Sunday, August 28, 2016

Let's say no to the death penalty (Malaysiakini)

Let's say no to the death penalty

  M Kulasegaran     Published     Updated

P SPEAKS First and foremost, I would like to thank Amnesty International Malaysia for inviting me to give a talk on the topic of the death penalty.

Amnesty International has been in the forefront of highlighting facts on the death penalty around the world, and why it should be abolished.

One worrying trend is the arbitrary manner the death penalty is dealt with, and lack of proportionality to the crime, due to questionable judicial processes, and prejudices inherent in the justice system of the state, besides social economic factors that deprive the poor of competent attorneys to represent them.

In Malaysia, the number of individuals currently under the death sentence is at least 1,043.

In a reply to Parliament on Nov 12, 2014, the home minister disclosed that there were 975 persons under sentence of death. Among these, 347 had filed for appeals (310 to the Federal Court, and 37 to the Court of Appeal), and 255 to the Pardons Board.

In May 2015, Prisons Department director Abdul Basir told the press that there were 1,043 death row inmates nationwide.

As of October 2013, 564 individuals had been on death row for over five years, representing just over 50 percent of all death row inmates.

In October 2012, the DPP commissioned Professor Roger Hood, Professor Emeritus of Criminology at the University of Oxford, to design and analyse the findings of a public opinion survey on the mandatory death penalty in Malaysia.

The survey of a representative sample of 1,535 Malaysian citizens from all over the country, was carried out by Ipsos Malaysia, a leading market research company.

The research was designed to elicit views on the mandatory death penalty for drug trafficking, murder and offences under the Firearms Act.

By using a series of scenarios, it showed the extent to which members of the public support the mandatory death penalty, when faced with the reality of having to judge whether the crime merits the death penalty.

In the findings, a large majority said they were in favour of the death penalty, whether mandatory or discretionary; 91 percent for murder, 74 to 80 percent for drug trafficking depending on the drug concerned, and 83 percent for firearms offences.

Concerning the mandatory death penalty, a majority of 56 percent said they were in favour of it for murder, but only between 25 and 44 percent for drug trafficking and 45 percent for firearms offences. This was basically in theory.

Large gap

When asked to say what sentences they would themselves impose on a series of ‘scenario’ cases, all of which were subject to a mandatory death sentence, a large gap was found between the level of support ‘in theory’ and the level of support when faced with the ‘reality'.

For example, of the 56 percent who said they favoured the mandatory death penalty for murder, whatever the circumstances, only 14 percent of them actually chose the death penalty for all the scenario cases they judged.

This was only eight percent of the total number of respondents. When interviewees were asked whether they would support the death penalty if it were proven that innocent persons had been executed, the proportion in favour for murder fell to 33 percent, for drug trafficking to 26 percent, and to 23 percent for firearm offences.

These findings suggest that there would be little public opposition to the abolition of the mandatory death penalty for drug trafficking, murder, and firearm offences. Public support for the death penalty for murder is also lower than is perhaps assumed, so may not be regarded as a definite barrier to complete abolition.

Research on death penalty overseas

A report released by death penalty information centre on April 18 through the prestigious National Research Council of the National Academies, based on a review of more than three decades of research, concluded that studies claiming a deterrent effect on murder rates from the death penalty are fundamentally flawed.

The report concluded: “The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates."

Therefore, the committee recommended that these studies not be used to inform deliberations requiring judgements about the effect of the death penalty on homicide.

There are also various studies done in the United States, which highlight how the death penalty has been used unjustly against the black community

Jurors in Washington state are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case (Prof K Beckett, Univ of Washington, 2014).

In Louisiana, the odds of a death sentence were 97 percent higher for those whose victims were white, than for those whose victims were black (Pierce & Radelet, Louisiana Law Review, 2011).

Since 1973, more than 150 people have been released from death row with evidence of their innocence (Staff Report, House Judiciary Subcommittee on Civil & Constitutional Rights, 1993, with updates from DPIC). From 1973-1999, there was an average of three exonerations per year. From 2000-2011, there was an average of five exonerations per year of defendant discrimination, or both (Prof Baldus report to the ABA, 1998).

Hardly a deterrent

The death penalty in Malaysia has been hardly a deterrent in reducing serious crimes. For example, the death penalty has not resolved the drug trafficking problems due to poor enforcement related to corruption, besides the inability of law enforcement officers to cripple influential syndicates which have global links, and their ability to pay lucrative amounts to drug traffickers around the world.

In the case of homicide, the rage of individuals whose minds are momentarily clouded, leaves them in a state where they do not think about the consequences of their actions, that could lead to a death penalty.

While there are legal dilemmas facing the death penalty due to arbitrary processes, there is a need to look into a broader dimension on whether the death penalty is the right choice for the state.

There is a need to understand that death penalty could never be proportional to the crime committed due to various factors such as how the crime was committed, the manner of how factual evidence was gathered, and the socio-economic situation of the perpetrator who might not have the means to hire a competent lawyer to represent him.

Being a member of Parliament and the secretary of the Parliamentarians for Global Action (PGA), I have highlighted the injustices related to death penalty in Parliament.

It is significant that the attorney-general Mohamed Apandi Ali has stated that the government plans to review the death penalty for certain crimes. Former minister in the Prime Minister's Department Nancy Shukri has assured me in Parliament that there is a comprehensive review of the death penalty.

These are encouraging signs that show that the effort put by MPs and Amnesty international, and NGOs concerned, are beginning to bear fruit.

From the empirical research conducted, it can be concluded that the death penalty does not stand the test of due process and proportionality between crime and punishment.

The survey in Malaysia and research done overseas show there is a lack of definite conclusions on whether the death penalty in itself is able to deter crime, and there is discrimination affecting minority communities when it comes to the death penalty.

Also, the social and psychological factor of rage that blinds an individual from assessing the implications of the crime is not taken into consideration by the proponents of the death penalty.
We have to go beyond the reductionist mindset and take a broader dimension to solve violent crime in our society.

The most significant aspect of the survey is that Malaysians in general would support the abolition of the death penalty if the facts surrounding this capital punishment are disseminated through forums of this nature, with civil society, public intellectuals, and members of Parliament playing their roles.

The media should also play its rightful role in this process of education towards abolishing the death penalty.

M KULASEGARAN is for MP Ipoh Barat. The above was taken from on his speech delivered at the 'Abolition of Death Penalty' event organised by Amnesty International of Ipoh yesterday.

Saturday, August 20, 2016

Injustice to Workers - 22 months after being dismissed - High Court says Perwaja Steel workers case will not be heard by Industrial Court?

November 2014 - Perwaja Steel terminated these workers. Then, the workers would have had to lodge their complain to the Industrial Relations Department (well, this had to be done within 60 days) ...

11 Months, i.e. October 2015 for the Minister to decide and refer the matter to the Industrial Court - and then Perwaja Steel challenged the Minister's decision...

10 Months later - High Court squashes  the Minister's order - so the workers have still not had the chance to fight for their rights in court until now, and that is almost 2 years since they have been terminated - and have stopped receiving wages/income....How long for workers terminated to be able to bring their cases and fight for justice to court?


