Pakatan Harapan's delay in abolition of draconian laws like POCA, POTA, SOSMA, etc earned the ire of Malaysian lawyers. 2 of the Resolutions Adopted at the 73rd Annual General Meeting of the Malaysian
Bar Held at Wisma MCA, Kuala Lumpur (Saturday, 16 Mar 2019) are as follows:-
(3) Resolution
of Dissatisfaction on the Delay in Abolition of Draconian Laws, and
Call for Moratorium on Use of Such Laws Pending Abolition
Whereas
1. The Pakatan Harapan General Election Manifesto, being the ‘Buku Harapan – Rebuilding Our Nation Fulfilling Our Hopes’ gave the undertaking that the ‘…Pakatan Harapan Government will revoke the following laws: •Sedition Act 1948 •Prevention of Crime Act 1959 •Universities and University Colleges Act 1971 •Printing Presses and Publications Act 1984 •National Security Council Act 2016..’
2. It also said that the ‘Pakatan Harapan Government will also abolish draconian provisions in the following Acts: •Penal Code 1997 especially on peaceful assembly and activities harmful to democracy •Communications and Multimedia Act 1998 •Security Offences (special measures) Act 2012 (SOSMA) •Peaceful Assembly Act 2012 •Prevention of Terrorism Act (POTA) 2015’
3. It also promised ‘…To ensure an effective check and balance, the Pakatan Harapan Government will revoke all clauses that prevent the Court from reviewing decisions of the Government or the laws introduced by the Government…’
4. Almost 9 months have passed, since the Pakatan Harapan became government, after successfully ousting the UMNO-Barisan Nasional Government, which have been in power since Malaysia’s independence in 1957, and the promises of repeal and amendments have yet to happen, and in fact, sadly some of these laws including the Sedition Act is still being used;
5. On 26/2/2018, the Inspector General of Police was reported saying that Barisan Nasional secretary-general Datuk Seri Nazri Aziz was being investigated under Sedition Act.
Detention Without Trial laws
6. Likewise, the draconian Detention Without Trial(DWT) laws like Prevention of Crime Act 1959(POCA) and Prevention of Terrorism Act (POTA) 2015(POTA) continue to be used.
7. It must be noted that these DWT laws, not only allows for Detentions and Restrictions without trial, it also does not allow innocent victims to challenge the reasons/justifications for its usage against the victim.
8. It is stated in Section 15B(1) of POCA that ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ In 15B(3) it stated that "judicial review" includes proceedings instituted by way of…(ba) a writ of habeas corpus…’
9. Section 19(1) POTA states that ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision…’ Similarly, "judicial review" here also includes proceedings instituted by way of… a writ of habeas corpus…’
10. The same be the case for the Dangerous Drugs(Special Preventive Measures) Act 1985, whereby section 11C(1) states, ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ Section 11D also states that ‘judicial review’ includes the writ of habeas corpus.
11. At the Universal Periodic Review of, that was held on 8 November 2018 ‘Malaysia stated that the Prevention of Crime Act and the Prevention of Terrorism Act were not arbitrarily used against any person or group, and that no person would be arrested or detained solely for his or her political belief for political activity. A number of safeguards protected the rights of detainees, such as the requirement to immediately notify the detainee’s next of kin, the right to file a writ of habeas corpus and the right to make representations to the Advisory Board. Various measures had been put in place to protect the rights of detained minors.’
12. Malaysia’s response about Detention Without Trial laws was misleading. It failed to highlight that the fundamental question as to why such laws was used against a particular victim was not subject to judicial review. Judicial review was only on technical matters of compliance with procedures.
13. The Advisory Board is not the Judiciary, but merely an administrative body under the Executive, whose decisions cannot be subject to judicial review making it such that an innocent person cannot even challenge the wrong or false reasons used to justify his arrest, detention and/or restriction.
14. Pakatan Harapan committed to the revocation of all clauses that prevent the Court from reviewing decisions of the Government.
15. The POCA, as noted is no more just for alleged suspects involved in gangs or triads, involved in violent crime but is now so wide that it even applies to all crimes under the Penal Code allegedly committed by 2 or more persons.
16. Having in these DWT laws, the provision that no person would be arrested and detained solely for their political belief and/or activity is certainly no assurance for the reasons used for their arrest/detention/restrictions cannot be challenged in court.
