Posts Tagged ‘Law

08
Apr
19

Rome Statute: A rebuttal of the alleged academic presentation to rulers

A rebuttal of the alleged academic presentation to rulers

Lim Wei Jiet

COMMENT | I refer to the alleged presentation by several academicians to the Conference of Rulers dated April 2, which has been circulating in the media lately.

I recognise that the government has decided to withdraw from the Rome Statute of the International Criminal Court, and also acknowledge that the alleged presentation is a mere executive summary (my opinions below are therefore subject to the disclosure of the full report, if any).

But there are several points raised in the alleged presentation which are rather disconcerting and warrant an intellectual legal rebuttal – lest it would lead to mischaracterisation of the issues at hand among the public.

First, it was suggested that because the Yang di-Pertuan Agong was entitled to information from the cabinet (Art 40(1)) and to make his views known to the prime minister (Reid Commission Report), then he is not a constitutional monarch in the purest sense.

However, this only proves that the king plays an advisory role in governance. This does not in any way detract from the clear provision in Art 40(1A) that he must always act in accordance to the advice of the prime minister – and consequently, that the prime minister is entirely responsible for such decisions made.

Second, reference was made to a Court of Appeal decision in Armed Forces Council, Malaysia & Anor v Major Fadzil bin Arshad [2012] 1 MLJ 313, which purportedly held that “Surely His Majesty is expected to play an effective and meaningful role as the supreme commander”.

With respect, this was merely a dissenting opinion of the Court of Appeal, and it is perplexing that this was not pointed out in the alleged presentation. Any first year law student would tell you that this quote in no way is the authoritative principle enunciated by the Court of Appeal.

Third, it was alleged that Art 38(4) of our Federal Constitution states that laws passed which directly affects the privileges, position, honours or dignities of the rulers would require the consent of the Conference of Rulers.

With respect, this mischaracterises Art 38(4), which reads: “No law directly affecting the privileges, position, honours or dignities of the rulers shall be passed without the consent of the Conference of Rulers.” The phrase “shall be passed” clearly means only laws passed in Parliament – and cannot possibly be read to include ratification of international treaties.

The assertion that Art 159(5) has been violated is even more baseless. Art 159(5) provides that amendments to the constitution on several limited provisions cannot be done without the consent of the Conference of Rulers.

But it is clear as daylight that ratification of the Rome Statute does not involve an amendment to the Constitution at all. The limited provisions referred in Art 159(5) also do not include the immunities of the the rulers. It is therefore disturbing to suggest that Art 159(5) has in any way been breached.

These arguments also presuppose that the Yang di-Pertuan Agong and rulers have absolute immunity to begin with. Since 1993, amendments were made to the constitution to allow criminal proceedings to be instituted against the king and the rulers via special courts (see Articles 32, 181, 182 and 183 of our constitution).

Hence, even domestically, the Yang di-Pertuan Agong and rulers do not have absolute immunity to begin with (albeit governed by certain special procedures) and can be held accountable for crimes. This was a crucial point which was never highlighted in the alleged presentation.

Fourth, it was alleged that Art 27 and 28(a) of the Rome Statute affects the position of the Yang di-Pertuan Agong. Again, if we look closer at Art 28(a) of the Rome Statute, the ICC only has jurisdiction to try a military commander who has “effective command and control” or “effective authority and control as the case may be”. A king who must act on the advice of the prime minister is very unlikely to be an “effective” commander of the armed forces – he is, at best, a symbolic figurehead.

Fifth, it was alleged that because the government ratified the Rome Statute without the consent of the Yang di-Pertuan Agong, this violates Art 46 of the Vienna Convention on the Law of Treaties (VCLT).

Art 46 of the VCLT says that, as a general rule, a state may not depart from treaty obligations on grounds that it is in violation of internal law regarding competence to conclude treaties. The only exception is if (a) such violation of internal law was manifest (it is considered manifest only if it would be objectively evident to any state), and (b) it concerned a rule of its internal law of fundamental importance.

