IGP, you sure Movida a 'terrorist offence'? Full rights to the detained suspects - No SOSMA or POTA or...?

So, is the IS [Islamic State] attacking Malaysia? Was their target - Putrajaya, Parliment, Prime Minister, ...? No, it was just some little known club in Puchong - not even in City Centre? And how did our Inspector General of Police investigate and make conclusions so speedily? 

Certainly took a long time with RM2.6 Billion and IMDB cases, didn't they? Here - within about a WEEK? 

From the news report:-
 
- police knows the 2 who threw grenade?  Was it some CCTV footage, identified by witnesses, fingerprints, the 2 confessed?

- who in Syria instructed the 15 locals here in Malaysia? - Did the 15 arrested reveal this information to the police? Phone records confirmed this?

Really amazing job by the Malaysian police -

CAN WE BELIEVE THE IGP? Well, we remember the past - Anwar caused the black eye himself...and the death in custody initial responses... personally, I would say not yet...

Maybe the IGP should have just said 'suspected'....and not CONFIRM anything...

INVESTIGATE IT SIMPLY AS A CRIMINAL OFFENCE - NOT A 'TERRORIST OFFENCE'

Remember that what happened in Puchong is already a criminal offense according to our Penal Code and other laws - there is really no reason to call it a 'terror' offence or a terrorist attack...

When we allow our government to call it a 'terrorist offence' - that will allow the police/government to use SOSMA, POTA and all these other draconian laws that allows for the suppression of rights of the accused persons (or suspects)...the right to a fair trial may also be denied...and they may also simply be subjected to 'detention without trial'...other 'Restriction Orders'...

Opposition leader and PKR President, Wan Azizah, also seem to have  swallowed what the IGP said as being true - and she also said she believes that IS was responsible...She says, '“We are now a target of the IS terrorist organisation.' 

Sadly, Wan Azizah, was also reported asking 'reclassify all incidents involving explosives, including hand grenades, as being terror attacks in nature until proven otherwise.' She obviously forgets that such a classification opens the door to the denial of fair trial rights, and other rights of suspects and/or accused persons. It opens the door to POTA (Prevention of Terrorism Act) - which allows for Detention Without Trial (for 2 years and more), etc ...

Wan Azizah really must reconsider her statement, which seems to be a 'knee-jerk' response rather than a well considered expression of the stand of PKR? ...Is PKR for human rights and justice...?

Now, as mentioned, we have the necessary offences (without even looking at those 'terrorist offence') in Malaysia's Penal Code...

What laws _

s. 307 - Attempted Murder > sentence 10 years 

s. 326  Voluntarily causing grievous hurt by dangerous weapons or means... ( which includes also use of explosives)> imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping.

Whoever, except in the case provided by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death or any scheduled weapon as specified under the Corrosive and Explosive Substances and Offensive Weapons Act 1958, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping.

Well - we ,have provisions to get all the Abetors (those who incited, facilitated, assisted, etc...) - the whole group, if that is the case..

sec.  107  Abetment of a thing
A person abets the doing of a thing who-

(a) instigates any person to do that thing;
(aa) commands any person to do that thing;
(b) engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
(c) intentionally aids, by any act or illegal omission, the doing of that thing.

And yes, we also have that section 120A -  Criminal Conspiracy... "When two or more persons agree to do, or cause to be done..."

We want them to be given every right available to any criminal suspect...and certainly the right to a fair trial...

But, I worry, that our government may resort to SOSMA and POTA and....  - and, they may never even be charged and tried ...and simply subjected to Detention Without Trial??? 

THEY WHO ARE NOW ARRESTED AND DETAINED AS SUSPECTS SHOULD BE ACCORDED ALL RIGHTS ACCORDED TO SUSPECTS IN THE CRIMINAL JUSTICE SYSTEM - AND CERTAINLY THE RIGHT TO A FAIR TRIAL.

NO TO DETENTION WITHOUT TRIAL(DETENTION ORDERS) OR RESTRICTION ORDERS - A FAIR TRIAL IN OPEN COURT IS WHAT THEY DESERVE, AND WHAT ALL MALAYSIANS WANT...

 

 4 July 2016 | MYT 3:32 PM

Cops confirm Movida bombing first ever IS attack in Malaysia

by m. kumar

Khalid showing the photos of the suspects at a press conference on Monday.

KUALA LUMPUR: Police have confirmed that the Movida night club bombing last week was the first ever successful IS attack on Malaysian soil.

Inspector-General of Police Tan Sri Khalid Abu Bakar said the attack, which left eight people injured, was carried out by locals who were directly instructed by IS member Muhamad Wanndy Mohamad Jedi from Syria.

“Since the attack on June 28 to July 1, we have arrested 15 people including the two men who threw the hand grenade,” he said.

It was confirmed that two of the 15 were also policemen. - Star, 4/7/2016

 

 

 

Wan Azizah: Ulama must come out and condemn IS attack

FMT Reporters

 | July 4, 2016

Opposition leader also wants police to classify all incidents involving explosives as terrorist attacks.

PETALING JAYA: Opposition leader Dr Wan Azizah Wan Ismail has urged police to reclassify all incidents involving explosives, including hand grenades, as being terror attacks in nature until proven otherwise.

She also wanted the ulama, intellectuals and leaders at all levels to come forward to condemn such attacks.

She said the government must be constantly cautious of any attempts, rhetoric and polemics that not only supported the IS extremist ideology but also all other extremist ideologies.

“The government must also be firm and consistent by providing clear leadership and curb a climate that encourages extremism, racism, corruption and religious deviancy, including by learning from the recent kafir harbi episode where the government was very slow to act resulting in the rise of unhealthy polemics,” she said in a press statement today.