17. Note also, that detention and/or restrictions served under these DWT laws, does not protect these victims from future prosecution, conviction and sentence.
18. As such, all Detention Without Trial laws must be abolished, and every person must be entitled to the right to a fair trial. The presumption of innocence until convicted by court must apply.
Security Offences (Special Measures) Act 2012 (SOSMA)
19. Security Offences (Special Measures) Act 2012 (SOSMA) is akin to the Essential (Security Cases) Regulations 1975 (ESCAR), and it allows for the use of lesser evidential and procedural standards, as required for in ordinary criminal trials. It is an affront to the constitutional guarantee that is stated in Article 8(1) ‘All persons are equal before the law and entitled to the equal protection of the law’.
20. It undermines one’s right to a fair trial. It deprives one to the right to bail. Evidential and criminal procedural requirements/standards in the administration of justice are in place to ensure a fair trial, and everyone deserves the same fair trial.
21. SOSMA allows the evidence normally not admissible like the evidence of child of tender years. Section 19 states that, ‘A conviction obtained based on the uncorroborated testimony of a child of tender years is not illegal, though not given under oath, if the court is of the opinion that the child is possessed of sufficient intelligence and understands the duty of speaking the truth.’
22. All statements made by the accused is also admissible. In Malaysia, since 2007, statements made by accused whilst in police custody cannot be used by the prosecution. The concern that brought about this amendment could be torture.
23. SOSMA also allows for witnesses for the prosecution who refuses to have his identity disclosed and wishes to give evidence in such a manner that he would not be seen or heard by both the accused and his counsel, and also for evidence to be taken without the presence of accused or counsel.
24. SOSMA is worse, as it can be used for so many more security offences as listed in the Act. Now SOSMA can only be used for so many ‘security offences’, which now includes over 60 offences in the Penal Code, including the newly introduced draconian offences criminalizing all forms of ‘activity detrimental to parliamentary democracy’(section 124B-J Penal Code) which is also under Chapter VI – Offences Against The State.
25. The continued use of the all other draconian laws that were supposed to be abolished is also most disturbing.
THEREFORE, it is hereby resolved that:
A. The Malaysian Bar urge the Malaysian government to speedily abolish all draconian laws without any further delay, and immediately impose a moratorium on using these laws pending abolition;
B. The Malaysian Bar call on the Malaysian government to abolish all Detention Without Trial Laws including Prevention of Crime Act 1959, Prevention of Terrorism Act (POTA) 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985;
C. The Malaysian Bar call on the Malaysian government to abolish Security Offences (Special Measures) Act 2012;
D. The Bar Council, noting also past Bar Resolutions, continue to act with resolve to ensure that all draconian and unjust legislations are repealed.
Whereas
1. The Pakatan Harapan General Election Manifesto, being the ‘Buku Harapan – Rebuilding Our Nation Fulfilling Our Hopes’ gave the undertaking that the ‘…Pakatan Harapan Government will revoke the following laws: •Sedition Act 1948 •Prevention of Crime Act 1959 •Universities and University Colleges Act 1971 •Printing Presses and Publications Act 1984 •National Security Council Act 2016..’
2. It also said that the ‘Pakatan Harapan Government will also abolish draconian provisions in the following Acts: •Penal Code 1997 especially on peaceful assembly and activities harmful to democracy •Communications and Multimedia Act 1998 •Security Offences (special measures) Act 2012 (SOSMA) •Peaceful Assembly Act 2012 •Prevention of Terrorism Act (POTA) 2015’
3. It also promised ‘…To ensure an effective check and balance, the Pakatan Harapan Government will revoke all clauses that prevent the Court from reviewing decisions of the Government or the laws introduced by the Government…’
4. Almost 9 months have passed, since the Pakatan Harapan became government, after successfully ousting the UMNO-Barisan Nasional Government, which have been in power since Malaysia’s independence in 1957, and the promises of repeal and amendments have yet to happen, and in fact, sadly some of these laws including the Sedition Act is still being used;
5. On 26/2/2018, the Inspector General of Police was reported saying that Barisan Nasional secretary-general Datuk Seri Nazri Aziz was being investigated under Sedition Act.
Detention Without Trial laws
6. Likewise, the draconian Detention Without Trial(DWT) laws like Prevention of Crime Act 1959(POCA) and Prevention of Terrorism Act (POTA) 2015(POTA) continue to be used.
