Lawyers - When the Bar leaders procrastinate, member lawyers moved in defence of lawyers...?

In 2006, when a lawyer performing his professional duty was barred by the police, Malaysian lawyers, mainly young lawyers acted when the leadership of the Bar procrastinated..

A petition/memorandum was speedily drafted and about more than 112 lawyers signed. Then about 40 lawyers went to the PJ police headquarters and presented this protest. The Bar Council, at the 11th hour decided to act and joined the handing over the memorandum of protest - and later even initiated and followed up.   

 

Then,

On 2nd May, the Selangor Bar and Kuala Lumpur Bar representatives met up with the Chief Police Officer of Selangor to express their protest.

On 10th of May 2006, about 25 lawyers turned up in Parliament in support of an emergency motion put in by member of the Bar and Member of Parliament for Ipoh Barat, Mr M. Kulasegaran over the harassment, arrest and detention of lawyer S. Balasubramaniam. The motion also referred to incidents involving other lawyers like P. Uthayakumar, Leonard Teoh, Zainur Zakaria and Cheah Kah Peng.

...
Vide Malaysian Bar Council Circular No. 21/2006 dated 30/5/2006 entitled “Meeting with the IGP”, the President reminded lawyers that “…many members [had] voiced their strong concern on this issue and gave their personal commitment to show full support for members of the Bar who encounter such problems…” He said that he hoped “…that as many of you [members of the Bar] as possible will be able to match your commitment with your active support for the coming meeting…” with the IGP on 7/6/2006.

It was good to see that about 50 lawyers did respond to this call, and turned up demonstrating their personal commitment to come forward in support of lawyers who had been harassed and mistreated by the police.

Lawyers, when acting on behalf of their clients, must be  'able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference' and 'shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.' -see  UN Basic Principles on the Role of Lawyers

FOR INFORMATION AND SUPPORT:- Now, on 25/3/2020, I (Charles Hector) is facing contempt proceedings at the Kuantan High Court, with regard a letter written on behalf of clients, seeking clarifications from the author of a crucial letter. The allegation is that this was a violation of an interlocutory injunction order. Now, me and my 8 clients(who are part of a community protesting logging in a forest reserve) will have the application for leave to commence contempt proceedings which will be heard on that day. I look forward to your SUPPORT.

See also:- 

50 LAWYERS TURN UP IN BUKIT AMAN FOR MEETING WITH IGP

WHAT HAS THE BAR DONE ABOUT LAWYER UTHAYAKUMAR’S ARREST AND DETENTION?

 

Some 40 lawyers stage a protest outside PJ Police Headquarters 27 Apr 2006 12:00 am

Surendran, George and Charles handing over the Memorandum of Protest to a police officer

On 18.04.2006, lawyer S. Balasubramaniam (picture), was at PJ Police Headquarters in order to render legal assistance to his clients who had been detained by police.

Despite his repeated requests, the police refused to give him information about the reason for the arrests and the suspected offence that his clients were arrested for.

S. Balasubramaniam was physically pushed and then unlawfully arrested by a plainclothes policeman.

Balasubramaniam was released after 3 hours of detention without reasons being given for his arrest. He lodged a police report (PJ/004538/06) with regard his treatment by the police.

We, the undersigned lawyers, are concerned and very disturbed by the police action of wrongfully harassing, arresting and detaining a lawyer who was there representing and performing his duties as a lawyer for his clients.

We demand that :–

a. That S. Balasubramaniam’s complaint be immediately investigated by an investigation team independent of the PJ Police Headquarters;

b. That stern action be taken against all those police officers responsible for this incident;

c. The police officers responsible be forthwith suspended pending investigation;

d. That the CPO of Selangor/ IGP immediately gives an undertaking that there will be no repeat of such interferences with and/or harassment of an advocate carrying out his duties in any police station in Malaysia.