She said Malaysians were shocked to learn that the police had confirmed that the hand grenade attack on a nightspot in Puchong on June 28 was a planned attack by the IS militant extremists.

This was despite an earlier statement that the attack may have underworld elements, she said.

Eight people watching a Euro football match were injured when a hand grenade was tossed at them at 2.15am.

IS has also recently claimed responsibility for the attacks in Bangladesh (in which 20 people were killed) and also in Baghdad (in which more than 165 people have been killed so far).

The PKR leader asked police to swiftly apprehend and disable all active IS cells and bring to justice all those involved in extremist militant activities such as IS.

She urged Malaysians to be vigilant and to remain united.

“We are now a target of the IS terrorist organisation. Therefore, we must reach across our political, ethnic, and socio-economic divide for the sake of our common security and the future of our beloved nation.” - FMT News, 4/7/2016

Wednesday, 29 June 2016 | MYT 8:10 PM

IGP: We are probing all angles, including terrorist elements

by nadirah h. rodzi

KUALA LUMPUR: Inspector-General of Police Tan Sri Khalid Abu Bakar urged everyone “not to give recognition” to those claiming responsibility of terror attacks.

“The more we recognise them, the happier they are. Let us investigate the incident (Tuesday’s grenade attack at a nightspot in Puchong)

“We are probing all angles, including terrorist elements,” Khalid said after receiving 300 helmets, sponsored by Celcom Axiata, on behalf of the Kuala Lumpur traffic police.

A Malaysian man, who identified himself as Abu Hamzah Al-Fateh, had claimed responsibility for the grenade attack on his Facebook.

Abu Hamzah said the attack was to answer a challenge by Khalid to Islamic State last week.

Another posting of Abu Hamzah claimed that the attack was carried out by two militants against “a club full of infidels or kafir harbi” and warned Muslims to avoid such places so that “they will not be targets”.

Asked if the postings were legitimate, Khalid said: “There are so many untrue things being shared on social media. I let you judge for yourself.”  - Star, 29/6/2016

AG Apandi Ali, being former senior judge, should really not be be appearing in court as lawyer for accussed or prosecution?

By virtue of being a former/retired FEDERAL COURT JUDGE, Apandi Ali should not appear personally in any court case as lawyer/public prosecutor...It really is a question of ethics and/or principles - not so much of being the law in Malaysia?

Well, in Malaysia, this issue of what a retiring senior Judge do or do not do arised when one of Malaysia's senior judge on retirement allegedly almost immediately joined a law firm... the thinking then was that retiring judges should really have a 'cooling off period', maybe of at least a certain number of years - it was suggested that it should be at least 3...The matter was discussed by the Malaysian Bar, and was even tabled as a motion during the Bar AGM...

As time past, the position changed - suggesting that former senior judges really should never really return to the courts to fight battles as lawyers before other judges... 

The resolution adopted by the Malaysian Bar at its AGM in 2014 may give you some idea of some of the reasons why former senior judge like AG Apandi Ali really should not be appearing and fighting in court...

Apandi Ali is the Public Prosecutor/Attorney General - but, it matters not, for the same principles apply whether a former senior judge appears for accused or the prosecution...

There was no problem for the previous Attorney General Ghani Patail appearing personally to prosecute in court because he was not a former senior Judge - but Apandi Ali is a former Federal Court judge... 

# There may be other arguments as to why the Attorney General should not...but we will not discuss that here.

Resolution regarding retired judges of the superior courts appearing as counsel in court

(A) WHEREAS it is a fundamental principle of the Malaysian legal system that not only must justice be done, it must be seen to be done; thus perceptions and appearances matter.

(B) WHEREAS it is a principle of antiquity in common law jurisdictions that a retired judge of a superior court should not practise as counsel before the judges who were previously his colleagues or his junior to him on the Bench.

(C) WHEREAS that tradition and convention was likewise observed in Malaysia for decades, until in recent years.

(D) WHEREAS retired judges now frequently appear as counsel, not only in the superior courts, but also in the subordinate courts and even to argue chamber applications.

(E) WHEREAS such conduct may involve the retired judge/counsel purporting to rely upon, distinguishing or criticising decisions made by him while he was on the Bench; worse, there could arise a situation of such a retired judge invoking the principle of stare decisis to submit that the Court is bound by some decision of his handed down when he was a judge.

(F) WHEREAS such conduct may have the effect of intimidating the Bench and worse, it could give the perception that the said retired judge/counsel and his client have an advantage over other counsel and adverse parties.

(G) WHEREAS such conduct may adversely affect public perception as to the administration of justice.

(H) WHEREAS the co-proposer of this motion, Tan Sri V C George and five other retired Judges of the superior courts have written a letter to the President of the Malaysian Bar dated 2 March 2014, expressing their view, concern and objection with the practice of some retired Judges of the superior courts appearing as counsel in Court.

(I) In the context, retired Judges of the superior court having failed to honour tradition and convention by appearing as counsel, they must now be prohibited or restricted by law from continuing with such unacceptable conduct.

