Malaysia Law Reform More Like A Hydra

Radical rethink in law education may bring about novel developments in court which can be declared as law!

We have heard about law reform like forever. It was not so long ago that V. K. Liew, in the Barisan Nasional (BN) and Pakatan Harapan (PH) Plus as de facto Law Minister, promised long overdue law reform but allegedly achieved little by the time he moved on. See here . . .

and here

Liew’s successor, Wan Junaidi Tuanku Jaafar, was not handed the responsibility on law reform per se but only on inserting the Malaysia Agreement 1963 (MA’63) in Article 1(2), political financing, anti-hop law, #Undi18 and the death penalty. See here . . .

Tommy Thomas

Attorney General Tommy Thomas did not pull out the stops in his Memoirs, “My Story: Justice in the Wilderness”. He tore into all and sundry, especially the Attorney General’s Chambers (AGC).

Thomas refused to turn up at a Special Committee probing various allegations in the Memoirs. His explanation could have helped quicken the pace for law reform. See here . . .

Thomas did invite public input on new legislation and law reform. Apparently, there were no takers.

That Law Reform Mantra

If we must harp on law reform, as some sort of Mantra, it must begin with alleged “selective prosecution and selective persecution” and/or politically-motivated cases by the Attorney General’s Chambers (AGC), observation of law in the breach, and law education being light years behind other Commonwealth nations.

More on law education, the elephant in the room, later.

Mahathir Mohamad’s allegedly Prime Ministerial Dictatorship for 24 years best illustrates “selective prosecution and selective persecution” and politically-motivated cases. It’s said that Mahathir did not adhere to the Cabinet system based on the consensus — i.e. no voice against — principle. Ironically, Mahathir claimed collective responsibility under the Cabinet system and escaped being dragged to justice on “abuse of power” charges.

Mahathir’s children, based on their holdings in publicly listed companies alone, are multibillionaires. These are cases which come under the Definition of money laundering, i.e. having assets far in excess of what can be legitimately accumulated over a lifetime, yet the Family remains immune from civil action to freeze, seize and forfeit these assets.

If we say that these assets were acquired under Article 153, it’s nepotism and smacks of abuse of power, conflict of interest and criminal breach of trust.

Raja Azlan

It’s true that despite case law by Raja Azlan Shah on abuse of power, the court is reluctant to hear such cases, and if it does, only very rarely and grudgingly.

The reason is clear. It isn’t possible to have law on abuse of power on matters which are covered by the Doctrine of Separation of Powers or involves the Agong. If the gov’t and management has prerogative and discretionary powers, it’s counter-productive and a contradiction in terms, if there are allegations on abuse of power. It’s highly subjective. See here

Badawi

We know from the Abdullah Ahmad Badawi Administration (2003 to 2009) that Mahathir kept MACC files on gov’t lawmakers under lock and key at his office. Eventually, MACC was reluctant to send files to the Prime Minister.

It was an unwritten rule that MACC had to send such files to the Prime Minister. The cat was out of the bag when Badawi sent two files, on Kasitah Gaddam of Sabah and Eric Chia of Perwaja Steel, back to the MACC. They were immediately dragged to court.

Mahathir could have been charged, under the Raja Azlan case law, with abuse of power, conflict of interest and criminal breach of trust. It never happened. He stays in a glasshouse and continues to throw stones at all and sundry, especially former Prime Minister Najib Abdul Razak.

Najib has openly said that Mahathir was his Guru on collecting money for political activities. “We all learnt from him,” Najib told the media.

GE14

Since GE14 on Wed 9 May 2018, an extraordinary number of “politically motivated” abuse cases have been filed against Najib as the sole accused. All these cases are criminal and related indirectly to money laundering. Najib isn’t being accused per se of stealing money. His sin, for want of a better term, stems from allegedly being party to illegalities i.e. facilitating money laundering activities and thereby committing abuse of power based on conflict of interest and criminal breach of trust. There has been no forensic accounting on the money trail linked to the money laundering activities.

