Tuesday, June 12, 2018

Anwar Ibrahim should lead Taskforce on Prison Reforms? 18 deaths per month?

Anwar Ibrahim, having spent so many years in Malaysian prison may be best person to head a a Pakatan Harapan government Taskforce looking into prison reforms - healthcare, death in prisons, prison conditions, etc.. His personal experience of prison life and conditions make him a good choice - better than persons who never even spend a day in prison.

The numbers of people in Malaysian prisons, especially those that have still not yet been found guilty, convicted and sentenced is also a great concern. The rich can afford BAIL - but alas, a lot of poor Malaysians are just too poor to raise the bail amount, and end up languishing in prison to the detriment of their spouse, and even children??

The length of prison terms also needs to be reviewed? How long is just? How long is it sufficient for a person to repent...and turn over a new leaft, and be re-admitted to society - a 2nd chance? Is life imprisonment for 'drug mules' excessive? Maybe, maximum sentences imposed by law should be reviewed - maybe Parliament should really set maximum sentences and leave it to the judiciary to decide how long a person should be imprisoned?

Independent Police Complaints and Misconduct Commission - will be looking at police, not really prison conditions and reforms. 

See earlier related posts:-

25 - 37% of the total prison population in Malaysia are innocent? Poor - so cannot afford bail?

 Prison conditions and OTHER prisoner rights? Why not, Anwar Ibrahim?

In Kajang Prison only 300 teenagers languish waiting YEARS for their day in court...

71.3 percent(?) of those in prison are Malays when only about 50% Malays in Malaysia - UMNO-BN failure?


Inmate's death prompts call for Harapan to review prison conditions 'urgently'

Published on  |  Modified on
   
The death of a prison inmate this week has prompted a call for the new government to urgently review prison conditions across Malaysia to ensure detainees' welfare.

Commenting on the “tragic death” of 22-year-old Mariappan Manivannan (photo) on Wednesday at Bentong Prison, Pahang, PKR Women vice chief Sivamalar Genapathy noted how the inmate had been unwell for a month prior to his death and had been suffering continuously from symptoms such as vomiting and diarrhoea, but did not receive proper medical care.

“It is truly appalling that Mariappan was made to suffer in the way he did.

“As part of the reform agenda, Pakatan Harapan must ensure that all prisoners are accorded adequate medical treatment and treated with dignity and respect,” said Sivamalar in a statement.

She hopes the Pahang police would probe the case “without fear or favour”.

Sivamalar said the government should ensure that prison doctors and healthcare providers are adequately trained and supported in their work, including to deal with more complex issues facing inmates, such as mental health and addiction.

“Prison staff should not be made to face inhumane working hours, which can contribute to the negligence of care and safety.

“Reports of cramped and unsanitary prisons and detention centres should also be investigated,” she added.

Lawyers for Liberty executive director Eric Paulsen, highlighting Mariappan's case this week, cited statistics between January 2013 to April 2016 that showed the Prisons Department recorded a total of 721 deaths in prisons nationwide.

Sivamalar meanwhile cited a 2017 Suhakam report that Malaysia's prison healthcare falls below acceptable standards and stated the Home and Health Ministries should work with the Prisons Department to address the matter.

“Deaths in custody and instances of torture and degrading treatment of inmates were shockingly prevalent under the previous BN administration.

“We, as Harapan must prioritise and uphold our manifesto pledge to establish the Independent Police Complaints and Misconducts Commission (IPCMC), with all allegations of misconduct investigated in a fair and comprehensive way, including any allegations of death in custody,” she said.

“The alarming statistics of deaths in police custody under the previous BN government cannot afford to be ignored a day longer, nor perpetuated.

“The enjoyment of the highest attainable standard to physical and mental health is a fundamental human right,” she said, reminding the government to ratify the United Nations Convention Against Torture, as well other rights protecting instruments. - Malaysiakini, 8/6/2018


Probe 18 deaths per month in prisons claim, Putrajaya urged

Published on  |  Modified on
   
A lawyer-activist group has expressed extreme concern over the death of 24-year-old prisoner 

Mariappan Manivannan in Bentong Prison, Pahang on June 6 in yet another case of death in custody.
Lawyers for Liberty executive director Eric Paulsen said Mariappan’s death will be a test for the new Pakatan Harapan government’s reform agenda.

He called for the authorities, particularly the Home and Health Ministries to investigate the detention conditions in Bentong Prison and all other places of detention in the country.

"We were informed by the deceased’s family members that Mariappan had been unwell for up to a month prior to his death and for the past one week suffered from continuous vomiting and diarrhoea," Paulsen said in a statement.

"He was admitted to the prison clinic but was not checked by a doctor for a few days. It is unclear if he was ever sent to the hospital but he died at the prison clinic and the cause of death was attributed to severe acute gastroenteritis," Paulsen added.

Paulsen said he found it alarming that a prisoner was ill for an extended duration of time only to have his condition ignored, treated in the most minimal manner or sent to the hospital when it was too late.
Sadly, Mariappan’s death was not the exception but the norm, Paulsen claimed.

He cited statistics between January 2013 to April 2016 which showed the Prisons Department recorded a total of 721 deaths in prisons nationwide.

"That is a shocking 18 deaths per month, with the vast majority of them attributed to diseases and health problems," Paulsen said.

He further said that the statistics are an indictment of systemic problems in the prisons that have been ignored for far too long by the previous government.

These include cramped and overcrowded detention conditions, poor hygiene and sanitation, lack of clean drinking water and poor food and healthcare provisions.

'Willful neglect'

Paulsen said it was clear from the "staggering" number of deaths that the new Harapan government could no longer afford to turn a blind eye to these issues.

He urged the authorities to immediately improve access to medical treatment for all detainees including at police lockups, immigration detention centres and prisons.