The Malaysian Bar therefore resolves:

(1) That a retired judge of the superior courts should be prohibited or restricted by law from appearing as counsel in court, and to achieve that objective calls on the incoming Bar Council to propose an amendment of the Legal Profession Act 1976 to the Attorney General for urgent presentation to Parliament; and

(2) The Bar Council takes all reasonable steps to educate the public on the reasons for the proposed amendment to the law. - Malaysian Bar Website

Below, an article from the Star, which is also relevant 

Ex-judges must remain ethical

Monday, 29 July 2013 08:13am

©The Star (Used by permission) LEGALLY SPEAKING BY ROGER TAN Who a former judge later associates with and what he subsequently does or says will still be closely scrutinised by the public. THE morning after I retired, a Rolls Royce arrived at my house with a message that I was required to attend a very important board meeting. Without further ceremony, I was taken to the penthouse of the Chartered Bank. Here, I was appointed chairman and required to call the meeting to order. “There were only three items on the agenda. Caviar, champagne and any other matters arising therefrom. At noon, we adjourned to a private room in the Shangri-La for a sumptuous lunch. When I was driven back home at 3pm, I greatly regretted I had not retired years earlier!” Those were the bantering words of one of Malaysia’s most celebrated judges, Tun Mohamed Suffian, at a dinner given in his honour shortly after his retirement as Lord President on Nov 12, 1982. At first glance, these may well be facetious remarks, but it does go to show that a retired judge can be commercially marketable and become an asset for any organisation to be associated with. Needless to say, who an ex-judge later associates with and what subsequently he does or says will still be closely scrutinised by the public. His judicial conduct during his pre-retirement or resignation days may even be called into question if he later exhibits strong inclinations or preferences whether politically, socially or morally. However, currently, the Judges’ Code of Ethics 2009, made pursuant to Article 125(3B) of the Federal Constitution, does not deal with the conduct of judges after their retirement or resignation. Hence, an ex-judge will have to be guided by his own conscience when he embarks on any post-retirement activities. Most of them will become an arbitrator or join a legal firm as its consultant or a statutory body as its chairman. To date, only three are said to have returned to the court as counsel – Tun Mohamed Salleh Abas, Datuk Kamalanathan Ratnam (better known as R.K. Nathan) and Datuk Gopal Sri Ram. For Abas, with respect, he had not been winning many cases. Neither, in my view, had he been treated with the respect he should deserve by some members of the Bench. I must say I felt rather sorry for him. But apart from being a consultant of a legal firm, he also went on to become an elected state assemblyman for PAS and a state executive councillor of Terengganu. For Ratnam, he created controversy in the case of Perbadanan Pembangunan Pulau Pinang v Tropiland Sdn Bhd (2009) when he attempted to act as a counsel for the defendants in two consolidated suits over matters which he had previously presided for no less than 13 times when he was a High Court judge in Penang. It was argued, inter alia, that his appearance would “be beneficial to the legal fraternity considering his past experience and expertise”. The court would have nothing of this and disqualified him as counsel. For Ram, he had a great maiden appearance as a “judge counsel” before a five-bench Federal Court on July 18. It was also reported that after the hearing ended, lawyers and chambering students were seen taking photographs with him. To the Bar Council, it now appears that it is dead set against any ex-judge of the superior courts (High Court, Court of Appeal and the Federal Court) appearing in court as counsel. Of course, one would wonder why only now the Bar had expressed its disapproval. But certainly if this is wrong, then two wrongs cannot make a right. Chief Justice Tun Arifin Zakaria even weighed in to give his approval, adding that advantages would outweigh disadvantages as the judge counsel could share his experience with the Bench but the Bench would still decide each case based on its merits. Writing for the Malaysian Judiciary Yearbook 2011, former Court of Appeal judge Tan Sri V. C. George (who, together with former Chief Justice Tun Mohamed Dzaiddin Abdullah, are now consultants to the same legal firm) argued in his article, “Appearance in Court by Retired Judges of the Superior Courts”, that it is timely that all stakeholders should meet and form a consensus on the ethical principles of such a practice. I could not agree more with him as this has now become a cause celebre especially in Malaysia when there is no statutory prohibition against this. It is, therefore, germane to look at how other Commonwealth jurisdictions deal with it. In England, when former Lord Chancellor and Secretary of State for Constitutional Affairs Lord Falconer first informed the judiciary headed by Lord Chief Justice Lord Phillips in October 2005 that the British government had decided that judges below High Court level should be able to return to practice, the Judges’ Council immediately set up a working party to study the issue and formulate a response. In January 2006, the group came to a unanimous conclusion that the current convention against retired judges returning to legal practice should be adhered to by all members of all levels of the judiciary. It added that it was not persuaded that adequate safeguards or conditions could be put in place which would overcome the objections of principle to departing from this established convention. Recognising that there would be a danger of pomposity and excessive self-importance, the group concluded that the major objection to removing this prohibition is that “if return to practice became the norm or even something which was overtly permitted or encouraged, it would inevitably diminish the standing of the judiciary and seriously weaken its independence”. In November 2007, Falconer’s successor, Jack Straw, announced that this convention would stay. In fact, Lord Dilhorne once said: “... It should be clear, surely, to everyone at the Bar that if one accepts a judicial appointment, there are obligations attached to it that one cannot return to the Bar and practise as a barrister and that, having embarked on a judicial career one is under a moral obligation to do the job and not give it up in favour of one that appears more attractive.” Similarly, the great Lord Denning was in favour of the convention, arguing that if allowed, the sitting judge would have his eye too much on what he was going to do when he retired. Perhaps, it is best summed up by Lord Bingham in his lecture and essay, “Judicial Ethics”: “... On becoming a judge, a practitioner ceases to be a barrister or a solicitor (whether he remains on the roll or not) and becomes solely a judge, with the result that on retirement he lacks any qualification to practise. I would for my part be very sorry to see that rule eroded.” In Australia, this issue was extensively discussed by Justice J.B. Thomas in his book, Judicial Ethics in Australia, with particular reference to what the late Dame Roma Mitchell, a distinguished judge who later became Governor of South Australia, said that “acceptance of a judicial appointment should have, as a corollary the final farewell to the Bar”. Even though some law bodies in the states of Australia impose a cooling off period for a retired judge to return to practice, there are state laws which provide that a retired judge will lose his judicial pension if he returns to practice, such as Section 83(4)(ii) of Constitution Act 1975 of Victoria and Section 15(1) of Judges’ Salaries and Pensions Act 1950 of Western Australia. In