, shackled. He will be tried soon, the narrative said.

These are not some high criminals. They are ordinary members of the public who were found outside their abodes during this Covid-stricken stay-home lockdown. Ostensibly, for violating measures and laws.

Charges can be laid under section 269 of the Penal Code for the offence of committing a negligent act likely to spread infection of any disease dangerous to life. The offence carries a six-month jail term and/or fine upon conviction. As well as under rule 3(1) of the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020, which carries a RM1,000 fine or six-month jail term. Read more

Treat undocumented workers right – Statement dd 24 March 2020

The statement by Senior Minister Datuk Seri Ismail Sabri Yaakob that undocumented migrants who attended the tabligh gathering in Sri Petaling will not be penalised if they come forward to be screened for Covid-19 – was assuring, although we wish it could have come much earlier.pdf

However there is a huge trust deficit between the government and these workers – because of how shoddily and uncaringly they have been treated in the past by the authorities.

To gain their confidence, the Minister must come out with a clear written public declaration which must also be addressed to all the relevant agencies – like the immigration and the police.

We must understand that all this while we, the Malaysian public, has enjoyed their services in restaurants, petrol stations, retail stores, markets, offices, and the like. They are at the bottom of the scale, have scant protection and get by on dismal wages. Living in sub-conditions and away from their distant families and friends. A kind of isolation that we are only now beginning to understand – and sometime even complain about. Read more

DEMOCRACY UNDER SIEGE with Emeritus Professor Shad Saleem Faruqi: An Overview

This piece is written by HAKAM Youth, following a Facebook Live with Prof. Shad Saleem Faruqi on 4 March 2020

Democracy under Siege?
With the formation of a “backdoor government”, one tends to wonder: what of democracy, then? Democracy is more than the political executive; the government is under siege, indeed, but “democracy” is a broader, richer, more beautiful concept. Other institutions play a role, and they are playing it well—the judiciary is still in place, a civil service is still running, there are no riots involving tear gas… This sets Malaysia apart from the other nations.
In our country, democracy is alive. The fact that this forum took place indicates that it is. But, of course, there are many ways to fortify it.

Defining “Democracy” in Malaysia

There is no simple definition, for “democracy” consists of principles. Perhaps it is well to say that it cannot be defined—the way you cannot define “sunset” and “sunrise”—
but it can be described. Like how you would recognise “sunset” for the varying hues of the sky and the noise of night creatures coming to life each minute leading into nightfall, “democracy” is identifiable for its attributes. Most notably, the government must be answerable and accountable to the people, and the people should have the
right to change the government periodically.
Normally, “democracy” is associated with a decision-making process which requires prior discussion. Besides, this term is often associated with elections, an independent judiciary, and the recognition of human rights, especially the right to dissent.

The Right to Dissent

To what extent can the citizens demand for the enforcement of democracy? As a constitutional monarchy, there exists a glass ceiling above the rights given to the people in Malaysia. Take the right to assemble, for instance. On one hand, there is an argument that as a democratic country, the people have the inherent right to assemble and protest,
especially in light of the recent formation of the “backdoor government”. On the other hand, this right has limitations. One aspect not often borne in mind on the right to dissent is this: the right to demonstrate peacefully. To illustrate, an individual who is rich or resourceful may be able to find their platform through the media. However, the only way for the poor and the everyday worker to express their pain and sorrow is by going out to the street with placards. Dissent is a part of democracy. Discussion before decision. It is undeniable that in some respects, democracy is a chaotic form of living as compared with autocracy. Where the power to decide lies in the people, there will always be differences in opinion. These opinions are allowed to be expressed, and efforts are to be made to
reconcile them. In Malaysia, we have only had 14 general elections; in Malaysia, democracy is young, democracy is emerging. With changes in the law, there is hope.

On that note, Professor Shad mentioned that he was part of the team to assist the Attorney General in the repeal of Section 27(5) of the Police Act and the drafting of the Peaceful Assembly Act, and he noted how the Peaceful Assembly Act was not enforced in the spirit in which it was passed. Under the Act, there is no requirement of
prior permission, all that is required is a notice. The spirit is this: the police should be informed of an assembly, so as to manage, and not prohibit. If properly enforced, the police can therefore become the facilitator, instead of the prohibitor.