Arguably, Malaysia cannot invoke the two exceptions to Art 46. Any violation cannot be considered “manifest”, nor can the internal law be of “fundamental importance” because it is clear that under the constitution no such consent by the Yang di-Pertuan Agong or Conference of Rulers – as with many other constitutional monarchies which have ratified the ICC – was required for ratification of foreign treaties.

Sixth, it was alleged that the interpretation of the “unable” or “unwilling” principle under Art 17 of the Rome Statute (which states that the ICC can only assume jurisdiction if states are “unable” or “unwilling” to act) “hanyalah berdasarkan keputusan pendakwa ICC semata-mata (based on the decision of ICC prosecutors alone).

This is untrue. Art 17 of the Rome Statute clearly provides that the ICC Court itself – and not the Prosecutor unilaterally – has the final say on whether the “unable” or “unwilling” principle is satisfied. Malaysia will have its day in court to argue the same if it does not agree with the prosecutor.

And the ICC Court will arrive at a decision, as it did in Prosecutor v Katanga (Judgment on the Appeal against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) (ICC, Appeals Chamber, Case No ICC-01/04-01/07-1497, 25 September 2009).

Seventh, it was alleged that “Malaysia yang tidak terjejas apa-apa dengan jenayah ini dan tidak terkat dengan krisis Rohingya di Myanmar tidak boleh memaksa ICC untuk mengambil tindakan ke atas Myanmar walaupun selepas menjadi ahil statut Rom. (Malaysia, which loses nothing with the crime and is not involved with the Rohingya crisis in Myanmar cannot force the ICC to take action against Myanmar even after acceding to the statute).”

This is inaccurate. As long as an element of a crime has been committed in a state party, then any state party can refer the matter to the ICC (see Art 14 of the Rome Statute).

This was decided in the recent ICC decision i.e. “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” (Case No ICC-RoC46(3)-01/18-37, 9 April 2018). For example, if the Myanmar military has committed genocide on Rohingyas in Bangladesh (a state party) territory, even Malaysia (a state party) can initiate a referral to the ICC independent of Bangladesh.

Eighth, it was impressed that there have been attempts to prosecute royalties in the past. The example given was King Wilhelm II of Germany who was named in the Leipzig War Crimes Trials but had fled to the Netherlands, as well as Emperor Hirohito of Japan who was allegedly under the jurisdiction of the International Military Tribunal for the Far East after World War 2, but was spared by the US.

With respect, these are false equivalences. The German kaiser was an absolute monarch. So was the emperor of Japan, who under the Japanese constitution then, had divine power over his country from the Shinto belief that the emperor was the offspring of the sun goddess Amaterasu (only in 1946 was the emperor’s title changed from “imperial sovereign” to “constitutional monarch”).

They were both absolutely in control of the military. There is a stark difference between such absolute monarchs and the modern Yang di-Pertuan Agong and rulers who are constitutional monarchs.

Further, the alleged presentation seem to have missed the fact that both Wilhelm and Hirohito were attempted to be tried even when the ICC had not existed. In today’s terms, the UN may create ad hoc tribunals as it did in Rwanda and the former Yugoslavia – regardless of whether they had ratified ICC.

This goes to highlight the fact that, as Shad Saleem Faruqi puts it, “ratification or no ratification, in the present state of international law, perpetrators may have no place to hide.”

Ninth, it was alleged that the Yang di-Pertuan Agong would be exposed to the ICC because of Malaysia’s participation in UN peacekeeping missions across the globe. This is baffling. UN peacekeeping missions are meant to prevent genocide or war crimes from happening. To suggest that the UN itself would remotely commit the same ill crimes it intended to pacify is bewildering. To my knowledge, there has never been any attempt to prosecute UN peacekeeping forces under the ICC.

Tenth, it was alleged that our laws criminalising homosexuality would expose us to a “war crime” under Art 7(2) of the Rome Statute which criminalises “persecution against any identifiable group or collectivity on… gender as defined in paragraph 3”. This is untrue.

We must look at what paragraph 7(3) of the Rome Statute say: “For the purpose of this statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.” Hence, “gender” under Art 7(2) clearly does not include sexual orientation – and therefore does not include persecution of homosexuals.

