The justice system in Malaysia may be broken as the Narrative on the Attorney General in Putrajaya, Sabah and Sarawak, appears controlled by multiplicity of issues!
Commentary and Analysis . . . It’s interesting, for starters, that the silence speaks louder than words on lawyers in Malaya looking the other way, for 60 years, on Malaysia being non-compliant on the Malaysia Agreement 1963 (MA’63), the mother of all issues in law, and on the three Attorney General in Malaysia. More on this later..
The people in Sabah and Sarawak may have been left with only one right i.e. immigration “powers” which cannot be exercised in the former British Borneo by the Prime Minister and Home Minister.
There wasn’t even a peep out of lawyers when the Agong, and Raja Permaisuri, stood with passports in hand at the Sarawak border before Malaysia Day. The legal fraternity in Malaya may be paralysed, in more ways than one, by Malaysia one country being saddled with three immigration systems as in China, Hong Kong and Macao.
At present, lawyers in Malaya cannot appear in the former British Borneo and even in the superior courts sitting in Malaya if the cases originate from Sabah and Sarawak.
The Sabah, Sarawak and Putrajaya Attorney General have “equal status” based on MA’63 being “Equal Partnership of Sabah, Sarawak and Malaya (Singapore merged) in Malaysia”. There are two High Court in Malaysia — Malaya and Borneo — with equal but separate status and jurisdiction. The case in one court cannot be transferred to the other court and vice versa. More on the three AG later.
The justice system in Malaysia may be broken as the Narrative on the Attorney General in Putrajaya in particular appears controlled by politics, Trial by Media, media in contempt, Islam, non-compliance on the Malaysia Agreement 1963 (MA’63) and issues on law education.
It isn’t rocket science that the media, an unthinking animal, can be easily manipulated by those with deep pockets in cahoots with those who know how, for Trial by Media which influences the judiciary, court system, judge and public perceptions.
There’s also question on why the communist era IC (identity card) system persists in Malaysia as “proof of identity” and thereby violates human rights.
There’s question on Applicants not filing simple correction form at NRD (National Registration Dept) for removing religion — don’t mention Islam and create issues — from the MyKad.
There’s question on lawyers not demanding that the High Court direct the NRD on dropping religion from the MyKad. The Constitution guarantees freedom of conscience. The National Registration Act 1959/1963 isn’t syariah court matter.
The legal fraternity may also be in state of denial on what really ails the justice system in the country viz. the lack of reforms in law education. There’s lack of skills for law practice and no skills in the court room.
The need for reforms in law education has never been greater considering the lack of landmark rulings, the disturbing tendency for plea bargaining in securing state witnesses and falling back on the letter of the law, by itself, in securing conviction by hook or by crook.
The urgent need for reforms in law education may be more than apparent in the following video link. More on this and other issues later.
The video ignores the fact that former Sabah Chief Minister Tan Sri Musa Aman was granted DNA (discharge and acquittal) by the High Court of Malaya in Kuala Lumpur, on 8 June 2020, on 46 corruption charges involving RM380m. The judge must never put on blinkers and rule as that would be tantamount to miscarriage of justice, if not for the individual, it may be for the people and the state.
Yet, no lawyer produced video in YouTube giving 13 reasons why the DNA for Musa was wrong in law.
Umno President Datuk Seri Ahmad Zahid Hamidi may be in the news, as in the YouTube video, for all the wrong reasons following DNAA.
Public perceptions on the law may be based on falling back on the letter of the law, by itself, as law and acting with impunity. That’s not law at all.
Malaysia remains plagued by Trial by Media and the media distorting court rulings when reporting. It’s defamation and tantamount to contempt of court and the Attorney General (AG). It may be uphill task, losing battle, proving abuse of power by the AG.
The #JusticeForNajib Town Hall meeting on Saturday 30 September 2023 in Kuala Lumpur would be the focus for these and/or related matters of public concern and public interest.
The Rosmah and Najib cases refer.
It’s true that Datin Seri Rosmah Mansor’s income tax cases can be taken to the criminal or civil court but only after compliance with the Specific Relief Act 1950/1974.
The Inland Revenue Board (IRB) in fact doesn’t care how one makes money.
The IRB should have first asked Rosmah for payment of the taxes due, and any fines for late payment. Generally, there would be no demand for payment if there’s no filing on income and revenue.
Money laundering charges need not be criminal case as it wastes the time of the court and public money.
Former Prime Minister Datuk Seri Najib Tun Razak and son have income tax cases in criminal court.
The Prosecution, based on misreading the law, has made the disingenous claim that taxes must be paid first and disputed later.
It’s common sense that there must be proof of income before taxes can be levied. In Najib’s case there’s no proof of income.
1MDB Audit Report
If there’s law on Najib and former 1MDB CEO Arul Kanda “tampering” with the 1MDB Audit Report, then all Editors would be guilty as well.
The High Court judge said the Prosecution failed to point out the offence. There must be law before there can be crime.
The legal fraternity in Malaya, in ignoring the elephant in the room, wrestles more than eloquently but disingenously on separating the role and functions of the Attorney General (AG) in Putrajaya, under Article 145, for the creation of an independent Public Prosecutor.
It’s all about Article 145. In fact, the jury may still be out in the former British Borneo on whether the AG should play no role in public prosecution.
It may be about the MACC, IGP, AG and Bank Negara virtually sleeping on corruption by the big sharks and crocodiles in Sabah and Sarawak.
Mahathir’s Corrupt Narrative
The RM has been steadily heading south since 1965 because the Corrupt Narrative controlled by former dictatorial Prime Minister Tun Mahathir Mohamad has affected the confidence factor and related factors.
Corruption remains highly subjective and cannot be confined to simple giving and taking. Corruption, fully defined, remains the act of making bad everything that one touches.
Again, criminal cases involving corruption is a waste of the court’s time and waste of public money.
If corruption cases involve politicians, or family, the public perception remains that these are politically motivated for selective prosecution and political persecution.
In fact, whether involving politicians or others, corruption cases involving giving and taking can be addressed by civil action for freezing, seizing and forfeiting these money laundering assets as state revenue.
There can be out of court settlement without prejudice i.e. without admission of liability or waiving the right to reserve all rights.
If corruption money does not fall within the definition of money laundering under international law, national law being read compliant, then such “assets” are secret profits in law. These must be returned completely to the Principals i.e. the government or companies as the case may be.
As regards MA’63 in the former British Borneo, another form of corruption, it’s proxy government that facilitates non-compliance on the Agreement and internal colonisation.
In the last 60 years, politicians in Sabah and Sarawak have waxed lyrical on MA’63, challenging this and that and that and this, whenever it’s election time. The Federal government jumps on the bandwagon too.
Malaysia must visit law education so that we can produce brilliant lawyers who have real skills and contribute to novel developments which can be declared as law for landmark ruling.
Indeed, law schools have advised students for decades that an academic programme in law can, at best, be used only for teaching. They don’t impart skills for law practice or courtroom skills. In jurisprudence, it isn’t possible for anyone to know law.
Having said that, Opinion isn’t law. Only the court can declare law.
The letter of the law, by itself, isn’t law at all.
There’s greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law.
Again, criminal lawyers in Malaysia, being the letter of the law types based on CJ Richard Malanjum’s farewell address on the rule of law, probably belabour in the delusion that the accused must be fixed by hook or by crook unless the accused was their client. — NMH
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.