HUMAN RIGHTS AND THE MALAYSIAN JUDICIAL SYSTEM*

Sempena dgn Bersih 2.0 pd 9/7/2011 aku post di sini kertas kerja drpd seorang Hakim yg aku amat hormati yg aku pernah beberapa kali hadir di hadapan beliau.

HUMAN RIGHTS AND THE MALAYSIAN JUDICIAL SYSTEM*

by

DATO' ABDUL MALIK ISHAK**


I have the honour and the singular privilege of presenting this paper to this august gathering of international jurists, human rights advocates and legal luminaries.

In Malaysia, there is a universal concept of justice. We respect human life and we treat criminals justly and in accordance with law. We have attained a national system of justice for all. We do not exercise multiple justices. Everyone is equal before the law.

Our law has been fair and it is in accordance with human rights standards. We are very clear on this. It is for the well being of all Malaysians and for those who come to Malaysia.

Malaysia is a democratic country. The essential elements of democracy include respect for human rights and fundamental liberties. The link between democracy and human rights would be the rule of law. We are acutely aware of the need to administer the law peppered with human rights principles.

Even the Malaysian Government has acknowledged the importance of a national human rights commission to further promote and protect human rights in Malaysia. Towards this end, the Malaysian Government has set up SUHAKAM in the year 2000 via the Human Rights Commission of Malaysia Act 1999 (Act 597) (hereinafter referred to as the "Human Rights Act").

Briefly, the main functions of SUHAKAM are as follows:

(i) to promote awareness and provide education in relation to human rights;

(ii) to advise and assist the Government in formulating legislations and administrative directives and procedures and recommend the necessary measures to be taken;

(iii) to recommend to the Government to subscribe to certain treaties and other international instruments in the field of human rights; and

(iv) to enquire into complaints regarding infringements of human rights.

The phrase "human rights" is defined in s. 2 of the Human Rights Act by making reference:

to fundamental liberties as enshrined in Part II of the Federal Constitution.

Articles 5 to 13 of the Federal Constitution are found in Part II of the said Constitution. Article 5 makes reference to the liberty of the person. Article 6 talks of the prohibition of slavery and forced labour. Article 7 refers to the protection against retrospective criminal laws and repeated trials. According to art. 8 all persons are equal before the law and entitled to the equal protection of the law. Article 9 states that no citizen shall be banished or excluded from the Federation. Article 10 talks of freedom of speech, assembly and association. Whereas art. 11 allows freedom of religion. And art. 12 makes reference to the rights in respect of education. Finally, the rights to property can be found in art. 13.

It is the law that "an accused person is presumed to be innocent until he is proved guilty" (Yaakub bin Ahmad v. Public Prosecutor [1975] 2 MLJ 223, 224). And the Federal Constitution guarantees the right to be heard, the right to be defended by counsel of his or her choice as well as the right to a fair trial.

Two very important constitutional principles are contained in art. 5(3) of the Federal Constitution. The first would be in regard to the right to be informed of the grounds of arrest as soon as may be. Such constitutional right must be accorded in all cases of arrest irrespective of the statute under which the arrest was made. However, there may be occasions where this is not possible or it may not be necessary as stated by the House of Lords in Christie And Another v. Leachinsky [1947] AC 573 and cited with approval by the Federal Court in Abdul Rahman v. Tan Jo Koh [1967] 1 LNS 1. The circumstances may be stated as follows:

(i) where the arrested person must know the general nature of the alleged offence for which he is arrested particularly when he is caught red handed; and

(ii) where the arrested person creates a situation which makes it practically impossible to inform him - two examples need to be mentioned here, firstly, where the arrested person resists arrest by attacking the officer and, secondly, where the arrested person evades arrest by running away.

The second important constitutional principle concerns the right to counsel. That right appears to be an absolute right. According to the case of Saul Hamid Pakir Mohamed v. Public Prosecutor [1987] 2 CLJ 257; [1987] CLJ (Rep) 967, an arrested person has a right to be represented by a legal practitioner under remand proceedings before a Magistrate under s. 117 of the Criminal Procedure Code, unless the police can discharge the onus of satisfying the Magistrate that to allow the arrested person to exercise that right would result in undue interference in the course of investigation.

In Malaysia, when a case is brought before the court, the skill of the lawyers will be brought into play in that the outcome of the case would be dependent on the expertise of the lawyers in creating a reasonable doubt or establishing a technical flaw in the prosecution's case in order to secure an acquittal for the accused. And, on appeal, the appellate court may disagree entirely with the initial verdict and may substitute the acquittal with a conviction. This certainly speaks well for the process of justice in Malaysia.

The courts in Malaysia have administered the law effectively and promptly without distinction of any kind. We are not influenced by race, colour, gender, religion, language, political affiliation, national or social origin, accident of birth or any other factors. We administer the law fairly and without prejudice. All persons are entitled to equal protection of the law.