"They must do this immediately lest another person needlessly loses his life to a treatable condition or due to willful neglect of the detention authorities," said Paulsen.

He also called for an inquiry to be held by the Enforcement Agency Integrity Commission or Suhakam into the death of Mariappan.

"This is to uncover the causes and circumstances surrounding his death including his detention conditions and his access to medical treatment," said Paulsen.

In April, within a span of a few weeks, a man died in custody in a prison in Perak while another prisoner died in a hospital in Shah Alam, Selangor.

Activists have long been urging the previous government to set up an Independent Police Complaints and Misconduct Commission to function as an independent and external oversight body to investigate complaints about police personnel and to make the police accountable for their conduct, including acts of negligence linked to deaths in custody. - Malaysiakini, 7/6/2018

North Korea - Truths and 'Fake News'? Malaysia and North Korea?

Now, the US President is meeting with the leader of North Korea in Singapore...as such, it maybe timely to look at history and understand better the origins of the Korean problems...

The problem starts at the end of World War II, when the US and Russia decided to divide the Korean Peninsular along the 38 parallel

On August 10, 1945, the US government decided to propose the 38th parallel as the dividing line between a Soviet occupation zone in the north and a US occupation zone in the south. The parallel was chosen as it would place the capital Seoul under American control.[9] The division placed sixteen million Koreans in the American zone and nine million in the Soviet zone. - Wikipedia
Prior to that Korea was colonized by Japan since about 1910... 

Beacuse of the post World War II US-Russia arrangement, Korea ended up with 2 systems of government...the north influenced by Russia and the south by the US...

SEE earlier post, which discusses this in greater detail...

North Korea - South Korea - Time to re-assess UN and other nation state responses?

In any way, there has always been a desire for unification... 

In anyway, like in Vietnam, North Korea ...

By mid-July 1950  North Korean troops had overwhelmed the South Korean and allied American units and forced them back to a defensive line in south-east South Korea known as the Pusan Perimeter....

Then, strangely, the United Nations got involved ...and entered thw war, that ended up in the destruction of the more developed North Korea...

In September, UN forces landed at Inchon and retook Seoul. Under the leadership of US General Douglas Macarthur, UN forces pushed north, reaching the Chinese border...

Then the Chinese got involved and ...

 In late November, Chinese forces entered the war and pushed the UN forces back, retaking Pyongyang in December 1950 and Seoul in January 1951.

But what happened to CHINA and RUSSIA who could have VETOED the UN decision...

Well,  was TAIWAN then that was the country with the VETO power...not CHINA...only  after 1970

 China's seat was originally held by the Nationalist government of the Republic of China. However, it lost the Chinese Civil War and retreated to the island of Taiwan in 1949. The Communist Party won control of mainland China and established the People's Republic of China. In 1971, UN General Assembly Resolution 2758 recognized the Government of People's Republic of China as the legal representative of China in the UN, and gave it the seat on the Security Council that had been held by the Republic of China, which was expelled from the UN altogether.- Wikipedia

Russia was on 'holiday' - protesting

In 1950 the Soviet Union missed one important opportunity to exercise its veto power. The Soviet government had adopted an "empty chair" policy at the Security Council from January 1950, owing to its discontent over the UN's refusal to recognize the People's Republic of China's representatives as the legitimate representatives of China,[10] and with the hope of preventing any future decisions by the Council on substantive matters. ... The result of the Soviet Union's absence from the Security Council was that it was not in a position to veto the UN Security Council resolutions 83 (27 June 1950) and 84 (7 July 1950) authorising the US-led military coalition in Korea which assisted South Korea in repelling the North Korean attack.[11] - Wikipedia

The war ends with the signing of an Armitice Agreement - but South Korea was NOT part of this Agreement...INTERESTING?

.The Korean Armistice Agreement was signed on July 27, 1953. A ceasefire followed, but there was no peace treaty, and hostilities continued at a lower intensity.[50] - Wikipedia

The Korean Armistice Agreement (Korean: 한국휴전협정) is the armistice which brought about a complete cessation of hostilities of the Korean War. It was signed by U.S. Army Lieutenant General William Harrison, Jr. representing the United Nations Command (UNC), North Korean General Nam Il representing the Korean People's Army (KPA), and the Chinese People's Volunteer Army (PVA).[1] The Armistice was signed on July 27, 1953, and was designed to "ensure a complete cessation of hostilities and of all acts of armed force in Korea until a final peaceful settlement is achieved."[2] 
It looks like it is the US (and maybe friends) that is anti-North Korea, and maybe even against any resolution in the Korean Peninsular.

Considering the location of Korea, with regard to Russia, China and even Japan, it is of 'military strategic importance' to the US... so will this 'interest' be the reason why peace or even re-unification is impossible?

Historically, the US has exhibited animosity to nations that are not 'loyal' or 'subservient' to US and US interest... Latin American Nations, Cuba, Iraq, Iran, Libya, Palestine, North Korea, ...is it at the end of the day really about 'injustice' and human rights violation...

The media has been painting a particular picture about North Korea - but maybe, it is time for us to take another look...

Whilst the US is pushing for the de-nuclearisation of North Korea, Iran....it seems to be doing little about denuclearisation of the US - What happened to the agreement to get rid of nuclear weapons?

As I mentioned, for a longer read, read my earlier Blog Post...

North Korea - South Korea - Time to re-assess UN and other nation state responses?

Malaysia, under Najib and UMNO-BN, recently 'surrendered' to this US pressure - especially with regard diplomatic relations and trade with North Korea... The weakness demonstrated would not have likely happened when Mahathir was PM ...and now Mahathir is PM again...what will Malaysia do?



Extrajudicial Killings Need Speedy Independent Investigations - 6 Reported Shot To Death By Police After Pakatan Harapan Became Government.