The law itself is taking the middle path — demonstrations are allowed, but only in ways which do not amount to a trespass.

Protests against the “Backdoor Government” Formation

The “backdoor government” referred to is the situation where the electorates in 2018 have chosen to reject a particular coalition to elect another. It is conceded that at some point in time, the government in power has lost track of its actual aims. Constitutionally speaking, where the government collapses for whatever reason, be it the death of the Prime Minister or his resignation, or the break-up of the coalition, the Yang Di-Pertuan Agong has to appoint someone in the Prime Minister’s stead. Ideally, the individual appointed should be required within a framework of time to prove to the Yang DiPertuan Agong that he holds the confidence of the majority. The method of proving need not be a vote on the floor of the House.
In this case, the Yang Di-Pertuan Agong adopted an unprecedented measure of interviewing all the Members of Parliament—a tremendously idealistic and conscientious effort on the part of the Yang Di-Pertuan Agong. However, the situation became unstuck because of the constant changing of the minds of the Members of Parliament.

The Right to Dissociate and Re-Associate

Article 10(1)(c) of the Federal Constitution includes the right to dissociate and reassociate. There is a right to diffract and cross the floor. However, Article 10(1)(c) is subject to Article 10(2)(c). Freedom to associate is subject to restriction, one of which is morality. Unfortunately, a narrow view is taken to interpret “morality”, and it does not
include political morality.

“More Likely to Command the Confidence of the Majority of the Members of that House”

Article 43(2)(a) of the Federal Constitution states that “the Yang Di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a  member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House”. It is wisely drafted because in order for an individual to command the confidence of the majority, there must be a
clear-cut majority of that house.

Interim Government

An interim government is not unconstitutional.

As there cannot be a political vacuum where the Prime Minister has resigned, the Yang Di-Pertuan Agong had to appoint an interim Prime Minister. Whether His Majesty should have appointed the Deputy Prime Minister as Acting Prime Minister or ask the resigning Prime Minister to act as interim Prime Minister, that is a matter for His Majesty. Article 43(2)(a) of the Federal Constitution provides that if during the dissolution, a Prime Minister is to be appointed, he must come from the previous government. As long as the government proves it holds the confidence of the majority as soon as possible, it is not unconstitutional. An interim Prime Minister must not make major decisions, for he is there to hold the fort. He should not appoint or dismiss judges, nor should he make new commitments in terms of economic policy. In Australia, there are clear cut conventional guidelines of what a caretaker Prime Minister can or cannot do, and perhaps it is time for us to evolve such guidelines. The law is silent, but ethics clearly demands that one who does not have the legitimacy of the floor of the house should only keep the day-to-day affairs moving.
Oddly enough, in our situation, Tun Mahathir as interim Prime Minister announced the package for the COVID-19 Outbreak. It can be seen as a non-controversial emergency, as he was dealing with a health emergency and he was in office for some time.
Generally speaking, however, an interim Prime Minsiter should not be making large and long-term commitments as such.

Unity Government

As the Malaysian system is partisan, the idea of a unity government is not contemplated by the Federal Constitution. In our system, there has to be debate, there has to be conflicted opinions, the majority must try to work out a middle path to reconcile conflicting interests. However, to clarify, Professor Shad is supportive of the idea of a government which is as inclusive as possible in terms of race, religion, region, and gender.

The Reliability of a Statutory Declaration

The issue of a statutory declaration lies in its unreliability. There is nothing illegal or invalid about proving the majority of the House through a statutory declaration. The most politically reliable way to determine the majority of the House is to appoint any interim Prime Minister, call an emergency session of the House of Representatives
within 7 to 10 days, and have the interim Prime Minister prove his support on the floor  of the House. However, this way may not be the most workable way if the interim is unable to get a majority.
There is a problem in our system, our structure. Article 43 of the Federal Constitution states that the Prime Minister must command the confidence of the majority of the members of the House, and if that majority shifts or changes, even a vote of confidence may no longer be reliable. Our system is adopted from the English Westminster system,
which presumes a certain amount of political maturity, political ethics and political stability. At this particular moment, Malaysia does not have those traits.

General Election or Minority Government?