7. It must be noted that these DWT laws, not only allows for Detentions and Restrictions without trial, it also does not allow innocent victims to challenge the reasons/justifications for its usage against the victim.
8. It is stated in Section 15B(1) of POCA that ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ In 15B(3) it stated that "judicial review" includes proceedings instituted by way of…(ba) a writ of habeas corpus…’
9. Section 19(1) POTA states that ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision…’ Similarly, "judicial review" here also includes proceedings instituted by way of… a writ of habeas corpus…’
10. The same be the case for the Dangerous Drugs(Special Preventive Measures) Act 1985, whereby section 11C(1) states, ‘(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ Section 11D also states that ‘judicial review’ includes the writ of habeas corpus.
11. At the Universal Periodic Review of, that was held on 8 November 2018 ‘Malaysia stated that the Prevention of Crime Act and the Prevention of Terrorism Act were not arbitrarily used against any person or group, and that no person would be arrested or detained solely for his or her political belief for political activity. A number of safeguards protected the rights of detainees, such as the requirement to immediately notify the detainee’s next of kin, the right to file a writ of habeas corpus and the right to make representations to the Advisory Board. Various measures had been put in place to protect the rights of detained minors.’
12. Malaysia’s response about Detention Without Trial laws was misleading. It failed to highlight that the fundamental question as to why such laws was used against a particular victim was not subject to judicial review. Judicial review was only on technical matters of compliance with procedures.
13. The Advisory Board is not the Judiciary, but merely an administrative body under the Executive, whose decisions cannot be subject to judicial review making it such that an innocent person cannot even challenge the wrong or false reasons used to justify his arrest, detention and/or restriction.
14. Pakatan Harapan committed to the revocation of all clauses that prevent the Court from reviewing decisions of the Government.
15. The POCA, as noted is no more just for alleged suspects involved in gangs or triads, involved in violent crime but is now so wide that it even applies to all crimes under the Penal Code allegedly committed by 2 or more persons.
16. Having in these DWT laws, the provision that no person would be arrested and detained solely for their political belief and/or activity is certainly no assurance for the reasons used for their arrest/detention/restrictions cannot be challenged in court.
17. Note also, that detention and/or restrictions served under these DWT laws, does not protect these victims from future prosecution, conviction and sentence.
18. As such, all Detention Without Trial laws must be abolished, and every person must be entitled to the right to a fair trial. The presumption of innocence until convicted by court must apply.
Security Offences (Special Measures) Act 2012 (SOSMA)
19. Security Offences (Special Measures) Act 2012 (SOSMA) is akin to the Essential (Security Cases) Regulations 1975 (ESCAR), and it allows for the use of lesser evidential and procedural standards, as required for in ordinary criminal trials. It is an affront to the constitutional guarantee that is stated in Article 8(1) ‘All persons are equal before the law and entitled to the equal protection of the law’.
20. It undermines one’s right to a fair trial. It deprives one to the right to bail. Evidential and criminal procedural requirements/standards in the administration of justice are in place to ensure a fair trial, and everyone deserves the same fair trial.
21. SOSMA allows the evidence normally not admissible like the evidence of child of tender years. Section 19 states that, ‘A conviction obtained based on the uncorroborated testimony of a child of tender years is not illegal, though not given under oath, if the court is of the opinion that the child is possessed of sufficient intelligence and understands the duty of speaking the truth.’
22. All statements made by the accused is also admissible. In Malaysia, since 2007, statements made by accused whilst in police custody cannot be used by the prosecution. The concern that brought about this amendment could be torture.
23. SOSMA also allows for witnesses for the prosecution who refuses to have his identity disclosed and wishes to give evidence in such a manner that he would not be seen or heard by both the accused and his counsel, and also for evidence to be taken without the presence of accused or counsel.
24. SOSMA is worse, as it can be used for so many more security offences as listed in the Act. Now SOSMA can only be used for so many ‘security offences’, which now includes over 60 offences in the Penal Code, including the newly introduced draconian offences criminalizing all forms of ‘activity detrimental to parliamentary democracy’(section 124B-J Penal Code) which is also under Chapter VI – Offences Against The State.