Great anti-worker law - and now, still cannot fight the employer in court - and the Employer has the opportunity of going to court and cancelling the Minister's decision to refer this case to court...

DELAY - an effective tool to keep employer's safe from claims of workers for justice? ...

And, now even before the trial in the Industrial Court could start... the High Court decides that the Minister's decision to refer the case to Industrial Court was wrong...

ABSURD - I say, let the trial at the Industrial Court begin - and let the Industrial Court decide first...

And what is the Unions doing about this state of affairs...this undue delay of resolving an 'unfair dismissal' case? 

When one files a claim to the Industrial Relations Department, it is for a claim of RE-INSTATEMENT - i.e. 'I want my job back'? 

Speed, as such is essential - any delay is most prejudicial to the worker... Even if after 1 year, the case is completed, it is irrelevant - because so many factors have changed - new workers may be occupying positions of 'wrongfully dismissed' worker - the 'dismissed' worker, of course cannot survive with no income - so they too move on to find other jobs and income ... (OH yes - this will also affect the courts decision whether to re-instate or not...)



* WRONGFUL DISMISSAL CASE  should be heard and settled fast - within 3-6 months. [After case if filed, employer shall be ordered to pay worker 'basic wages' until the end of the Industrial trial]

* DIRECT ACCESS TO INDUSTRIAL COURT - Remove this absurd step where the Minister now simply have to say 'Yes' or "No' as to whether the Industrial Court will hear the case or not...Minister makes decision without even listening to evidence, witnesses and/or legal submissions - hence, a very 'arbitrary' decision...

Court quashes minister's referral as workers' reinstatement not possible  

Kow Gah Chie     Published     Updated

The High Court in Kuala Lumpur today quashed the human resources minister's decision to refer the termination of 895 workers by Perwaja Steel Sdn Bhd to the Industrial Court.

In a judicial review application brought by Perwaja Steel, Justice Hanipah Farikullah ruled that the case cannot be heard by the Industrial Court as there is no possibility of reinstatement.

This is because the company's factory in Kemaman, which terminated the workers, had ceased its operations in November 2014, she added.

However, Justice Hanipah stated, the workers can bring up the matter through other methods, but not through the Industrial Court.

"The minister did not take into consideration that there is no possibility of the workers being reinstated.

"In my opinion, the workers were advised wrongly on the issue of procedure. As such, this application is allowed," she said. THowever, the judge ordered no cost against the respondents.

By allowing the application, the Industrial Court is now prohibited from hearing the case.

The courtroom was packed with about 80 former workers. Also present was Malaysian Trades Union Congress (MTUC) acting president Abdullah Sani.

It was reported that 1,500 workers were terminated in November 2014 and owed up to four months in salary.

Workers told of Perwaja's financial turmoil

The workers were first informed in June 2014 that their company suffered a financial turmoil and would conduct a restructuring exercise of its operation.

A total of 895 workers made 46 representations to the Industrial Relations Department. Human Resources Minister Richard Riot then referred the matter to the Industrial Court in October 2015.

Perwaja Steel challenged the decision on Dec 28, 2015, and named the minister, Industrial Court and the former workers as respondents.

The company was represented in court by Balan Nair and S Malini, while the workers were represented by Mohan Ramakrishnan. Senior federal counsel Aiyu Rohaizal appeared for the minister.

Mohan, who was disappointed with the judgment, said he feared the decision may lead to a dangerous trend where other companies may wind up their operations when they are faced with a similar situation.

"The judge is saying that there must be a possibility of being reinstated, only then the minister can refer, but that is a wrong perception," he said.
Mohan added that it is up to the Industrial Court, not the minister or the High Court, to decide whether or not to allow reinstatement.
"The minister should have the power to refer the case to Industrial Court.

"She (the judge) does not accept the function of the minister by saying that the case cannot be referred (to the Industrial Court)," he opined.

Mohan said reinstatement is a non-issue, since retired employees can't have their jobs reinstated anyway.

"I will seek further instructions from my clients on whether they want to appeal against the decision," he told reporters outside the courtroom.

Any such appeal to be done has to be filed within 30 days. - Malaysiakini, 19/8/2016

Friday, August 19, 2016

BN-UMNO government and Minister Mei Fun will not be caring more for old folks? So UNMalaysian?

Caring Malaysia has no further plans to  help the elderly? 

The problem with the UMNO-BN government has been that it seems to blindly promoting the 'neo-liberalism'(formerly known as 'capitalism'), which simply says that if you want something you pay for it... Hence, the move towards 'privatization'... 

Malaysia, if we look at it carefully, has not been simply a country that adopted the 'capitalist' model... we have a lot of what people would say are 'socialist' programs... like healthcare for all (free or very affordable), education, public amenities, etc.. The emphasis is to make it available to all in Malaysians - not just for those who can afford to pay for it...

The value of the ringgit is depreciating...and what you can buy with your money is becoming less and less...A few years ago, at the Pasar Ramadan, RM1 allowed you to buy at least 5 pieces of kueh, this year, you could buy only 3 but much 'smaller' pieces ...

Government has admitted that the savings in EPF/KWSP is also insufficient to provide for our workers in the private sector in their old age.. Note also that many of these workers have been encouraged, and have bought homes, which when they retire will still not be fully paid off...

Our housing policy seem to be inclined towards 3 bed-room units - and that does not make available a room for elderly parents, does it? Husband and wife in a room, sons in one room, and  daughters in another... so, where do we house elderly parents? 

Now, elderly parents are like 'children' - we need sometimes someone to be around to just ensure that all is well. In a country, where now both husband and wife have to go out to work - what happens then? The government has old folk day-care centres - very good idea but there are so few..maybe about a handful only...

There are so many old folks in every town that needs shelter, food and clothing ...and the Malaysian people need to care... This is the responsibility of government - it is foolish that this Minister is now suggesting that the government is abdicating its responsibility - now, the government wants the people to take care of their own old folks - some families are already taking care of old folks but the reality is that there are many old folks that need government assistance... As it is many religious bodies and groups are assisting - but they alone cannot look after the old..

Government hospitals also lack beds - and try to get bed-ridden old folks out of hospitals back to their families for them to take care of them..

Government must change their policy and be caring - we need more assistance for the elderly...24-hour care...



Govt has no plans to build more homes for elderly: Mei Fun

Women, Family and Community Development deputy minister Datin Chew Mei Fun.
KOTA KINABALU: Women, Family and Community Development deputy minister Datin Chew Mei Fun said the government had no plans to build more homes for elderly citizens but instead is encouraging senior citizens to live with their children.

"We feel that children should not neglect their parents (old) and it is their responsibility to take care of this group of people. We not only have to take care of senior citizens, we also have to take into consideration the welfare of children and people with disabilities.

"We therefore want old folks to be with their families," Chew told reporters after an official visit to the Senior Citizens' Activity Centre at the Kota Kinabalu Urban Transformation Centre (UTC) here today.

Also present were Sabah Welfare Department (JPKAS) deputy director Siti Ameh Ruman and JPKAS principal assistant director of Senior Citizens and Persons With Disabilities division, Zulkiflie Hassan.