Judges and Magistrates hand down their decisions based on their own reasonings without outside interferences. All decisions are decided based on the evidence and the law. The Malaysian Judiciary uphold the rule of law vigorously. We are aware of the preamble to the Universal Declaration of Human Rights 1948 which states, inter alia, that human rights should be protected by the rule of law.

According to the late Justice Arulanandom in Re P.E. Long @ Jimmy & Ors; P.E. Long & Ors. v. Menteri Hal Ehwal Dalam Negeri Malaysia & Ors. [1976] 2 MLJ 133, 134, the question of deprivation of liberty in art. 5 of the Federal Constitution requires strict compliance with the law.

In Re Datuk James Wong Kim Min; Minister of Home Affairs, Malaysia & Ors. v. Datuk James Wong Kim Min [1976] 1 LNS 129, the late Lee Hun Hoe CJ (Borneo), speaking for the Federal Court, laid down the law lucidly in this way:

In a matter so fundamental and important as the liberty of the subject, strict compliance with statutory requirements must be observed in depriving a person of his liberty. The material provisions of the law authorising detention without trial must be strictly construed and safeguards which the law deliberately provides for the protection of any citizen must be liberally interpreted. Where the detention cannot be held to be in accordance with the procedure established by the law, the detention is bad and the person detained is entitled to be released forthwith. Where personal liberty is concerned an applicant in applying for a writ of habeas corpus is entitled to avail himself of any technical defects which may invalidate the order which deprives him of his liberty.

The detainee was released by the court in Re Datuk James Wong Kim Min.

In Andrew s/o Thamboosamy v. Superintendent of Pudu Prisons, Kuala Lumpur [1976] 2 MLJ 156, 158, the Lord President of the then Federal Court, Suffian LP, writing for the Federal Court succinctly said:

With respect, we agree that any form of detention does violence to section 5(1) of the Constitution which reads:

5(1) No person shall be deprived of his ... personal liberty save in accordance with law.

and hence power given by law to detain must be construed strictly and in cases of doubt or ambiguity the court should lean in favour of the subject. Government is the most powerful body in the country and the court should be vigilant to see that Government does not exceed its power when dealing with individuals. But at the same time we are of the opinion that the problem of dealing with illegal immigrants is a matter of public policy to be decided by Parliament and by the Executive, that in this matter the proper authority for enacting the necessary legislation is Parliament and that if the Government exercises a power conferred on it by Parliament and keeps within the law, then the duty of the court is quite clear; the court should simply apply the law, no matter how harsh its effect may be on the immigrant. His remedy is then not judicial, but political and administrative.

Clause (1) of art. 5 of the Federal Constitution states that, "No person shall be deprived of his life or personal liberty save in accordance with law". According to the Federal Court in Government of Malaysia & Ors v. Loh Wai Kong [1979] 2 MLJ 33, the words "personal liberty" in cl. (1) of art. 5 does not include the right to travel overseas or the right to a passport. In delivering the judgment of the court, Suffian LP said at p. 36 that "... a citizen ... does not have a right, not even a qualified right, to a passport ..." And his Lordship continued to say that "... the issue of a passport is, ... only a privilege ... The Executive has a discretion whether or not to issue a passport." But, his Lordship added further that, "If it is established that Government has acted mala fide or has in other ways abused this discretionary power, the court may, ... review Government's action and make the appropriate order ..."

In Attorney-General, Malaysia v. Chiow Thiam Guan [1983] 1 CLJ 27; [1983] CLJ (Rep) 462, Hashim Yeop Sani J, held that if Parliament deems it necessary that the death penalty should be mandatory for a person convicted under s. 57(1) of the Internal Security Act neither art. 5(1) nor art. 8 of the Federal Constitution would bar the sentence from being imposed.

Interestingly, Ajaib Singh J, in PP v. Yee Kim Seng [1983] 1 CLJ 38; [1983] CLJ (Rep) 824 held that the Internal Security Act was a perfectly valid law passed by Parliament. At p. 826, His Lordship said that, "art. 5(1) ... is not infringed because the accused is not going to be deprived of his life or personal liberty except in accordance with law".

It is comforting to know that a death row convict has still recourse to seek a pardon. This is provided for in art. 42 of the Federal Constitution which deals with the powers of the Yang di-Pertuan Agong, the Rulers and Governors to grant pardons, reprieves and respites to convicted death row prisoners. This must surely be another human rights norm.

All the judges in Malaysia honourably carry out their tasks by giving recognition to the fundamental values of liberty, equality and justice. It is correct to say that the Malaysian Judiciary is not a monolithic institution. Currently, there are 175 Magistrates, 118 Sessions Court Judges, 38 Judicial Commissioners, 47 High Court Judges, 20 judges in the Court of Appeal and 5 Federal Court judges excluding the top four heads of the Judiciary. They are all independent and competent to decide on any issue that may crop up.