To call for a general election is not economically, politically or security-wise desirable at this moment. Therefore, an alternative would be to form a minority government, which is a government that does not have a majority on the floor of the house, but is able to do the consensual tasks, such as passing the budget or other important
legislation. One has to remember that a minority government is implied to be weak, because the Prime Minister has to cobble together in majority to pass a motion and will have to rely on individual Members of Parliament to get that 51%.

Where there is a Successful Vote of No Confidence

Where there is a successful vote of no confidence in the new Prime Minister, but he refuses to resign, the Yang Di-Pertuan Agong may withdraw the appointment. The Federal Constitution does not provide the Yang Di-Pertuan Agong the power to dismiss
an appointed Prime Minister. However, His Majesty may withdraw his appointment and
appoint another individual.

“Royal Prerogative” is a Dangerous Word

Prerogatives are by definition inherent, non-statutory attributes of the monarchy. Generally, the power of the Yang Di-Pertuan Agong to appoint a Prime Minister or to dissolve Parliament is not a prerogative, but a constitutional power. A better suited term in the context of Malaysia is “reserved power”.

Dissolving the House of Representatives

The Yang Di-Pertuan Agong has a clear-cut discretion to refuse the advise of the Prime Minister to dissolve the House of Representatives under Article 40(2)(b) of the Federal Constitution. His Majesty is to use His Majesty’s wisdom and experience to look at the total security and economical system of the country.
However, the Yang Di-Pertuan Agong should not dissolve the House of Representatives on His Majesty’s own accord. This is because it would be bad for democracy and monarchy. Article 40(2)(b) of the Federal Constitution should them be interpreted narrowly to say that the Yang Di-Pertuan Agong has an undrafted discretion to consider several alternatives.

Declaration of Emergency under Article 150 of the Federal Constitution

The power under Article 150 of the Federal Constitution is subject to Article 40(1) of the same. Therefore, as with the power to dissolve the House of Representatives, the power to declare an emergency under Article 150 of the Federal Constitution is said to be exercised on advice and is not a reserved power of the Yang Di-Pertuan Agong.
Should the political climate continue or be at stake, is there a possibility of the Yang Di-Pertuan Agong declaring emergency? Arguably, yes. “Emergency” is defined to not only include war, but also the collapse of a civil government.

Postponement of Parliament Sitting

Memorandums can be submitted to urge the government to revise the postponement. However, ultimately, it is necessary for the Yang Di-Pertuan Agong to order the Speaker to issue a notification to all Members of Parliament to have an emergency session.

The Impact of the English Cherry v Miller Case

An unprecedented scan by the English judiciary, the decision is very significant. However, whether our court will say the same is anyone’s guess. In constitutional and administrative law, there exists the principle of non-justiciability, which means there are certain issues which are best to be resolved by political or other remedies.
These dangerous, difficult theories and political issues are best avoided by the courts. Courts are legal institutions, not political institutions. While there is already a legal challenge on the validity of the appointment of Tan Sri Muhyiddin as Malaysia’s new Prime Minister, it is for the good of the judiciary to reserve judicial independence.

Cleansing the Government of the 1MDB Cases

There is legitimate fear that the accomplishments of the previous government will be reversed or neutralised, and there is fear that the cases made against those accused to be discontinued However, Professor Shad hoped that the new government would ensure that his cabinet is inclusive, competent with technocrats and does not consist
of those prosecuted or has a case hanging over their head.

Two-Party System is the Root of our Problem?

In Malaysia, our Parliamentary system emphasises on political parties and loyalty of the floor. Whether there are two or twenty parties, coalitions are bound to form, and in Malaysia, they are formed based on race, religion and identity politics. Unfortunately, there is no workers’ party or green party.
Around the world, parliamentary democracies have attracted good reforms, but they do not last long. In England, legislation has been passed for there to be a fixed term parliament, where it is for five years, and the only way to overturn this is to have a twothird majority vote from the floor of the House. In Bangladesh, the system was reformed so that once the Prime Minister calls for a dissolution, he must step down, and the  President would appoint a caretaker government consisting of technocrats, retired judges and retired civil servants to steer the country impartially through the election period. Unfortunately, the present government amended to constitution to repeal the reforms in place. Known to have a very vibrant democracy, Nepal used to have a provision that a hung parliament would come into being where no individual could achieve a majority. The faction with the largest number of seats would then get the first bite of the cherry. Certainly, the reforms made by these nations can serve as a
constitutional guidance for Malaysia.
However, adopting such reforms into the Malaysian system will require drastic constitutional amendments, which would involve Federal and State Constitutions. It is possible, but such amendments may be a problem for the basic structure of the Federal Constitution. The judiciary would then be at risk of being accused for determining fundamental issues under political perspectives.

