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!

In blow to Sosma, High Court allows DAP rep detained over LTTE links to seek bail

From the Malay Mail

KUALA LUMPUR, Nov 29 — Lawyers acting for G. Saminathan convinced the High Court today that the DAP assemblyman was entitled to bail despite the invocation of the Security Offences (Special Measures) Act for his detention, according to Bernama.

G. Saminathan was among 12 people including Seremban Jaya assemblyman P. Gunasekaran who were detained using the Sosma and charged over alleged links to the Liberation Tigers of Tamil Eelam. Pic from the Reuters

Provisions of the security law that allows detention without trial prohibit bail.

Saminathan was among 12 people including Seremban Jaya assemblyman P. Gunasekaran who were detained using the Sosma and charged over alleged links to the Liberation Tigers of Tamil Eelam.

The Malaysiakini news portal reported judge Mohd Nazlan Ghazali as finding that the Sosma provision that barred the courts from considering bail to be unconstitutional as it effectively allowed the executive to override the judiciary, violating the separation of powers among the different branches of government.

The landmark decision will also benefit the others still detained using the preventive detention law despite already being charged with supporting or possessing material related to the defunct Sri Lankan terrorist group.

Lawyer Ramkarpal Singh, who represented the DAP lawmaker, previously argued that the provision denying Sosma detainees bail was an overreach of the constitutional article that allowed the passage of security laws that may infringe on some civil liberties.

Among others, he said this effectively usurped the role of the judiciary as well as its lawful discretion in such matters.

On November 1, the Sessions Court decided that there was merit in the application filed by Saminathan and 11 others to challenge their prevention of bail under the Sosma and referred the matter to the High Court.

Aside from Saminathan and Gunasekaran, the others detained are V. Balamurugan; S. Teran; A. Kalaimughilan; S. Chandru; S. Arivainthan; S. Thanagaraj; M. Pumugan; R. Sundram; V. Suresh Kumar and B. Subramaniam.

They were variously arrested in October and charged at the end of the month with offences related to the LTTE.

The Sosma was among security laws the Pakatan Harapan coalition had suggested it would repeal while campaigning in the 14th general election but which it has since said would simply be reviewed now that it is in power.

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

Why Sosma must go – the Sundaily

SECURITY Offences (Special Measure) Act (Sosma) is in sharp focus once again. With the arrest and charging of 12 men over purported links to the defunct terrorist group, Liberation Tigers of Tamil Eelam (LTTE). The men have been slapped with charges under the Penal Code – which criminalises acts that solicit or give support to terrorist groups or the commission of terrorist acts.

Sosma regulates the trial of these offences and does not create the offence.

This is how it works. For certain designated “security offences”, the person can be arrested, imprisoned and tried in court using special Sosma procedures. These are completely at variance from the regular criminal procedures that criminal courts have been using all this while.

To begin with, a police officer can arrest a person without a warrant of arrest and his period of detention extended to 28 days – entirely based on the police officer’s “reason to believe” that the person is involved in a security offence.

Whereas in normal criminal cases, he must be brought before a magistrate. The police must then justify his detention. The magistrate scrutinises the reasons and decides whether or not to allow the detention; and, if so, for how long – usually a couple of days.

This is an important safeguard provision. As explained by Justice KC Vohrah in Re Detention of R Sivarasa & Ors. So that “… the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the Federal Constitution”.

This safeguard is eliminated by Sosma, thus resurrecting ISA’s detention without trial.

As indeed happened when former Bersih chief, Maria Chin Abdullah was arrested and imprisoned under Sosma on the eve of the last Bersih rally. For this wrongful detention she was recently awarded damages.

Sosma was also used to arrest and imprison a lawyer and his client for their act in reporting the misappropriation of 1MDB-related funds to the Swiss attorney-general. Alleging that they were sabotaging the banking and financial services of Malaysia. The Court of Appeal threw out the charge on the ground that such a charge could not be the subject of Sosma. Also struck out in another case was a Sosma charge of making fraudulent travel passports.

A crowning obnoxious provision is that a person is denied bail even after being acquitted by the trial court. So this innocent person remains in jail for all the long years it takes for the court appeal process to be exhausted and the appeal finally disposed of.

As the present Chief Justice Tengku Maimun made clear in PP v Khairuddin, a person thus denied bail loses his liberty. And the right to the constitutionally-guaranteed fundamental rights and freedoms.

Women and persons below 18 years will, in lieu of bail, be shackled with an electronic monitoring device. Abolished as well is the usual mandatory requirement to give the accused his prior written statement to the police; or any documents or written facts favourable to the accused before the trial starts. A mere summary suffices. Nor is there a right of appeal to get any such information that the judge rules as “sensitive” upon the prosecution’s say-so.

The prosecution is entitled to withhold disclosure of the identity of a witness on an oral application. The witness can then give evidence in such a manner that he would not be seen or heard by both the accused and his counsel. Evidence can be given even if contrary to the Evidence Act.

In short, the regular protective provisions to ensure that an innocent person is not convicted are jettisoned.

All this done in the name of the security of the nation. Undoubtedly, maintenance of the security of the state is indeed vital. Without which it is not possible for the state to protect other values and interests guaranteed by the constitution.

But then history is replete with instances of governments misusing the cloak of “national security” to extend their own political shelf lives. The citizenry’s human rights are posited against the avowed claim of “national security”.