Media Statement – 11/6/2018

Extrajudicial Killings Need Speedy Independent Investigations - 6 Reported  Shot To Death By Police After Pakatan Harapan Became Government.


MADPET(Malaysians Against Death Penalty and Torture) is disappointed with the lack of response of the new Pakatan Harapan government, in particular the Home Minister Muhyiddin Yassin, being the Minister in charge of the police, about at least 3 recent possible ‘shoot to kill’ incidents, that were reported in the media, that involved the death of 6 persons who were shot to death by the police.


The duty of the police is to arrest persons suspected of committing a crime, and the police can use ‘reasonable force’ in carrying out these arrest. 


The Malaysian Criminal Procedure Code, in section 15 states most clearly how arrest is to be made. Section 15(2) states, “(2) If such person forcibly resist the endeavour to arrest him or attempt to evade the arrest such officer or other person may use all means necessary to effect the arrest.” The word used is ‘to affect arrest” – not kill. 


Section 15(3) states that, “Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.” Stress must be given to the word ‘accused’, not just suspected of committing an offence. Hence, subsequent ‘post-killing’ statements that they were suspected of being involved in past crimes in no way can justify such killings. Sadly, the victims, now dead, cannot even deny these allegations or tell us what really transpired.


The question that arises now, is whether these shooting that resulted in death was reasonable or really necessary. Were the police shooting to affect an arrest, or were the police shooting to kill? 


The recent 3 reported incidents of concern, that happens after Pakatan Harapan has become the new government following the General Elections on 9/5/2018, are as follows:- 


2 shot dead by Police (D9) – Star, 16/5/2018   


In the Star report dated 16/5/2018, entitled ‘Cops kill two robbers in shootout’, it was alleged that a police personnel from Bukit Aman Serious Crimes Division (D9) stopped a car whose occupants inside were ‘acting suspiciously’, and when they identified themselves as police, shooting ensued resulting in the death of the 2 occupants. It is suspicious that the car had stopped at the request of the police before the shooting allegedly happened.


3rd suspect shot dead by police (D9) – 19/5/2018


In another Straits Times report dated 19/5/2018, entitled ‘Malaysia cops shoot dead third suspect in Damansara Jaya goldsmith robbery’. It was reported that “…SAC Fadzil said that in the latest incident, policemen from the Selangor Police Serious Crimes Investigation Division (D9) had chased the suspect as he sped off in a Honda Civic car, which eventually skidded and crashed into a tree."The suspect came out of the vehicle and opened fire at the policemen. The policemen returned fire and killed the suspect," he said in a statement….”.


What is odd of this, is the fact that the police, the day before had said, ‘…According to Selangor Criminal Investigation Department chief Fadzil Ahmad, the incident took place at 5pm on Friday (May 18) after six robbers wearing helmets and jackets stormed into the mall located at the Damansara Jaya area… A shootout ensued and as a result, two suspects were shot dead, while another suspect was injured. Four suspects, including the one injured, were arrested by the police for further investigations…’(THE STAR/ASIA NEWS NETWORK, Straits Times, 18/5/2018). There is no mention here of any other suspect escaping, and noting that they were all wearing helmets, one wonders how the police even identified the person killed the following day.


Police shoot man with machete – 21/5/2018


In a Star report dated 21/5/2018, entitled ‘Police shoot fake forex syndicate member dead’. Here, the victim was not even shooting at the police, and the report says, ‘…“He came at them with a machete and they had to open fire to defend themselves, killing him,” he said….”


What will our new Pakatan Harapan government do about these extrajudicial killings?


MADPET is disappointed that Muhyiddin Yassin, our new Home Minister, who is responsible for the police, or the Pakatan Harapan government has failed to respond promptly when these killings happened, and have yet to tell Malaysians how they will deal with these cases of police shooting that have resulted in death.


This kind of killings  had been an issue of concern, that has been raised up by many human rights groups, including the Malaysian Bar for past few decades, but sadly the then UMNO-BN government failed to satisfactorily address this matter. It is hoped that our new Pakatan Harapan will finally deal with such issues justly.


The late Senior lawyer and former Bar Council president Raja Aziz Addruse did say ‘…that proper justification must be given for the taking of a life. “Just to say, ‘Because they were shooting at me,’ is insufficient,” he says. “In many of these cases, there’s always a gun found in the car. It’s just too coincidental. Very often, all the people allegedly involved are killed...” 


He also had cited ‘…the need for an independent tribunal to look into police shootings. “In other countries, an independent inquiry would be held to find out what happened,” he says. “For example, in the UK, an inquiry was held in the case of the shooting of Jean Charles de Menezes.” The inquiry eventually found the Met police force guilty of endangering public safety, and it was penalised for shooting de Menezes dead….’


How the new Pakatan Harapan government deals with these recent cases of these ‘extra-judicial killings’, more so since these incidents happened after they became the new government of Malaysia, is crucial. 


There certainly must be quick independent inquiries into these recent incidences, which have resulted in the death of 6 persons or possibly more, noting that not all such incidences do get reported. 


While MADPET appreciates the fact that the new Pakatan Harapan federal government is in the process of establishing an Independent Police Complaints-Misconduct Commission (IPCMC) as mentioned by the Minister of Home Affairs Tan Sri Muhyiddin Yassin on 22/5/2018, steps need to be taken now to immediately investigate these police ‘shoot to kill’ incidences. Delay is not an option.


MADPET proposes that the Minister immediately appoint an interim Task Force, to immediately investigate these cases. Further, the Minister and/or the government should maybe order that inquests (or inquiries into the deaths) be done for all such cases, where police shooting resulted in deaths. 

Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)


Relevant media reports


Muhyiddin - What are you doing about recent police shoot..victims die incidents after GE14?