Eleventh, it was suggested that there are cases of selective prosecution towards Kenya and the Ivory Coast. There is a wealth of literature to counter such arguments, as well as credible international reports that war crimes have occurred there, and I do not wish to reproduce them here for brevity’s sake.

Finally, it was alleged that there is likelihood of veto by the P5 nations on the ICC investigations: Russia in the MH17 investigations, China in Rohingya genocide and US in the Israel-Palestine dispute.

It was also stated that many Asean countries are not part of the ICC. I am not going to be ignorant of the realities of international law. But Malaysia cannot stand idly by while such gross violations of humanity are occurring. If we are not part of the Rome Statute, where is our credibility and standing to shout about war crimes and genocide? We must adhere to a higher standard and not lower ourselves in imitating the worst traits of superpowers.

The public and the royalty deserve legal objectivity and accuracy on this controversial issue. If we allow crucial foreign policy decisions to be swayed by one side without considering countervailing arguments, it will not be good for the nation as a whole.

LIM WEI JIET is an advocate and solicitor of the High Court of Malaya. He is also the author of Halsbury’s Laws of Malaysia on the Federal Constitution (2019 reissue).

…more
A rebuttal of the alleged academic presentation to rulers
Lim Wei Jiet
8 April 2019 – Malaysiakini

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27
Oct
17

Task force on probe over MACC’s Dzulkifli of no value

Gobind: Task force on probe over MACC’s Dzulkifli of no value

The DAP legal bureau chief says laws currently in place are more than sufficient for the purposes of probing such a case.

PETALING JAYA: DAP’s legal bureau chief Gobind Singh Deo has questioned the Attorney-General’s Chambers (AGC) for forming a task force on allegations of an extramarital affair involving Malaysian Anti-Corruption Commission (MACC) chief commissioner Dzukifli Ahmad when normal police investigations would suffice.

“Ordinarily every police report is assigned to an investigating officer (IO) who will probe the matter in accordance with law,” the Puchong MP said.

“The laws currently in place are more than sufficient for the purposes of probing a case under Section 498 of the Penal Code.

“We must respect the law and appreciate that every criminal investigation needs to be conducted in accordance with the law if that investigation is to be later upheld by any court of law,” he added in a statement today.

Attorney-General Mohamed Apandi Ali had announced on Oct 19 that the task force was formed on Oct 16 in view of the seriousness of the allegations that could affect Dzulkifli’s integrity.

He said it would closely monitor the investigations of the alleged offences under Section 498, which deals with “enticing or taking away or detaining with a criminal intent a married woman”, and other related offences.

Gobind said the current framework in any such investigation is designed to ensure impartiality and fairness to all concerned.

“It places the fate of a case in the hands of an IO and not any special task force which monitors investigations,” he said.

“The IO must work within his powers having regard to the best interests of both the state and the suspect in the case.

“It is the IO who may testify in court later and he may be subject to cross examination. It is his credibility and not that of any special task force which will be on trial,” he added.

Gobind said he was of the view that the task force would not be of any value to the probe.

“We should not develop a new culture of setting up special task forces in individual cases. This may be a dangerous precedent which should not be encouraged,” he said.

He added that there was no reason for the probe to be dealt with differently from any other criminal investigation.

He said the Federal Constitution had stipulated that all persons are equal before the law and entitled to the equal protection of the law.

“This must necessarily apply to MACC chief Tan Sri Dzulkifli Ahmad as well,” Gobind said.

Dzulkifli became embroiled in the allegation after a video showing a man said to be a senior MACC officer apparently holidaying with a woman in Bali went viral on social media last week.

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Gobind: Task force on probe over MACC’s Dzulkifli of no value
October 21, 2017 – FMT

06
Jun
17

A ‘public’ prosecutor wouldn’t be paid with ‘private’ money

A ‘public’ prosecutor wouldn’t be paid with ‘private’ money

YOURSAY | ‘ If the allegations aren’t true, then why are they so silent? Why aren’t they issuing denials or suing Sarawak Report?’