1 Sharmini Thiruchelvam Kuala Lumpur
2 Colin anak Victor George Malaysian Bar
3 Bernard Chong Malaysian Bar
4 Fadzila Binti Said Malaysian Bar
5 Dara Waheda Mohd Rufin Malaysian Bar
6 Richard Wee Thiam Seng Kuala Lumpur
7 L.Y.Lee Kuala Lumpur
8 Charles Hector Petaling Jaya
9 N.Surendran Kuala Lumpur
10 Ahmad Zainuddin Dataran Palma
11 Khaznim Dataran Palma
12 Leena Ghosh Petaling Jaya
13 Francis Pereira Kuala Lumpur
14 Kasthury S* Petaling Jaya
15 Vasandi K K. Vasandi & Co
16 Ng See Kee Penang
17 George Varughese Petaling Jaya
18 Stanly Sinnapan Kuala Lumpur
19 Moganamball Kuala Lumpur
20 Edmund Bon Kuala Lumpur
21 Jeremy Tan Jeremy & Sazlin
22 Balakrishnan A Bala Naido & ..
23 Nik Mohamed Ikhwan Kuala Lumpur
24 Koong Len Sheng Kuala Lumpur
25 Shanker Sivapragasam Kuala Lumpur
26 Chin Pien Yee Kuala Lumpur
27 Erene Lee Lin Lin Kuala Lumpur
28 John You Choon Kit Kuala Lumpur
29 Puspawati Rosman Kuala Lumpur
30 Fazlina Pawan T eh Kuala Lumpur
31 Nelson Awgang Kuala Lumpur
32 John Yong Tee Kong Puchong
33 Irene Song Lai Kuan Puchong
34 David Charles Petaling Jaya
35 Will Fung Kuala Lumpur
36 R. Shamuga Nathan R.Shan & Associates
37 Grudit Singh R.Shan & Associates
38 Subajayanthi K Negeri Sembilan
39 Yee Seu Kai Ipoh
40 Chong Kok Yew Ipoh
41 Venkadesh Ipoh
42 Zainorah Hassan Ipoh
43 Mohd Syukri Yahaya Ipoh
44 G. Balasunderam Ipoh
45 Kerpal Singh Ipoh
46 Feg Agis Ipoh
47 Lim Ta Wai Ipoh
48 Chan Kok Keong Ipoh
49 Al Hundallah * Ipoh
50 Lai Choe Ken Ipoh
51 Ellanggovan * Ipoh
52 Srividhya Ganapathy Kuala Lumpur
53 Muhendaran Suppiah Kuala Lumpur
54 Kavitha Guna Segaran Kuala Lumpur
55 Liu Meng Wun Kuala Lumpur
56 Modeshanantham V. Perak
57 Leong Kow Hoo Perak
58 Amret Dhillon Perak
59 James Devadason Perak
60 Harbhajan Singh Perak
61 K.C.Lai Perak
62 Mary Lim Perak
63 Leon Julian Perak
64 Annou Xavier Kuala Lumpur
65 Kee Seok Meng Kuala Lumpur
66 Chow Wei Cheng Kuala Lumpur
67 Lim Ching Liew Kuala Lumpur
68 George Miranda Kuala Lumpur
69 Gerald Samuel Kuala Lumpur
70 Khor Lee Chin Kuala Lumpur
71 Kenny Ng Bee Ken Kuala Lumpur
72 Lee Swee Seng Kuala Lumpur
73 G.Nanda Goban Kuala Lumpur
74 Yap Wai Kit Kuala Lumpur
75 Tay Ka Ping Kuala Lumpur
76 Lavinia Kumaraendran Kuala Lumpur
77 Owee Chia Ming Kuala Lumpur
78 Shanthi Supramaniam Kuala Lumpur
79 Priscilly J. Edison, Kuala Lumpur
80 Harmeet Kaur, Kuala Lumpur
81 TM Yap, Kuala Lumpur
81 Lim Yap Kuala Lumpur
82 Ong Bee Koon Kuala Lumpur
83 Lilian Siew Kuala Lumpur
84 Ravindran S Kuala Lumpur
85 Yoong Kien Fah Kuala Lumpur
86 Karina Yong Penang
87 Theivanai Amerthalingam* Penang
88 S. Kumaari Munusamy Penang
89 Jessica Binwani Penang
90 Chong Poh Ken Petaling Jaya
91 Ng Kah Fei Petaling Jaya
92 Tan Ban Cheng Penang
93 Mohamed Fadly Zakaruya Kuala Lumpur
94 Ravindran S Kuala Lumpur
95 Leong Kong Meng Penang
96 Radehayati Johateh Petaling Jaya
97 R. Shanmugam Kuala Lumpur
98 Augustine Anthony Ipoh
99 Ng Poh Tat Ipoh
100 Shaznam Haseena Ipoh
101 Kenneth Gomes Kuala Lumpur
102 Tha*** S*** Ipoh
103 Sunder Singh Ipoh
104 Edwin Seibel Ipoh
105 Joshua Leong Ipoh
106 Raden A.Shauki Perak Bar
107 Christina Loke Kuala Lumpur
108 Lee Woan Chyi Kuala Lumpur
109 Sivarasah Rasiah Kuala Lumpur
110 M. Puravalen Kuala Lumpur
111 Chew Swee Yoke Kuala Lumpur
112 Amer Hamzah Kuala Lumpur
* Some of the names and addresses were unclear – we did our best to try to get it correct. - Malaysian Bar Website

 

 

Basic Principles on the Role of Lawyers

Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba
27 August to 7 September 1990

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained, and proclaim as one of their purposes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion,

Whereas the Universal Declaration of Human Rights enshrines the principles of equality before the law, the presumption of innocence, the right to a fair and public hearing by an independent and impartial tribunal, and all the guarantees necessary for the defence of everyone charged with a penal offence,

Whereas the International Covenant on Civil and Political Rights proclaims, in addition, the right to be tried without undue delay and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,

Whereas the International Covenant on Economic, Social and Cultural Rights recalls the obligation of States under the Charter to promote universal respect for, and observance of, human rights and freedoms,

Whereas the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that a detained person shall be entitled to have the assistance of, and to communicate and consult with, legal counsel,

Whereas the Standard Minimum Rules for the Treatment of Prisoners recommend, in particular, that legal assistance and confidential communication with counsel should be ensured to untried prisoners,

Whereas the Safeguards guaranteeing protection of those facing the death penalty reaffirm the right of everyone suspected or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings, in accordance with article 14 of the International Covenant on Civil and Political Rights,

Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power recommends measures to be taken at the international and national levels to improve access to justice and fair treatment, restitution, compensation and assistance for victims of crime,

Whereas adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession,

Whereas professional associations of lawyers have a vital role to play in upholding professional standards and ethics, protecting their members from persecution and improper restrictions and infringements, providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest,

The Basic Principles on the Role of Lawyers, set forth below, which have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general. These principles shall also apply, as appropriate, to persons who exercise the functions of lawyers without having the formal status of lawyers.

Access to lawyers and legal services

1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.

2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status.

3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources.

4. Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.

Special safeguards in criminal justice matters

5. Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence.

6. Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services.

7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.

8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.

Qualifications and training

9. Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law.

10. Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory.

11. In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups.

Duties and responsibilities

12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.

13. The duties of lawyers towards their clients shall include:

(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;

(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;

(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.

14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.

15. Lawyers shall always loyally respect the interests of their clients.

Guarantees for the functioning of lawyers

16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

18. Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

19. No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.

20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.

21. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.

22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

Freedom of expression and association

23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

Professional associations of lawyers

24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.

25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.

Disciplinary proceedings

26. Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.

27. Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.

28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.

29. All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles. Basic Principles on the Role of Lawyers

Abolition of Chid Marriages was a Resolution adopted at the 2021 Malaysian Bar AGM

While some religions and/or cultures have seen nothing wrong with children marrying at a very young age, there must be other considerations in this day and age to take a just position. Current laws deals with the age of majority - when people are 'mature' enough to vote, to drive motor vehicles, etc. The concern is not limited to the the children that enters into marriage(what about their rights as to education, etc) and also the children of these child marriages. Read the full Resolution below that addresses some of these points...

One important resolution that was adopted at the Malaysian Bar AGM, held online on 13/3/2020 also included call enact an Act of Parliament (a) abolishing the practise of child marriages; (b) raising the legal age of marriage to 18 years of age for all children in Malaysia;(c) providing protection to children against child marriages; and (d)providing solutions and protection to victims of child marriages or any children born out of such marriages;

 

Resolution to Support the Call to Abolish the Practice of Child Marriages in Malaysia

 

The Malaysian Bar to support the call to abolish the practice of

Child Marriages in Malaysia

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Whereas

1.         It is recognised that Malaysia being a signatory to the Convention on the Rights of the Child, has a critical obligation and duty to ensure the development and protection of all children in Malaysia.