Cops kill two robbers in shootout








  • Crime scene: Passers-by watching the officers on duty at the scene of the shooting near Rawang.
    PETALING JAYA: A routine early morning crime prevention round by a team of policemen led to a shootout with two heavily armed robbers who were eventually shot dead.

    At around 3am yesterday, police personnel from Bukit Aman Serious Crimes Division (D9) out on a crime prevention round noticed the occupants inside a car acting suspiciously near the Kun­dang night market area in Rawang.

    After tailing them for about 2km along Jalan Lagong, the officers managed to stop the car at a bend on the road.

    However, after police verbally identified themselves, the two male suspects, aged 40 and 41, started shooting at the officers, which resulted in an exchange of gunfire that saw the two suspects killed.


    According to Selangor CID chief Deputy Comm Datuk Mohd Adnan Abdullah, police believed that the two men were preparing for a robbery, judging from the items seized in their vehicle.

    “We found a .38 (calibre) handgun near one of the suspects with four spent casings and a live round.

    The other suspect, believed to be the driver, was found with a firearm tucked under his waist,” said DCP Mohd Adnan.

    While inspecting the suspects’ car, the cops also found various weapons.

    “We recovered a machete, two knives, a metal rod, gloves and a ski mask,” said DCP Mohd Adnan.

    Also found was a licence plate with the number WTG 9832.

    DCP Mohd Adnan said the plate could have been used during robberies to throw off the police.

    Investigations showed that one of the suspects was a wanted man with four prior cases on his record.

    Further investigations also found that the car used by the two suspects was reported stolen back in 2014. - Star, 16/5/2018








    Malaysia cops shoot dead third suspect in Damansara Jaya goldsmith robbery



    Six men wearing full-face helmets, three of them armed with pistols, stormed into the goldsmith shop at the mall in Damansara Jaya on May 18.
    Six men wearing full-face helmets, three of them armed with pistols, stormed into the goldsmith shop at the mall in Damansara Jaya on May 18.PHOTO: GOOGLE MAPS
    PETALING JAYA (BERNAMA, THE STAR/ASIA NEWS NETWORK) - The police have shot dead the third of about eight people involved in a robbery on Friday (May 18) at a goldsmith shop in a shopping mall in Damansara Jaya near here.

    The 22-year-old man was overcome in a gun battle between him and pursuing policemen in Bukit  Beruntung, Hulu Selangor, at about 1am on Saturday, said Selangor CID chief SAC Fadzil Ahmat.

    The police shot dead two of the robbers and arrested four of them as they were fleeing after the robbery at about 5pm yesterday.

    SAC Fadzil said that in the latest incident, policemen from the Selangor Police Serious Crimes Investigation Division (D9) had chased the suspect as he sped off in a Honda Civic car, which eventually skidded and crashed into a tree.
    "The suspect came out of the vehicle and opened fire at the policemen. The policemen returned fire and killed the suspect," he said in a statement.

    He said the policemen recovered a revolver with three rounds of ammunition and three spent bullet shells and some jewellery, apparently part of the loot.
    "The suspect had two past criminal records," he said.
    At about 5pm yesterday, six men wearing full-face helmets, three of them armed with pistols, stormed into the goldsmith shop at the mall in Damansara Jaya.

    The police shot dead two of the robbers and arrested four of them as they were fleeing after the robbery.

    It is believed that more than eight men were involved in the robbery.

    Selangor Criminal Investigation Department chief Fadzil Ahmad said that the suspects are part of a crime syndicate, which has been active in Selangor, Kuala Lumpur and Negeri Sembilan since 2017.

    "So far, this group is involved in eight goldsmith robbery cases since last year. We believe there are other suspects who are still at large and we are hunting them," he added.

    No police officers were injured from the shootout.

    A witness, who wished to remain anonymous, saw the suspects carrying hammers and black-coloured bags into the mall.

    "They were walking slowly and once they were inside the mall, they ran towards the goldsmith," he said. "When we heard the sound of breaking glass, we ran towards a storeroom and hid."

    Senior Asst Commissioner Fadzil said that the police have not ruled out that the robbery was an inside job, as investigations are ongoing.

    He said that the stolen jewellery has been recovered by the police and the goldsmith is trying to ascertain the total value of losses incurred from the incident.

    Another witness, tech journalist Sharmila Ganapathy, said she heard the shots coming from a goldsmith shop on the ground floor at about 5.15pm.

    Twitter user Ridhwa Huda posted a tweet at 5.27pm, saying she had witnessed an exchange of gunfire between police and unknown persons.

    "Oh my God. Police are shooting live in front of us. My heart feels like falling out," she wrote in Malay.

    https://twitter.com/ridhwaMR/status/997406350731755520 "At Atria mall. Thought people were playing firecrackers. But seems like (a) real pistol," she added. "Wanted to go home, but police warned, 'Don't go out.'" - Straits Times, 19/5/2018

    Two suspects shot dead by Malaysian police after robbery at goldsmith in Petaling Jaya mall


    PETALING JAYA (THE STAR/ASIA NEWS NETWORK) - Two suspects were shot dead by Malaysian police when they tried to escape after robbing a goldsmith at the Atria Shopping Complex in Petaling Jaya.

    According to Selangor Criminal Investigation Department chief Fadzil Ahmad, the incident took place at 5pm on Friday (May 18) after six robbers wearing helmets and jackets stormed into the mall located at the Damansara Jaya area.

    “The Petaling Jaya district police were informed of the incident at about 5pm and they headed there immediately," he said.

    “When they arrived, they ran into the group of suspects who had robbed the goldsmith and tried to escape with four motorcycles parked outside,” he told reporters during a press conference held outside the mall.

    He said that the suspects first fired towards the police, leaving them no choice but to retaliate.

    A shootout ensued and as a result, two suspects were shot dead, while another suspect was injured.

    Four suspects, including the one injured, were arrested by the police for further investigations.