Nazri: No impact on Anwar’s trial even if PM paid Shafee

The Observer: Is this an admission that the allegations (lawyer Shafee Abdullah was paid millions of ringgit by Prime Minister Najib Razak) are true?

In other countries, this would have been a scandal of the highest order causing the president or PM to step down. What about here?

Ryan: While Najib may apparently not be a ‘public officer’, he could transfer public funds to his private accounts and use the funds in his private accounts to pay a private lawyer to act as a public servant to sue a private citizen.

Welcome to Bolehland.

The Fog of Life: This is yet another example that confirms that good values among our leadership are non-existent.

The issue is that minister Mohamed Nazri Abdul Aziz and the rest in Umno can’t even see (read: “Don’t want to see”) the potential legal and ethical issues with the report and the need to address this grave concern.

There is no point asking for transparency and honesty, the agenda is simply the very opposite.

Bluemountains: It is very shameful if a lawyer pretends not to know the implications. The money trail can show the ultimate beneficiaries if the authorities are truly independent and willing to get to the bottom of it.

Tholu: If for just being a hired prosecutor, one gets paid RM9.5 million, I will sell all my properties including my house and car, and take up law in the hope that one day I too will be hired as a government prosecutor and earn an amount that no present day defence lawyers can earn in their lifetime.

Mushiro: Mohamed Nazri himself suggested that the only thing that can change the outcome is if the judge was paid off. Is Mohamed Nazri implying that judges do not take money in Malaysia?

Oscar Kilo: You told us that he was hired by the government to be the public prosecutor, but if Najib personally paid the lawyer, then he is no longer a public prosecutor but instead a personal prosecutor.

Now that’s a conflict of interest.

Mikey!: A public prosecutor isn’t supposed to be a gun for hire. This is the point. Mohamed Nazri, a trained lawyer should know.

If a public prosecutor can be hired to put the screws on someone then no one will be safe. I’m sure there is a law on this.

Krissman: Nazri, even brownnosing has limits. Think just for a second like an ordinary citizen and put yourself in jailed opposition leader Anwar Ibrahim’s shoes. Tell me you still feel the same way as you do now.

I don’t believe you would.

Debater: Nazri has missed the point. The point is not the effect of the payment on the outcome. The point is that it is wrong to pay the lawyer to act as a public prosecutor from a PM’s private account, with allegedly dirty money.

Worse, it was supposed to be the public prosecutor’s case. In other words, the PM had made it his own personal case if he had indeed paid Shafee.

XED: Let us get this straight. Parliament was informed that Muhammad Shafee was paid only RM1,000 for his services, and now there is a RM9.5 million trail from Najib to Muhammad Shafee two weeks before the Court of Appeal hearing of the prosecution’s appeal against Anwar’s acquittal.

If the roles were reversed and BN were in the opposition and it was its leader instead who had suffered Anwar’s fate, then BN would have accused the other side of corruption and abuse of power.

Anonymous #28648954: Dear Nazri, if the allegations aren’t true, then why are Najib and Shafee so silent? Why aren’t they issuing denials?

And why aren’t they suing Sarawak Report for the expose? It would be a sure win for them in court, wouldn’t it?

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A ‘public’ prosecutor wouldn’t be paid with ‘private’ money
5 June 2017 – malaysiakini

20
May
17

PKR: Najib wrong in not condemning assault on David Teo

PKR: Najib wrong in not condemning assault on David Teo

Padang Serai MP N Surendran urges IGP to open investigation into criminal act which occurred at a forum in the presence of prime minister.
PETALING JAYA: A PKR lawmaker criticised Prime Minister Najib Razak’s lack of condemnation for an assault which occurred in front of him and also disrupted the TN50 dialogue in Seri Perdana yesterday.

Referring to the physical attack by actor-comedian Sulaiman Yassin against TV and film director David Teo, Padang Serai MP N Surendran said it was shocking that Najib did not make any immediate statement at the forum to express his disapproval on the matter.

“It is shocking and unacceptable that the Prime Minister of Malaysia, having witnessed at close quarters this act of criminal violence, said nothing to condemn or disapprove of the assault to the audience present.