 

2.         Article 3 of the Convention on the Rights of the Child inter alia states that:

“Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

 

3.         The Committee on the Rights of the Child (CRC) defines ‘child marriage’ as any marriage where either one (or both) partners are below 18 years of age. The CRC urges countries to set the minimum age for marriage for men and women (with or without parental consent) at 18 years. The United Nations Population Fund (UNFPA) and the United Nations Children’s Fund (UNICEF) define child marriage as “a formal marriage or informal union before age 18”.

 

 

4.         The Center for Reproductive Rights’ Briefing Paper on Child Marriage in South East Asia – International and Constitutional Legal Standards and Jurisprudence for Promoting Accountability and Change, states:  

 

“Child marriage does not constitute a single rights violation; rather, every instance of child marriage triggers a continuum of violations that continues throughout a girl’s life. Child marriage endangers the survival and well-being of women and girls by exposing them to forced initiation into sex and ongoing sexual violence, as well as to early, unplanned, and frequent pregnancies. Further, women and girls married as children are often denied educational opportunities, are isolated from society, and face a lifetime of economic dependence. Together, child marriage and early pregnancy trap generations of women in cycles of poverty. These harms result in significant violations of girls’ rights, including their reproductive rights and their right to freedom from gender-based violence. Ensuring accountability for child marriage entails both holding responsible those officials who have failed to implement laws and policies against the practice, and addressing legal and social barriers that prevent married girls seeking to leave such marriages from being able to do so. It also requires the introduction of specific legal measures and remedies to address the particular needs of married girls.”

 

5.         Malaysia has committed to eliminate child marriage by 2030 in line with target 5.3 of the Sustainable Development Goals (“the SDGs”). The government did not provide an update on progress towards this target during its Voluntary National Review at the 2017 High Level Political Forum.

 

6.         Malaysia acceded to the Convention on the Rights of the Child in 1995, which sets a minimum age of marriage of 18, and acceded to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) in 1995, which obligates states to ensure free and full consent to marriage.

 

7.         Malaysia has committed to the ASEAN Declaration on the Elimination of Violence against Women and Violence against Children (2013), which acknowledges the importance of strengthening ASEAN efforts to protect children from all forms of violence, including early marriage.

 

8.         In 2018 the CEDAW Committee recommended that Malaysia raise the minimum age of marriage to 18 for women and men for both civil and Muslim marriages, and require the full consent of women for any marriage.

 

9.         During its 2013 Universal Periodic Review, Malaysia agreed to examine recommendations to take steps to address trends in child marriage and adopt proper measures to discourage the practice.

 

10.       It is recognised that child marriages are medically, socially and economically harmful to children of either gender and society with countries around the world, including Turkey and Indonesia legislating on measures to abolish child marriages.         Child marriage has lasting consequences on girls that last well beyond adolescence, including:

 

(i)        Women married in their teens or earlier struggle with the health effects of getting pregnant at a young age and often with little spacing between children. Early marriages followed by teen pregnancy also significantly increase birth complications and social isolation. The inability to interact with peers and the limitation of socialization outside the family disturbs the normal identity development in the child;

 

(ii)       In Malaysia, marriage or pregnancy can limit or eliminate a woman's education options, affecting her economic independence. The current position is that married or pregnant children are not allowed to attend government schools. Without education, girls and adult women have fewer opportunities to earn an income and financially provide for themselves and their children. This makes girls more vulnerable to persistent poverty if their spouses die, abandon, or divorce them;

 

(iii)      Girls in child marriages are more likely to suffer from domestic violence, child sexual abuse, and marital rape.  This trauma may lead to the development of depression which subsequently increase the risk towards suicide or self harm in the adolescent mothers. Maternal depression will also affect the children as the toxic stress responses can have damaging effects on their learning, behavior, and health later in life;

 

(iv)      Given that girls in child marriages are often significantly younger than their husbands, they become widowed earlier in life and may face associated economic and social challenges for a greater portion of their life than women who marry later. While there isn’t much research on the effects of child marriage on boys, it is clear that it forces boys out of education and into the workforce at an earlier age, thus limiting their educational, economic and social status;

 

(v)       High rates of child marriage negatively impact countries' economic development because of early marriages' impact on girls' education and labour market participation. Some researchers and activists note that high rates of child marriage prevent significant progress toward each of the eight Millennium Development Goals and global efforts to reduce poverty due to its effects on educational attainment, economic and political participation, and health.

 

11.       Child marriages continue to be practiced in Malaysia. Statistics show that child marriage in Malaysia is not just a problem in Muslim communities, but one encountered in every community in Malaysia, including those of the Orang Asal.

 

12.       It is recognised that the triggers leading to child marriages in Malaysia include poverty, pre-marital sex, teenage pregnancies, a lack of access to education, , gender norms, traditional values, violence against girls, a lack of adequate quality age appropriate reproductive health  and sexuality education for children and a lack of access to contraception and reproductive healthcare. It is further recognised that the problem of child marriages cannot be addressed unless and until these trigger factors are addressed.

 

13.       The Government in attempting to find solutions to the problem of child marriages in Malaysia unveiled on 16^th January 2020 a 5-year National Strategy Plan in Handling the Causes of Child Marriage, which the Malaysian Bar recognises as a step in the right direction.

 

14.       The Malaysian Bar notes that the preamble to the Child Act 2001 recognised that: “…a child is not only a crucial component of such a society but also the key to its survival, development and prosperity”.

 

15.       The Malaysian Bar however recognises that despite all of the above, there is no Act of Parliament protecting children from child marriages or providing solutions and protection to victims of child marriages or any children born out of such marriages.

 

Therefore, the Malaysian Bar hereby resolves

 

(A)       That the Malaysian Bar calls upon the Government to enact an Act of Parliament:

(a)       abolishing the practise of child marriages;

(b)       raising the legal age of marriage to 18 years of age for all children in Malaysia;

(c)       providing protection to children against child marriages; and

(d)       providing solutions and protection to victims of child marriages or any children born out of such marriages;

 

(B)       That the Malaysian Bar calls upon the Government to take immediate proactive steps and measures to advocate and ensure that the public is educated and advised  that child marriages are medically, socially and economically harmful to children and society; and

 

(C)       That the Malaysian Bar calls upon the Government to adopt a multi stakeholder approach and take immediate measures to address the trigger factors leading to child marriages in Malaysia which include poverty, pre-marital sex, teenage pregnancies, a lack of access to education, gender norms, traditional values, violence against girls, a lack of adequate quality age appropriate reproductive health and sexuality education to children and a lack of access to contraception and reproductive healthcare.

