May it please Your Lordships,
Chief Justice of the Federal Court,
President of the Court of Appeal,
Chief Judge of Malaya and Chief Judge of Sabah and Sarawak,
Judges of the Superior Courts and Judicial Commissioners,
State Attorney General of Sabah and State Attorney General of Sarawak,
Chairman of the Bar Council and Presidents of the Sabah Law Association and
the Advocates’ Association of Sarawak,
Distinguished Members of the Bar and honouredguests,
Colleagues of the Judicial and Legal Service,
Ladies and gentlemen.
INTRODUCTION
My Lords, ladies and gentlemen,
1. Firstly, my deepest appreciation to the Honourable Chief Justice of the Federal Court, YAA Tun Arifin bin Zakaria, for the honourof addressing this fourth ceremonial Opening of the Legal Year on behalf of the Attorney General’s Chambers.
My Lords, ladies and gentlemen,
2012 – Quantum leaps in legislative reforms
2. The year 2012 has been one of quantum leaps, not least for my Chambers.If nothing else, through the legislative reforms realisedunder the Political Transformation Program (PTP) of the2011–2020 National Transformation Policy (NTP). The ship which embarked from safe harbourson 15 September 2011 arrived at its scheduled ports–ofcall, as yet still enroute to its final destination. On 21 June 2012, the threshold was crossed almost unceremoniously with the revocation of the three long–standing proclamations of Emergency and the consequent lapsing of legislation enacted under the emergency powers of the Federal Constitution.
3. With their demise, Malaysia entered a new era –one without the looming spectre of the Internal Security Act 1960,the Restricted Residence Act 1933 and the Banishment Act 1959. An era with more liberal regulation of the print media under the amended Printing Presses and Publications Act 1984, which included the removal of the judicial review ouster clause. Not least, we welcomed a new age where the right to assemble, peaceably and without arms, is statutorily recognized under section 2 of the Peaceful Assembly Act 2012,albeit with necessary safeguards and restrictions. In tandem with this, amendments to the Universities and University Colleges Act 1971 also removed previous barriers to student involvement in political parties. All these changes are now in force.
4. The Security Offences (Special Measures) Act 2012 replaced the previous regime of preventive detention legislation. In a world still caught up with the war on terrorism and other challenges, such laws remain necessary to ensure adequate tools are available top reserve and maintain national security. However, unlike its predecessors, which were enacted when Malaysia faced communist insurgents as well as external threats, this Act provides for judicial oversight of the special investigative measures. More importantly, the special investigative measures are reserved for “security offences” as defined under the Act. These are the Offences against the State under Chapter VI of the Penal Code and Terrorism Offences under Chapter VIA of the Penal Code. The Penal Code itself has been enhanced to include new offences against parliamentary democracy, sabotage, espionage and organized crime so that offenders can be duly prosecuted in accordance with the law. For this purpose, complimentary provisions have also been included in the Criminal Procedure Code and the Evidence Act 1950.
5. On 1 June 2012, the provisions in the Criminal Procedure Code relating to pretrial conferences, case management and plea bargaining came into operation to facilitate the trial and disposal of criminal cases. We also welcomed the new combined, simplified Rules of Court 2012 which took effect on 1 August 2012. It is my fervent hope that these procedural “quantum leaps” will make life simpler (though not necessarily easier or cheaper) for the courts and legal practitioners throughout Malaysia. Further as officers of law, we should never lose sight of the truism that expediting justice can never be at the cost of justice itself.
6. In this regard, I am also pleased to announce the long–awaited reprint of the consolidated Criminal Procedure Code [Act 593] under the Revision of Laws Act 1968. It contains all amendments up to 1 November 2012 and brings the Criminal Procedure Code up–to–date with the seven sets of amendments that have been made since the last reprint in 2006. I am sure this is a relief to the DPP’s who have long struggled with their “cut–and–paste” amendment slips and in desperation resorted to non–authoritative publications!
My Lords, ladies and gentlemen,
7. As the saying goes, “Time and tide wait for no man”. The next leg of our reformmissionis well underway, guided by the “light” of Albert Einstein, that “Laws alone cannot secure freedom of expression; In order that every man present his views without penalty, there must be spirit of tolerance in the entire population”. As announced by the Honourable Prime Minister on 11 July 2012, this phase of reform will see the repeal of the Sedition Act 1948 and passage of new laws on freedom of expression and national harmony which are in line with constitutional guarantees and protections.
