Malaysian MACC Act’s Sect.62 declared unconstitutional will be challenged by prosecution



Court of Appeal: Section 62 of MACC Act unconstitutional


PUTRAJAYA: The Court of Appeal has ruled that Section 62 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 is unconstitutional.

Justice Datuk Umi Kalthum Abdul Majid, who chaired a three-man bench, made the ruling after allowing the appeals by Penang Chief Minister Lim Guan Eng and businesswoman Phang Li Koon to declare Section 62 as unconstitutional in their corruption cases.

The panel held that Section 62 was ultra vires when read against Article 5(1) and 8(1) of the Federal Constitution.

Section 62 requires accused persons to disclose their defence statements to the prosecution before the beginning of the trial.

However, Article 5(1) states that no person shall be deprived of his life and personal liberty save in accordance with law, while 8(1) states for equal protection under the law.

“We allow the appeals and set aside the order of the High Court,” said Umi Kalthum, who heard the appeals with Datuk Ahmadi Asnawi and Datuk Abdul Rahman Sebli on Monday.

The Court of Appeal granted DPP Datuk Masri Mohd Daud’s oral application to stay the proceedings in the Penang High Court pending the prosecution’s appeal over the decision.

On March 7 this year, the High Court dismissed Lim and Phang’s application after ruling that Section 62 of the MACC Act was constitutional and valid as it did not impede the accused’s right to a fair trial.

Lim pleaded not guilty to charges of corruption in relation to the conversion of land from agricultural to residential and the purchase of a plot of land and bungalow at below-market value on June 30 last year.

Lim was charged with using his position as Chief Minister to gain gratification for himself and his wife, Betty Chew Gek Cheng, by approving the application for conversion of agriculture land to a public housing zone in south-west Penang to a company, Magnificient Emblem Sdn Bhd.

He allegedly committed the offence while chairing the Penang State Planning Committee meeting at the operations room, Level 28, Komtar building here, on July 18, 2014.

The charge under Section 23 of the MACC Act 2009 provides for imprisonment of up to 20 years and a fine of up to five times the sum or value of the bribe, or RM10,000, whichever is higher, upon conviction.

Lim faces a second charge of using his position to obtain for himself a plot of land and a bungalow located at No, 25, Jalan Pinhorn, George Town on July 28, 2015 from Phang for RM2.8mil, below market value.

The charge under Section 165 of the Penal Code provides for a jail term of up to two years, or a fine, or both, upon conviction.

Phang pleaded not guilty to abetting Lim in obtaining the bungalow at an undervalued cost.

She allegedly committed the offence at the same place and date.

The charge under Section 109 of the Penal Code read together with Section 165, provides for imprisonment of up to two years, or a fine, or both, upon conviction. – Bernama

MACC will appeal against ruling that Section 62 is unconstitutional


PETALING JAYA: The Malaysian Anti-Corruption Commission (MACC) will be appealing the Court of Appeal’s ruling that Section 62 of the MACC Act is unconstitutional.

The MACC stated in a statement on Tuesday that its prosecutors would be filing an appeal to the Federal Court “as soon as possible”.

“The MACC also wishes to clarify that this decision by the Court of Appeal does not affect the prosecution of Penang Chief Minister Lim Guan Eng and businesswoman Phang Li Koon,” it said.

On Monday, the Court of Appeal ruled that Section 62 of the MACC Act was ultra vires when read against Article 5(1) and 8(1) of the Federal Constitution, thus deeming it unconstitutional.

Section 62 of the Act requires accused persons to disclose their defence statements to the prosecution before the beginning of the trial.

However, Article 5(1) states that no person shall be deprived of his life and personal liberty save in accordance with law, while Article 8(1) states that all persons are entitled to equal protection under the law.

The ruling was made after allowing the appeals by Lim and Phang to declare Section 62 as unconstitutional in their corruption cases.

Lim currently faces charges for obtaining gratification for himself and his wife related to the conversion of land into residential development and another charge for using his position to purchase a bungalow below market value. Phang has been charged with abetment. – The Star

MACC: ‘Decision has no bearing’

PETALING JAYA: The Court of Appeal’s decision to declare a section of the Malaysian Anti-Corrup­tion Commission (MACC) Act as unconstitutional does not affect the prosecution of the Penang chief minister and a businesswoman, the graft busting body said.

The MACC said in a statement that its pro­secutors would be filing an appeal to the Federal Court “as soon as possible”.

“The MACC also wishes to clarify that this decision by the Court of Appeal does not affect the prosecution of Penang Chief Minister Lim Guan Eng and businesswoman Phang Li Koon,” it said.