This Motion was proposed by Srividhya Ganapathy and Ajeet Kaur, and seconded by Karen Cheah Yee Lynn, Siti Hajar Bt. Ahmad, Tengku Hezrul Anuar bin Tengku Abdul Samad, Lee Teong Hooi, Desmond Ho Chee Cheong, Nur Iman Bin Nur Azmi, Zuwita Kamaruzzaman and Mah Looi Yin

Source: Malaysian Bar Website    and also proposer of Motion, which provided me a copy of the Motion, which was adopted as a RESOLUTION without any amendments     

Lawyers approve resolution calling for ban on child marriages

V Anbalagan

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March 15, 2021 11:51 AM

The Malaysian Bar wants Putrajaya to pass a law to ban child marriages.

KUALA LUMPUR: The Malaysian Bar, in an overwhelming majority, has passed a resolution calling on Putrajaya to enact a law to ban child marriages, a lawyer said.

Srividhya Ganapathy, who together with Ajeet Kaur proposed the motion, said it was hoped the government would take steps to raise the legal age of marriage to 18 years for all.

“The law should provide protection to all children against child marriages and provide solutions and protection to victims of such marriages or any children born out of such marriages,” she said

Srividhya, who is the co-chair of the Child Rights Innovation and Betterment Foundation, said 462 lawyers supported the motion at the 75th annual general meeting of the Bar on Saturday.

“Last year, we withdrew the motion because we suspected many lawyers will not be present physically to attend the meeting due to the Covid-19 pandemic,” she told FMT.

This year, the AGM was conducted virtually.

The motion also called on the government to adopt a multi stakeholder approach and take immediate measures to address the trigger factors leading to child marriages in Malaysia, which include poverty, pre-marital sex, teenage pregnancies, and a lack of access to education.

Currently, non-Muslims have to obtain consent from the menteri besar or chief minister to have marriages conducted if the bride is between 16 and 18 years of age and the groom is less than 18.

Muslim marriages are governed by state shariah laws and differ from one state to another.

Child marriages came under the spotlight three years ago when a 41-year-old man in Gua Musang, Kelantan, had taken an 11-year-old girl as his third wife.

Rubber tapper Abdul Karim Che Abdul Hamid said he had received the blessings of the girl’s parents and planned to formalise the marriage by applying for a marriage certificate when his “wife” turned 16.

Then deputy prime minister Dr Wan Azizah Wan Ismail had said the government would amend the law to raise the marriageable age for girls from 16 to 18.

The 11-year-old girl was eventually sent back to her birth country of Thailand, where she was said to have undergone mental health counselling because of the intense level of attention sparked by her marriage.

Srividya said she was made to understand that the religious court in the state only imposed a fine on the man for marrying the child in Thailand while there was no prosecution instituted under the federal penal law. - FMT, 15/3/2021

 

Bar Council gets mandate of AGM to challenge validity Proclamation of Emergency and the Emergency Ordinance..

When the Malaysian Bar, at a General Meeting, passes a RESOLUTION - it is very powerful. It is an expression of all the members of the Malaysian Bar, which now is about 20,000 Malaysian lawyers. At the immediate past General Meeting, where the registered attendance was 1,268(far above the needed quorum of 500), it was a clear indication of how members felt the importance of the Motion/s being tabled.

'...The Malaysian Bar’s 75^th Annual General Meeting (“AGM”) was held online and conducted virtually through live streaming and online remote voting via a Remote Participation and Voting (“RPV”) platform on 13 Mar 2021.A total of 1,268 Members registered their attendance at the AGM, which concluded at 4:58 pm...' - Malaysian Bar Website

If not for Covid-19 pandemic, lawyers from the Malaysian Bar would have already taken to the streets to uphold the cause of justice... This has been done several times, and when these peaceful assemblies, about 2,000 lawyers turn up in their suits and protest in the hot sun, and all for the cause of JUSTICE and Human Rights..

 

Resolution Regarding the Emergency (Essential Powers) Ordinance 2021

WHEREAS: 

(1) In December 2019, cases of “viral pneumonia” were identified in Wuhan, People’s Republic of China (“China”), and subsequently reported to the World Health Organization (“WHO”).[1]  Shortly after, it was identified as a new type of coronavirus (novel coronavirus, nCoV) and later termed by WHO as “COVID-19”.  

(2) On 13 January 2020, the first case of COVID-19 in Thailand was reported.[2]  By 27 January 2020, 11 countries (excluding China) reported laboratory confirmed COVID-19 cases, including Malaysia.[3]  WHO declared the COVID-19 outbreak as a “Public Health Emergency of International Concern” on 30 January 2020.[4]

(3) In Malaysia, a Movement Control Order (“MCO”) was implemented on 18 March 2020 to 31 March 2020[5] following a steep rise in the number of cases.  The order would be extended over the course of 2020 and 2021, to date, as follows:

MCO:

(a) 1 April 2020 to 14 April 2020;[6]

(b) 15 April 2020 to 28 April 2020;[7]

(c) 29 April 2020 to 12 May 2020;[8]

Conditional MCO: On 1 May 2020, the Prime Minister, YAB Tan Sri Muhyiddin Yassin (“Prime Minister”) announced the implementation of a Conditional MCO, beginning 4 May 2020.  The daily number of COVID-19 positive cases on 1 May 2020 stood at 69 (compared to 117 on 18 March 2020),[9] whilst total positive cases numbered at 6,071.[10]

(d) 13 May 2020 to 9 June 2020;[11]

Recovery MCO: On 7 June 2020, the Prime Minister announced that the Conditional MCO would end on 9 June 2020, and the Recovery MCO would be implemented, beginning 10 June 2020.  The daily number of COVID-19 positive cases on 9 June 2020 stood at 7, whilst total cases numbered at 8,336.[12]

(e) 10 June 2020 to 31 August 2020, and subsequent extensions.[13]

(4) In addition, localised places would be put under Enhanced MCO as the need arose.