    “We have also confiscated a semi-auto pistol, a revolver, an air gun and hammers,” he added.

    He said that the suspects are part of a crime syndicate, which has been active in Selangor, Kuala Lumpur and Negeri Sembilan since 2017.

    “So far, this group is involved in eight goldsmith robbery cases since last year. We believe there are other suspects who are still at large and we are hunting them,” he added.

    No police officers were injured from the shootout.

    A witness, who wished to remain anonymous, saw the suspects carrying hammers and black-coloured bags into the mall.

    “They were walking slowly and once they were inside the mall, they ran towards the goldsmith," he said. “When we heard the sound of breaking glass, we ran towards a storeroom and hid.”

    Senior Asst Commissioner Fadzil said that the police have not ruled out that the robbery was an inside job, as investigations are ongoing.

    He said that the stolen jewellery has been recovered by the police and the goldsmith is trying to ascertain the total value of losses incurred from the incident.

    Another witness, tech journalist Sharmila Ganapathy, said she heard the shots coming from a goldsmith shop on the ground floor at about 5.15pm.

    Twitter user Ridhwa Huda posted a tweet at 5.27 pm saying she had witnessed an exchange of gunfire between police and unknown persons.

    "Oh my God. Police are shooting live in front of us. My heart feels like falling out," she wrote in Malay.

    "At Atria mall. Thought people were playing firecrackers. But seems like (a) real pistol," she added.

    "Wanted to go home, but police warned 'Don't go out'." - https://www.straitstimes.com/asia/se-asia/multiple-gunshots-heard-at-atria-mall-in-malaysias-petaling-jaya

    See also:-

    Another man with a machette shot and killed by police? Speedy INDEPENDENT inquiry needed?




    Monday, June 11, 2018

    Sri Ram & Ramkarpal wrong? Anyone, including Daim, have the right to ask CJ or President COA to resign?

    In my opinion, Sri Ram, MP Ramkarpal is wrong about Daim's right to call for the Chief Justice and the President of Court of Appeal to RESIGN...

    Any Malaysian or even others can call for the  Chief Justice, the President of the Court of Appeal, the Attorney General and even the Prime Minister to RESIGN...

    Even Anwar Ibrahim and PM Mahathir can call, ask or even 'demand' the current Chief Justice and the President of the Court of Appeal to resign...that is their right. BUT no judge need to 'obey' and resign - to resign or not is their choice ...

    Personally, I also will call on the Raus bin Sharif and Zulkefli bin Ahmad Makinudin to resign...in fact, I also called on them to refuse the extension of tenure...

    And, my reasons may be different from the reasons being argued in Court by the Malaysian Bar an others - being that the appointment and extension of their appointment beyond their age of retirement was wrong in law - with reference to our Constitution and justice.

    For me, the concern is 'INDEPENDENCE OF THE JUDICIARY' - in particular the violation of the principles behind the safeguard 'Security of Tenure'.

    Once a judge is appointed, he should not be able to be removed until the end of his tenure, which should be FIXED, the mandatory retirement age - which in Malaysia today is 66 years.

    If a judge's term in office can be extended by the King, Prime Minister, Chief Justice or any other....then, reasonably this is a serious threat to the PERCEPTION of the 'Independence of the Judiciary' - would not a judge be influenced in the way he carries out his/her duties of a judge by the possibility of extension of tenure beyond retirement age? Will he possibly pass judgments that would seen as 'favourable' to person/s with such power who may reward him/her with an 'extension' of his/her tenure? Well, that may well impact on the 'public perception' of the independence of the Malaysian Judiciary? Would the foreign investor even be confident enough to have disputes with Malaysian companies(or even government owned companies or GLCs) resolved in Malaysian courts? If they want any such disputes resolved in any other country's courts - then does not reflect on the confidence they have in Malaysian courts and judges to act justly?

    There are FLAWS, in my opinion, even today in our Federal Constitution that needs to removed immediately...as soon as possible?

    THE POWER TO EXTEND THE TENURE OF FEDERAL COURT JUDGES FOR AN ADDITIONAL 6 MONTHS BEYOND THE AGE OF RETIREMENT, 66 YEARS..

    Some judges get this extension, some do not ...that should already raise a 'red flag' - and for me, this clearly violates the principle behind that safeguard known as 'security of tenure'...

    THE POWER TO EXTEND THE TENURE FOR A FURTHER UNDEFINED PERIOD AS 'ADDITIONAL JUDGES'...

    This also makes the principle behind 'security of tenure' meaningless..

    We also need to look at the question of Judicial Commissioner, created by amendments to the Constitution, after the 1988 Judicial Crisis, I believe,...and other matters.

    In my opinion, there are some flaws that exist in our Federal Constitution - that really must be studied, and hopefully future amendments will strengthen the Independence of the Malaysian Judiciary, and do not detract from the basic principles behind the safeguard to ensure this independence known as 'Security of Tenure". 

    I have looked into these matters, and had put forward a  motion at the Malaysian Bar AGM, which I elected to remove for certain reasons - which I would  most likely table again to be debated and voted.(See that Motion below for those who want to know more).

    NOW, the Federal Court has empaneled a coram of 7 who will soon be hearing and deciding on the Malaysian Bar's and other application. Now, they will be deciding on the future of their 2 heads of the Malaysian judiciary, who may have influenced their appointments and/or elevations in the Judiciary. Remember, the application for this to be heard by 'already retired' judges were denied?

    So, will these judges decision have any bearing that we have a new government after GE14 - PROBLEM, they are supposed to be 'Independent' - their decision should not matter on who is the PM or government?

    Whatever the decision of the court, there will be problems about 'perception' - If the allow the application(many may believe this was because we have a new government after GE14)...If they say that all is OK with the appointment and extension of the tenure of CJ and/or President of COA ...then some may say, these 'judges' sold out to Najib and had no guts to decide against their 2 big bosses...Either way, it will not be good...and there will be doubts ...and possibly a 'loss of respect' to some(or all) Judges on the coram.

