Cosmetic touches now and then don’t resolve numerous complaints for years on law and lawyers in Malaysia!
De Facto Law Minister Wan Junaidi Tuanku Jaafar’s statement on the death penalty, among others, may be nothing more than the proverbial drop in the ocean on the rule of law, the basis of the Constitution of Malaysia. See here.
We have heard all this before when Batu Sapi MP V. K. Liew was de facto Law Minister and also from Attorney General Tommy Thomas. The AG, a dedicated serial chronic complainer, returned home after several years in exile in Canada where the thermometer can plunge below 30 degrees Celsius in many places. It was Thomas, according to Liew in the media, who advised him against mentioning the Malaysia Agreement 1963 (MA’63) in Article 1(2) of the Federal Constitution. The reason, ostensibly, was to avoid “complications”. In that case, “complications” loom since the Federal gov’t has amended Article 1(2) to mention MA’63.
Liew was with the Barisan Nasional (BN) coalition long before GE14 and also with the Pakatan Harapan (PH) alliance which seized the reins of power in Putrajaya on Wed 9 May 2018. He passed away suddenly in hospital in Kota Kinabalu. The cause of death was listed as pneumonia.
Extract On Death Penalty In Malaysia
“Further studies will be carried out with cooperation from the Attorney General’s Chambers, the Legal Affairs Division of the Prime Minister’s Department as well as other ministries or departments.”
“Such action is very significant to ensure that amendment to the related legislation take into consideration proportionality and the constitutionality of such principles.”
“The government will also carry out a study on the direction of the country’s criminal justice system, the establishment of pre-sentencing procedures, the forming of a Sentencing Council, the development of Sentencing Guidelines, the establishment of a Law Commission, prison reform, and the execution of sentences based on restorative justice.”
“All these decisions reflect the government’s priority to ensure that the rights of all quarters are protected and guaranteed.”
“This also reflects the leadership of the country and transparency on improving the criminal justice system.”
Trust Deficit
We can believe the government when it happens. We know that nursing mothers, for example, are being remanded and jailed for several months for allegedly taking baby formula from supermarkets and leaving the premises without paying for them. There are also disturbing numbers of deaths in police custody. These may be caused by the police acting with impunity or being poorly trained. See here.
There was no mention in Wan Junaidi’s statement of the “ouster clauses” which compromised the judicial power of the Federation. The Doctrine of Separation of Powers protects the judiciary from the legislature and Executive and vice versa. The judicial power of the Federation cannot be taken away from the judiciary in court even if it’s taken away by Parliament. The court will not allow it. Only the court can declare law.
PAS Trouble In Government
PAS has been discreetly pushing behind the scenes in government, in allegedly taking a leaf from the party’s version of syariah, for disproportionate punishment in the criminal court and even the syariah court. In jurisprudence and criminal law, disproportionate punishment and harsh tribal punitive measures are unlawful. PAS remains in the public eye — read votes — on disproportionate punishment. According to jurisprudence, God isn’t a source in law. Law must have source to have jurisdiction, authority and power.
Wan Junaidi failed to mention Order 92, Rule 1, of the Rules of the High Court on the national language — Article 152 Bahasa Melayu — which may be redundant.
PAS Deputy President Ibrahim Man was behind the current controversy created by Prime Minister Ismail Sabri on Bahasa Melayu. In fact, the PM is using Bahasa Malaysia and passing it off as Bahasa Melayu in a divisive way which annoys non-Malay and the Borneo Territories in particular. Indonesia has declared that Bahasa Indonesia — 20 per cent based on Dutch, and there are also loanwords from English and local languages and dialects — isn’t Bahasa Melayu and vice versa.
Judicial Review
The High Court is telling Applicants to go to the syariah court if they want to drop Islam from the MyKad. In law, the High Court can order the National Registration Dept (NRD) to drop religion from an Applicant’s MyKad. The Constitution enshrines freedom of conscience.
Syariah, according to the Supreme Court of India which rejected a Petition to ban it, isn’t law but based on a person’s willingness to accept it. The court cautioned that it would be unconstitutional to impose syariah on anyone.
Based on Wan Junaidi’s statement, we don’t know whether the court will go into the unfairness of government procedures in judicial review and consider the merits as well in such Applications.
The Federal Court cited an irrelevant principle in law from the Supreme Court of India in the judicial review case filed by the Herald, the Catholic weekly, on Allah being used in Malay print to refer to the “Christian God” as well.
Cases from the Commonwealth can be cited, as advisory, if there’s a lacuna (gap) in local law.
The Federal Court declared that it was not integral in the practice of Christianity in the Borneo Territories to use Allah in Malay print, implying for the “Christian God”. It cited the “integral” principle in the Indian case law.
The Supreme Court of India declared that it was not integral in the Ananda Marg Faith — a variation of Hinduism — to “dance in the streets of Calcutta”.
The use of Allah in Malay print has been integral in the practice of Christianity in the Borneo Territories since the advent of western colonisation 500 years ago in the Archipelago.