8. In this context, I am pleased to inform that from 14 to 16 January 2013, the Attorney General’s Chambers, in collaboration with the Razak School of Government (RSOG) and the Institute Terjemahan&Buku Malaysia (ITBM), will be organizing the “Conference on the Transformation of Security and Fundamental Rights Legislation” with the theme “Rights and Responsibilities: Between Hope and Challenges”. For the Attorney General’s Chambers, this is an unprecedented opportunity to provide a full, contextual explanation to the public and civil society of the legislative reforms of 2011/2012. Secondly, and perhaps more importantly, it will provide the Attorney General’s Chambers a broad–based forum of engagement with all stakeholders, including the Malaysian Bar, on the next wave of legislative reforms.
9. I welcome with appreciation the tremendous support from august luminaries, including from our own Bar and Bench, to speak and engage in discourse at the Conference. With over 600 participants – young and old, from a cross–section of life, and transcending political interests –should make for some interesting debates! We have deliberately designed the programmeto provide participants an opportunity to hear balanced views first–hand from world–class experts on key issues which affect national interest and fundamental rights in Malaysi and elsewhere. I personally hope and expect to maximize this golden opportunity of engagement with the public and civil society in the spirit of transparency and inclusiveness. Our elected representatives may make law in an august House of Parliament, but it is the people who breathe life into them, bearing in mind Cicero’s observation that, “The good of the people is the chief law.”
My Lords, ladies and gentlemen,
10. While we welcome the evolving democratization of Malaysia through law and order, we would be remiss not to remark on the spectacle of peaceful assemblies gone awry. We forget at our own peril that “Laws are not masters but servants, and he rules them who obeys them” (Henry Ward Beecher).As the Attorney General, I do not deny that there is always room for improvement in the law.In fact, I welcome constructive discussions on such matters. Jeremy Bentham may have believed that “The power of the lawyer is in the uncertainty of the law”. I, on the other hand, am convinced thatjudges and lawyers owe a higher duty NOT to lend weight to Dicken’s parablein Oliver Twist that “the law is an ass”.Above all,it is incumbent on officers of the law to keep in mind Theodore Roosevelt’s timeless reminder that “No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”
11. In similar vein, my Chambers found itself compelled to intervene to quell the unexpected furore over the new section 114A of the Evidence Act 1950. This after an uneventful passage of the Bill through Parliament! With due respect, it is my belief that the subsequent debates over the nature and intentions of the provision arosemore due to lack of understanding of the principlesunderlying the law of presumptions,rather than any overt fault with the provision itself. On the contrary, I respectfully submit that it is an irrebuttable presumption of law that there are ample precedents of such nature in our statute books!Public fears over an allegedly draconian provision and its’ possible misuse and abuse by the authorities appear to have been soothed, at least temporarily.But as we are only too aware, “… if the government becomes the lawbreaker, it will breed contempt for law and it will invite every man to become a law unto himself. Such actions would ultimately invite anarchy unto itself!" (Louis Dembitz Brandeis).
My Lords, ladies and gentlemen,
Election Laws update
12. On the cusp of the 13th General Elections, it may be timely to update ourselves on salient changes to the election laws and procedures.These changes aim to ensure that the forthcoming elections will be conducted in a transparent and fair manner and reflect some of the recommendations of the Special Select Committee on Electoral Reforms. They also seek to address, among others, persistent allegations over the years such as multiple voting by registered electors, as well as lack of transparency, and manipulation of the group of absent voters.
13. Firstly, indelible ink will be introduced for the first time in Malaysia in accordance with the amendedElections (Conduct of Elections) Regulations 1981. All voters must have their left forefingers marked with theindelible ink before a ballot paper is issued or risk being refused one. Alternative procedures have also been prescribed in the event it is not possible to mark the said left forefinger.Secondly, the categories of persons who will qualify as “postal voters”will be expanded pursuant to amendments made to the Elections (Postal Voting) Regulations 2003. This is to accommodate absent voters at home and abroad. Further, legislative amendments have been made to enable voters incapacitated by blindness and other physical causes to nominate any trusted person to vote on their behalf, aside from a relative who is registered in the electoral roll.Last but not least,there is now an expresslyprescribed timeline for the withdrawal of candidatures, that is before 10 am on nomination day.