    AS SUCH, it is best that Raus bin Sharif and Zulkefli bin Ahmad Makinudin elect to RESIGN on their own, without even waiting for the Court to make any decision - and this will be best for Malaysia, and more importantly for the Malaysian judiciary...


    As mentioned earlier, no one can FORCE judges to resign - not even the Prime Minister...not even the Parliament...not even the King..

    Whether the judge/s went and met Daim (who is not even a Minister or in the Cabinet) or even PM Mahathir or Anwar, it really is up to the judge...they are free to meet anyone ...I am curious as to how Sri Ram knew that Daim 'demanded' that they resign? Did Daim inform Sri Ram, or did Raus or Zulkefli inform him? Did Sri Ram also meet with the said judges?
     
    It must also be noted that judges should really be careful in their 'socializing' - they should always conduct themselves in a manner not to give others the perception that they are not 'independent'...hence judges should not be socializing with lawyers, politicians,etc
     
    Now, things are going to become even more complicated ...if the Court rules that there is nothing wrong with the whole extension of tenure...WHAT HAPPENS THEN?
     
     





     

    UN Basic Principles on the Independence of the Judiciary - Chief Justice and imminent 'judicial crisis'?

     

    Chief Justice, even after retirement, for 3 more years? Wrong or Right?

    Hopefully CJ Raus will quit - Resolution of the Malaysian Bar

    Bar approves boycott of CJ and COA president in social events(Malaysiakini)



    Motion to promote and protect Judicial Independence in Malaysia, to abolish Judicial Commissioners, ensure security of tenure is a real safeguard, and remove Prime Minister’s power in Judicial Selection and Appointments 

    WHEREAS

    1.     The Judiciary, being the third branch of government, is an important branch of government, a necessary check and balance to prevent wrongdoings and errors of both the Executive and the Legislature. In conflicts, even with the ruling governments of the day, the people rely on the Judiciary to ensure that justice is done – thus the importance of an independent Judiciary.

    2.     Clause 2 of the Basic Principles on the Independence of the Judiciary, adopted by the United Nations General Assembly vide General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, states, ‘The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.’

    3.     The power or the ability to influence appointment, elevations, transfers and extension of tenure of Judges can be used as a carrot or a stick that can undermine the independence of the Judiciary.

    4.     Clause 10 states that, ‘Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.

    5.     The Bangalore Principles Of Judicial Conduct 2002 is intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge.

    6.     The Bangalore Principles Of Judicial Conduct 2002 lays out necessary values and principles required to be held sacrosanct by every judge. The first value is ‘Independence’ and the principle is stated as follows, “Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.”

    7.     Application 1.1 of the said principle, states as follows, ‘A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

    8.     Application 1.2  states, ‘A judge shall be independent in relation to society in general and in relation to the particular parties to a dispute which the judge has to adjudicate.’

    9.     Application 1.3 states, ‘A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

    10. Application 1.4 states, ‘In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions which the judge is obliged to make independently.

    11. Judicial independence is thus a pre-requisite to the rule of law, and to ensure this certain safeguards must be put in place, from selection, appointment and during tenure.

    SELECTION AND APPOINTMENT OF JUDGES

    12. In Malaysia,  judges of the superior courts, being the High Court, Court of Appeal and the Federal Court, ‘…shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers…’(Article 122B(1) Federal Constitution.). Article 122B(2) states, ‘Before tendering his advice as to the appointment under Clause (1) of a judge other than the Chief Justice of the Federal Court, the Prime Minister shall consult the Chief Justice’. For other appointments, there is a need for consultation with various head judges. Note that the Chief Justice of the Federal Court is also appointed on the advice of the Prime Minister.

    13. The meaning of ‘acting on the advice…’ is stated in Article 40  entitled, ‘Yang di-Pertuan Agong to act on advice’.  Article 40(1A) states, “ In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di- Pertuan Agong shall accept and act in accordance with such advice.’

    14. As such, when any provisions in our Constitution states that the Yang Di Pertuan Agong is to act on the advice of the Prime Minister or the advice of any other, the Yang Di Pertuan really has no choice but to do as he had been ‘advised’.

    15. It is obvious that the Prime Minister has simply too much power and influence in the selection and appointment of judges in Malaysia. To compound matters, the fact that UMNO lead coalition(previously known as the Alliance(Perikatan) and now the Barisan Nasional) have been governing Malaysia since Independence in 1957, means that this power has been continuously vested with Prime Ministers from just one party.

    16. Judicial Appointment Commission Act 2009 stipulate in section 21 (1) ‘The functions of the Commission are-(a) to select suitably qualified persons who merit appointment as judges of the superior court for the Prime Minister's consideration;…’. In brief the Commission makes mere recommendations to the Prime Minister, who is not bound to accept these recommendations. 

    17. The four eminent persons, who are not members of the executive or other public service, appointed by the Prime Minister..(section 5(1)(f), as members of the 9-person Commission can also be easily removed. Section 9 (1) states that ‘The appointment of any member appointed under paragraph 5(1)(f) may at any time be revoked by the Prime Minister without assigning any reason therefor.’

    18. The Malaysian Bar has called for a more independent selection and appointment commission. 

    19. ‘…The three bar associations in Malaysia have declared that they reject the current practice of giving the prime minister a say in the appointment and promotion of judges, according to Malaysian Bar president Steven Thiru…the Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak were in fact in agreement that the executive branch of government should have no part at all in the process…He said the present system placed inordinate powers in the hands of the prime minister, who could veto without justification the recommendations of the Judicial Appointments Commission (JAC)…“While the executive is entitled to express its views, the final recommendation to the Conference of Rulers should emanate only from the JAC,” he added….’(Free Malaysia Today, 14/1/2017)

    SECURITY OF TENURE

    20. Security of tenure,  is a another very important safeguard,  to ensure  judicial independence is by granting life tenure or a tenure that ends on a fixed date for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions that may be politically unpopular or opposed by powerful interests.