According to Chew by having elderly citizens live with their children, old folks would be able to return to society and interact with their surrounding community through various activities. — Bernama - The Sun Daily, 16/8/2016

Thursday, August 18, 2016

Suhakam wants safeguards to prevent National Security Council Act abuses

Thursday, 18 August 2016 | MYT 2:36 PM

Suhakam wants safeguards to prevent NSC Act abuses

PETALING JAYA: The three branches of government - the executive, judiciary and legislature - must play their roles to ensure that proper safeguards are in place to prevent abuses of the National Security Council (NSC) Act, said Suhakam chairman Tan Sri Razali Ismail.

He said the safeguards should ensure that a balance exists between security and the liberties and freedoms guaranteed under the Federal Constitution.

"Many provisions of the Act are couched in fairly general terms without clear definitions or safeguards.

“Further, the unclear definition of security in the Act may also be interpreted to suppress expression of thoughts, opinions or beliefs on public matters, including government policies," said Razali in a statement.

He said that while certain rights may be limited to protect certain enumerated aims/purposes such as national security, public order, public health and morals and the rights and freedoms of others, those aims/purposes are not to be interpreted loosely.

"The unfettered powers granted under the Act without proper checks and balances may threaten the state of human rights in the country," said Razali.

He said Suhakam advocates for the creation of a mechanism of review as has been emphasised in the report of the United Nation’s Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.

"The report suggested that the review of security and anti-terrorism laws should include an annual governmental review of and reporting on the exercise of powers under counter-terrorism laws, an annual independent review of the overall operations of counter terrorism laws and a periodic Parliamentary review," said Razali.

He criticised the powers given to the Head of Government under the Act - to declare a location as a security area for a six-month period and then continually renew it for six-month periods without limit.

“This implies that the Act essentially gives unlimited power to the Head of Government, which raises concerns of accountability and impartiality on the part of the Executive.

“It is imperative that the Judiciary and Legislature assert its roles as checks upon the Executive.

“Is there any way that suitable provisions can be added into the Act to manifest this serious concern by Malaysians," said Razali, adding that the Act does not give sufficient explanation about its relevance within the spirit of the Federal Constitution.

"The preamble in its current form is unclear and thus, may lead to an abuse of power as its objective and purpose is not clearly defined and there are no perimeters to limit the use of these powers," said Razali.

He added that Suhakam is open  to any invitation to sit in the NSC Council’s meetings.

"Our proposal is in line with the mandate and functions as contained in Suhakam’s founding Act.

“Whatever are the exigencies and compulsions under whatever circumstances, this country must honour and preserve our liberties and our democratic freedom," said Razali - Star, 18/8/2016

Monday, August 15, 2016

Nak menolak PM Najib atau mahu menolak BN-UMNO? Masa depan Malaysia dan risiko 'penderhakaan' pembangkang?

Kuasa telah diserahkan oleh penjajah British kepada UMNO plus MCA plus MIC, dan sejak kemerdekaan(31/8/1957), kuasa memerintah kekal dengan gabungan parti politik pimpinan UMNO-MCA-MIC - yang kini dikenali sebagai Barisan Nasional. Pada hari ini, pengaruh MCA dan MIC  dalam Barisan Nasional menjadi tanda tanya?

Setiap 5 tahun, rakyat Malaysia mengundi memilih wakil Rakyat(Ahli Parlimen/MP) di mana MP yang dipilih memutuskan siapa yang akan menjadi Perdana Menteri - MP yang mempunyai sokongan majoriti MP akan dilantik menjadi Perdana Menteri. Perdana Menteri memilih ahli Kabinetnya.

Di Malaysia, saperti di banyak negara demokrasi lain, kebiasaannya parti politik yang berjaya menang kebanyakkan kerusi Parlimen yang memutuskan siapakah yang akan menjadi Perdana Menteri. Tidak semestinya Perdana Menteri adalah pemimpin parti politik - ia sebenarnya boleh menjadi mana-mana ahli Parlimen yang ada sokongan majoriti. Amalan di Malaysia malangnya adalah pemimpin BN yang dipilih jadi PM, dan ini sejak awal lagi merupakan pemimpin UMNO. 

Najib Tun Razak tidak dipilih secara khusus oleh rakyat Malaysia untuk menjadi Perdana Menteri Malaysia - yang memutuskan siapa PM adalah semua MP yang dipilih, yang juga mempunyai kuasa menukar PM bila-bila masa. Najib terus kekal menjadi Perdana Menteri hanya kerana majoriti MP di Parlimen masih mahukan dia menjadi Perdana Menteri. 

Justeru, pendekatan bahawa apa yang perlu kini untuk 'menyelamatkan Malaysia' adalah untuk mengeluarkan Najib Tun Razak sebagai Perdana Menteri adalah kurang benar. Jika mahu, ahli Parlimen(MP) BN boleh bila-bila masa mengeluarkan Najib. Ini telah berlaku di Kedah, di Trenganu dan di Selangor bila ADUN memutuskan bahawa mereka mahu menukar Menteri Besar. 

Maka, untuk memastikan ada perubahan atau 'Malaysia diselamatkan', apa yang perlu adalah untuk memastikan bahawa rakyat menolak MP yang menyokong Najib - kini nampaknya adalah mereka daripada Barisan Nasional.

Pada PRU lalu, nyata bahawa Najib dan Barisan Nasional, walaupun berjaya memenangi majoriti kerusi Parlimen tetalah gagal mendapatkan sokongan majoriti pengundi di Malaysia yang mengundi..


Berbanding dengan Barisan Nasional, yang telah didaftarkan sebagai satu parti politik - pembangkang sehingga kini gagal menjadi SATU - masih tidak didaftarkan sebagai satu parti politik. Apa yang ada kini adalah hanya 'perjanjian menghadapi pilihanraya'('electoral pact') - khususnya untuk memastikan 'satu lawan satu' - untuk memastikan bahawa rakyat pengundi akan hanya memilih calun BN atau calun ALTERNATIVE.

Pakatan Rakyat (PAS,DAP,PKR) telah berusaha menjadi lebih daripada 'electoral pact' - untuk menjana pendirian dan polisi yang sama. Tetapi nyata, usaha ini masih tak berjaya, di mana ini nyata bila dilihat cara dan polisi pentandbiran negeri-negeri yang berjaya pihak PAS-PKR-DAP berjaya menang dalam PRU lalu - kini cara dan polisi nampaknya bergantung kepada siapakah yang menjadi Menteri Besar? 

Ia bukan juga tidak bergantung kepada hakikat dari parti mana Menteri Besar/Ketua Menteri itu datang - ini jelas apabila dilihat cara Kedah ditadbir, dan cara Kelantan ditadbir di mana kedua-dua negeri ditadbir oleh ADUN PAS sebelum PRU lalu...