My Lords, ladies and gentlemen,
AGC–Bench–Bar–working together for 1 Malaysia
14. I would be derelict in my duties as Chairman of the YayasanBantuanGuamanKebangsaan (“YBGK”) not to mark the occasion with a mention on its progress. The YBGKlaunched by the Honourable Prime Minister in February 2011 commenced operations on2 April 2012. The comprehensive and sustainable legal aid service it provides for those who would otherwise not be able to afford legal representationgives form to the ideals of Article 5(3) of the Federal Constitution. As its Chairman, I take this opportunity to record my deepest appreciation to the Judiciary, the Bar Council, the Sabah Law Association and the Advocates’ Association of Sarawak, as well as the YBGK panel lawyers, Legal Aid Department, legal aid centres and law enforcement agencies, for their cooperation in ensuring the successful roll–out and implementation of the YBGK programme. It is most noteworthy that some YBGK lawyers have rendered their services voluntarily without filing claims for payments as they regard this as a social responsibility.
15. For the record, as of 31 October 2012, the services rendered by the 788 YBGK panel lawyers throughout Malaysia has assisted 40,483 persons1 from remand up to hearings. However more can be done. For its part, the Government has committed further funding of RM20 million for 2013 as testament of the importance of this public interest project; a four–fold increase from the initial RM5 million provided in 2011 and RM10 million in 2012. Thus the YBGK should be touted a success story of AGC Bench–Bar collaboration.
16. On possible future projects, I warmly recall the Honourable Chief Justice’s invitation in his Opening of the Legal Year 2012 speech for the Bar, Bench and Chambers to cooperate in the transformation of our judiciary into a world class judiciary. I would also respectfully recall His Lordship’srecognition that “lack of sensitivity in the past (should not) continue into the future” with regard to the handling of environment–related cases, civil or criminal. No less do I appreciatethe offer of the Chairman of the Bar Council for more meaningful and effective cooperation and consultation on proposed laws and other legal issues. The Attorney General’s Chambersstands ready to assist andrespectfully suggests two areasfor consideration, namely the environment and international criminal matters.
Environment
17. Plato’s quotation that, “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws” aptly encapsulates the crossroads at which we stand on environmental issues.As an unknown authorsaid, “The trouble with the laws these days is that criminals know their rights better than their wrongs”!
18. The environment impacts every facet of life and industry in Malaysia, be it land, sea or air–based. Environmental issues increasingly impact the nations’ economic, social, cultural and security interests. In this regard, my Chambers has seen first–hand the importance of strategic consolidated positions at every fora. This includesconsistent environmentally–sensitized decisions in our domestic courts that take into account and give effect to Malaysia’s international commitments and obligations.
19. Further the importance for Malaysia to speak with one voice at the regional and international arenacannot be gainsaid. A misstep will be quickly exploited. Uncoordinated positions at differentfora risk compromising positions and interests still being litigated or negotiated elsewhere. These dangers are well–known to agencies tasked to coordinate negotiating positions,such as Chambers in the case of legal issues. As on other matters, we cannot afford to continue working in silos. It is thus time the legal fraternity of Malaysia learns international gamesmanship and refrains from brinksmanship among ourselves at the cost of national interest.
20. In this spirit, I advocate collaboration with the Bar and Judiciary to ensure adequate training of judicial and legal officers in the handling of environmental cases and the enforcement of environmental laws. Further coordination among all branches of Government, namely the Executive, the Legislature and the Judicial and Legal Services would also bea vital safeguard of Malaysia’s commitments and ensure adherence to its’ obligations under international environmental instruments in a holistic, transparent and all–inclusive manner. Allow me to illustrate by reference to the ASEAN Agreement on Transboundary Haze 2002. To effectively manage the impact of land and forest fires, in particular the haze pollution arising from such fires which periodically blanket Malaysia, the Agreement needs to be consistently enforced by all the parties. A collective, coordinated effort among ourselves would also better serve the ongoing negotiations on international instruments relating to the Management of Hazardous Substances and Wastes, Climate Change and in dealing with issues relating to Biodiversity, namely Access to Biological Resources and Benefit Sharing (ABS).