25. The continued use of the all other draconian laws that were supposed to be abolished is also most disturbing.
THEREFORE, it is hereby resolved that:
A. The Malaysian Bar urge the Malaysian government to speedily abolish all draconian laws without any further delay, and immediately impose a moratorium on using these laws pending abolition;
B. The Malaysian Bar call on the Malaysian government to abolish all Detention Without Trial Laws including Prevention of Crime Act 1959, Prevention of Terrorism Act (POTA) 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985;
C. The Malaysian Bar call on the Malaysian government to abolish Security Offences (Special Measures) Act 2012;
D. The Bar Council, noting also past Bar Resolutions, continue to act with resolve to ensure that all draconian and unjust legislations are repealed.
The motion was proposed by Charles Hector Fernandez, Francis Pereira and Shanmugam a/l Ramasamy.
(2) Resolution for the Immediate
Abolition / Repeal of Draconian Legislative Provisions
Whereas:
(1) Article 5(1) of the Federal Constitution guarantees that no person shall be deprived of life and personal liberty, save in accordance with the law.
(2) Article 8(1) of the Federal Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law.
(3) There remain on the statute books of Malaysia, legislation and provisions of legislation that are abhorrent to the liberty of the individual, violate the rule of law and undermine the administration of justice.
(4) The existence of such legislation and legislative provisions are a real and present danger to the safety and security of Malaysia, in that they have given rise to repeated incidents of abuse and misuse by law enforcement and prosecutorial authorities, and their continued existence constitute an affront to the enjoyment of the fundamental liberties as enshrined in the Federal Constitution.
(5) In certain cases, legislation cannot be saved or salvaged in any meaningful way by amendment or reform of offending provisions since in their basic intent and effect, they represent a spirit of authoritarianism, oppression and repression, and are draconian in nature.
(6) In certain other cases, legislative provisions are heinous, offensive and regressive, and in total disregard to international human rights norms and standards.
(7) The Pakatan Harapan Government had pledged, under Pillar 2 of its election manifesto, “Buku Harapan”, on “Institutional and Political Reform”, to revoke and/or abolish draconian provisions in several acts.
(8) The Government has been procrastinating on delivering on its pledges in this regard.
Therefore, it is hereby resolved that the Malaysian Bar:
(A) Call for the immediate abolition of the following draconian legislation:
(B) Call for the immediate repeal of the following draconian legislative provisions:
(C) Mandate the Bar Council to take all such action as may be necessary or appropriate to achieve the implementation of the aims of this resolution.
Whereas:
(1) Article 5(1) of the Federal Constitution guarantees that no person shall be deprived of life and personal liberty, save in accordance with the law.
(2) Article 8(1) of the Federal Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law.
(3) There remain on the statute books of Malaysia, legislation and provisions of legislation that are abhorrent to the liberty of the individual, violate the rule of law and undermine the administration of justice.
(4) The existence of such legislation and legislative provisions are a real and present danger to the safety and security of Malaysia, in that they have given rise to repeated incidents of abuse and misuse by law enforcement and prosecutorial authorities, and their continued existence constitute an affront to the enjoyment of the fundamental liberties as enshrined in the Federal Constitution.
(5) In certain cases, legislation cannot be saved or salvaged in any meaningful way by amendment or reform of offending provisions since in their basic intent and effect, they represent a spirit of authoritarianism, oppression and repression, and are draconian in nature.
(6) In certain other cases, legislative provisions are heinous, offensive and regressive, and in total disregard to international human rights norms and standards.
(7) The Pakatan Harapan Government had pledged, under Pillar 2 of its election manifesto, “Buku Harapan”, on “Institutional and Political Reform”, to revoke and/or abolish draconian provisions in several acts.
(8) The Government has been procrastinating on delivering on its pledges in this regard.