India, Articles 124(7) and 220 of the Indian Constitution disallow and impose restrictions on ex-judges pleading or acting in any court or before any authority. All said, the jurisdiction most relevant to us would be Singapore. Under Section 26(2) of its Legal Profession Act (Chapter 161), an ex-judge or judicial commissioner of the High Court or Court of Appeal of Singapore who has held office for a period of three years or more will only be allowed to practise as a solicitor but not an advocate or counsel. However, it is interesting to see that Section 26(1)(d) totally proscribes any ex-judge who has served for three years or more as a judge or judicial commissioner of the Supreme Court and High Court of Malaysia to practise as an advocate and solicitor in Singapore. Even though this section requires an amendment to state correctly the names of our superior courts, what is clearly intended is to bar all our ex-judges of at least three years’ standing to practise in Singapore. In other words, ex-judges of Malaysia including Abas, Ratnam and Ram are barred from practice in Singapore but not in Malaysia because there is no similar prohibition expressed in Section 30 of our Legal Profession Act, 1976 (LPA)! Further, the aforesaid Section 26 has not been declared to be contrary to Article 9(1) of Singapore Constitution which is identical to Article 5(1) of our Federal Constitution. This means an ex-judge’s right to livelihood has not been deprived by this statutory restriction, and I agree this is rightly so because he can still practise as a solicitor. A person’s life and liberty would be best protected if we have an independent judiciary. It follows a judge’s duty to uphold and protect the independence and integrity of the judiciary does not cease upon his retirement or resignation. He and his clients will be perceived to have an unfair advantage if he is allowed to appear as a counsel. Surely, we cannot allow a retired senior judge appearing before a magistrate to ask the latter to follow the former’s decision made when he was a judge of a higher or the highest court! But it is not objectionable if he undertakes national service by arguing as counsel for the country before international courts and tribunals. In fact, because a judicial appointment is always regarded as a farewell to the Bar, many senior lawyers including yours truly have refrained from applying to join the judicial service. This is an unwritten convention. Now that it has been shown that our ex-judges, unlike British judges, cannot be relied upon to observe this convention, the Bar must now initiate an amendment to Section 30 of our LPA. Without this, the perception of a possible bias can be a constant threat to the administration of justice in Malaysia. The writer, called to the Malaysian and Singaporean Bars, is a former member of the Malaysian Bar Council. Below is something I wrote in 2007, which deals also with post-retirement conduct of judges.. OPINION: The world's biggest court complex and the Judiciary Contributed by Charles Hector    Monday, 09 April 2007 08:47am Malaysia under the premiership of Abdullah Ahmad Badawi is, unfortunately, still pre-occupied with having the tallest and biggest structures and buildings in the world in Malaysia. Soon, we will have what is proclaimed to be the biggest court complex in the world.  This world's biggest court complex in Jalan Duta, Kuala Lumpur, will house 30 High Courts, 21 Sessions Courts and 26 Magistrate's Courts and will be operational in May 2007. Amusingly, the 77-court complex will only have 500 parking bays for the public and lawyers. It is situated in a place not accessible by Light Rail Transport (LRT) or good public transport facilities. It is a catastrophe waiting to happen. A parking nightmare – 6.5 parking bays per court If one were to drop in today at any of the High Courts or Sessions Courts or Magistrate Courts and look at the number of cases listed for the day, one will be able to see that the 6.5 parking bays per court for lawyers and the public in the new "world largest" court complex is absurd. On April 2, in just two of the Appellate and Special Powers High Courts in Kuala Lumpur, where both judges were on leave and had no matters listed before them for the day, there were still 36 matters fixed before the Senior Assistant Registrars and the Deputy Registrars. Conservatively, taking two lawyers per matter listed (which is not realistic for more often than not it is more than two lawyers that turn up in court), this means 72 lawyers, and if they all drove cars, the 13 parking bays allocated for two courts in new court complex will surely not be sufficient. Taking another example, in the High Court (Commercial 1), there were 18 matters listed for the same day, and again that makes it about 36 lawyers. The numbers are even higher in the Sessions Courts and the Magistrate's Courts where even the list of fresh summons cases could be about 30 to 50 and this is when the lay defendants must be present to prevent judgment in default recorded against them. There are insufficient parking bays, and with no LRT system in Jalan Duta, there will be utter chaos. Where will lawyers and the public park their vehicles? Now, the courts in Kuala Lumpur are currently situated in Wisma Denmark and opposite Dataran Merdeka, Nearby, and there are LRT stations and many buses and taxis available. With the move to Jalan Duta, lawyers, their clients and the public will be in a situation akin to a hell on earth. Cases may be struck off and judgement entered while desperate lawyers and the public struggle to get their cars parked just to get to court in time. Even court staff, who now use affordable public transport like the LRT and buses to get to the courts, will face higher cost of travel while their wages or allowances remain the same.  No real reason to move With regard to the High Courts situated now in Wisma Denmark, where the government has to pay rental to the private owners of the building, a move to “our own” building would be a good idea – but for the courts being housed in the Federal Court Building, the JKR Building, the Jalan Raja government-owned buildings and the rather new Sessions and Criminal High Court building, there really is no necessity for any move to ONE big court complex in Jalan Duta. These buildings in front of the Dataran Merdeka have housed courts for almost 100 years, and there is no necessity to move them out to some new court complex unless the motive is just to get into the Guinness Book of Records. The Shah Alam Court complex should have served as a very valuable lesson to our government, for here everyday lawyers and the public have to break the law and park their cars beside the road and walk sometimes about half a kilometer lugging their big bags of documents along the road and up the steep stairs just to get to court. When it rains, it is worse. Our government did not learn from past mistakes and continues making the same mistakes over and over again causing greater loss of public funds and increased suffering for the masses. Some serious studies of the number of people that come to court - and their mode of transport - would have not led the government into making this bad move of building a huge court complex with 77 courts at a place where there is clearly insufficient parking bays and definitely inadequate affordable public transport. If anyone should have protested this “world's largest” court complex, it should have been our Chief Justice Ahmad Fairuz Sheikh Abdul Halim but he stayed silent and continued to point fingers of blame at the wrong targets for the failings of the Malaysian courts, especially on the issue of backlogs and delays.  