Superior Court Judges have each taken their oath of office that they will faithfully discharge their judicial duties to the best of their ability and that they will bear true faith and allegiance to Malaysia and will preserve and defend its Constitution.

When we talk about justice, we directly bring with it the whole array of legislations and the way in which they are implemented. We also recognise that human rights, in the context of the administration of justice, is not simple and straightforward. It is both complex and challenging. It encompasses a wide field. However, it is quite easy to integrate human rights into the structures and practices of any judicial system. The pertinent question to ask is this: What do we understand by the concept of human rights? Broadly speaking, it concerns the plight of the people.

Notwithstanding the definition of "human rights" in s. 2 of the Human Rights Act as alluded to earlier, some sceptics may argue that human rights cover a wider field and have no limits and are absolute and that it should be preserved at all costs. Others would argue otherwise.

A fair and an effective administration of justice are the hallmarks of the rule of law. Firstly, it is a well established human rights norm that any individual must have unrestricted and effective right of access to the courts to establish his or her rights against the State and its agencies. A classic example would be the case of an individual who is unlawfully arrested and detained by the police. That individual has the right to gain access to the court to obtain his or her release by an urgent writ of habeas corpus application. But a writ of habeas corpus will not lie in respect of an accused who has been tried, convicted and sentenced by a court of competent jurisdiction (Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] 1 CLJ 481, CA). In Malaysia, the right of unimpeded access to the courts exist notwithstanding that the outcome may be negative and this means that Malaysia has satisfied the human rights norm. Secondly, another human rights norm is this. That every individual has a right to a fair trial in both civil and criminal cases before an independent and impartial judge.

In Malaysia, a judge decides according to the facts and the law. And when a judge decides, one party is bound to be dissatisfied. You cannot please everyone. Sometimes, both parties are not satisfied and, if this happens, the Rules provide for cross-appeals. This is quite common in Malaysia. When this happens, it can be said that the Malaysian Judiciary is independent.

If a law is unconstitutional, the court should strike it out. And if an Executive act is unlawful, the court should not hesitate to quash it. In my view, the Legislature, the Executive and the Judiciary should act in accordance with law.

There is a paradigm shift in favour of applying human rights principles within the Malaysian Judiciary. Two cases that relate to native customary rights such as Kerajaan Negeri Johor & Anor v Adong Kuwau & Ors [2002] 4 CLJ 259; and Kerajaan Negeri Selangor & Ors v. Sagong Tasi & Ors [2005] 4 CLJ 169, are classic examples of that paradigm shift.

In Adong Kuwau, the Federal Court speaking through Abdul Malek Ahmad FCJ affirmed the quantum of RM40,000 for getting up and also awarded interest even though it was not specifically claimed. The judgment was handed down in favour of each of the 52 aborigines.

Gopal Sri Ram JCA writing for the Court of Appeal in Sagong bin Tasi aptly said at p. 182, "... that the fact that the radical title to land is vested in the Sovereign or the State (as is the case here) is not an ipse dixit answer to a claim of customary title". And at p. 185, his Lordship said:

Now, the extrinsic material to which I have referred makes it abundantly clear that the purpose of the 1954 Act was to protect and uplift the First Peoples of this country. It is therefore fundamentally a human rights statute. It acquires a quasi constitutional status giving it pre-eminence over ordinary legislation. It must therefore receive a broad and liberal interpretation.

No one should be condemned unless he or she has been fairly tried in accordance with law. And when the court quashes a conviction obtained after an unfair trial, the right to a fair trial will be affirmed and vindicated.

The existence of the rule of law demands that the Judiciary should be independent and impartial. There is no place for judicial independence in an authoritarian State. Fortunately, in Malaysia the rule of law prevails.

A fair pre-trial disclosure too ought to be recognised as a universal human rights norm. And that must be left to the discretion of the prosecution to decide whether to disclose to the defence all relevant information which has a bearing in the case. Ultimately it is the court who has to be the final arbiter whether to allow disclosure or otherwise.

With that, Ladies and Gentlemen, I thank you.

Endnotes:

* This paper was presented by the author at the Judicial Colloquium On The Domestic Application Of International Human Rights Norms organised by the OHCHR Regional Office for South East Asia on 23 to 25 March 2009 held in Bangkok, Thailand. The Malaysian delegation was led by the Right Honourable Tan Sri Dato' Seri Zaki bin Tun Azmi, Chief Justice of Malaysia accompanied by the author together with YA Dato' Ahmad bin Haji Maarop JCA, YA Dato' Rohana binti Yusof J, YA Puan Rhodzariah binti Bujang JC, and Tuan Syed Adam Alhabshi (Special Officer to the Chief Justice).

** Judge Court of Appeal.