In law, by Definition, money laundering cases are filed as civil cases. Still, the accused parties can opt to settle the matter out of court. In that case, those accused may have to surrender as little as 40 per cent of the suspect assets. That’s the approach taken by the US Dept of Justice (DoJ) on assets related to 1MDB. In Riza Mansor’s case, the 40 per cent was seized by the DoJ, and the case revisted by the High Court of Malaya.

If there’s no settlement under civil action, the court will allow suspects to keep some money, a house and car.

Criminal cases are filed if the civil action is challenged.

Najib has case mention on Mon 27 June 2022 before the Federal Registrar on adducing fresh evidence on nullifying the SRC conviction.

The Registrar will give case directions for case management i.e. set a date for the Application and for the other side to respond.

RCI for Najib's cases?
Will the Federal Court overturn Najib’s SRC case decision? – NMH file pic

Open Secret

There’s no reason for the government to enrich ordinary people connected with political parties.

It’s a open secret that BN used to give out government contracts to collect donations for political and party activities and elections. In the US, the government funds the activities of political parties but based on certain criteria. By law, they are also allowed to collect political donations. There’s law against big donations from businesses.

In Malaysia, there’s no law on political donations. There should be law reform on this matter.

Since GE14, quite a number of lawmakers have been charged with soliciting bribes for personal benefit, tantamount to corruption, through political donations.

The court has heard that 1MDB was in fact set up to finance political and party activities and fund general elections.

Inconsistencies In Application Of The Law

Former Sabah Chief Minister Musa Aman, facing 46 charges in the High Court of Malaya, admitted in open court that he collected RM380m in political donations. It’s not known why he was charged in Malaya when the High Court of Malaya and High Court of Borneo have separate and equal jurisdiction. The alleged offences were in Sabah.

The charges were dropped by Thomas, albeit in court, after Musa wrote a letter of representation to the AGC. He attached an Affidavit in Support by former AG Gani Patail who may be related to him (Musa) by marriage. In law, siblings cannot represent siblings.

It’s not known whether the Inland Revenue Board (IRB) went after Musa for taxes on the RM380m. Malaysiakini was fined RM500K by the Federal Court for facilitating contempt of court on the Musa case, among others, by five subscribers.

MACC and Bank Negara could have filed civil action against Musa, under money laundering laws, for the RM380m.

Breaches

Any law reform in Malaysia must weed out distortions, deviations and depravities related to Article 153. If not for the Article being observed in the breach, Mahathir’s children won’t be multibillionaires. The ordinary Orang Asal, Orang Asli and Malay MyKad holders are being left out under Article 153. Those with power have allegedly hijacked the Article since Merdeka (independence) on 31 Aug 1957.

The Definition of Malay in Article 160(2), being observed in the breach, must be addressed by law reform. The Article is confined to Singapore and Malaya and governed by Merdeka as the cutoff line to hold Malay MyKads. Instead, people in Sabah not originating from Singapore or Malaya are also holding Malay MyKad. In Malaya, those not governed by the Merdeka cutoff line also allegedly hold Malay MyKad.

Malay MyKad issuance is governed by the Merdeka cutoff line. The 1st Prong and 2nd Prong in Article 160(2) must be read together to perfect the law.

Borneo Territories

The list of laws being observed in the breach goes on and on. The most notorious is the Federal government’s non-compliance on MA’63.

Ironically, the plight of Sabah and Sarawak on MA’63 may only be resolved if both Territories withdraw from the Federal government, the Federal Cabinet and the Malaysian Parliament.

Law Education

Reforms on law education should take the cue from what law schools have been telling governments for years.

The content of the LLB degree have nothing to do with law practice and courtroom skills. It’s an academic programme, according to the University of London, and only suited for teaching. “It’s a bit of a mystery exactly what skills that lawyers, holding the LLB, bring to bear on cases in court.”

The university cautions that “it’s not possible for anyone to know law”.

“Law, ultimately, is the power of language.”

There’s a case for widening the talent pool in law through law conversion courses, running for six to 18 months, for non law degree graduates.

Malaysia can also allow senior court reporters to practice law and also return to the Articleship and Mentor System which existed until shortly after Merdeka. – New Malaysia Herald

About the writerLongtime 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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