(5) In September 2020, Malaysia witnessed a surge in the number of COVID-19 positive cases.  This has been attributed to the snap Sabah state elections which took place on 26 September 2020.[14]  On 3 October 2020, the daily number of positive cases stood at 317[15] — the highest single-day report of confirmed cases, at that time, since the start of the outbreak[16]. This figure would continue to climb in the ensuing weeks.

(6) On 23 October 2020, the Prime Minister sought an audience with His Majesty the Yang di-Pertuan Agong on the declaration of a state of emergency under Article 150(1) of the Federal Constitution by reason of the COVID-19 pandemic.  On 25 October 2020, the Yang di-Pertuan Agong, in a statement released by the Istana Negara in the national language, expressed that “tiada keperluan buat masa ini untuk … mengisytiharkan darurat di negara ini atau mana-mana bahagian negara Malaysia.”[17]

(7) The Malaysian Bar, on 23 October 2020, released a statement stating that a declaration of Emergency is unwarranted, as there are existing laws and mechanisms in place to manage the COVID-19 pandemic, such as the Prevention and Control of Infectious Diseases Act 1988 (Act 342) (“PCIDA”), which provides the Government with wide-ranging powers.

(8) During the months of October to December 2020, Sabah, Selangor and the Federal Territories of Kuala Lumpur and Putrajaya, were placed under Conditional MCO again due to the rise in daily reported COVID-19 positive cases.  The daily number of positive cases on 31 December 2020 stood at 2,525, whilst total cases numbered 113,010.[18]

(9) By the end of January 2021, the MCO was reintroduced to all states except Sarawak.

(10) On 11 January 2021, following an audience granted to the Prime Minister[19] and upon the Prime Minister’s advice, the Yang di-Pertuan Agong issued a Proclamation of Emergency pursuant to Article 150(1) of the Federal Constitution to declare a state of Emergency for the whole Federation effective from 11 January 2021 to 1 August 2021 (“Proclamation of Emergency”).[20]  The Emergency (Essential Powers) Ordinance 2021 (“Emergency Ordinance”)[21] was also promulgated on 14 January 2021, coming into operation on 11 January 2021.

(11) The Malaysian Bar, on 13 January 2021, released a statement maintaining its view that the PCIDA and other pieces of legislation were sufficient for the Government to manage the COVID-19 pandemic, and that its request for an Emergency Declaration appeared to be overblown.  In a subsequent statement on 15 January 2021, we then highlighted our concerns arising out of the Emergency Ordinance, which afforded wide-ranging powers to the Executive branch.

(12) Provisions of the Emergency Ordinance that are particularly concerning are:

(a) Suspension of Federal and State legislative proceedings (sections 14 and 15);

(b) Suspension of Federal and State elections (sections 12 and 13);

(c) Entrenchment of the position of the current Executive at Federal and State levels (section 11);

(d) Vast powers afforded to the armed forces (section 7);

(e) Vast powers to temporarily take possession of any land, building or movable property (section 3) and to demand for the use of resources for any purpose (section 4).  The assessment of compensation in these circumstances cannot be challenged by the Courts — an “ouster clause” (section 5); and

(f) An “immunity provision” (section 10) which seeks to shield the Government from any acts taken in carrying out the provisions of the Emergency Ordinance.  The qualification that such acts must be done in “good faith” does not provide sufficient redress, as it still affords the Government with immunity in situations of negligence.

(13) The Malaysian Bar is holding a watching brief in five suits which have since been filed in relation to the Proclamation of Emergency and the Emergency Ordinance.  These suits were commenced by the following parties:

(a) Non-governmental organisations (“NGOs”) and human rights groups, namely BERSIH 2.0, Suara Rakyat Malaysia (“SUARAM”), Centre for Independent Journalism (“CIJ”), ALIRAN, Kuala Lumpur and Selangor Chinese Assembly Hall (“KLSCAH”), Pergerakan Tenaga Akademik Malaysia (“GERAK”) and SAVE Rivers;

(b) Hassan b Abdul Karim;  

(c) Datuk Seri Salahuddin b Ayub, Dato’ Johari b Abdul, and Abdul Aziz b Bari (commonly referred to as the “Pakatan lawmakers suit”);

(d) Dato’ Seri Anwar b Ibrahim; and

(e) Khairuddin b Abu Hassan. 

(14) Article 150(1) of the Federal Constitution provides for a Proclamation of Emergency only where a grave emergency exists, that is, where the security, economic life or public order of the Federation is threatened.

(15) It should not be sought or invoked lightly as it effectively results in vast powers being placed at the hands and control of the Executive.  The provisions of the Emergency Ordinance are drafted in a broad manner, and therefore present the potential and risk of abuse. 

(16) While it is recognised that during a health crisis, the normal functioning of society cannot be maintained, and that as a result of health measures taken, some rights and freedoms which ordinarily form an integral and necessary part of a democratic society will inevitably be encroached upon (such as in relation to movement), it remains vital that the fundamental values of democracy, rule of law and human rights standards are to be maintained, and any derogations thereto are necessary and proportional.

(17) The Government has, since the beginning of the outbreak, effectively utilised its powers under PCIDA to manage the COVID-19 pandemic.  Powers under PCIDA include:

(a) declaring an area as an infected local area (section 11);

(b) prescribing measures to be taken to control or prevent the spread of the disease within or from an infected local area (subsection 11(2)) — such as restrictions in movement as imposed by the MCO;

(c) directing any person or class or category of persons living in an infected local area to subject themselves to isolation, observation or surveillance, and any other measures considered necessary to control the disease (subsection 11(3));

(d) temporary requisitioning of premises (section 26);

(e) mobilising the police, customs and immigration officers, and officers from other government departments and agencies, to assist for the purposes of exercising any powers and/or regulations made, under PCIDA (section 5); and

(f) penalties and fines.

(18) The MCO, Enhanced MCO, Conditional MCO and Recovery MCO contain sufficient enforcement and adequate measures to manage the spread of COVID-19 in the infected local areas.

(19) It is incumbent on the Government to satisfactorily justify its decision for implementing a state of Emergency, and for resorting to suspending Parliament.

(20) In particular, section 14 of the Emergency Ordinance is unprecedented in the history of Malaysia.  This is the sole occasion[22] where Parliament has been expressly suspended by reason of an emergency.

(21) Such derogation from the rule of law is neither necessary nor proportional.  Emergency powers should not result in a carte blanche of the Legislature’s powers being exercised by the Executive, particularly where the circumstances do not call for such extreme measures.