On Monday, the Court of Appeal ruled that Section 62 of the MACC Act was ultra vires when read against Article 5(1) and 8(1) of the Federal Constitution, thus deeming it unconstitutional. Section 62 requires accused persons to disclose their defence statements to the prosecution before the trial begins.

But Article 5(1) states that no person shall be deprived of his life and personal liberty save in accordance with law, while Article 8(1) states that all persons are entitled to equal protection under the law.

The ruling was made after allowing the appeals by Lim and Phang who sought to declare Section 62 as unconstitutional.

Lim currently faces charges for allegedly obtaining gratification for himself and his wife related to the conversion of land into residential development and another charge for allegedly using his position to purchase a bungalow below market value.

Phang has been charged with abetment.

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Developer has to compensate buyers for delays of projects, Court says


 

 
Take them to task: According to the liquidated damages clause, condo buyers can claim 10 per annum of the purchase price for the delay

KUALA LUMPUR: The Housing Controller has no power to grant an extension of time to developers who delay the completion of housing projects, the High Court has ruled in a landmark judgment.

This means a housing developer has to pay compensation to the affected buyers for delays in the delivery of vacant possession.

High Court (Appellate and Special Powers) judge Justice Hanipah Farikullah also held that the regulation which empowers the Controller to modify terms of the contract of sale was ultra vires the Housing Development, Control and Licensing Act.

The judge said this in allowing an application for judicial review by 71 buyers of the Sri Istana condominiums in Old Klang Road against the Housing Controller and Urban Well-being, Housing and Local Government Minister.

Their lead counsel Datuk Wong Kok Leong told The Star the judge held that the minister’s decision to grant the developer an extension of time to complete the project via a letter dated Nov 17, 2015 was invalid.

In the letter, the minister had granted the developer a 12-month extension to complete the project.

“This means that the Housing Controller has no power to grant an extension of time to housing developers for any delay in completing their projects,” Wong said.

“Now, the developer has to pay the liquidated damages (a pre-determined sum) for late delivery of vacant possession of those condominium units.”

Wong called the decision a landmark judgment as many project developers seek extensions to complete their projects in Malaysia.

“This is a victory for all house buyers. With this ruling, the housing developer can’t just go to the Housing Controller for an extension of time to complete the project in order to avoid paying the liquidated damages to house buyers.

“This is because if an extension of time is allowed, house buyers lose their rights to claim damages for late delivery of vacant possession,” he added.

Wong explained that according to the liquidated damages clause, the condo buyers can claim 10% per annum of the purchase price for the delay.

In their application for judicial review, the condo buyers stated that they wanted to quash the decision allowing BHL Construction Sdn Bhd an extension of time for the delivery of vacant possession from 36 months to 48 months.

They also asked the court for a declaration that Regulation 11(3) was ultra vires of the Housing Development Act (Control and Licensing) Act.

Wong said the judge has ordered the parties to address the issue of costs on the next date for case management.

When contacted, SFC Mohamad Rizal said the judge also allowed a similar application involving another group of condominium buyers involving the same developer and project.

Source: By  m. mageswari, royce tan, thean lee cheng, eugene mahalingam, The Star

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Police must act swiftly


Several recent crime cases have shaken Malaysians quite a bit. We leave it to our police force to provide answers to this madness.

RECENTLY, several widely reported crime cases, which many Malaysians are following, have really shaken us.

Yes, Malaysians complain a lot, and rightly so, about the never-ending burglaries and snatch theft cases in our neighbourhood and streets but these are merely incidents involving petty criminals.

Yes, we lose money and sometimes, there are fatalities involved but most are non-brutal and the motives are established quickly. I am not even talking about the high profile assassination of Kim Jong-nam, the exiled half-brother of North Korean dictator Jong-un, at the KLIA2 which has grabbed the world’s attention.

The police have been swift – two women who committed the crime were arrested and other suspects were taken in while more North Korean suspects have been identified.

There has been plenty of noise from the North Korean embassy but the case is being wrapped up, with fresh leads being revealed to the public daily.

But what has disturbed me most is the disappearance of Pastor Raymond Koh Keng Joo, who is well-known among the Christian community in Malaysia.

It has been reported that on Feb 13, occupants of a van stopped the pastor’s car, a silver Honda Accord, along Jalan Bahagia, Petaling Jaya, and abducted him.

(Left) Koh: Abducted in broad daylight. (Right) Sameera: Brutally murdered.