Recommendation of Constitutional Amendments

In order to prohibit the current political issue from emerging again, anti-defection law— anti-party hopping law—is necessary. Of course, there are cases where party hopping was not done out of selfish motives. For instance, where a Member of Parliament genuinely disagrees with their party’s abuse of preventive detention law and wishes to
leave the party. Changing of parties is allowed, but when this happens, such individuals should return to the electorate and be re-elected. If the hopping was done too close to the next election, the individual should vacate his seat and be prohibited from holding a position in the cabinet or any important position in the administration for two years.
This is to prove that the act of party hopping was out of ideology or conscience rather than for a clear political or monetary motive. Still, it would be difficult as such a reform would require a two-third majority to amend and insert an anti-party hopping clause into Article 10(1)(c). Perhaps an interparty majority may be able to achieve that.

Parting Words

The spirit of our constitution in 1957 and 1963 was one of moderation, accommodation, and tolerance to our sentimental product. Professor Shad believes that we have been fortunate; we may not love each other, but we do not hate each other. As mentioned earlier, if what had happened to Malaysia happened elsewhere in Asia or Africa, there
will be a riot—massive demonstrations and killings. Instead, while the drama was unfolding, the Yang Di-Pertuan Agong was distributing McDonald’s and Kentucky Fried Chicken to the reporters waiting outside His Majesty’s gates.
Our constitution is a document of moderation, and in the first decades since her independence, Malaysia was a country of give and take, of intercultural, integration, and interreligious respect. However, in 1969 the bubble burst, and since then we were able to restore certain amount of racial and religious harmony. Sadly, things were no
longer the same, and the country has proceeded towards the wrong direction. While other countries work towards victory, snatching them in the jaws of defeat, we were  already victorious; we already have the necessary ingredients of a developed nation.
However, we went backwards.
Still, Malaysians are a moderate people; Malaysians aim for equality, and leaders of substance do not follow after opinions with guns and rallies of opposition, but with the power of souls. That is the essence. A strong leader is not afraid to say “no, that is not right.” There is awareness among the local youth—in UiTM, in UM—that Article 153 of
the Federal Constitution is being abused by the elites with private agendas. That is the reason why this country is so peaceful and progressive.
Professor Shad is hopeful that the Malaysian youth will make the right sort of differences; that we do not want policies to be based solely on race and religion, that we actually want the government to recognise the importance of uplifting our identities
as “Malaysians”. That is the biggest agenda today—greater interracial, interreligious communities with interreligious tolerance and appreciation of our differences.

Written by
Members of HAKAM Youth
HAKAM Youth is a committee under HAKAM, the National Human Rights Society

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.

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.

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. 

HAKAM Youth is here!

HAKAM is proud to announce the establishment of the youth wing of HAKAM, HAKAM Youth! It is our pleasure to have a team of enthusiastic and committed young students to join us fight for human rights in Malaysia. The Youth subcommittee is an independent subcommittee and HAKAM wishes them the best of luck in all their efforts. We can all expect great things from the future generations of human rights advocates in Malaysia, and for HAKAM this is just the start. 

From HAKAM Youth Faceook

Gather around, ladies and gents, do we have some news for you: HAKAM Malaysia bore its fruit and a new seedling has sprouted!

HAKAM Youth is a subcommittee under HAKAM Malaysia, comprising of passion-driven youths aiming to ignite the desire in Malaysian youths to promote, preserve and defend human rights.

The HAKAM Youth team currently consists of Corina Robert, Iqbal Harith Liang, Jean Lee, Seah Eu Hen, Nisa Muzamir Shah, Thomas Tan and Stephenie Mangharam!

Armed with around two decades of experience and the skill sets we have honed during that period, we hope to bring to to your attention current issues surrounding the rights of Malaysians through our activities. Our end goal: pragmatic solutions.

So buckle up, because we’re in for a heck of a ride!