“At the time of the assault, Teo was holding a microphone and merely trying to ask a question to the PM from the floor,” Surendran said.

What shocked the PKR vice-president further was the nonchalance with which Najib wanted the event to proceed just after the incident.

“Najib can be heard saying in the aftermath of this violent assault, ‘shift it to somebody else’,” Surendran said.

He also took the prime minister to task for asking Teo and his attacker to shake hands to resolve the matter.

“When a criminal act has taken place, neither the PM nor anyone else has any business trying to settle the matter between them.

“The police must investigate and the law must take its course. Failure to take action or trying to ‘settle’ between the parties is tantamount to condoning criminal violence and public hooliganism,” Surendran said.

He also reminded that any form of assault or mob justice is illegal in Malaysia, and that it did not matter if someone was rude, as there was no justification for a physical assault.

“The attacker has, in full view of TV cameras, committed criminal offences for which he can be charged under Sections 351 and 321 of the Penal Code. These offences are respectively, assault and voluntarily causing hurt.”

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PKR: Najib wrong in not condemning assault on David Teo
May 18, 2017 – FMT

28
Feb
17

Former HK chief executive jailed 20 months for misconduct in public office

Former Hong Kong leader jailed 20 months for misconduct in public office

HONG KONG, Feb 22 — Former Hong Kong chief executive Donald Tsang, the highest-ranking ex-official to be charged in the city’s history, was jailed for 20 months today for misconduct in public office.

The sentence brings to an ignominious end what had been a long and stellar career for Tsang in the Asian financial hub before and after the 1997 handover to Chinese rule, and reaffirmed what some observers said was Hong Kong’s strong rule of law in bringing even the most powerful to justice.

Tsang, famous for his bow ties, was escorted in handcuffs to the court from hospital where he’d been staying since Monday night after experiencing breathing difficulties and chest pains.

Scores of establishment Hong Kong figures including top former officials had wrote letters vouching for Tsang’s good character and longstanding public service over four decades in a bid for mitigation ahead of sentencing.

The nine-person jury had earlier found Tsang guilty of a charge of misconduct in public office.

He had deliberately concealed private rental negotiations with property tycoon Bill Wong Cho-bau while his cabinet discussed and approved a digital broadcasting licence for a now defunct radio company, Wave Media, in which Wong was a major shareholder.

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Former Hong Kong leader jailed 20 months for misconduct in public office
February 22, 2017 – MMO

04
Jul
16

Thousands marched in solidarity with Guan Eng

Solidarity with LGE

Sea of colour floods Penang streets for Guan Eng

Dewan Sri Penang was filled to the brim with people wearing colourful red, blue, green and yellow T-shirts in solidarity with Penang Chief Minister Lim Guan Eng today.

The crowd cheered loudly when Lim walked in about 10.30am with a host of Pakatan Harapan leaders including PKR president Wan Azizah Wan Ismail and Parti Amanah Negara president Mohamad Sabu.

Earlier, at least 3,000 marched to the Esplanade in support of Lim, who was on Thursday slapped with two corruption charges related to the purchase of his RM2.8 million bungalow in Jalan Pinhorn, Penang.

The crowd gathered at 7am and walked for 2km with Lim and a host of Harapan leaders including Gelang Patah MP Lim Kit Siang, Lim’s father.

They chanted solidarity slogans “Hidup (Long live) Guan Eng” and “Bebas (free) Guan Eng”.

Despite his predicament, Lim managed a few jokes during his speech.

He said BN opponents had been going on and on about Taman Manggis (mangosteen) until he started to “crave to eat the fruit”.

“Alas, I was not charged with any case linked to Taman Manggis. The BN is lying again”, said the DAP secretary general.

BN had earlier attempted to link the purchase of his bungalow to the sale of state government land in Taman Manggis.

However, Lim was charged instead for chairing the special planning committee meeting which approved the conversion of land from agriculture to residential for company Magnificient Emblem.

Lim’s previous bungalow owner Phang Li Koon has 30 percent shares in the company. She was also arrested by the Malaysian Anti-Corruption Commission (MACC) and faces a charge of abetting Lim in allegedly enriching himself.