He really should have set up a team to analyse matters thoroughly before he comes out and speaks to the press. He must not forget that he is the current face of the Malaysian judiciary and as such, he should protect and enhance the good name and reputation of the Malaysian judiciary and not do the opposite. Too few judges and courts – 2.4 judges to a million people Then, there is also the issue of a lack of judges and courts in the country. Federal Court chief registrar Datuk Tengku Maimun Tuan Mat (as reported in New Straits Times, 20/9/2006), disclosed that the number of judges in the country was low compared with other Commonwealth nations. He was quoted as saying that the Malaysian ratio is "2.4 judges to a million people - a far cry from the ratio in India (10.5), Australia (57.1), Britain (50.1) and Canada (75)." This really is the problem for the backlog and the delays in our courts, and the only solution is to increase the number of judges and courts in the country. Our population has increased, and grown in consciousness about legal rights and human rights. The number of lawyers has also increased to more than 12,000 in Peninsular Malaysia, and so too has the number of new law graduates coming out every year. Alas, the number of courts and judges have not increased at the same rate, and that is where the real problem lies. What we need is to have more courts and more judges. Maybe we should only move the courts from Wisma Denmark to the new court complex, as we appoint new judges and court staff for the remaining court rooms so that our ratio at least hits 10 judges to a million. Pressure on judges to clear backlogs likely to cause undesirable results The pressure exerted by the Chief Justice on judges and magistrates to clear the backlog of cases is certainly also not the solution and may lead to great injustices.  When the heads of the judiciary are only concerned with statistics, some judges pressured will just start disposing cases summarily and with haste just to meet the quotas, the right to a fair and proper hearing and trials will suffer and more dissatisfied litigants and users of the justice system would just end up appealing to higher courts if they can afford it. Or they will just walk away disgusted with the courts and judges and the feeling that they have been deprived of the right to a fair trial. The Chief Justice recently placed the blame on lawyers who had “up to three cases a day” who could not turn up for their cases. But it is a fact that the problem lies with the court, not lawyers, as it is the court that usually fixes hearings without first obtaining the free dates of the lawyers involved. Case Management Sessions for Trials Years away is Impractical Several years ago, a “case management” system was introduced by the courts, and it is absurd to see today lawyers wasting so much time attending these case management sessions before a judge.  This system is not workable if the judges are doing case management for cases which, based on the judges diary, can only be fixed for trials several years down the road. If you are doing case managements for cases where trial will begin in 2 to 3 months, then it may be acceptable By the time the trial date comes, the judge in that court that did the “case managements” may be no more there, and the new judge would have his own style and may require things done very differently before a trial starts.  In a few months or a year, a judge may have been transferred or elevated, and another judge comes in with a different style and a whole set of different directions for case management, and the whole time consuming case management process begins all over again. This case management system must be abolished as it not only wastes a lot of time and resources, but has been shown to be rather inefficient. If there were not so many case management matters, maybe our judges could be spending their precious time hearing substantial applications or even conducting full trials.  Now, it seems that whole mornings get wasted by the numerous “case management” sessions that result in judges only being able to proceed with their trials in the afternoon. Declining standards of judges and judicial officers The other impediment is the declining standards in judges, session court judges, magistrates and registrars, and the right and pleasure of having had a good hearing is slowly fading away in the Malaysian courts. For even a minor application, decisions are not handed down on the same day of the hearing but are adjourned to some later date. What is disturbing sometimes for lawyers is the fact that many a judge or registrar do not really take down full notes when submissions are made by lawyers, and as such when it comes to giving a decision several weeks down the road, one wonders what he looked at when he made that decision. When asked for reasons for a decision, one registrar was even quick to say that she does not have to give reasons, and that she had discussed the matter with her judge. Not giving reasons is not right but discussing with the judge is a bigger wrong as the right of appeal from a registrar’s decision is before the judge, who hears the application afresh and should never had been involved in any discussions with the registrar before a decision is made. If registrars have to discuss with their judges before handing down a decision, then maybe that appeal to the judge should just be removed. Not giving reasons for a decision also makes one wonder whether the deliverer of the order really knows why she allowed an application or dismissed it. Inexperienced and rather “young” registrars Talking about senior assistant registrars and deputy registrars of the High Court hearing applications in million-dollar suits and making an order that the suit be dismissed or that judgment be given makes a mockery of the financial jurisdiction of the courts. Now if the amount of dispute or value of the subject matter does not exceed RM25,000, our law says that the magistrate’s court has jurisdiction, and if it exceeds RM25,000 and is less than RM250,000, then it a matter for the sessions judge. If it exceeds RM250,000 then it is matter for the High Court judge. Fresh law graduates and those with less than even 2 years in the Judicial and Legal Services are sitting as senior assistant registrars and deputy registrars and making judgments or dismissing suits in the High Court, and this is just not right for, I believe, that they must, at the very least, have five years experience in the Judicial and Legal Services before they are appointed as senior assistant registrars and at least seven years before they become deputy registrars. Even then, these registrars should not be hearing applications in the High Court that may end in judgment for one party or a dismissal of the suit. If registrars spend more time assisting their judges in preparing briefs and doing research, maybe High Court judges could hear more matters and dispose cases more efficiently and justly. The “probation judge” system During the reign of Dr Mahathir Mohamad, the “probation” judge system was introduced, whereby a person was first appointed as a judicial commissioner and only after about two years he/she may be elevated to a judge. This is a mockery that forgets that security of tenure is one of the elements required to ensure independence of a judge. It is wrong for persons to be even be appointed as judicial commissioners – they should just be made judges of the High Court. Abdullah Ahmad Badawi has been premier for some years now, and he should be removing those things his predecessors introduced to limit the power of the judiciary and to “control” judges – but alas he has not done so. It is not right for one to be today a magistrate, then a federal counsel or deputy public procedure and then a sessions court judge, as it does not portray a picture of an independent magistrate or a sessions court judge especially if the dispute involves a party and some body/person linked or associated with the government or the state. In the criminal justice system, will a magistrate be able to be independent when the deputy public prosecutor, a senior to a magistrate in the Judicial and Legal Services, appears for the prosecution? I think not. The