Lawyer: AG can opt to be either govt adviser or public prosecutor

Source: FreeMalaysiaToday

Gurdial Singh Nijar says Tommy Thomas can institute the de facto change by practice pending a constitutional amendment to separate the roles. Pic taken from FMT News

PETALING JAYA: Attorney-General Tommy Thomas can opt to either function as adviser to Putrajaya or be a public prosecutor pending an amendment to the Federal Constitution to separate the two roles, a constitutional lawyer said.

“He (Thomas) can institute a change by practice,” said Gurdial Singh Nijar.

He said this when asked how Thomas could function without a conflict of interest when the roles of AG and public prosecutor were inseparable under Article 145 (3) of the Federal Constitution.

That provision states that the AG shall have the discretion to institute, conduct or discontinue any proceedings for an offence in a civil court.

Gurdial said Thomas had been mindful of the need for a separation of the roles as early as 1983. Read more

AG’s appointment: Lessons learnt — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

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

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

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

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Malaysians, get to know your Constitution — Shad Saleem Faruqi

Source: The Star Online

BY SHAD SALEEM FARUQI

Shad Saleem Faruqi - file pic

Shad Saleem Faruqi – file pic

A COLLEAGUE requested me to give a guest talk to her students on “Constitution, Law & Society”. I began by pointing out that as with all laws, the relationship between the constitution and society is one of interdependence. They shape each other in innumerable ways.

More than other fields of law, a constitution reflects the dreams, demands, values and vulnerabilities of the body politic.

A constitution is not just a legal document. It is linked with philosophy and politics. It has as its backdrop the panorama of history, geography, economics and culture. A constitution that will endure must not depart too far from the spirit of the people. Read more

Sustain supremacy of constitution, urge legal eagles

Source: Free Malaysia Today

PETALING JAYA: The three arms of the government — the executive, legislature and judiciary — must uphold the supremacy of the 60-year-old constitution, following a recent landmark ruling, a retired judge and lawyers said.

They also said judicial power and judicial independence were sacrosanct in the Malaysian constitutional framework to keep every organ and institution of the state within its legal boundary.

The legal minds said ministers, elected or appointed members to the legislature and judges must give effect to their oath of office to protect, preserve and defend the constitution — the supreme law of Malaysia.

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Use of Sedition Act unconstitutional ‘as it’s not made by Parliament’

Source: The Malaysian Insight

picture of Former Federal Court judge Gopal Sri Ram

Former Federal Court judge Gopal Sri Ram speaking at the launch of the Selangor Bar’s new auditorium in Section 13, Shah Alam, today. He says if a pre-Merdeka law cannot be brought to accord with the constitution because it violates the doctrine of separation of powers, then the court has ‘no choice, but to strike it down’. – The Malaysian Insight pic by Kamal Ariffin

THE use of the British-inherited Sedition Act 1948 to prosecute individuals is unconstitutional as it is a pre-Merdeka law, said a former Federal Court judge.

Gopal Sri Ram, who represented Anwar Ibrahim in the opposition leader’s second sodomy trial in 2014, said only Parliament had the power to impose restrictions on freedom of speech.

“The Sedition Act is an existing law. All right. It is good. You can frame it up on your wall. But, you cannot prosecute anyone under it because it is not a law made by Parliament.

“So, it is an existing law and a valid law, but it cannot be enforced,” he said during a lecture at the launch of the Selangor Bar’s new auditorium in Section 13, Shah Alam.

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Court to hear application over constitutionality of Sedition Act on March 19

Source: The Star Online

KUALA LUMPUR: A Sessions Court here has fixed March 19 to hear an application by Padang Serai MP N. Surendran, lawyer Eric Paulsen and cartoonist Zunar to refer constitutional questions to the court about the Sedition Act 1948.

Judge Zaman Mohd Noor fixed the date when the case was mentioned before him on Wednesday (Dec 10).

Lawyer Latheefa Koya, who acted for the applicants, said they made the application under Section 30 of the Courts of Judicature Act 1964.

Latheefa said since the Federal Court had not resolved the question of “intention” by ruling that it must be proven under the Sedition Act, they could in fact proceed with the issue.

