Separation of Judicial & Legal Services Resolution (25/3/2000)

The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000

Motion 4:

Whereas:-

1. Today, for more than 90% of the criminal cases, the Magistrate’s Court and the Sessions Court are the courts of first instance. With regard to civil and commercial matters, the lower courts have the jurisdiction to hear disputes where the sum disputed or the value of the subject matter is not exceeding RM250,000.00.

2. The mechanisms provided in the Federal Constitution to ensure the independence of the Judiciary (i.e. judges of the High Court, Court of Appeal and Federal Court, the Chief Justice, and President of the Court of Appeal and the Chief Judges of the High Courts) does not extend to Magistrates and Sessions Court Judges.

3. For example, Magistrates are being remunerated at the scale similar to those of other civil servants with equal education qualification and length of service.

4. All members of the Judicial Services, which includes Magistrates and Sessions Court Judges, and the Legal Services come under the jurisdiction of the Judicial and Legal Service Commission (ref. Art. 138 Federal Constitution), whereby the Attorney General is a member of the said Commission. Thus, the “prosecutors” and “judges”, especially when it comes to criminal matters, come under the jurisdiction of the same Commission and this does not augur well, for “justice must not only be done but also be seen to be done”.

5. Some Magistrates have been appointed as Deputy Public Prosecutors (DPP), and some DPPs have also been appointed as Sessions Court Judges.

6. Many Magistrates appointed are fresh law graduates. The only pre-requisite for the appointment as a Magistrate or a Sessions Court Judge is that he/she must be a member of the Judicial and Legal Services (see sec. 60 & 78A of the Subordinate Courts Act 1948). There is no other qualifications requirements akin to those provided for in Article 123 of the Federal Constitution when it comes to the appointment of the judiciary.

7. As officers of the Court, lawyers have a duty to be proactive in making constructive suggestions for the improvement of the administration of justice in Malaysia.

It is hereby resolved:-

A. That the Malaysian Bar expresses concern about the lack of mechanisms and safeguards to ensure the independence of Magistrates and Sessions Court Judges in the lower courts.

B. That the Bar Council be proactive and work towards bringing about reforms in the administration of justice in the lower courts in Malaysia, having special regard to the :-

(a) qualification of Magistrates and Sessions Court Judges;

(b) introduction of Mechanisms or Safeguards to ensure greater independence of Magistrates, Sessions Court Judges and other judicial officers; and

(c) the necessity of separating the Judicial Services and the Legal Services.

Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam

Resolution:

The Motion was unanimously carried.

Freedom of Expression, Media, Press Resolution (25/3/2000)

The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000

Motion 3:

Whereas:-

1. This is the 43rd year of our country’s independence from British colonial rule on 31 August 1957 and it is time that the government of the day broadens “democratic space” and begins treating Malaysians as adult, mature and thinking individuals who must be given access to information and differing opinions irrespective of whether they are from political parties, societies, non-governmental organisations or individuals. Malaysians have the capacity to evaluate, analyse and come to sensible conclusions.

2. Our Federal Constitution in Part II entitled “Fundamental Liberties” in Article 10(1)(a) provides for the “right to freedom of speech and expression”.

3. There is a need for a more liberal and tolerant policy in the issuances of permits and/or licences for publications and radio/television stations, which are tools and means of expression and opinion forming.

4. The permit of the publication “Harakah”, which apparently sold about 350,000 copies per issue, has recently been imposed with new conditions with regard to the frequency of publication, from twice weekly to twice monthly. Some years ago the permits of the “Harakah” and the “Rocket” were imposed with the condition that these publications could only be sold to members of the party publishing them which is contrary to the principle that all publications should be freely accessible to all Malaysians.

5. The legislature through the Printing Presses and Publications Act 1984, in particular Section 13A(1) have excluded judicial review of the executive’s decision in granting, revoking or suspending a licence or permit.

6. In excluding “judicial review”, the legislature and/or the executive seem to cast aspersions on the judiciary with regard to their ability to make wise and just decisions in accordance with the law; and have also crippled the judiciary in their task of preventing arbitrariness in executive decision making.

Now it is hereby resolved:

A. That the Malaysian Bar calls upon the Government of Malaysia to remove all restrictions in law and/or otherwise that limit the full exercise of the right to freedom of speech and expression in Malaysia.

B. That the Malaysian Bar calls for the repeal and/or amendment of the Printing Presses and Publication Act 1984 to ensure that there will be no restrictions and imposition of conditions on permits/licences of publications especially with regard to the frequency of publications and the access of the said publications to all Malaysians.

C. That the Malaysian Bar calls for repeal and/or amendment of the Printing Presses and Publications Act 1984 and all other Acts with similar provision that exclude judicial review of executive decisions in whatever manner.

D. That the Malaysian Bar calls on the government of Malaysia to immediately remove all conditions and restrictions presently placed on publications, especially with regard to frequency of publication and access to all Malaysians.

Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam

Resolution:

The Motion was unanimously carried.

Right to ONE Phone Call Resolution (25/3/2000)

The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000

Motion 5:

Whereas:

1. When a person is arrested in Malaysia, he can be detained by the police for a maximum period of not more than 15 days if the police utilize the powers pursuant to section 117 of the Criminal Procedure Code.

2. In Malaysia, there is no right to a phone call. The suspect cannot inform his lawyer, his family, friends and employer of the fact of his arrest and detention.