call for the separation of the judicial services from the legal services was made by the Malaysian Bar vide a resolution passed in 2000, has still not been acted upon by the government or the judiciary. Post-retirement conduct of judges In 2003, Tun Mohamed Dzaiddin, the former Chief Justice, being the head of the Malaysian Judiciary, retired from office, and soon after joined a law firm as a consultant. Bar Council then said that “...when a judge retires and soon after joins a law firm, an area of serious concern that immediately presents itself is the perception that an offer to do so might have been made to the judge before his retirement, and discussions or negotiations on the same might have started or taken place while the judge was still serving on the bench; particularly if there is a short time lapse between the judge’s retirement and his joining the firm." “This in turn gives rise to the question whether the independence of the judge could have in any way been influenced or compromised by the making of such an offer or the holding of such a discussion...” In the said statement, the Bar Council went on to state that “in protection of that principle [Independence of the Judiciary], and after examining the experience of other jurisdictions, the Bar Council is of the view that there ought to be a lapse of a suitable period of time (which is often called a “cooling off” period) after a judge’s retirement before he may be permitted to practise law at the Bar..”. The then Minister in the Prime Minister’s Department Dr Rais Yatim (the de facto law minister) said that the government would be including post retirement conduct into the Code of Conduct of Judges. In January 2005, the government change their mind and said that they would not do so. Maybe not a Code of Conduct but Guidelines set by the Judiciary Maybe the present Chief Justice Ahmad Fairuz Sheikh Abdul Halim can come up with some guidelines about this matter, something that would state clearly that a retiring judge should not join a law firm or a private company as a director/consultant/chairman (more so if the said judge presided in a matter involving the said company or related companies whilst he was on the bench). The judiciary, on its own, can set up standards and guidelines for judges, and maybe our current CJ can do something about this. After all, he is concerned about judicial corruption. Will Ahmad Fairuz deliver? The same question was asked of previous CJs, and now we all have to wait and see whether our present Chief Justice Ahmad Fairuz can bring back the Malaysian judiciary to the stature we had during the pre-1988 period. The elevation of High Court judges to the Court of Appeal, leaving many High Courts with no judges for some time was a sad display of our current CJ’s efficiency. He should have made sure that new judges of the High Court was appointed at the same time, and this delay in the appointment of judges surely also contributed to the backlog and delays in court. The sudden transferring of the Altantuya Shaariibuu murder trial from Justice KN Segara to Judicial Commissioner Mohd Zaki Md Yassin also raised some concerns. Was the creation of new courts in Shah Alam resulting in the two Shah Alam sessions courts to be relocated outside the state of Selangor to Wisma Denmark in Kuala Lumpur linked in any way to that Altantuya Shaariibuu murder trial? If there was going to be a lack of space in the Shah Alam court complex, should not some building in Shah Alam have been rented and renovated for the two sessions court? Was it poor planning or was it too rushed a decision to increase the number of criminal High Courts in Shah Alam? Can judges or judicial commissioners be appointed without consulting Chief Judge of the High Court of Malaya? The slowness in the appointment of the new Chief Judge of the High Court of Malaya is also making people wonder about the reasons for this delay. It was after the former Chief Judge of the High Court of Malaya, Siti Norma Yaakob, had retired on Jan 5 this year that there was a sudden appointment of new judicial commissioners, when for an appointment of a judge or a judicial commissioner, the Prime Minister before advising the King should consult with the Chief Judge of the High Court of Malaya. This is what our Federal Constitution says. One wonders whether this consultation took place with Siti Norma before she retired. There is still time for us to keep an eye on the actions and omissions of Ahmad Fairuz before we have to make any conclusions. To date, he has been found wanting in many aspects. And if the fears concerning the “world’s largest” court complex turns out to be true, it will not reflect well on this head of the Malaysian judiciary. - Malaysian Bar Websiite Why AG Apandi should not appear personally in any case 2 comments     Charles Hector     Published Today 1:58 pm     Updated Today 2:00 pm The reason that attorney-general (AG) Apandi Ali should not be appearing in any court to act personally as the public prosecutor or a lawyer is simply because he is a former Federal Court judge. A ‘cooling off period’ of at least three years was what we were urging, but in the Malaysian Bar 2014 resolution, we took a stronger stand, a permanent bar even of past judges returning to court as lawyers/counsel. That is why Apandi Ali should not be there personally ‘prosecuting’ in court, in any case. The resolution regarding retired judges of the superior courts appearing as counsel in court Motion jointly proposed by VC George and Razlan Hadri Zulkifli, dated March 5, 2014 (A) WHEREAS it is a fundamental principle of the Malaysian legal system that not only must justice be done, it must be seen to be done; thus perceptions and appearances matter. (B) WHEREAS it is a principle of antiquity in common law jurisdictions that a retired judge of a superior court should not practise as counsel before the judges who were previously his colleagues or his junior to him on the Bench. (C) WHEREAS that tradition and convention was likewise observed in Malaysia for decades, until in recent years. (D) WHEREAS retired judges now frequently appear as counsel, not only in the superior courts, but also in the subordinate courts and even to argue chamber applications. (E) WHEREAS such conduct may involve the retired judge/counsel purporting to rely upon, distinguishing or criticising decisions made by him while he was on the Bench; worse, there could arise a situation of such a retired judge invoking the principle of stare decisis to submit that the Court is bound by some decision of his handed down when he was a judge. (F) WHEREAS such conduct may have the effect of intimidating the Bench and worse, it could give the perception that the said retired judge/counsel and his client have an advantage over other counsel and adverse parties. (G) WHEREAS such conduct may adversely affect public perception as to the administration of justice. (H) WHEREAS the co-proposer of this motion, VC George and five other retired Judges of the superior courts have written a letter to the president of the Malaysian Bar dated March 2, 2014, expressing their view, concern and objection with the practice of some retired Judges of the superior courts appearing as counsel in Court. (I) In the context, retired Judges of the superior court having failed to honour tradition and convention by appearing as counsel, they must now be prohibited or restricted by law from continuing with such unacceptable conduct. The Malaysian Bar therefore resolves: (1) That a retired judge of the superior courts should be prohibited or restricted by law from appearing as counsel in court, and to achieve that objective calls on the incoming Bar Council to propose an amendment of the Legal Profession Act 1976 to the attorney-general for urgent presentation to Parliament; and (2) The Bar Council takes all reasonable steps to educate the public on the reasons for the proposed amendment to the law. - Malaysiakini' 4/7/2016