Sejak PRU lalu, banyak yang telah berlaku. PAS telah meluluskan Resolusi di Mesyuarat Agung yang kini menghalang PAS bekerjasama dengan DAP - Justeru, usaha menguatkan dan menjayakan Pakatan Rakyat terus 'hancur'...Resolusi ini mengikat PAS, tetapi ini tidak akan menghalang usaha sampai kepada persetujuan tidak formal mengenai PRU akan datang. Lebih baik, jika PAS memanggil Mesyuarat Agung dan membatalkan Resolusi ini...Bantahan PAS semasa terhadap DAP boleh kekal tetapi ia akan tidak akan mengikat PAS daripada berurusan dengan DAP menghadapi objektif yang mungkin boleh dikatakan lebih penting iaitu memastikan bahawa kita akan memecahkan kuasa BN terus memerintah Malaysia..

PKR juga mungkin bertanggungjawab membawa kepada pemecahan Pakatan Rakyat - 'Kajang Move' dikatakan telah tidak dibincang dan dipersetujui terlebih dahulu PKR-DAP-PAS sebelum diumumkan dan/atau dilaksanakan...ini disusuli dengan keputusan siapakah yang harus menjadi Menteri Besar ganti Khalid. Ini hanya dakwaan tetapi rakyat tidak sebenarnya pasti... Akibat tindakkan mengantikan Menteri Besar Selangor, seorang berpengaruh dalam PKR, juga semestinya ada kesannya kepada PKR - berapa ahli dan sokongan telah PKR hilang akibat tindakan ini? Jangan kita lupa bahawa pada masa itu, Khalid adalah seorang yang bertanding menentang Azmin Ali untuk jawatan Timbalan Presiden PKR - dan nyata Khalid ada sokongan...
PAS dan PKR juga kini dilihat tidak berbeda dengan UMNO - cara pembuangan keahlian Khalid dan Husam Musa tidak banyak berbeda dengan cara bagaimana UMNO juga telah singkirkan Anwar dan kini Muhyiddin...

Anwar dikatakan pemimpin PKR tetapi tindakan Azmin Ali dan beberapa kepimpinan PKR menyertai Dr Mahathir dalam tindakan 'Deklarasi Rakyat', walaupun nampaknya tidak sangat dipersetujui Anwar, menimbulkan kerisauan ramai mengenai situasi dalaman PKR...Persoalan juga timbul mengenai sokongan ramai terhadap PKR. Azmin Ali telah merasmikan Sambutan Hari Pekerja Nasional anjuran MTUC pada tahun ini(2016) telah hanya melihat kehadiran kurang 500 - adakah bilangan kehadiran kecil ini tanda kekurangan sokongan kepada Azmin Ali sendiri oleh rakyat Selangor sendiri, dan mungkin juga PKR?

Bagi ramai rakyat Malaysia, Nik Aziz adalah daya penarikkan yang membuat ramai yang sanggup menyokong PAS dalam PRU tetapi kini, adakah ini akan berubah kini? Isu 'hudud' dan negara Islam memang isu yang penting yang akan mengakibatkan pengundi - ada yang menyatakan bahawa isu ini ada kesan mengapa PAS dan pembangkang telah gagal mengekalkan majoriti di Trengganu..


Ramai Rakyat Malaysia mahukan 'Asalkan Bukan UMNO-BN', dan ini dikatakan sebab mengapa ramai telah mengundi pembangkang...tetapi isu kini adalah sama ada sentimen sedemikian memadai untuk PRU akan datang. 

Apa yang berbeda daripada PRU yang lalu, dan sebelum itu, adalah bahawa pihak pembangkang telah berjaya menang dan menubuhkan kerajaan di Penang, Selangor dan Kelantan. Rakyat telah kini boleh memerhati cara pentadbiran Negeri oleh Pembangkang - adakah mereka gembira dengan apa yang berlaku di negeri-negeri berikut? Adakah pentadbiran 'pembangkang' menunjukkan pentadbiran alternatif yang rakyat harapkan - atau adakah cara pentadbiran 'pembangkang' hanya berjaya mengurangkan harapan rakyat kepada pembangkang? 

Rakyat Malaysia bukan hanya mahukan 'bersih, cekap dan amanah' tetapi mahukan lebih - polisi baru, polisi alternatif, ... Apakah polisi pencukaian alternatif? Apakah polisi mengenai pendidikan? mengenai pekerja? mengenai 'penswastaan'..? mengenai 'AP'? mengenai perubatan dan kesihatan/ mengenai pengangkutan awam?..

Dahulu, janji utama pembangkang adalah penambahan 'demokrasi' - Pilihanraya Kerajaan Tempatan (Local Council Elections)...Malangnya, kecuali di Negeri Perak, di mana sekurang-kurangnya telah diadakan pilihan secara demokratik di peringkat kampung dan beberapa kampung baru. Perkara sama tak berlaku dinegeri lain...

'Local Council Election' mungkin ada alasan Akta Persekutuan menghalang  - tetapi tak ada apa-apa yang menghalang diadakan pilihanraya peringkat kampung, kampung baru atau taman...Tetapi kini, janji untuk adakan pilihanraya kerajaan tempatan pun sudah kurang diberi penumpuan...

Tak memadai lagi menghebohkan dan mendedahkan salah laku BN - rakyat sudah arif mahu tahu apakah polisi dan cara pentadbiran alternatif...

Kini dakwaan korupsi melibatkan Lim Guan Eng, dan ada juga dakwaan salah laku melibatkan beberapa pemimpin utama PKR...dan ada juga dakwaan salah laku isu pembalakkan di Kelantan...

Sokongan akar umbi kepada PAS dan DAP nyata dan masih kuat - tetapi sokongan akar umbi kepada PKR, Amanah atau parti baru bekas UMNO adalah tanda tanya. Sejak PRU lalu, adakah PKR atau pembangkang lain pernah berjaya memanggil apa-apa protes atau perhimpunan aman menentang apa-apa, yang mendapatkan sokongan besar? Mengapa? Kenapa tak ada perhimpunan besar-besaran di Selangor mengenai isu anjurang kerajaan Selangor..atau kerajaan Penang..atau kerajaan Kelantan... Semua perhimpunan nampaknya kini anjurang NGO saperti BERSIH, Bantah GST... parti politik mengambil jalan selamat meminta ahli sokong saja...adakah ini kerana takut jika dianjur sendiri, mereka yang turun tak ramai - justeru mendedahkan sokongan sebenar kepada parti pembangkang?


Kini mereka yang baru disingkirkan(atau keluar) UMNO mahu menubuhkan parti politik baru? Mereka mahu menubuhkan parti bukan untuk semua rakyat Malaysia - tetapi hanya untuk gulungan ethnik tertentu? Harus dilihat bahawa parti politik pembangkang mewakili satu ethnik atau agama pun sudah mengambil langkah melibatkan semua rakyat Malaysia. PAS pun telah mencalunkan warga bukan Islam sebagai calun PRU lalu.

Jika diperhatikan Deklarasi Rakyat - tujuan utama adalah untuk mengeluarkan Najib Tun Razak sebagai Perdana Menteri - bukan menentang UMNO atau BN? Justeru bila Najib mengundur diri, adakah mereka akan cepat-cepat kembali kepada UMNO....Semangat 46 pun akhirnya kembali kepada UMNO-BN.