In their decision, a five-member Federal Court bench quashed the 2016 landmark decision, ruling that intention must be proven in every sedition case.

The latest decision means that the law has reverted to its previous position, and it only needs to be proven that the accused had made the seditious statement, without the need to prove the intention.

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Sivarasa Rasiah’s application to challenge the constitutionality of Section 233 of the CMA to be heard by High Court

Source: Excerpt from Mkini

The Kuala Lumpur High Court has overturned a Sessions Court decision not to refer constitutional matters in a Communications and Multimedia Act 1998 (CMA) case to the High Court.

Justice Mohd Sofian Abd Razak said the sessions judge had erred in disallowing the referral and set Jan 4 next year to hear the merits of the application.

If the application is allowed, the accused, Subang MP Sivarasa Rasiah, would be allowed to challenge the constitutionality of Section 233 of the CMA at the Federal Court, on grounds that it is too broad and contravenes Article 10 of the Federal Constitution, which guarantees freedom of expression.

Academic: Constitution needs preamble on human rights

Source: FMT News

Law professor Dr Azmi Sharom — Pic taken from Penang Monthly

KUALA LUMPUR: Law professor Azmi Sharom has suggested that a preamble be introduced in the Federal Constitution to make judges bear in mind basic principles like rule of law, respect for human rights and respect for liberties when hearing cases.

“The constitution desperately needs a preamble so that when judges fall into a conundrum, they have a guide,” he said.

The Universiti Malaya lecturer claimed that Malaysian judges, particularly at the Federal Court, had failed to uphold these principles when exercising their verdicts.

He said the constitution could lead the country towards moderation and progressiveness if judges were enlightened and able to interpret it well.

He said while there were good and principled judges, most were retired while those who had not, were not serving in the Federal Court.

He said this posed a problem as the Federal Court was the highest court in the country.

Azmi was speaking at a dialogue entitled “Wither Freedom without truths in Malaysia?” at the PAUM club house here today. Read more

Arbitrary Sedition Act makes ‘promoting atheism’ a crime, lawyers explain

Source: The Malay Mail Online

KUALA LUMPUR, Nov 25 — The Sedition Act could be used by the government against those who promote atheism in limited situations due to the law’s broad definitions and the current state of Malaysia, lawyers have said.

Civil rights lawyer Syahredzan Johan ― Picture by Choo Choy May

Civil rights lawyer Syahredzan Johan said there is no specific legislation that makes atheism an offence under civil laws, further arguing that the Sedition Act cannot be used against someone for being an atheist.

“Being an atheist is not seditious, especially if it is done in private.

“Spreading atheism may be deemed as seditious in certain circumstances, such as if it is done by insulting or undermining other faiths, especially Islam. But that is because the Sedition Act is so wide and arbitrary and can be used in many ways,” he said, adding that this was why the Sedition Act should be abolished. Read more

Religious group supports atheists’ rights

Source: The Malay Mail Online

KUALA LUMPUR, Nov 25 — Malaysia has no laws that force people to have a religious affiliation, a minority faith group told a deputy minister who claimed that atheism was illegal.

Jagir Singh, chairman of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) — Picture by Choo Choy May

Jagir Singh, chairman of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), said that atheists are therefore free to profess their beliefs.

“Article 11(1) [of the Federal Constitution] gives the right to every person to profess and practise his religion. It is noted that a deputy minister has stated that it is not equal to freedom of religion, that is, every person must have a religion. There is nothing in the Federal Constitution, or any law in Malaysia that says every person must have a religion,” Jagir said.

On the Rukun Negara which lists “belief in God” as one of its principles, Jagir said it was included as most Malaysians were already professing their belief in religion.

According to the lawyer, the principle also meant that there was already due recognition that there were also some without any religious beliefs.

“Of course most Malaysians have [a] religion. This fact was recognised in the Rukun Negara. The first point being ‘belief in God’. It ascertains that most Malaysians have a religion,” said Jagir.

“This was the reason they included it as ‘kepercayaan kepada Tuhan’, and thus recognising that there may be some without religion .

“It must be remembered also, that Article 5(1) of the Federal Constitution provides that no person shall be deprived of his life or personal liberty. To be atheist is not against any law,” he added. Read more