Is the charging of Guan Eng a indication that in Malaysia even PMs and Chief Ministers are not above the law?

Positive sign when Lim Guan Eng, the Chief Minister of Penang, is taken to court and charged for corruption...

Well, in Malaysia sadly, we have not seen this often, whereby a Prime Minister, Minister or some politician is taken to court and charged for an alleged wrongdoing like corruption or abuse of power...and, hopefully this will be the start of a new positive trend when public servants in enforcement agencies and those with prosecutorial powers will act bravely and investigate and/or prosecute even those in power without fear or favour...

Is Lim Guan Eng guilty? Well, that is another matter - that will be for the court to decide. Some are angry because their party leader or one of the Opposition leader is being taken to court and charged... but let us not forget for that is exactly what we want - nobody is above the law, friend or foe, and we need the administration of justice to apply to all equally...

Now, I believe that our judiciary is independent and will be fair - and the decision on this case would be important for all Malaysians...the court will have the opportunity to set the standard as to what is corruption...let the court be only guided by the desire to do justice - and not some other irrelevant factor > like his current position or his political affiliation..

'Double Standards' - well, a lot of people are saying this, and maybe the anti-corruption agencies and the Public Prosecutor may have to seriously reflect on this - is it true? If Najib, our Prime Minister, was in a similar situation - would they have acted in the same way - investigated thoroughly, prosecuted efficiently, etc...

As it is, Malaysia really do not have a good track record at present...we recall the case of
Former land and cooperative development minister Tan Sri Kasitah Gaddam..., and note what the judge said 

Justice Suraya said the failure of the prosecution in not calling six board members who were present in the meeting was detrimental to the case as it had created a big gap over the question of whether the board members were actually cheated by the accused.- Star, 13/8/2009, Kasitah freed of corruption charges

Let us also relook at what the judge was reported saying in the case of Eric Chia..

Akhtar said the most glaring setback was the prosecution’s failure to call two material witnesses, who would have been able to confirm whether payment was needed for the technical assistance agreements (TAA) signed between Perwaja Rolling Mill Development and NKK Corporation. He said former Perwaja company secretary R.R. Durai Rajasingam, who was involved in all Perwaja’s contracts, would have known the actual contents of the TAA. “Yet the prosecution never called him. The question is why? I see nothing to say that he would be a hostile witness or give evidence against them.” The judge also questioned the prosecution’s reluctance to call the five Japanese witnesses,.. - Star, 27/6/2007, Eric Chia acquitted of CBT

See earlier post:- Kasitah Gaddam & Eric Chia - Prosecution's failure to call witnesses - Was it just incompetence OR....?

Well, I hope that the prosecution will do their work properly and adduce all relevant evidence and call all required witnesses. The prosecution should also bring all evidence that is favourable for the accused to the attention of the court. We want a fair trial...

Well, the Attorney General personally is leading the prosecution team....maybe it demonstrates his commitment against corruption, especially if it involves leaders of Malaysia and its States...Wonder what is happening with the investigation against Najib Tun Razak?

LIM GUAN ENG - should he step down as Chief Minister? Obviously no - because he is to be presumed innocent until proven guilty... and, even if he is found guilty by the first court, he need not resign until all his appeals are heard and disposed of. 