Therefore, it is hereby resolved that the Malaysian Bar:
(A) Call for the immediate abolition of the following draconian legislation:
(i) Sedition
Act 1948;1
(ii) Prevention of Crime Act 1959;2
(iii) Universities and University Colleges Act 1971;3
(iv) Printing Presses and Publications Act 1984;4
(v) Dangerous Drugs (Special Preventive Measures) Act 1985;5
(vi) Security Offences (Special Measures) Act 2012;6
(vii) Prevention of Terrorism Act 2015;7 and
(viii) National Security Council Act 2015.8
(ii) Prevention of Crime Act 1959;2
(iii) Universities and University Colleges Act 1971;3
(iv) Printing Presses and Publications Act 1984;4
(v) Dangerous Drugs (Special Preventive Measures) Act 1985;5
(vi) Security Offences (Special Measures) Act 2012;6
(vii) Prevention of Terrorism Act 2015;7 and
(viii) National Security Council Act 2015.8
(B) Call for the immediate repeal of the following draconian legislative provisions:
(i) Penal Code,
sections 124B to 124J;
(ii) Communications and Multimedia Act 1998, in relation to sections 233, 263, and other vague provisions;9
(iii) Official Secrets Act 1972, sections 2A, 2B and 16A;10
(iv) Film Censorship Act 2002, sections 23(2) and 48;11 and
(v) Peaceful Assembly Act 2012, section 4;12 and
(ii) Communications and Multimedia Act 1998, in relation to sections 233, 263, and other vague provisions;9
(iii) Official Secrets Act 1972, sections 2A, 2B and 16A;10
(iv) Film Censorship Act 2002, sections 23(2) and 48;11 and
(v) Peaceful Assembly Act 2012, section 4;12 and
(C) Mandate the Bar Council to take all such action as may be necessary or appropriate to achieve the implementation of the aims of this resolution.
----------------------------------------------------
[1] Position of the Bar Council submitted to the Committee for Institutional Reforms 2018 (“CIR 2018”): Total repeal of the Sedition Act 1948; Resolution adopted at the Malaysian Bar Annual General Meeting (“Resolution AGM”) 2015: Total repeal; Resolution adopted at the Malaysian Bar Extraordinary General Meeting (“Resolution EGM”) 2014: Total repeal.
[2] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[3] CIR 2018: Total repeal and enact new legislation to standardise the establishment of universities, etc.
[4] CIR 2018: Total repeal.
[5] Resolution AGM 2017: Total repeal; Resolution AGM 2008: Total repeal.
[6] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[7] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[8] CIR 2018: Total repeal; Resolution AGM 2017: Rejected passing of the Bill, and calls upon the Government not to bring the NSC Bill into force without first making extensive revisions to its provisions.
[9] CIR 2018: Repeal of sections 233 and 263; Resolution AGM 2016: Repeal of sections 233 and 263, and other vague provisions.
[10] CIR 2018: Amend the Official Secrets Act 1972; in tandem with the introduction of a Freedom to Information legislation.
[11] CIR 2018: Repeal of all ouster clauses in all legislation. This includes the Film Censorship Act 2002.
[12] Malaysian Bar Memorandum on Peaceful Assembly Bill, 24 November 2011: Suggested several improvements; Press Release, 22 November 2011 (“Peaceful Assembly Bill is More Restrictive Than Present Law and Must be Improved”): Suggested several improvements.
[1] Position of the Bar Council submitted to the Committee for Institutional Reforms 2018 (“CIR 2018”): Total repeal of the Sedition Act 1948; Resolution adopted at the Malaysian Bar Annual General Meeting (“Resolution AGM”) 2015: Total repeal; Resolution adopted at the Malaysian Bar Extraordinary General Meeting (“Resolution EGM”) 2014: Total repeal.
[2] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[3] CIR 2018: Total repeal and enact new legislation to standardise the establishment of universities, etc.
[4] CIR 2018: Total repeal.
[5] Resolution AGM 2017: Total repeal; Resolution AGM 2008: Total repeal.
[6] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[7] CIR 2018: Total repeal; Resolution AGM 2017: Total repeal.
[8] CIR 2018: Total repeal; Resolution AGM 2017: Rejected passing of the Bill, and calls upon the Government not to bring the NSC Bill into force without first making extensive revisions to its provisions.
[9] CIR 2018: Repeal of sections 233 and 263; Resolution AGM 2016: Repeal of sections 233 and 263, and other vague provisions.
[10] CIR 2018: Amend the Official Secrets Act 1972; in tandem with the introduction of a Freedom to Information legislation.
[11] CIR 2018: Repeal of all ouster clauses in all legislation. This includes the Film Censorship Act 2002.
[12] Malaysian Bar Memorandum on Peaceful Assembly Bill, 24 November 2011: Suggested several improvements; Press Release, 22 November 2011 (“Peaceful Assembly Bill is More Restrictive Than Present Law and Must be Improved”): Suggested several improvements.
The motion was proposed by George Varughese (Chairman, Bar Council), on behalf of the Bar Council.
Source: Malaysian Bar Website
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