 

He had earlier left his Prima Sixteen Chapter Two home in Jalan 16/18, Petaling Jaya, at about 10am to go to the Puncak Damansara Condominium in Kampung Sg Kayu Ara, not far away. Koh’s family said the 62-year-old was en route to a friend’s home.

So far, there has been no ransom demanded or motive identified. We still don’t know the reason for the kidnapping.

A CCTV footage, currently with the police, purportedly showed the abduction taking place on a busy road.

It is believed that the pastor’s abduction involved several vehicles. It was professionally and very swiftly executed.

The case is under the personal attention of Inspector-General of Police Tan Sri Khalid Abu Bakar, who announced that a special task force has been formed to investigate the case, saying police had recorded statements from eight witnesses but admitted that there had been little information to go on.

The team is led by Selangor Criminal Investigations Department chief Senior Assistant Commissioner Fadzil Ahmat.

The case is most baffling. Ours is not a South American or Middle Eastern country where people get abducted from busy streets.

The abductors appeared to be very organised, almost professional-like, in carrying out their task. One of them even diverted traffic while others grabbed Koh.

The fact that they have not demanded any ransom shows that they are not ordinary kidnappers looking for money.

The only possible answer is that some persons (or group) are not happy with the way he is handling his work. Koh’s colleagues have revealed that a bullet was sent to the pastor six years ago after the Selangor Islamic Religious Department (Jais) conducted a raid on a thanksgiving and fund-raising dinner organised at a church in Petaling Jaya, where he was accused of proselytising to Muslims.

Religious leaders of any faith must be mindful that attempting to convert anyone is really crossing the line. The majority of Muslims will not tolerate any attempt of proselytising, even in the most subtle form, and leaders of other faiths must understand and accept the sensitivity and reality of the situation.

However, any grievances or complaints relating to religion, a sensitive issue, should be directed to the religious authorities and police. In this case, the pastor was snatched away with no obvious clues, and no claims have been made.

This is distressing, and his wife has understandably sought counselling in Singapore as the family agonises over the unexplained incident.

In the absence of any information, this has led to speculation and it is unhealthy for Malaysia as we take pride in our religious diversity and tolerance in resolving conflicts.

The other widely talked about case involved transgender Sameera Krishnan, who was brutally murdered on Thursday. She was shot, had four fingers severed and suffered head injuries.

The cruelty inflicted on her was horrifying and something Malaysians just cannot imagine. Interestingly, Sameera was the main witness in her own kidnapping case two years ago and the trial has been set to begin early next month.

In 2015, she was rescued by police after she was abducted from her home in Klang, and repeatedly sodomised.

Enough. Malaysians must stand up and demand for justice. While Malaysia does not condone LGBT (lesbians, gays, bisexual, and transgender), this does not mean Sameera’s life is worth any less than ours. It doesn’t matter whether we refer to Sameera as him or her.

The fact is this – she was murdered and sexually violated. Her pride and dignity were snatched away from her and despite the prejudices of many Malaysians, this should not, in any way, diminish the diligence and commitment needed to solve the crime.

Her perpetrators must be brought to justice and if we have any conscience at all, we should all be furious. It will be abnormal to be indifferent about this. Sameera deserves justice, just like anyone else.

I believe that Malaysia is a country where minorities are protected. There are laws in our country and they are upheld.

The police have been professional, and I believe and respect our police force. They take every bit of information seriously and in my regular dealings with them, I have developed even more respect for them. They trudge on diligently despite their impossibly heavy work load.

I hope they will bring some sense and provide us answers to the madness and along the way, some reassurances to the public.

On The Beat By Wong Chun Wai The Star

Wong Chun Wai began his career as a journalist in Penang, and has served The Star for over 27 years in various capacities and roles. He is now the group’s managing director/chief executive officer and formerly the group chief editor.

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Structural defects to blame, stop history repeating itself !


Sniffing out signs of life: The K-9 unit of the City Fire and Rescue operations looking for possible victims at the site of the bridge collapse near Kampung Haji Abdullah Hukum in Kuala Lumpur.

KUALA LUMPUR: Structural failure possibly caused the collapse of an under-construction pedestrian bridge at KL Eco City near Kampung Haji Abdullah Hukum here.

Department of Occupational Safety and Health (DOSH) director-general Datuk Mohtar Musri said the initial investigation suggested that a defective structure could have led to the disaster on Wednesday.

He said the department would refer to the Construction Industry Development Board (CIDB) and Kuala Lumpur City Hall regarding the quality of materials used in the construction of the bridge.

Works Minister Datuk Seri Fadillah Yusof said a task force has been set up to probe the incident.