Now, what we all want is a free and fair trial by an independent judge for Lim Guan Eng...Personally, the bail amount, in my opinion, was excessive - but then, normally for corruption cases, it is high. However, It really should have been more reasonable - maybe equivalent to one month's wages in cases of public servants like Guan Eng, who has no other known sources of income. Bail is to ensure attendance in court for your trial and, I do not believe that Guan Eng is a flight risk... The setting of the high bail also affects public perception of the judge...has he already made up his mind or is he still independent and capable to ensure a fair trial... Well, this is just my opinion.

And we want the Malaysian Anti Corruption Commission and the Public Prosecutor to act in the same way from now on against all in power, be it the Prime Minister, Minister, Menteri Besar or Chief Minister...that is whall all good Malaysians want. No one should be above the law...especially persons given the trust by Malaysians to govern...

See also related post:- 

Tunku Abdul Aziz, MACC advisory board chairperson, should be focussing on corruption not Dr. M?

Charged with two counts of corruption, Lim Guan Eng strikes defiant tone

Penang Chief Minister Lim Guan Eng, centre, said on June 30, 2016, "BN can victimize me but will not crush my spirit." Photo: Lim Guan Eng's Facebook

Published: 3:13 PM, June 30, 2016

Updated: 11:32 PM, June 30, 2016

 

PENANG — The Malaysian authorities on Thursday (June 30) charged senior federal opposition leader Lim Guan Eng with two counts of corruption, a move government critics say is part of a crackdown on those opposed to Prime Minister Najib Razak’s administration.

“I am all right,” a smiling Lim told reporters as he arrived at the court. Lim, who is the secretary-general of opposition Democratic Action Party (DAP) and Chief Minister of Penang, pleaded not guilty to both charges. 

He was granted RM1 million (S$338,100) bail. He is due to return to court on Sept 22 when trial dates are expected to be fixed and faces up to 20 years in jail if convicted.

“BN (Barisan Nasional, the ruling coalition) can prosecute me but it will not kill my passion to free Malaysia from corruption,” he said yesterday in a defiant statement after he was granted bail. “BN can victimise me but will not crush my spirit to free Malaysia from those who steal our children’s future.” 

Leaders from the Pakatan Harapan opposition pact condemned the legal action. DAP parliamentary leader Lim Kit Siang (Lim’s father) said it was the latest in concerted efforts “to destroy the opposition and defend Najib’s political position”. 

Mr Azmin Ali, the Chief Minister of the state of Selangor and deputy president of Parti Keadilan Rakyat, an opposition party, criticised the swift action in handling Lim’s case amid the “innumerable reports” lodged against Mr Najib. Mr Azmin also called on the opposition to come together and focus on its struggles.

“BN can humiliate me by unnecessarily detaining me overnight but will not succeed in changing white to black and black to white. Right cannot become wrong and wrong cannot become right,” Lim said in the statement.

He was kept overnight at the Malaysian Anti-Corruption Commission’s (MACC’s) Penang headquarters in George Town after the authorities picked him up on Wednesday evening from his office.

“BN will not break my party’s unity ... If BN feels that they can bend or break me by arresting me, they are wrong! I will die standing than live on bended knees,” he added.

The ruling party has called for Lim’s resignation as Penang’s Chief Minister, but the DAP’s Penang Chapter said yesterday that Lim will remain in charge pending the outcome of the trial.

Dr Wong Chin Huat, head of political and social analysis at Penang Institute, a public policy think-tank, told TODAY that the high-handed manner Lim’s case was handled had angered many Malaysians.

“The MACC and AGC (Attorney-General’s Office) have little credibility in the public’s eyes, more so after the change in leadership of both recently and last year related to the 1MDB investigation,” he said, referring to state investment firm 1Malaysia Development Berhad, which was at the centre of a corruption investigation linked to Mr Najib.

Dr Wong said that if Lim was convicted for corruption, this would likely make him a martyr in the eyes of more than half of Malaysians. “If Lim’s charge is followed by more prosecution of more opposition leaders under one law or another, Lim’s martyr image will only loom larger.”

Lim was charged in relation to investigations over his purchase of a house, which was allegedly linked to the sale of state land.

He was charged under Section 23 of the MACC Act and Section 165 of the Penal Code.

Under Section 23, he is accused of using his public office or position to obtain gratification for himself and his wife, Ms Betty Chew, by approving Magnificent Emblem’s application to convert agricultural land into a residential one. In return, Lim is alleged to have purchased his house from Phang Li Koon, a director of Magnificent Emblem, for RM2.8 million, which was below the property’s market value of RM4.27 million in July last year.

Phang has been charged with abetment under Section 109 of the Penal Code. The charges come as Mr Najib tightens his grip on power despite being battered by the scandals surrounding 1MDB for the past year.

Despite the scandal, Mr Najib has consolidated his power within the United Malays National Organisation, the ruling party that is part of BN.

BN also won against the opposition during the recent Sarawak state elections and twin by-elections in Sungai Besar and Kuala Kangsar. The victories took place amid the opposition’s divide over whether the Islamic penal code should be implemented in the state of Kelantan.

Observers have suggested that snap elections are on the cards.

Iseas-Yusof Ishak Institute deputy director Dr Ooi Kee Beng told TODAY that even if Lim is not convicted or locked up, the damage done to the opposition will be quite substantial.

“Much of their appeal has depended on the idea of hope, and of something transparent and new. Even by leaving the case undecided, much uncertainty can be sowed in the opposition camp,” he noted. 

“One has to speculate if all these moves are just to silence critics or if there is a greater purpose. That would of course be snap general elections, perhaps already this year.” AGENCIES - Today Online, 1/7/2016