‘Should have taken billions’

Lim said Penangites would be angry if they are ever told to purchase an item without a discount.

“They might even topple the state government for this,” he quipped.

“And yet here I am, charged for buying the bungalow at a discount.

“I should have taken billions, as those who have billions in their bank accounts have no case against them

“If I wanted to take a bribe, I would have done that a long time ago, why wait to go to jail twice?”

Lim said he was being incarcerated because BN desperately wanted to recapture the state government.

“Can they do it? Can they do it?”

The audience shouted in response, “No.”

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Sea of colour floods Penang streets for Guan Eng
3 July 2016 – malaysiakini

13
Jun
16

NSC Act a leap to dictatorship

NSC Act a leap to dictatorship, groups say

KUALA LUMPUR, June 9 — Human rights groups criticised today the gazetting of the National Security Council (NSC) Act 2016 that they said would lead to a “dictatorship” and a “military police state”.

The #TakNakDiktator coalition, which represents nine groups, also questioned why the government ignored the concerns raised by the Conference of Rulers, especially since the law directly impinged on the Yang di-Pertuan Agong’s powers, by gazetting the NSC Act as law on Tuesday without express royal assent.

“The NSC law represents a leap towards a dictatorship and a military police state with little or no safeguards,” said #TakNakDiktator coalition spokesman Datuk Ambiga Sreenevasan in a statement.

“The NSC law represents an extremely dangerous step for Malaysia as it concentrates extraordinary powers in the PM and the NSC. No person or entity should have such absolute and unfettered powers. Concentration of power leads to abuse, particularly in times of political crisis,” she added.

The NSC Act 2016, which grants the government emergency powers, was gazetted under Article 66(4A) of the Federal Constitution which states that a Bill will automatically become law and will be considered to have received assent from the Yang di-Pertuan Agong, even if he does not expressly give his approval within 30 days after it has been presented to him.

Ambiga said the NSC Act was “clearly unconstitutional” and a “grave abuse of power”.

“Malaysia does not need such a law which goes against all principles of democracy and undermines the rule of law in the country.

“In this exercise, this government has behaved as if they are accountable to no-one, neither the Rulers nor the people. The fact that there were no amendments to the Bill is proof of this. If this is not a dictatorship, then what is?” said the former Malaysian Bar president.

The #TakNakDiktator coalition comprises Amnesty International Malaysia, Bersih, the Centre to Combat Corruption and Cronyism (C4), the National Human Rights Society (Hakam), Pertubuhan Ikram Malaysia (Ikram), Institut Rakyat, Lawyers for Liberty, Persatuan Promosi Hak Asasi Malaysia (Proham) and Suara Rakyat Malaysia (Suaram).

The NSC Act proposes to allow the National Security Council — which would be chaired by the prime minister — to take command of the country’s security forces and impose strict policing of areas deemed to face security risks.

According to the Act, the jurisdiction of the NSC takes effect once the prime minister designates a location as a “security area” — a status that is valid for six months at a time, subject to renewal by the prime minister.

Once the NSC takes control of a security area, security forces will have the right to search or arrest without warrant any individual “found committing, alleged to have committed, or reasonably suspected of having committed any offence under written laws in the security area”.

Malaysia’s three law associations — the Malaysian Bar, the Advocates’ Association of Sarawak and the Sabah Law Association — said last January that for the government to hold emergency powers without the need to declare emergency under Article 150 of the Federal Constitution, it would have usurped the authority assigned to the Yang di-Pertuan Agong.

…more
NSC Act a leap to dictatorship, groups say
June 9, 2016 – MMO




Merdeka! Merdeka! Merdeka!

The dawn of A Better Malaysia!
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Mahathir in Putrajaya ceramah

 

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All that is necessary
for the triumph of evil
is for good men
to do nothing.

- Edmund Burke
When the people
fears their government,
there is TYRANNY;
when the government
fears the people,
there is LIBERTY.

- Thomas Jefferson
Do you hear the people sing?

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