21. The urgency to protectMalaysia’s rich and abundant biodiversity against the shortcomings of the federal–State constitutional divide and ever–competing interests between economic realities and environmental sustainabilityalso cry out for innovative solutions. Otherwise those who would exploit our finite resources for their selfish gain will never be successfully deterred. In this regard and perhaps in other appropriate areas as well, it may be timely to explore the effectiveness of restorative justice principles as a complement to the new specialized “Green Courts” established on 3 September 2012. As Martin Luther King Jr. said, “… an eye for an eye leaves everybody blind. The time is always right to do the right thing.”
International criminal matters
22. In respect of international criminal matters, we respectfully note the Honourable Chief Justice’s quote from last year, that “as judges, we are accountable to no one but the law …”. Nevertheless, I cannot stress strongly enough the need for a sufficient degree of awareness and sensitization of the courts and judicial officers onMalaysia’s international legal obligations,as well as the international legal principles which underpin the extradition and mutual assistance in criminal matters (“MLA”) regimes. A foreign State may accept the failure of its request if it is attributed to shortcomings in its’ request or the supporting evidence it provides. However it is a bitter pill to swallow for both that foreign State and Chambers if the request fails and a criminal who has committed a serious crime eludes justice on a mere technicality of law or procedure; or worse, the courts’ oversight. That said, there is no less urgency for the officers of my Chambers handling these matters to be better versed with court procedures and practices when handling their cases.
23. I would emphasize here that all extradition and MLA requests involve serious transnational crimes. If not, why would any State go to the huge expense and effort of seeking international assistance from another State. I would also respectfully add that even before a decision is made by the respective Minister to accede to any request for extradition or MLA, the requests have been scrutinized by my Chambers to ensure the satisfaction of all the prescribed requirements of the law and applicable treaty.
24. Where then can improvements be made? Foremost, it needs to be appreciated that although requests for extradition and MLA are generally executed in accordance with domestic laws and procedures, the terms of the treaty which have been given force of law in Malaysia also have to be considered and given due effect by Malaysian courts. To do otherwise is tantamount to Malaysia breaching an international treaty obligation with the repercussions to be felt through diplomatic as well as political or economic consequences.
25. The case of OttavioQuattrocchi is a case in point. In that case, the extradition request from India failed and the fugitive criminal was dischargedby the courton the ground that India's extradition case against Quattrocchi was vague and insufficient. The vagueness and insufficiency was attributed to the fact that at the relevant time, namely the making of the request, no charges were framed against Quattrochi in India. This was despite the fact that under Indian law, no such charge was required to be preferred as a condition of making the request. Neither was there any such requirement under the Extradition Act 1992. Upon discharge, Quattrochi immediately left the country, whereabouts unknown.In its unhappiness over the loss of such a highvalue offender and Malaysia’s perceived lack of cooperation to extradite him, India threatened economic reprisals against Malaysia over the case.
26. Today, dissatisfied States are taking refusals or delays in execution of requests for extradition and MLA before the International Court of Justice (ICJ) on the ground of breach of treaty obligations. In France v Djibouti2, a case relating to the French investigationinto the death of the French Judge Bernard Borrel in Djibouti in 1995, the ICJ found that France had failed to comply with its international obligation under Article 17 of the 1986 Convention on Mutual Assistance in Criminal Matters. This was because France had failed to give Djibouti the reasons for its refusal to execute a letter rogatory presented to France by Djibouti in 2004. In Belgium v Senegal3, the ICJ found that Senegal was in breach of its obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for neither prosecuting nor extraditing the fugitive criminal,Mr. HisseneHabre, former President of the Republic of Chad. The Court then decided that Senegal must, without further delay, submit the case to its competent authorities for the purpose of prosecution if it does not extradite him.
27. Among specific concerns arising in 2012 werethe release of fugitive criminals on preliminary technical grounds even before the committal hearing for extradition. There is also concern on the use of technical preliminary objections as a ruse to delay proceedings, a tactic which ultimately does nothing to serve the interest of the detained fugitive criminal.