(22) Adequate health and safety measures can be taken to ensure that sittings of Parliament carry on in a manner that is compliant with the recommended standard operating procedures (“SOPs”), as opposed to a blanket and total suspension for so long as the Emergency is in force (unless otherwise summoned by the Yang di-Pertuan Agong).

(23) The earlier localised proclamations of Emergency and ordinances promulgated in Batu Sapi[23] and Bugaya[24] in Sabah, and in Gerik, Perak[25] in 2020, were made without a need to suspend Parliament or the Sabah State Legislative Assembly.

(24) It is recognised that the Legislature fulfils core functions of representation, law-making and oversight.  Legislative oversight, in particular, seeks to ensure that the Executive remains responsive and accountable for its actions — a check and balance.

(25) The Legislature also provides the necessary counterbalance to the Executive’s powers during an emergency and functions to verify whether such emergency powers are still justified throughout the relevant period.  Thus, Article 150(3) of the Federal Constitution stipulates that the Proclamation of Emergency and any ordinance promulgated shall be laid before both Houses of Parliament.

(26) Furthermore, as held by the Privy Council in Teh Cheng Poh,[26] even while a Proclamation of Emergency is in force, where any further laws are required by reason of the Emergency, Parliament may, pursuant to its legislative authority under Article 44 and by reason of Articles 150(5) and (6) of the Federal Constitution, make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency.

(27) Thus, the doctrine of separation of powers, which forms the basic structure of our Federal Constitution (as recognised by the Judiciary in Semenyih Jaya,[27] Indira Gandhi,[28] and Alma Nudo Atenza[29]) is upheld even during an Emergency.  Article 150 of the Federal Constitution envisages a functional Parliament, playing a critical role during the administration, and oversight, of an Emergency — such as guaranteeing transparent debate, ensuring accountability of the Government, and scrutinising the passing of laws, during a pandemic. 

(28) As expressed by the Yang di-Pertuan Agong[30] at an audience granted to the Yang di-Pertua (President) of the Dewan Negara, YB Senator Tan Sri Dato’ Seri Utama Dr. Rais Yatim, and the Yang di-Pertua (Speaker) of the Dewan Rakyat, YB Datuk Azhar Azizan Harun on 24 February 2021, the Emergency Ordinance allows Parliament to convene during the Emergency on a date as the Yang di-Pertuan Agong thinks appropriate upon the Prime Minister’s advice.  The Yang di-Pertuan Agong also emphasised that Malaysia practices a system of democracy that is based on the principle of supremacy of the Constitution.  As such, each branch of the administration — the Executive, Judiciary, and Parliament — must abide by that principle.

(29) The incapacitation of Parliament is therefore unnecessary, irrational, unreasonable and/or disproportionate for the purposes of combating the COVID-19 outbreak.  It is repugnant to the Federal Constitution, rendering it impossible to give effect to the intent and spirit of Articles 150(3) and 150(5).

(30) The Executive should not usurp the legislative powers that rightfully vests in Parliament, nor should it be shielded from the necessary scrutiny it would normally be subjected to before Parliament.  It is during times of crisis that public confidence in the legitimacy of the administration and its decisions must be assured and protected, warranting a higher threshold of accountability through, for example, legislative oversight.

THEREFORE, the Malaysian Bar hereby resolves that:

(A) The Emergency Ordinance, including sections 14 and 15, is invalid and unconstitutional;

(B) The Malaysian Bar calls upon the Government to take the immediate necessary and/or appropriate steps to advise the Yang di-Pertuan Agong to summon a meeting of Parliament, and for the Proclamation of Emergency and the Emergency Ordinance and/or any subsequent ordinances, to be laid before Parliament in accordance with Article 150(3) of the Federal Constitution; and

(C) The Malaysian Bar mandates the Bar Council to take any and all steps that it deems necessary and/or appropriate regarding the aforesaid Proclamation of Emergency and the Emergency Ordinance, including instituting legal proceedings, for and on behalf of the Malaysian Bar, to challenge the validity of the Proclamation of Emergency and/or the Emergency Ordinance and/or any subsequent ordinances; to seek interim and/or permanent reliefs, as may be deemed necessary; and to give effect to the resolutions above.

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[1] Rolling updates on coronavirus disease (COVID-19) (31 July 2020), updated 31 July 2020.  World Health Organization.  Retrieved from: who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen.

[2] Ibid.

[3] Epidemiological Update Novel coronavirus (2019-nCoV) (27 January 2020).  Pan American Health Organization.  Retrieved from: tinyurl.com/3c6se282.

[4] Rolling updates on coronavirus disease (COVID-19) (31 July 2020), updated 31 July 2020.  World Health Organization.  Retrieved from: who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen.

[5] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 [P.U.(A) 87/2020], and Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 [P.U.(A) 91/2020].

[6] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) Order 2020 [P.U. (A) 98/2020].

[7] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 2) Order 2020 [P.U.(A) 116/2020].

[8] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 3) Order 2020 [P.U.(A) 132/2020].

[9] Situasi Terkini 18 Mac 2020 (18 March 2020).  Kementerian Kesihatan Malaysia.  Retrieved from: covid-19.moh.gov.my/terkini/032020/situasi-terkini-18-mac-2020.

[10] Situasi Terkini 1 Mei 2020 (1 Mei 2020).  Kementerian Kesihatan Malaysia.  Retrieved from: covid-19.moh.gov.my/terkini/052020/situasi-terkini-01-mei-2020.

[11] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 4) Order 2020 [P.U.(A) 146/2020].

[12] Situasi Terkini 9 Jun 2020 (9 June 2020).  Kementerian Kesihatan Malaysia.  Retrieved from: covid-19.moh.gov.my/terkini/062020/situasi-terkini-09-jun-2020.

[13] Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 5) Order 2020 [P.U.(A) 180/2020].  The order would be further extended to 31 March 2021, via the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 6) Order 2020 [P.U.(A) 253/2020] and Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 7) Order 2020 [P.U.(A) 399/2020].

[14] “PM admits Sabah election among causes of spike in COVID-19 cases”, Bernama, 6 October 2020.  Retrieved from: https://www.astroawani.com/berita-malaysia/pm-admits-sabah-election-among-causes-of-spike-in-covid19-cases-262477.

[15] Situasi Terkini 3 Oktober 2020 (3 October 2020).  Kementerian Kesihatan Malaysia.  Retrieved from: covid-19.moh.gov.my/terkini/102020/situasi-terkini-03-oktober-2020.