A civilised nation must necessarily reconcile the obligation to guarantee these rights with the need to maintain national security without bruising both. The basis of the reconciliation has to be managed within the context of a nation functioning under the rule of law. That means no arbitrary action or process and no action taken against persons that does not pass the test of reasonableness, fairness and compliance with certain core values of basic rights.

Recall that it was the mantra of the new government, firmly embedded in the manifesto, that the rule of law will reign supreme; and that all draconian laws will be repealed. Sosma qualifies without contest.

The UK House of Lords in A v Secretary of State for the Home Department in a case involving detention without trial of suspected international terrorists warned:

“A portentous but non-specific appeal to the interests of national security can be used as a cloak for arbitrary and oppressive action on the part of government; and – national security can be the last refuge of tyrants”.

One final point. LTTE ceased to exist after its military defeat in 2009. Whatever its designation before, you simply cannot commit or facilitate the commission of a terrorist act of a non-existent group. Is it not akin to issuing a cheque to a company that has long since ceased to exist?

Gurdial a former law professor is the president of Hakam the national human rights society. 

[11 July 2018] HAKAM CONDEMNS INVESTIGATION ON LAWYER FADIAH NADWA FIKRI UNDER THE SEDITION ACT 1948 AND COMMUNICATIONS & MULTIMEDIA ACT 1998

HAKAM notes that lawyer and activist Fadiah Nadwa Fikri was called for investigation by the police under Section 4(1) of the Sedition Act 1948 & Section 233 of the Communications & Multimedia Act 1998 for publishing an article online in respect of the monarchy.

HAKAM heavily condemns the authorities’ continued reliance & enforcement of repressive laws such as the Sedition Act 1948 & Section 233 of the Communications & Multimedia Act 1998. These oppressive laws are arbitrary in nature, chillingly restricts our freedom of expression & have no place in a democracy such as Malaysia.

HAKAM would like to remind the authorities of Pakatan Harapan’s manifesto for the 14th General Elections, notably Promise No. 27 which clearly outlines the current Government’s pledge to revoke the Sedition Act 1948 and to abolish draconian provisions in the Communications & Multimedia Act 1998.

Several Ministers have even publicly expressed that the Government will move to repeal these oppressive laws when Parliament is convened.

It is therefore appalling that the authorities today continue to rely on such oppressive laws to investigate & police the lives of ordinary Malaysians. This is a blatant disregard to the spirit of reform espoused by the current Pakatan Harapan Government.

HAKAM therefore urges the Government and the Attorney General’s Chambers to impose a moratorium on any use of the Sedition Act 1948 & Section 233 of the Communications & Multimedia Act 1998 – as well as other oppressive laws – until they have been repealed by Parliament, as promised.

The freedom of expression is a cherished constitutional right & the building block of every democracy. Any issue, however controversial & sacred, must be open to discussion & criticism.

Malaysians have long been shackled by fear & retaliation in the past for merely speaking their minds. And our systems of check & balance, accountability & rule of law have suffered greatly as a result. Let us not repeat such mistakes.

Lim Wei Jiet

HAKAM’s Secretary-General

On behalf of the HAKAM Executive Committee

[7 July 2018] HAKAM CONDEMNS LGBT DISCRIMINATION ACROSS ALL PUBLIC SERVICE APPOINTMENTS IN MALAYSIA

HAKAM notes the negative backlash towards the appointment of a person in the Ministry of Youth & Sports simply because he/she is from the LGBT community or had in the past campaigned on LGBT issues.

HAKAM strongly condemns this form of discrimination against members of the LGBT community in Malaysia. No person should be denied opportunities in employment and career progression, be it within the public or private sphere, on grounds of sexual orientation.

The right to equality & non-discrimination is protected under Article 8 of our Federal Constitution. Further, the right to life enshrined under Article 5 of our Federal Constitution includes the right to live with dignity & the right to earn a livelihood.

Article 2 of the United Nations Declaration of Human Rights also states that everyone is entitled to rights and freedoms regardless of sex.

HAKAM therefore urges the Government to uphold the abovementioned principles of equality & non-discrimination at all levels of appointment within the public service.

It was Mahatma Gandhi who is often attributed to the saying: “A nation’s greatness is measured by how it treats its weakest members”.

Let us all strive to be a great nation in this new Malaysia.

Lim Wei Jiet

HAKAM Secretary-General

On behalf of the HAKAM Executive Committee

Invitation to “Human Rights Conversations” on 8th Dec 2018

In conjunction with World Human Rights Day, HAKAM will be organizing an event titled “Human Rights Conversations”.

The details of the event are as follows:

Date    :         8th December 2018 (Saturday)
Time   :          2.00 – 5.00pm
Venue :          Persatuan Alumni Universiti Malaya Clubhouse, Jalan Susur, Damansara, 59100 Kuala Lumpur.

The Foreign Minister, YB Dato’ Saifuddin Abdullah, will be delivering a keynote speech on “Ratifying International Human Rights Treaties: Why, When & How?”. The event will also feature speakers such as Deputy Minister of Women, Family & Community Development, YB Hannah Yeoh, recently retired Federal Court Judge Tan Sri Datuk Zainun Ali and Cartoonist Zunar.

The full agenda of the event, as well as the official poster, is attached in this email.

HAKAM cordially invites all HAKAM members to attend this flagship event. Political parties, foreign embassies, civil society & the public will be present. To register, kindly send your details to info@hakam.org.my. Seats are limited.