28. In the case of the former, in–depth understanding of the distinction between the standard applicable for the determination of the prima facie requirement for the purpose of committing a fugitive criminal for extradition as opposed to the determination of a prima facie case for the purpose of deciding whether to call for the defence in an ordinary domestic criminal trial needs to be inculcated.This basic principle is well–established throughout the Commonwealth. The rationale for the distinction, which needs to be appreciated, is that a committal hearing is not about determining the guilt of the fugitive criminal here in Malaysia. It is merely to ascertain the sufficiency of the evidence adduced to justify returning the person tost and trial in the requesting State.
29. With reference to the latter–mentioned difficulty, I can do no better than cite the Honourable Chief Justice himself in his Closing Remarks at the International Malaysia Law Conference on 28 September 2012, where His Lordship stated that “judicial resources ought not to be unnecessarily wasted on trivial issues that have little or no bearing on the justice of the case. The court process should not be allowed to be exploited or abused so as to frustrate the course of justice. In the final analysis, justice must prevail.”
30. Incoming extradition and MLA requests are ever–increasing. They also relate to some of the most serious transnational crimes such as terrorism, proliferation of weapons of mass destruction (“export control cases”) and trafficking in persons. As Jeffrey Robinson said in “The Globalization of Crime”, “As long as we live in a world where a sovereignty philosophy from the 17th century is reinforced by a legal system conceived in the 18th century, based upon a conception of the fight against crime from the 19th century, which is still trying to come to terms with 20th century technology, century 21 will belong to international criminals.”
My Lords, ladies and gentlemen,
AGC Innovations
31. With regard to AGC innovations, returns are being recouped from the projects launched in 2011/2012 through cost–saving and increased efficiency and work flexibility. Hopefully with the bonus of improved morale and commitment too among my officers! The Chambers “Home Offices” (RumahSebagaiPejabat) (RSP) project, now being expanded throughout Malaysia, won the Prime Minister’s Department Innovation Award 2011 for the Non–ICT Category. The Chambers Virtual Office (CVO) launched on 1 December 2011became fully operational at headquarters in June 2012 andis being expanded to all Chambers branch offices in the States this year. The CVO now underpins the operationalization of several other AGC initiatives.
32. The Work from Home (Bekerja Dari Rumah) (BDR) project was launched on its six–month pilot phase on 1 October 2012 and currently sees 36 high performing officers working from home, leveraging on Chambers other ICT innovations such as the Integrated Legal Management System (ILMS), the Task Management System (TMS)and the AGC Platform for E–Learning (A–PEL) applications. In addition, the Chambers Open Office (COO) project was initiated at the Kuala Lumpur DPPS’s office in 2011 and expanded to the Malacca DPP’s office last year. It will be fully implemented at our headquarters in Putrajaya by mid–2013 to maximizeutilisation of office space and enable the re–housing of all our Divisions under one roof.
33. The e–Federal Gazette is moving on to its third phase in 2013. This will involve the consolidation of the Laws of Malaysia series with the current on–line publications of primary and subsidiary legislation. The enhanced database will also include revised and consolidated versions of laws, although the latter remains strictly unauthorized versions. Meanwhile the FC Online remains our foremost “single–window” point of reference for all matters constitutional, consolidating Chambers’ wealth of knowledge on constitutional matters into an easily accessible and comprehensive database of constitutional legislation, relatedlegislative history, landmark constitution cases and other reference materials.
CONCLUSION
My Lords, ladies and gentlemen,
34. As we welcome 2013, let us bear in mind that “It is the spirit and not the form of law that keeps justice alive” (Earl Warren) and that “It is not the solidarity of vices but the unity of virtues that we should encourage” (Syed Hussein Alatas). On that note, may I offer in conclusion, on behalf of the Attorney General’s Chambers, my best wishesfor the coming year to the Honourable Chief Justice and brethren, the State Attorneys General and members of their Chambers, members of the Bar and all distinguished guests.
Thank you.
Tan Sri Abdul Gani Patail
Attorney General of Malaysia
12 Jan 2013
1 This figure consists of 2,455 (arrest), 32,620 (remand), 4,569 (mitigation/ bail) and 839 (trial).
2 Certain Questions of Mutual Assistance in Criminal Matters (4 June 2008).
3 Questions relating to the obligation to prosecute or extradite (20 July 2012).