The Herald submitted 300 Pages on the history of Allah in Christianity and among the Arab people including Christian.
After the Herald case in the Federal Court, the High Court ruled in favour of Jill Ireland of Sarawak on an Allah case but, on a disingenuous note, added that the ruling in the Herald case stays.
The court cannot get into theology. The court is only about the rule of law.
Light At The End Of The Tunnel
Patently, happy days are far from here on Malaysia’s adversarial system of justice. It cannot be ruled out that things may get a whole lot worse on the rule of law before we see light at the end of the tunnel.
The criminal justice system in particular has allegedly been veering towards the retrograde system in Japan, universally condemned by lawyers, and which forced Nissan Chief Carlos Ghosn to flee the country.
Likewise, the multiple charges against former Prime Minister Najib Abdul Razak are all based on “technical offences” allegedly committed in public office. These charges have allegedly been copypasted in a manner which builds the public perception that they have gone through the roof.
Najib may be taking the right approach in Appeal if the first focus in Defence was on technicalities.
We can only fight fire with fire.
Nullum crimen nulla poena sine lege (no crime without law) and/or nullum poena sine lege (no punishment without law) are principles in criminal law.
The court of law is only about law, not truth. The court of law isn’t about ethics, moral values, theology, sin, God, justice or righteousness.
We have yet to see the law on the money trail in the Najib cases. If it’s money laundering, there should be civil action in court, not criminal case. If the civil action is challenged, criminal case can be instituted.
The AG, to digress a little, seized RM100m from Umno and dragged the party to court on criminal charges. That’s like double punishment. It’s common sense, one of the three criteria in law, the others being universal values, and the principles of natural justice.
The High Court ordered the RM100m be returned to the party on the grounds that “the AG failed to prove the RM100m originated from 1MDB”. There’s no criminal law which allows the Federal gov’t to freeze, seize and forfeit the money. It’s not clear whether the AG, in a second bite at the cherry, can file civil action for the RM100m after the criminal case was thrown out.
Najib’s Cases
Likewise, all the cases instituted against Najib have been criminal for alleged abuse of power, conflict of interest and criminal breach of trust.
There’s no law against the transfer of the RM42m from SRC International, for example, to Najib’s account/s. He didn’t transfer them, he didn’t manage the account/s which were for political donations, the money wasn’t bribery and corruption, and it wasn’t used for personal benefit. According to a list of nine names produced in court, the money was spent on corporate social responsibilities.
If a bank inadvertently or mistakenly transfers money to a customer, what’s the law on the issue? In law, knowingly or unknowingly, a customer has the right to use money in his or her account. The bank may have to pay a price for its negligence unless the court veers towards it.
There’s in fact case law on this from Melbourne, Australia, where a bank “mistakenly” credited a Malaysian student’s account with A$4.5m. She spent it. The bank, after demanding with no success that the student return the money, took her to court. Initially, the court ruled in favour of the student. The court was with the bank when the case went to Appeal. The bottomline was that the money was mostly gone and could not be returned in its entirety. The bank had to write off the transfer. It’s not known whether the bank took the student to bankruptcy court.
Malanjum And Thomas
Chief Justice Richard Malanjum’s Farewell Address on the rule of law and Attorney General Tommy Thomas’ observations in his Memoirs, “My Story: Justice in the Wilderness”, on the Attorney General’s Chambers (AGC) and allegations on Executive interference in the judiciary have not been addressed in Wan Junaidi’s statement.
See here,
and here.
Law Education
Then, there’s law education in the country. It leaves a lot to be desired if we consider that lawyers in Malaysia are not noted for novel developments which the court can declare as law. It appears that there are no brilliant lawyers in Malaysia. See here.
Malanjum pointed out, in highlighting Malaysia being light years behind in law education, that the lawyers, legal fraternity, court and judiciary in Malaysia belabour in the delusion that the letter of the law, by itself, can be passed off as law. It’s not law at all. Malaysia may have a peculiar inability to fathom the rule of law.
Former Federal Court judge Gopal Sri Ram has suggested in the media that Malaysia recognise law schools in India and Pakistan. He described them as very good. See here . . .
Indeed, the Supreme Court of India may have no parallel in the world. This was seen during the Norvasc case when the court denied it patent rights for a new cancer drug which costs US$200 for a pill. The court discovered that two addictives, not necessary at all, separated the new pill and the older version which was being sold in generic version in India for a few cents. The court rejected the Norvasc explanation that it spent billions to develop the new pill.
The Norvasc chairman, who was removed after the case, said in court that the pharmaceutical company developed the pill for “rich westerners, not poor Indian”.
The court, in dismissing the Application for Patent, observed, “in that case, Norvasc should not come to India”.
Patent or no patent in the US, there’s no law which prevents a generic version of the new Norvasc cancer pill in India, although it may not be necessary since the two addictives make no difference. – New Malaysia Herald
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.
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Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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