    21. Article 11 of the Basic Principles state, ‘11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.’

    22. On security of tenure, Clause 12  of the Basic Principles on the Independence of the Judiciary states, ‘Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.’

    23. In Malaysia, the retirement age of judges is now 66 years. Our Federal Constitution in Article 125(1) stipulates. “…a judge of the Federal Court shall hold office until he attains the age of sixty-six years…

    24. The Clause 1 of United Nations Basic Principles on the Independence of the Judiciary states 1 that, ‘The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.’

    25. In Malaysia today, there are several matters that need to be addressed to improve the ‘independence of the Judiciary’. One of which is security of tenure, which must mean that judges once appointed, not only cannot be removed before the end of their fixed tenure(their retirement age), but also not cannot have their term as judge extended by actions of the Prime Minister, or even the Chief Justice.

    26. The ability to extend the tenure of some selected judges beyond the prescribed retirement age, opens the door to possible questions about their independence. Why did this judge get an extension of tenure but not another judge? Did he/she get the extension because he/she is favoured by the Prime Minister and/or government of the day, and as such ought to be rewarded – an extension of tenure? Such questions and possibilities, impacts negatively of the perception of the independence of the Malaysian judges and judiciary.

    EXTENSION OF TENURE OF FEDERAL COURT JUDGE BY A FURTHER 6 MONTHS

    27. Article 125(1) Federal Constitution states, ‘ Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.’ The problem is that some judges may get the 6 month extension, but not others.

    28. To give full effect to the safeguard, it is best that there be only one mandatory retirement age. The Constitution could be amended to extend this retirement age to 70 or even 80, but there must be one definite date that ends the tenure of a judge.

    APPOINTMENT OF ADDITIONAL JUDGES OF THE FEDERAL COURT

    29. Article 122(1A) Federal Constitution, states. ‘Notwithstanding anything in this Constitution contained, the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court…’

    30. The biggest problem is there is no reasons stipulated for why an already retired superior court judge can and should be appointed as an ‘additional judge’. The specific reasons must be stated in the Constitution and/or law to prevent abuse. Possibly, it could be for a very specific purpose, like a particular case, whose coram best not include currently sitting judges, or maybe for other very special and exceptional reason.

    31. The second problem, is that there is no length of time that is stipulated for the duration of these appointment of ‘additional judges’, and as such this also affects public perception of judicial independence. Of late, one judge was appointed additional judge for 3 years, whist another for just 2 years. Will someone else in the future be appointed for 6 months or even 10 years? As such, there must be clear stipulation be in the form of a fixed time period, or a flexible term which ends when a particular case that brought about the appointment comes to an end.

    32. Given that the Chief Justice is vested with this power, as the King will have no choice but to act ‘…on the advice of the Chief Justice of the Federal Court…’, it is most unhealthy. Note that currently even the Judicial Appointment Commission is not vested with the power to provide recommendations to the Chief Justice of the Federal Court, only the Prime Minister.

    33. Amendments are needed to ensure such appointments of additional judges are independent, and there is to need to state the specific reasons that will justify such appointments, and more importantly the duration of such appointments. The remuneration should also be specified. 

    JUDICIAL COMMISSIONERS

    34. Article 122AB (1) states, ‘For the despatch of business of the High Court in Malaya and the High Court in Sabah and Sarawak, the Yang di-Pertuan Agong acting on the advice of the Prime Minister, after consulting the Chief Justice of the Federal Court, may by order appoint to be judicial commissioner for such period or such purpose as may be specified in the order any person qualified for appointment as a judge of a High Court; and the person so appointed shall have power to perform such functions of a judge of the High Court as appear to him to require to be performed; and anything done by him when acting in accordance with his appointment shall have the same validity and effect as if done by a judge of that Court, and in respect thereof he shall have the same powers and enjoy the same immunities as if he had been a judge of that Court.’

    35. This 1994 Constitutional amendment, coming after the Judicial crisis of 1988, created these new ‘Judicial Commissioners’. Since then, it seems that all Judges of the High Court, had been first Judicial Commissioners.

    36. Judicial commissioners exercise the same powers as High Court judges, but they unlike Judges, do not enjoy all the safeguards to protect their independence, especially security of tenure. Judicial Commissioners could be seen as ‘probation’ judges, and that is unacceptable but also disrespectful. Will only judicial commissioners who make judgments, etc in accordance with what the Prime Minister (or Government) be later appointed as High Court judges?

    37. Raja Aziz Addruse, in his article Judicial Appointments : Who has the Last Say, said  ‘…Given that he is a judge ‘on trial’ during his ‘probation’ period, and without any security of tenure, the ability of a judicial commissioner to be independent and not to be influenced by personal consideration in making judicial decisions, is questionable…’ ‘.

    38. It must be pointed out also that “…At least five Judicial Commissioners (JCs) were not elevated to High Court Judges over the last five years because they failed to meet the criteria of the Judicial Appointments Commission (JAC).Chief Justice Arifin Zakaria, who is also JAC chairman, declined to offer more specific reasons why the judges on probation failed to make High Court judge….Arifin said the JAC met once a month to evaluate the JCs who were on probation for two years.’ (FMT News, 27/3/2017).

    39. Judges should be appointed directly, without having to go through any ‘probation’ or ‘on trial’, and on appointment, they must immediately enjoy security of tenure, where the end date must be their fixed retirement age.

    40. As such, Judicial Commissioners should be abolished, and qualified persons should be directly appointed as judges, without the embarrassment of being put on ‘probation’ or ‘on trial’.