3. The constitutionally guaranteed right of access to a lawyer may be denied, even though the words used in Article 5(3) Federal Constitution is “Where a person is arrested he …SHALL be allowed to consult and be defended by a legal practitioner of his choice.”

4. Access to the lawyer is a right that should be available from the point of arrest. When a suspect is brought before the Magistrate pursuant to Section 117 Criminal Procedure Code and when the suspect is charged in court, he/she has the right to be represented by a lawyer.

5. The police do NOT have a duty in law to inform the lawyer: (a) whether the suspect will be charged in court OR whether the police are applying for further detention to complete their investigations. If the latter be the case, the police have no duty in law to inform the exact time when the suspect will be brought before the Magistrate; and the identity of the said Magistrate before whom the suspect will be brought for the section 117 application.

It is hereby resolved:-

A. That the Malaysian Bar expresses concern over the denial of the fundamental liberty guaranteed by Article 5(3) of the Federal Constitution to a majority of the suspects arrested and detained in the police lock-ups.

B. That the Malaysian Bar calls on the Malaysian Government to ensure that the right of access to a lawyer upon arrest and the right to be represented by a lawyer, especially during section 117 applications, be recognised and respected by the police and all concerned.

C. That the Bar Council does whatsoever necessary to ensure that the RIGHT TO ONE PHONE CALL, at the very least, be accorded to a suspect when arrested.

D. That the Bar Council does whatsoever necessary to ensure that the police is vested with the duty in law to inform lawyers of the detained suspect as to whether they are opting for an application for further detention pursuant to section 117 Criminal Procedure Code, and if so, at what time the suspect will be brought before a Magistrate and which Magistrate will be hearing the said application so as to give full effect to the right to a lawyer upon arrest.

Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam

Resolution:

The Motion was unanimously carried.

Repeal Detention Without Trial Laws Resolution (10/10/98)

The EGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 10 October 1998

Motion 5:

Whereas

1. The freedom of expression, association and movement is a fundamental human right enshrined in the Universal Declaration of Human Rights, and affirmed by international human rights standards.

2. No person should be punished by the means of arrest and detention, or by the imposition of restrictions and conditions as to his/her expression, association and/or movement, without being charged and tried in an open court.

Therefore This House Hereby Resolves That:-

1. The Malaysian Bar hereby adopts the position that all laws providing for arrest and detention without trial, and for the imposing of restrictions and conditions without trial are contrary to the Rule of Law, international human rights standards and established religious values and norms.

2. The Malaysian Bar calls for:-

a) The repeal of all laws that allow for detention without trial in particular the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969, Dangerous Drugs (Special Preventive Measures) Act 1985 and the Restricted Residence Enactment 1933, and

b) The immediate and unconditional release of all persons arrested and detained under the first three mentioned legislations above.

c) The immediate removal and/or revocation of all Orders imposing restrictions and conditions under the abovementioned legislations, on all persons with regard to expression, association and movement, without trial.

3. The Bar Council takes all necessary steps to work towards the realisation of the abovementioned resolutions.

Proposer: Mr Charles Hector
Seconder: Mr Francis Pereira

Resolution:

The Motion was unanimously adopted.

When a lawyer gets arrested... (Motion - sentiments accepted)

The EGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 10 October 1998

Motion 4:

Whereas

1. One of the objects of the Malaysian Bar is to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia;

2. And another of the objects is to afford pecuniary and other assistance to members or to former members of the Malaysian Bar and to wives, widows, children and other dependents, whether of members, former members or deceased members who are in need of such assistance;

3. Noting also the fact of the increasing probability that members of the Bar may be arrested and detained by the police, and also subjected to possible further detention under the powers accorded to the police by virtue of Section 117 of the Criminal Procedure Code in matters in connection with their brief and/or client-solicitor relationship. A recent example of this being the case of Leonard Teoh.

4. Noting also that members of the Bar are also possible victims of laws that provide for detention without trial, whereby detention would include all forms of restriction orders, be it under the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969, Dangerous Drugs (Special Preventive Measures) Act 1985 and the Restricted Residence Enactment 1933. A recent example being the case of Zulkifli Nordin who was detained under the Internal Security Act, 1960.

Therefore This House Resolves That:-

1. The Bar Council, whenever such arrests and detention take place be it under any laws that are in connection with the said lawyer’s brief OR arrests and detention under the laws that provide for detention without trial takes place, takes immediate action by making its stand or position openly and clearly that it is perturbed and opposed of such actions of the police or other authorities, by the issuance of a media statement and by whatever other means deemed appropriate.

2. The Bar Council takes immediate action to ensure that legal matters, handled by the said advocate and solicitor, be looked into to ensure that adjournments are sought, etc. with regard to litigation matters, and whatever other assistance be rendered to ensure the smooth discharge of the said advocate and solicitor’s duties in connection with his/her legal practice during the period of his/her detention.

3. That the Bar Council takes immediate action to ensure that family members and dependents of the said advocate and solicitor receive the necessary support and assistance, including legal and pecuniary assistance, if possible.

4. That the Bar Council work together with the State Bar Committees, to set up mechanisms to ensure immediate responses to the abovementioned tasks and responsibilities.

Proposer: Mr Charles Hector Fernandez
Seconder: Mr Bala Subramaniam

Resolution:

The House agreed with the Chairman that the Motion be treated as sentiments of the House and that Mr Charles Hector look at the system in England and come up with some concrete proposals for the Bar Council to consider.