[16] “Malaysia: Coronavirus Disease 2019 (COVID-19) Situation Report. Weekly report for the week ending 4 October 2020”, 6 October 2020. World Health Organization: Representative Office for Malaysia, Brunei Darussalam, and Singapore.  Retrieved from: who.int/malaysia/internal-publications-detail/covid-19-in-malaysia-situation-report-20.

[17] Kenyataan Media, 25 Oktober 2020.  Dato’ Indera Ahmad Fadil Shamsuddin, Datuk Pengelola Bijaya Diraja, Istana Negara.  Retrieved from: https://tinyurl.com/csk3vm2m.

[18] Situasi Terkini 31 Disember 2020 (31 December 2020).  Kementerian Kesihatan Malaysia.  Retrieved from: covid-19.moh.gov.my/terkini/122020/situasi-terkini-covid-19-di-malaysia-31122020.

[19] Speech text of the Special Announcement of Emergency: YAB Tan Sri Dato’ Haji Muhyiddin b Haji Mohd Yassin, Prime Minister of Malaysia, 12 January 2021.  Retrieved from: pmo.gov.my/2021/01/teks-ucapan-pengumuman-khas-darurat/.

[20] Proclamation of Emergency [P.U.(A) 7/2021].

[21] Emergency (Essential Powers) Ordinance 2021 [P.U.(A) 12/2021].

[22] Whilst Parliament did not sit for a period of two years (1969 to 1971) as a result of the 13 May 1969 racial riots, this was due to the interruptions (caused by the riots) to the General Election which took place at that time. Parliament was dissolved on 20 March 1969, General Election was held on 10 May 1969, the riots ensued on 13 May 1969, and the Yang di-Pertuan Agong proclaimed a state of Emergency under Article 150 of the Federal Constitution (P.U. (A) 145/1969) on 15 May 1969.  Pursuant to section 7 of the Emergency (Essential Powers) Ordinance 1969 (P.U.(A) 146/1959), elections to the Dewan [Rakyat] and the Legislative Assembly of any State which had not been completed, would be suspended until such date as the Yang di-Pertuan Agong might determine.  Parliament resumed on 20 February 1971 (The Straits Times, 20 February 1971, page 14 from National Library Board, Singapore).  

[23] Proclamation of Emergency (P.U (A) 329/2020) and Emergency (Essential Powers) Ordinance 2020 (P.U. (A) 330/2020).

[24] Proclamation of Emergency (No. 3) (P.U (A) 358/2020) and Emergency (Essential Powers) (No. 2) Ordinance 2020 (P.U. (A) 359/2020).

[25] Proclamation of Emergency (No. 2) (P.U (A) 356/2020) and Emergency (Essential Powers) (No. 2) Ordinance 2020 (P.U. (A) 357/2020).

[26] Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50, Privy Council.

[27] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 4 MLRA 554, Federal Court.

[28] Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak [2018] 2 MLRA 1, Federal Court.

[29] Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780, Federal Court.

[30] Kenyataan Media (24 Februari 2021). Dato’ Indera Ahmad Fadil Shamsuddin, Datuk Pengelola Bijaya Diraja, Istana Negara.  Retrieved from: tinyurl.com/573vr8zd.

The motion was proposed by Salim Bashir (Chairman, Bar Council), on behalf of the Bar Council.

 

Source: Malaysian Bar Website 

The RESOLUTIONS Adopted can be viewed here 

 

Malaysian Bar mulling lawsuit to challenge ‘fake news’ Ordinance, Emergency Proclamation and others

Saturday, 13 Mar 2021 08:33 PM MYT

BY YISWAREE PALANSAMY

Newly elected Malaysian Bar president AG Kalidas (left) and his Vice President Surindar Singh during a press conference at Malaysia Bar Council building in Kuala Lumpur March 13,2021. — Picture by Ahmad Zamzahuri

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KUALA LUMPUR, March 13 — The Malaysian Bar is looking to file a lawsuit to challenge the Emergency (Essential Powers) (No. 2) Ordinance 2021, together with the Emergency Proclamation and other Ordinances, its new president AG Kalidas said today.

In a press conference this evening after being elected as president for the 2021/2022 term, Kalidas said that this was also the will of  Malaysian Bar members.

“As the motion which has been carried today, insofar as the Proclamation is concerned and also the respective Ordinances, the Malaysian Bar has mandated us to initiate suits relating to the matter, or do what is necessary.

“So our stand is, we will be taking this up in the right channel. Most probably, I mean very likely, there will be a suit initiated by the Malaysian Bar.

“I’m not touching on the second Ordinance, we will call it Ordinance number two. Not touching on that alone, basically, the Malaysian Bar believes in freedom of speech. Of course, there are boundaries to freedom of speech and we also believe in that. You cannot be alleging something which is not true. So we know the boundaries but we believe that people must be allowed to speak,” Kalidas added.

The newly-gazetted Emergency (Essential Powers) (No. 2) Ordinance 2021 criminalises the creation and publishing of fake news.

According to the new Ordinance that took effect on March 12, individuals found guilty of creating or publishing fake news on Covid-19 or the Emergency proclamation could now face a fine of up to RM100,000 and imprisonment.

Media groups and Opposition lawmakers have since expressed concern over the provision; that it may be used as an arbitrary weapon to silence critics of the Perikatan Nasional (PN) government.

DAP veteran Lim Kit Siang had earlier today also urged the Attorney-General to provide clarity on the move to prosecute any individuals who claim that the Emergency Ordinance called by Prime Minister Tan Sri Muhyiddin Yassin was done to save his skin.

He questioned the law and its execution and asked why it was not gazetted by the Cabinet.

Lim said a period of time should have been given for public feedback before enacting the law.

The MP for Iskandar Puteri was commenting on de facto Law Minister Datuk Seri Takiyuddin Hassan’s remarks yesterday that it was a criminal offence under the Ordinance, for anyone to allege that Muhyiddin had called for the Emergency because he lost the majority in Parliament and that they can be fined RM100,000, jailed for up to three years or both.

He asserted that Takiyuddin is not part of the judiciary and questioned the legitimacy of his claim.

Takiyuddin had in a press conference yesterday, assured Malaysians that the new Emergency (Essential Powers) (No. 2) Ordinance 2021 gazetted to curb the spreading of ‘fake news’ will not be used once the nationwide state of Emergency is lifted.