    41. It may be best that all current sitting Judicial Commissioners be forthwith appointed as Judges.

    42. The perception that the Malaysian judiciary is truly independent is most important.

    THEREFORE, it is hereby resolved that:

    A.    That the Malaysian Bar calls for the amendments of the Federal Constitution and law, to ensure that security of tenure as a necessary safeguard is not compromised or undermined. No judge’s tenure should be extended beyond a fixed mandatory age of retirement.

    B.    That the Malaysian Bar calls for the abolition of Judicial Commissioners, and that all qualified persons be immediately appointed Judges with a security of tenure;

    C.    That the Malaysian Bar calls for the creation of an Independent Judicial Appointment Commission, whose recommendation and/or advice be directly submitted to the Yang Di Pertuan Agung for appointment of judges, and also elevation as Judges of Court of Appeal and/or Federal Court;

    D.    That the Malaysian Bar calls for the removal of the Prime Minister from playing any role in the selection, appointment, elevation and transfer of Judges in Malaysia.

    E.    That the Bar Council be empowered to do all that is necessary to protect and promote the independence of the judiciary, and especially preventing the weakening of security of tenure as a necessary safeguard.

    (The above is simply a proposed Motion - not yet debated, voted on, or became a Resolution - As such, it is thus far my opinion, of things that need happen to make the Malaysian judiciary more independent and respected)

    DAP MP worried Daim may cause perception of judicial interference

    Published on  |  Modified on

    DAP's Bukit Gelugor MP Ramkarpal Singh said he is concerned that a purported meeting between Daim Zainuddin, a member of the Council of Eminent Persons, and the country's top judges to ask them to resign may give rise to the perception of judicial interference.

    He said this in reference to former federal court judge Gopal Sri Ram who claimed Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin were told to resign when meeting Daim at his office. 

    "Such an action by Daim, if true, cannot be condoned and I am in agreement with Sri Ram that Daim ought not to interfere in such matters as he has absolutely no standing to do so.

    "The perception that there might be meddling (particularly from parties seen to be close to the government) in the appointment or removal of the CJ and PCA must be avoided at all costs and Daim should know better than to get involved in it (assuming the claim by Sri Ram is true) which may well give rise to such perception," Ramparkal said in a statement today.

    Ramkarpal, a lawyer, said he too believed that the appointment of Md Raus and Zulkefli were unconstitutional but stressed that their removal must be in accordance with the rule of law.

    "I have always been of the view that the appointments of Raus and Zulkefli as
    the chief justice and Court of Appeal president respectively are unconstitutional and have offered my reasons for this in the past and do not wish to repeat the same here.

    "However, the removal of Raus and Zulkefli must be in accordance with the rule of law and Daim’s involvement in this (if true) is certainly contrary to the said rule of law," he said.

    Ramparkal pointed out that the challenge against Raus and Zaulkefli's appointments is already pending in the Federal Court.

    "The Federal Court should fix a date for decision of the same as soon as possible in light of the fact that the matter is quite obviously one of urgency which needs to be resolved quickly in the interests of justice," he said.

    Last year, Raus and Zulkefli were appointed as additional judges in order to stay on as Chief Justice and Court of Appeal president. 

    The "additional judge" route was seen as an attempt to bypass the 66 years and six months age limit for the position of chief justice and Court of Appeal president.

    Their appointments were pursuant to Article 122(1A) of the Federal Constitution.

    Article 122(1A) states that "Notwithstanding anything in this constitution contained, the Yang di-Pertuan Agong acting on the advice of the chief justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court, provided that no such additional judge shall be ineligible to hold office by reason of having attained the age of 66 years".

    Prior to these appointments, former chief justice Abdul Hamid Mohamad had opined that Article 122(1A) cannot be a backdoor to extend the tenure of the chief justice. - Malaysiakini, 10/6/2018


    Daim demanded CJ and COA president resign, Sri Ram claims

    Published on  |  Modified on
       
     
    Council of Eminent Persons chairperson Daim Zainuddin has allegedly demanded the resignations of Chief Justice Md Raus Sharif and Court of Appeal president Justice Zulkefli Ahmad Makinudin. 
     
    Former Federal Court judge Gopal Sri Ram claimed it was "an open secret" that this occurred during a meeting at Daim's private office.

    It is unclear when the meeting occurred. Malaysiakini has contacted Raus and sources close to Daim for confirmation.

    Sri Ram said Daim, who is also a lawyer, should not have demanded Raus and Zulkefli's resignations, adding that it was unconstitutional for anyone other than the prime minister to summon the head of the judiciary.

     "Although this may have been motivated by the best of intentions, what happened is quite wrong.

    "Daim is not the prime minister, and even if he had been asked by the prime minister to do what he did, he should have declined and left it to the attorney-general, the prime minister and the cabinet to handle this.

    "After all, we do not want to return to the old days when there was no respect for the separation of powers and the due observance of constitutional requirements," Sri Ram said in an email to Malaysiakini.

    The senior lawyer said that by "acceding" to Daim's invitation, Raus and Zulkefli had only made matters worse.

    "With respect, had they believed that their continued occupation of their respective office was justified, they should have dignifiedly declined the invitation," he said.

    Raus and Zulkefli's current appointments as chief justice and appellate court president respectively have attracted controversy.

    This is due to the fact that their tenures were extended beyond the mandatory age of retirement for federal judges. The method through which the extensions were given was also questionable.

    Sri Ram said that if the duo had rejected their extension they would not have had to suffer the "humiliation" of being treated "no better than office boys."

    As such, he urged the duo to resign at once. Alternatively, he added, the attorney-general should inform the courts that the government no longer supported their appointments as constitutional. - Malaysiakini, Malaysiakini, 10/6/2018