Muhyiddin dan bekas pimipinan UMNO - mereka juga bersama Najib melangsungkan polisi dan tindakan UMNO-BN ... Adakah mereka tak tahu mengenai 1MDB dan semua salah laku kerajaan - mereka bukan ahli biasa - tapi kepimpinan UMNO..kepimpinan BN...kepimpinan kerajaan...Adakah mereka begitu tak efisyen sehingga tak sedar apa yang berlaku? Adakah mereka kini bertukar pendirian dan sedia memansuhkan Akta Hasutan, POTA, POCA...dan Akta lain yang menindas? Adakah mereka kini mahu gaji minima lebih adil - atau mahu mansuhkan sistem kontraktor kerja?

Kewujudan parti Mahathir-Muhyiddin yang baru kemungkinan akan bermakna parti PAS dan DAP terpaksa mengurangkan bilangan kerusi Parlimen yang bakal ditanding dalam PRU akan datang? 

Harus kita jangan lupa, bahawa tanpa Parti Mahathir-Muhyiddin yang baru ini, rakyat sudah ada kuasa untuk memastikan bahawa selepas PRU akan datang, BN tidak lagi akan mendapat majoriti kerusi parlimen?

Untuk PKR, mungkin parti Mahathir-Muhyiddin ini penting kerana penglibatan parti memastikan bilangan kerusi DAP dan PAS akan kurang - justeru PKR akan terus ada pengaruh...Risiko juga wujud bahawa bukan sahaja ahli parti bekas UMNO akan pulang ke pangkuan UMNO, kemungkinan juga wujud bahawa ada pemimpin PKR juga akan kembali ke UMNO...

Parti pembangkang di Malaysia ada banyak alternatif yang boleh diundang beserta dalam barisan pembangkang, ini termasuk juga parti PRM, PSM serta beberapa parti di Sabah dan Sarawak. PRU lepas menunjukkan bahawa jika 'satu lawan satu', calun dari mana-mana parti pembangkang akan disokong pengundi...

Mengapa Pakatan Rakyat tidak mengambil langkah menyebabkan penyertaan lebih banyak parti pembangkang dalam Pakatan Rakyat - ada memerlukan 7 parti untuk membolehannya  mendaftar sebagai parti baru saperti Barisan Nasional. 

Jika kita ada pakatan pembangkang serius saperti BN - lebih selesa kita semua, bahawa pembangkang ada komitmen mengenai dasar dan polisi bersama. Perbedaan antara parti biasa - tetapi sekurang-kurang ada perkara asas yang ada persetujuan bersama. 

Apakah perkara asasa yang boleh dipersetujui:-

1- Akta yang anti-kebebasan bersuara, berpendapat dan berhimpun secara aman akan dimansuhkan. 
* Akta Hasutan, Akta Perhimpunan Awam akan dimansuhkan.

2 - Semua Akta yang membenarkan penahanan tanpa bicara, atau memberikan kuasa kerajaan menghalang hak rak rakyat secara sendiri..POTA,POCA,KOSMA dan Akta sedemikian akan segera dimansuhkan

3 - Semua Ahli Parlimen akan dibenarkan kebebasan bersuara, mengeluarkan pendapat dan mengundi secara bebas. Tidak ada paksaan mengenai cara seseorang wakil rakyat mengundi. Kini, sama saperti BN, pembangkang pun ikut cara sama - wakil rakyat mereka dihalang menyokong hujahan MP BN, atau cadangan BN - ini bukan demokrasi.

Paksaan atau 'Whip' akan hanya digunakan bila diperlukan, khususnya berkenaan perundangan kewangan (Financial Bills) yang perlu diluluskan untuk perjalanan kerajaan...Kini sedih sekali, kerana parti pembangkang, juga mengunakan 'Whip' - paksaan cara mengundi, di mana ianya digunakan bukan sahaja di Parlimen, DUN tetapi juga di Majlis Perbandaran... Maka, wakil rakyat 'tidak ada kuasa' bila terpaksa mengundi...ini cara BN dan seharusnya tidak digunakan pembangkang...Kewujudan sistem 'whip' yang dipakai setiap masa, membuatkan parlimen sebuah 'sandiwara' - tidak ada debat dan perbincangan bebas dan terbuka...kuasa kekal ditangan kepimpinan parti - bukan di tangan rakyat atau tangan wakil rakyat.

4 -  ....

Apa lagi yang kita mahu?

Friday, August 12, 2016

Bar:- Malaysian Authorities Must Treat Grave US Department of Justice Allegations with Utmost Seriousness and Undertake an Immediate Inquiry

Press Release | Malaysian Authorities Must Treat Grave US Department of Justice Allegations with Utmost Seriousness and Undertake an Immediate Inquiry

ImageThe Malaysian Bar is deeply disturbed by the grim disclosures contained in the complaint filed by the United States Department of Justice (“DOJ”)[1] “to forfeit assets involved in and traceable to an international conspiracy to launder money misappropriated from 1Malaysia Development Berhad (“1MDB”)…”[2] The DOJ has made serious allegations of siphoning or diversion of funds, fraud, and the misuse of the banking system for illegal activities, by the individuals and entities named in the complaint.

Various persons have in the past weeks sought to interpret the DOJ’s 136-page complaint.  It is appalling that some have deliberately set out to distort the proceedings, and have attempted to create confusion, ostensibly to protect wrongdoers.  In the interest of upholding the rule of law and the cause of justice, the thrust, purpose and ramifications of the DOJ proceedings must be appreciated. 

The legal proceeding commenced by the DOJ seeking the forfeiture of assets — including rights to profits, moveable assets and real property — constitute a civil action.  These assets, located primarily, but not exclusively, in the United States, are alleged to be proceeds from criminal conduct.  The DOJ maintains that this is the largest single asset seizure action ever brought under its Kleptocracy Asset Recovery Initiative.[3] 

The DOJ’s court document states that the assets to be forfeited represent “a portion of the proceeds of over [US]$3.5 billion misappropriated from 1MDB.”[4]  It has been reported that the United States authorities intend “to recover more than [US]$1 billion that was laundered through the United States and traceable to the conspiracy.”[5] In this regard, it would appear from the court document that the United States authorities possess comprehensive knowledge of the movement of the alleged misappropriated funds, have sighted relevant documentary evidence, and even reviewed telephone conversations.  The substance, depth and reach of the allegations are compelling, and should not be ignored.  The affected parties will have the opportunity to challenge the DOJ’s action in court, hence the process is transparent and adheres to the principles of natural justice.  

The complaint made by the DOJ does not preclude criminal action, as the forfeiture is but a first step to prevent dissipation of the specified assets.  The act of money laundering, and involvement in a conspiracy to do so, are criminal offences.  Thus, upon forfeiture of the assets, it is likely that there would be criminal proceedings to prosecute those responsible for the alleged misappropriation of 1MDB funds and the laundering of those funds in the United States and elsewhere. 