He stressed that this is stated very clearly at the end of the document that the Ordinance will only last as long as the state of Emergency is in effect.

The Emergency Proclamation meanwhile, came into effect in January.

The gazettement is dated January 14, but takes retrospective effect from January 11, the day Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah issued his proclamation of Emergency under Article 150 (1) of the Federal Constitution to safeguard the country from the economic threat posed by the Covid-19 pandemic.

Last month, a group of seven non-governmental organisations joined a growing number of court challengers against the Perikatan Nasional (PN) government’s recourse to a nationwide state of Emergency, arguing that parliamentary consent is required to do so.

The group comprises Bersih 2.0, Suara Rakyat Malaysia, the Center for Independent Journalism (CIJ) , Aliran, the Kuala Lumpur and Selangor Chinese Assembly Hall, Pergerakan Tenaga Akademik Malaysia, and Save Rivers.

Their suit was filed by the legal firm AmerBON Advocates at the High Court.

The group’s action follows two initial lawsuits challenging the validity of the Emergency proclamation, most notably by Opposition Leader Datuk Seri Anwar Ibrahim and Datuk Seri Khairuddin Abu Hassan, a politician known to be aligned to former prime minister Tun Dr Mahathir Mohamad.

Anwar’s suit filed on January 26, challenged Muhyiddin’s advice to the Agong to declare Emergency, the suspension of Parliament, and the postponement of elections for the duration of the Emergency.

Khairuddin’s suit filed last January 29, similarly claims that Muhyiddin did not have the parliamentary legitimacy to advise the King to declare an Emergency on grounds that the Pagoh MP no longer commanded the majority in the Dewan Rakyat at that time.- Malay Mail, 13/3/2021

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Bar Council mandated to initiate suits related to emergency, says new president

Alyaa Alhadjri

Published 13 Mar 2021, 9:55 pm

Modified 13 Mar 2021, 10:39 pm

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The Malaysian Bar has mandated the Bar Council to take any and all steps that it deems necessary regarding the proclamation of emergency and the emergency ordinances, according to a resolution passed today by its members at their 75th AGM.

The Malaysian Bar's newly-elected president AG Kalidas (above, left) later told reporters the steps could include instituting related legal proceedings on behalf of the body.

“As for the motion which has been carried today, insofar as the proclamation is concerned and also the respective ordinances, the Malaysian Bar has mandated us to initiate suits relating to the matter or do what is necessary.

"So our stand is, so far as we are concerned, we will be taking this up in the right channel. Most probably, I mean very likely, there will be a suit initiated by the Malaysian Bar," he said during a press conference at the Wisma Badan Peguam in Kuala Lumpur.

He said this when asked about the Malaysian Bar's stand on fears over the latest Emergency (Essential Powers) (No. 2) Ordinance 2021, which came into force yesterday to curb the dissemination of "fake news" on Covid-19 and the emergency proclamation.

"I’m not (only) touching on the second ordinance, we will call it ordinance number two. Not touching on that alone, but basically, the Malaysian Bar believes in freedom of speech.

"Of course, there are boundaries to freedom of speech and we also believe in that. You cannot be alleging something which is not true," Kalidas said.

"We know the boundaries but we believe that people must be allowed to speak," he added.

Amid concerns raised over the wide-ranging reach of the new 'fake news' ordinance, Communications and Multimedia Minister Saifuddin Abdullah yesterday critics should not overstretch its provisions beyond the government's intended focus on Covid-19 and the emergency.

According to the new ordinance that took effect on March 12, individuals found guilty of creating or publishing fake news on Covid-19 or the emergency proclamation could now face a fine of up to RM100,000 and imprisonment.

Meanwhile, the Malaysian Bar also passed several other resolutions related to the motion, one being the Emergency Ordinance, including sections 14 and 15,  being invalid and unconstitutional.

Aside from initiating related legal proceedings, the Bar Council is also mandated to challenge the validity of the emergency proclamation, the Emergency Ordinance and any subsequent ordinances as well as to seek interim or permanent reliefs as deemed necessary.

The Malaysian Bar also called upon the government to take necessary steps to advise the Yang di-Pertuan Agong to summon a meeting of Parliament and for the emergency proclamation, Emergency Ordinance and other subsequent ordinances to be tabled in accordance with Article 150(3) of the Federal Constitution.

On Thursday, the High Court in Kuala Lumpur ruled that the Yang di-Pertuan Agong’s proclamation and the ordinances enacted under the emergency law could not be challenged in any court of law.

High Court judge Ahmad Kamal Mohd Shahid said this was provided for under Article 150(8) of the Federal Constitution which among others states that the Yang di-Pertuan Agong’s decision over the proclamation of emergency shall be final and conclusive and shall not be challenged or called into question in any court on any grounds. - Malaysiakini, 13/3/2021

Bar ‘very likely’ to challenge new law on fake news

FMT Reporters

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March 13, 2021 10:33 PM

Members of the Malaysian Bar have urged the Bar Council to challenge a new law against fake news.

PETALING JAYA: The Bar Council is “very likely” to initiate a suit challenging a new law against “fake news” that came into force on Friday.

Newly-elected Bar Council president AG Kalidas Krishnan said the filing of the suit reflected the will of members of the Malaysian Bar.

“The Malaysian Bar has mandated us to initiate a suit relating to the matter, or do what is necessary. So our stand is, we will be taking this up in the right channel. Most probably, I mean very likely, there will be a suit initiated by the Malaysian Bar,” he was quoted as saying.

He said the Bar upheld freedom of speech but acknowledged that there were boundaries. “You cannot be alleging something which is not true. So we know the boundaries but we believe that people must be allowed to speak,” he said, the Malay Mail reported.

The new law against fake news about Covid-19 or the emergency proclamation, contained in a new emergency ordinance, provides penalties of a fine of up to RM100,000 and imprisonment.

Former Bar president Salim Bashir had said on Thursday that a section of the ordinance was “highly objectionable as it mandates the accused to put forward a statement of defence before trial. This might have an effect of depriving the accused of his right to put in his defence during trial, and not to disclose it anytime before trial starts, as any other ordinary trial”.

He also took issue with other sections to do with statements made by an accused and the denial of the right to challenge how documentary evidence was obtained. - FMT, 13/3/2021