Such proceedings in the United States should not surprise our law enforcement agencies or officers.  There are similar provisions in our law for the freezing or forfeiture of assets in Malaysia that are connected with money laundering activities or are the proceeds of crime, whether or not any individuals are prosecuted.[6]  These have often subsequently led to the prosecution of individuals.  The laws in Malaysia also allow for criminal proceedings against individuals for alleged money laundering activities, even if those activities occur outside Malaysia.[7]

It is noteworthy that the Malaysian Anti-Corruption Commission has issued a statement confirming that it cooperated with the United States Federal Bureau of Investigation in the latter's investigations.[8]  In international efforts to stop money laundering and curb corruption, many countries — including Malaysia — have passed laws that allow for "universal jurisdiction" in respect of money laundering activities or corrupt practices.  Such legal actions cannot in any way be categorised as attempts to interfere in the domestic affairs of a sovereign state. 

The principal aim of international crime prevention and anti-corruption treaties such as the United Nations Convention against Corruption, which Malaysia ratified in 2008, is to specifically provide for the prosecution of those involved in international or transnational criminal activities.  No country that is a signatory to such treaties or conventions should attempt to hide or shield such persons, or permit such persons to evade or avoid prosecution, or to block access to evidence or information. 

It is untenable to hold that the DOJ document does not show that money has been misappropriated from 1MDB.[9]  The allegations of financial improprieties concerning 1MDB funds — described as having been "stolen, laundered through American financial institutions and used to enrich a few officials and their associates"[10] — are referred to in no fewer than 193 paragraphs in the document. 

Further, it has been reported that 1MDB is being investigated for alleged financial irregularities and possible money laundering in at least nine countries: Australia, Hong Kong, Luxembourg, Singapore, Switzerland, Thailand, United Arab Emirates, United Kingdom and United States of America.[11]  It is significant that immediately after the DOJ announced its action, Singaporean authorities declared that they have seized bank accounts and properties amounting to S$240 million in total, as a result of their own investigations into the flows of 1MDB-related funds through Singapore, which began in March 2015 and are still in progress.[12] 

There are parties who have stated that 1MDB has not suffered any losses but only "has debts".[13]  This is a perverse and unsustainable position, given that the PAC report reportedly named members of 1MDB's senior management that it said should face a criminal investigation,[14] and that five of the twelve members of the PAC have reportedly stated that the PAC's report shows that a total of US$7 billion have flowed out from 1MDB and were unaccounted for.[15]

Several individuals have been specifically named in the DOJ's court document, but not the Prime Minister.  However, this is not to say that he cannot be identified from the descriptive statements contained in the court document.[16]  The conclusion — based on any clear reading of those descriptive statements — that the person named as "MALAYSIAN OFFICIAL 1" in the court document is the Prime Minister appears irresistible.  

The court document contains many other troubling disclosures.  It is alleged that in March 2013, USD681 million was transferred to a bank account belonging to "MALAYSIAN OFFICIAL 1",[17] and that this sum emanated from a 1MDB bond sale.  This allegation contradicts statements by our authorities that the funds were a "personal donation" to the Prime Minister from the Saudi royal family, given to him without any consideration.[18]

In addition, the court document also alleges that USD20 million and a further USD30 million traceable to 1MDB funds, were transferred to the same personal bank account owned by "MALAYSIAN OFFICIAL 1" in 2011 and 2012, respectively.[19]  It would appear that the transfer of these funds had not been previously uncovered or disclosed by any of our enforcement agencies.  These allegations therefore expose deficiencies and flaws in the investigations that have been conducted so far in Malaysia, and a lack of transparency regarding the findings that such investigations have yielded.

While the DOJ's proceedings and any other possible related proceedings in the United States of America must be allowed to take their course and not be prejudged, a fresh and comprehensive investigation of all persons directly or indirectly implicated in the allegations made by the DOJ must be pursued.  These allegations must not be ignored or permitted to be swept under the carpet, as that would only fuel the already existing perception of a cover-up.  In this regard, the recent statement by the PAC, in the wake of the DOJ proceedings, that any further investigation into 1MDB is unnecessary, is deeply disconcerting. 

There is a palpable need for greater fervour, transparency and accountability in the investigation by our enforcement authorities, and for appropriate and concrete action to be taken against all wrongdoers, without delay.  The truth must be revealed and justice must be done. 

Steven Thiru
Malaysian Bar

11 August 2016

[1] Civil suit document filed by the United States Department of Justice dated 20 July 2016 ("DOJ civil suit").
[2] DOJ civil suit, para 5.
[3] Press statement by the United States Department of Justice entitled "United States Seeks to Recover More Than $1 Billion Obtained from Corruption Involving Malaysian Sovereign Wealth Fund" dated 20 July 2016 ("DOJ press statement").
[4] DOJ civil suit, para 33.
[6] Section 41 of the Malaysian Anti-Corruption Commission Act 2009, and Sections 44, 45, 50, 51 and 52 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
[7] Sections 44, 45, 50, 51 and 52 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.  Sections 44 and 53 also deal with the freezing and seizure of assets located outside Malaysia.
[8] Press statement issued by the Malaysia Anti-Corruption Commission entitled "SPRM Bekerjasama Dengan FBI" dated 22 July 2016.
[9] Press statement by the Attorney General of Malaysia Tan Sri Dato' Sri Haji Mohamed Apandi Bin Haji Ali entitled "US DEPARTMENT OF JUSTICE FILING OF CIVIL ACTION" dated 21 July 2016.
[12] Joint statement by the Attorney-General's Chambers of Singapore, Commercial Affairs Department of the Singapore Police Force and the Monetary Authority of Singapore entitled "Investigations into 1MDB-Related Fund Flows through Singapore" dated 21 July 2016.
[13] "Don't be blindsided by 1MDB: Najib", New Straits Times Online, 9 August 2015.
[14] "Malaysia's Probe Into 1MDB Fund Was Flawed", Wall Street Journal, 26 May 2016.
[16] (a) DOJ civil suit, para 28: "MALAYSIAN OFFICIAL 1 is a high-ranking official in the Malaysian government who also held a position of authority with 1MDB. During all times relevant to the Complaint, MALAYSIAN OFFICIAL 1 was a "public official" as that term is used in 18 U.S.C. § 1956(c)(7)(B)(iv) and a "public servant" as that term is used in Section 21 of the Malaysian Penal Code."
(b) DOJ civil suit, para 129: "[RIZA SHAHRIZ BIN ABDUL] AZIZ is a relative of MALAYSIAN OFFICIAL 1 and a friend of LOW [TAEK JHO]."
(c) DOJ civil suit, para 39: "Upon its formation, MALAYSIAN OFFICIAL 1 assumed a position of authority with 1MDB. MALAYSIAN OFFICIAL 1 had the authority to approve all appointments to, and removals from, 1MDB's Board of Directors and 1MDB's Senior Management Team. In addition, any financial commitments by 1MDB, including investments, that were likely to affect a guarantee given by the government of Malaysia for the benefit of 1MDB or any policy of the Malaysian government, required, the approval of MALAYSIAN OFFICIAL 1."
(d) DOJ civil suit, para 238: "The Government of Malaysia provided a "Letter of Support," dated March 14, 2013, in connection with the Project Catalyze transaction… the letter is signed by MALAYSIAN OFFICIAL 1.", read together with "A 1MDB default would test limits of Najib's support: Gadfly", StockHut, 19 April 2016.
(e) DOJ civil suit, para 263: "… a press release issued on January 26, 2016, the Malaysian Attorney General confirmed that, "the sum of USD681 million (RM2.08 billion) [was] transferred into the personal account of [MALAYSIAN OFFICIAL 1] between 22.03.2013 and 10.04.2013," and that, " In August 2013, a sum of USD620 million (RM2.03 billion) was returned by [MALAYSIAN OFFICIAL 1]. . . ." The Malaysian Attorney General ultimately characterized the payment of $681 million as a "personal donation to [MALAYSIAN OFFICIAL 1] from the Saudi royal family which was given to him without any consideration."
[17] DOJ civil suit, para 229:  "…between approximately March 21, 2013, and March 25, 2013, $681,000,000 was transferred from the Tanore Account to an account belonging to MALAYSIAN OFFICIAL 1."
[18] Press statement by the Attorney General Tan Sri Dato' Sri Haji Mohamed Apandi bin Haji Ali entitled "IN RELATION TO THE INVESTIGATION PAPERS RETURNED BY MACC ON SRC INTERNATIONAL AND "RM2.6 BILLION" dated 26 March 2016.
[19] DOJ civil suit, para 261.

Najib, for your Merdeka gift to Malaysians - REPEAL SEDITION ACT?

Media statement by Member of Parliament for Batu Kawan and Publicity Secretary for DAP Wanita Kasthuri Patto on Friday 12 August 2016 in Batu Kawan, Penang.

In the spirit of Merdeka celebrations, Najib Razak should prove that the Barisan Nasional administration is not autocratic and authoritarian by doing away with the Sedition Act 1948.

This week saw the Prime Minister address young Malaysian of the youth parliament in the Dewan Rakyat. He smugly dismissed allegations that the government is autocratic, saying that it is open to criticism, mentioned that those who wanted to give their feedback or criticism should do it in a proper manner-that street rallies and 'referendum rakyat' isn’t our cup of tea.

In fact, in a paradoxical twist, that it is actually his BN administration and he who have violated the spirit of the Federal Constitution that upholds fundamental liberties and freedom of speech by using brute force in the form of laws to curtail freedom of speech and abuse human rights.

Najib announced to the world, in 2011 that the archaic, Sedition Act will be repealed. Malaysians across the board applauded the move saying it was finally a resolute step in the right direction after being under an iron fisted rule for 22 years by former Prime Minister Dr Mahathir. Najib said the decision to replace the Sedition Act with the National Harmony Act was made to find a mechanism to determine the best balance between ensuring every citizen's freedom of expression, and the need to handle the complex nature of the country's multi-racial and multi-religious society.

Sadly, our joy was short lived. In 2014, just a mere 3 years after the grandiose announcement, shamelessly, the Prime Minister backtracked on his word and announced that the Sedition Act is here to stay and will be strengthened stripping away fundamental liberties of Malaysians alike.

Prime Minister Najib Razak could not be farther from the truth when he said Malaysia will cease to be respected should be continue to lead the country after the visit of the Ukrainian President recently.

A nation is respected when it upholds fundamental liberties, civil liberties and upholds the spirit of being the defender of human rights. A nation is respected when its leaders do not abuse power, siphon public funds for their own wealth and govern with accountability and transparency. A nation is respected when there is no corrosion in the sanctity of public institutions like the judiciary, the MACC, and the Elections Commission. A nation is respected when it stands by the right to life. A nation is respected when laws that silence voices of conscience and the voices of dissent, laws that blind the authorities against the inhuman treatment of rights of the people, laws that discriminate, oppress and suppress its people, tyrannical laws that protect political criminals and laws that restrict freedom of speech – are all abolished. Then, and only then, would a nation be respected.

The Barisan Nasional government is not only authoritarian but autocratic as well with the reinstating of the Sedition Act.

In October 2014, four UN independent experts, including the Special Rapporteur on Freedom of Opinion and Expression, called on Malaysia to withdraw the Sedition Act as it is conflicting and incompatible with international human rights law. The experts recalled the commitment Malaysia made to the UN Human Rights Council at the adoption of its Universal Periodic Review in March 2014 to address international concerns on this matter. However, the commitment remains just hollow, lifeless words as democracy slowly starts to wither in Malaysia.

To date, other Commonwealth member states such as the United Kingdom, Ghana, Kenya, Uganda, Australia, and New Zealand have repealed their sedition laws. Some of there countries are even experiencing civil unrest in their countries and yet took a bold step in the right direction to preserve civil and fundamental liberties and to uphold the spirit of human rights.

In the spirit of Merdeka celebrations, Najib Razak should prove that the Barisan Nasional administration is not autocratic and authoritarian by doing away with the Sedition Act 1948.

I call upon Najib Razak as Prime Minister to end the repression of political dissent by dropping all sedition charges and for all investigations to cease and to abolish the Sedition Act 1948 without delay in the true spirit of nationalism, patriotism and constitutionalism.

Kasthuri Patto
Member of Parliament for Batu Kawan, Malaysia's
Democratic Action Party.

Thursday, August 11, 2016

MALAYSIAN LAWYERS' STRUGGLE FOR JUSTICE ongoing for decades - when young lawyers were feared?

* Many, even lawyers, may have forgotten that the Malaysian Bar has been dutifully struggling to uphold the cause of justice for a long time, and unfortunately the Malaysian government is and has not been  too happy about this, and has always sought to weaken the Bar...

At one time, the Malaysian government believed that it was young lawyers that were the problem - and so, the Legal Profession Act was amended that had the effect of disallowing young lawyers (i.e. those with less than 7 years standing in the Bar) from being '... a member of the Bar Council or a Bar Committee, or of any committee of the Bar Council or a Bar Committee...' 

And section 46A came into being Legal Profession (Amendment) Bill 1977 was passed and came into force. 

The struggle by young lawyers to be treated as equals was sadly also resisted by some of the senior lawyers...but finally was supported by the Malaysian Bar - and we asked the government, and the government sadly did not remove the entire section 46A - but deleted the section 46A(1)(a) vide Legal Profession(Amendment) Act 2006, which came into force in October that year.

Now, Malaysian government is at it again - trying to 'weaken' the Bar...trying to interfere with the independence of the Bar....and also trying to re-introduce 2 classes of lawyers - 10 years and below, and the rest. We have fought any form of discrimination ...and we will not go back..

Was sad though with a Bar Council flyer on the reasons why it opposes elections of office bearers during the AGM - 'Direct election could lead to the election of persons who have had little or no experience in the BC' - I certainly do not agree with such sentiments - it sounds like Steven Thiru and Bar Council may still be influenced with the 'old thinking' ...of  'need years of standing...' or certain years of being in BC' before one can be qualified to be elected as office bearers...  Why we do not agree to the government proposal is simple - we, the Malaysian Bar, will decide how we choose our leaders and run our 'association' - so we reject ALL proposals...we reject the MANNER used by the government to force changes on us...

What about direct elections - well, that will be something that members of the Bar may consider or not - we are open to changes for the better - but we decide...'nothing is set in stone' save our commitment to uphold the cause of justice without fear or favour...

Well, here is something from the past...something I wrote in my website(which mysteriously was hacked, blocked and I was shut out..)




1. When the government introduced the Essential (Security Cases) Regulations 1975 or ESCAR to amend the law for trial of "security offences", particularly in respect of the basic rules of evidence. As an example, ESCAR allows for excluding of both the accused and counsel from the court room when evidence is taken from a witness. ESCAR allows for a witness to give testimony hiding his face and even his voice from the accused and/or his counsel.

2. In October 1977, in response to the government introducing the Essential (Security Cases) Regulations 1975 ("ESCAR"), the Malaysian Bar passed a resolution at an Extraordinary General Meeting criticising ESCAR as laws that " were manifestly unfair and unjust as to offend the conscience of all good men" and also advised its members not to appear for accused tried under the laws in protest of the same on the premise that an accused under ESCAR would be denied a fair trial notwithstanding provision for presence of counsel.

3. The government in response to the criticism of the Bar, introduced the Legal Profession (Amendment) Bill 1977 which allowed the Attorney-General to admit foreign lawyers, increased the quorum requirements of general meetings of the Bar to 1/5 of its membership and automatically disqualified certain classes of lawyers from holding office in the Bar Council, the State Bar Committees and their sub-committees.

4. The Bar Council after attempting and failing to dissuade the government from passing the Bill, in discussions held with the government and the then attorney-general, issued a press statement objecting to the amendments.

5. The amendments proposed by the bill came into force in early 1978. In response to the Legal Profession (Amendment) Act, at the Annual General Meeting of the Malaysian Bar in February, 1978 the Malaysian Bar passed a resolution expressing regret at the government's insistence in passing the Legal Profession (Amendment) Bill 1977 , "without making proper enquiries as to its allegation that the bar is being influenced by practitioners of less than seven years' standing or who are politically motivated" , "with the clear and wholly unworthy intention of muzzling the Malaysian Bar". The amendments were opposed, inter alia, on grounds that they imposed restrictions on the Bar to choose its own leaders and impeded the independence of the Bar.

6. By virtue of the passing of the Legal Profession (Amendment) Bill 1977, section 46A of the Legal Profession Act came into being disqualifying the following lawyers from holding office in the Bar Council, State Bar Committees and/or Committees of these :-
    (i). Persons who are less than 7 years standing in the Bar;
    (ii). Members of Parliament or State legislatures;
    (iii). Persons who hold office in any trade union, political party or any organisation which has objectives or carries on activities which can be construed as political or declared so by the Attorney-General.
7. The Malaysian Bar retaliated and at its 32nd Annual General Meeting on 3 February 1978 passed a resolution criticizing section 46A ("1978 Resolution").

8. At the end of 1978, ESCAR was declared ultra vires by the Privy Council. It was resurrected subsequently as an Act of Parliament.

9. In a stronger resolution passed on 23 March 2002, the Malaysian Bar affirmed the 1978 Resolution and directing the Bar Council to immediately take steps to call for and campaign for the repeal of sections 46A and other amendments introduced by the Legal Profession (Amendment) Bill, 1977 which affects the independence of the Bar and hinder the ability of the Bar to govern itself.

10. By virtue of section 46A, the Malaysian Bar lost some its independence especially when it came to the choosing of its leaders. By keeping out young lawyers from the leadership of the Malaysian Bar, the government hoped to silence the Malaysian Bar and suppress its purpose of upholding the cause of justice without fear or favour. Section 46A, which excluded "young lawyers" from the leadership of the Malaysian Bar, indirectly branded senior lawyers as being "less progressive", "less radical" and as being persons less likely to take up the cause of justice without fear or favour.

11. But alas young lawyers, although not able to be in the Bar Council, State Bar Committees and/or its various committees have over the years still continued to stand up for the cause of justice without fear or favour. The more recent examples are:-

    a. In 1998 100s of young lawyers came forward to assist and represent the hundreds of Malaysians arrested when they exercised their freedom of expression and opinion through peaceful assemblies in the streets of Kuala Lumpur and Selangor. The lawyers were there at the Police Stations and the Police Training Centre(PULAPOL) where 100s ofd those arrested were taken. The young lawyers also during this represented these persons in over 600 remand hearings, some of which lasted long in the wee mornings, one in Pulapol lasted until about 3.00am the following day. These young lawyers also did come out and represent these persons in some of largest trials in Malaysia where in one case it involved over 200 accused persons in a joint trial. These trials of course were overshadowed by the more publicised Anwar Ibrahim trials then,

    b. In 1999 about 100 over lawyers marched to Federal Court building in solidarity and support for a senior lawyer who was being cited for contempt for actions done as lawyer representing his client in court.

    c. When a young Chinese lawyer was harassed by the police in Petaling Jaya, it was again the young lawyers that initiated a signature campaign and handed a memorandum of protest to the Officer in charge of the Police District of Petaling Jaya.

    d. When hundred's of persons with Indonesian accent were arrested in connection with a killing of a police officer in Johor, again it was a team of young lawyers who rushed down to offer their free legal service

    e. On 17th August 2001, a majority of the members of the then Bar Council decided to oppose an application by a lawyer, Sivarasa Rasiah (an elected member of the Bar Council and Vice-President of Parti Rakyat Malaysia), for declarations that the disqualifications introduced by section 46A of the Legal Profession Act are not valid on the basis that, inter alia, they violate freedom of association provided by Article 10 of the Federal Constitution. On 13th September 2001, 75 lawyers, most of whom were young lawyers, requisitioned for a General Meeting of the Malaysian Bar.
12. Over the past 7 over years, young lawyers have been fighting for greater recognition and greater participation in the decision making processes of the Malaysian Bar at all levels. This brought about the setting up of Young Lawyers Committees, first at the Kuala Lumpur Bar, and then through a resolution at the level of the Bar Council. The Bar Council, still "fearful" of the consequences of violating the law formed the National Young Lawyers Committee but it was headed by a senior lawyer and the committee was officially comprised of members who were senior lawyers. Young lawyers were represented by the reps from all the State Bars but only sat in as mere observers.

13. At the Bar Council's 1st National Young Lawyers' Convention in Cherating, Kuantan, on 6th April 2003, a call was again made by the 200 young lawyers who attended the convention for the repeal of section 46A. These Young Lawyers also called on the Malaysian Bar, the Bar Council and all State Bar Committees to disregard the restrictions of the section 46A and to admit young lawyers into the committees of the Malaysian Bar and the State Bars. This call was made on the basis that unjust or unfair, arbitrary laws should not be obeyed or followed. In other words, "civil disobedience". Sadly, the Bar Council does not endorse that part of the resolution that called for the ignoring of section 46A and the admittance of young lawyers into the Bar Council and its committees.

14. On 5th September 2003, the Young Lawyers are launching a nationwide campaign for the "REPEAL SECTION 46A LEGAL PROFESSION ACT, 1976"

"The erosion of fundamental rights and liberties, the manipulation of the media and the blatant undermining of the institutions of state entrusted with the task of upholding the rule of law and ensuring justice and fair play should not go unchallenged! We must refuse to be intimidated. In times like this Malaysians should stand up and be counted.
- Society For Christian Reflection

A patriot must always be ready to defend his country against his government.
Edward Abbey



Now the time to act has come"