He said the result of the investigation was expected to be made public in a month, and that tough action could be taken against the developer if it was found to have flouted safety regulations.

“We can bring them to court, not just under DOSH but CIDB too. Under the CIDB Malaysia Act 1994, they can face a RM500,000 fine or a two-year jail sentence,” he said.

The RM7mil pedestrian bridge linking the planned KL Eco City project to the Gardens Shopping Mall in Mid Valley, which was still under construction, collapsed and killed one worker and injured five others on Wednesday.

The search-and-rescue operation at the site of the incident was halted after it was confirmed that there was no worker trapped underneath the mangled brick-and-iron structure.

City Fire and Rescue Department deputy operations chief Ruhisha Haris said K-9 teams had confirmed that there were no signs of a body.

However, the mystery of the missing construction worker remains.

“We first received information that a worker might have been trapped because a colleague saw him under the bridge minutes before it collapsed.

“A head count by the developer also revealed a missing worker, but they were unable to give us a name,” he said.

The dead victim has been identified as Tran Xuan Vang, 21, from Vietnam. Two other Vietnamese, Tran Van Hai and Luong Van Guyet, as well as Indonesian Nor Syamsi, Bangladeshi MD Jashim and Pakistan national Rais Aman Majid were injured and are currently being treated at Universiti Malaya Medical Centre.

Medical staff were forced to amputate Rais’ left leg on site to save his life.

In a statement issued on the day of the incident, SP Setia, the developer of the project, said it deeply regretted the incident and was working with the authorities in the investigation.

“The project team is still assessing the situation,” it said.

Work on the KL Eco City project – a mixed development comprising three residential towers, one serviced apartments tower, three corporate office towers, 12 boutique office blocks and one retail podium – started in 2011 and is scheduled to be fully completed by 2023.

Commenting on the incident, National Institute of Occupational Safety and Health chairman Tan Sri Lee Lam Thye said the time had come for players in the construction industry to practise their commitment to safety.

“All these accidents are preventable if the person in charge puts into practice good occupational and safety health measures and the site safety supervisor makes sure work is done properly,” he said.

By M. kumar and Nicholas Cheng The Star/Asian News Network

Stop history repeating itself

THE Consumers’ Association of Penang (CAP) is horrified with the news of the collapse of the incomplete pedestrian bridge meant to connect KL Eco City and Mid Valley Megamall in Bangsar, Kuala Lumpur.

Not even a month after a couple was crushed by a piling rig that fell on them at a construction site along Persiaran Astana, Klang, another tragic incident leading to serious injury and death has occurred.

If all the parties involved in the building industry – including the local councils, developers, contractors, architects, quantity surveyors, structural engineers, DOSH and all the others – had carried out their roles and functions efficiently, this could have been prevented.

Despite our repeated calls for the Government to conduct a full inquiry into the operations of the Department of Safety and Health (DOSH), it would seem like the relevant authorities are unable to comprehend the gravity of the situation.

When incidents like this happen, it becomes clear to us that DOSH and developers do not have their priorities right.

Instead of working on preventing such incidents, they wait until it happens before scrambling to take corrective measures to fix the problem.

The issue here is that there are no corrective measures that can be taken once a life is lost; that is not something that can be recovered.

Universiti Sains Malaysia’s (USM) Professor Datuk Dr Mahyuddin Ramli has been reported saying that incidents of this nature can happen when contractors do not comply with safety standards.

In this case, he said that concrete takes at least a week to dry and harden; the wet weather we have been experiencing means it will take even longer.

The USM professor also said that another way something like this can happen is if contractors do not use proper scaffolding during the construction process.

The distance between scaffolds and the size of the scaffolds used are very important as they will vary according to the structure they are meant to hold up.

DOSH’s director-general, Datuk Mohtar Musri, has stated that their initial investigation suggested that the incident happened because the structure was defective.

He said that they need to look into the quality of the materials that were used to construct the pedestrian bridge.

Whatever the cause, the relevant authorities and the public need to be aware that this is just history repeating itself.

If the incident did truly happen because of a structural defect, then it needs to be made clear that nobody can plead ignorance.

DOSH safety officers and onsite safety inspectors should have known about the structural defects if they did exist.

This begs the question of whether or not proper safety inspections were done at the appropriate stages by the relevant parties.

We ask that the results of the investigation into the latest incident be shared with the general public.

CAP would also like to know what happened to the findings from the investigation of previous incidents.

Why has this information not been shared with the public when their lives are also put in danger by the conduct of those at construction sites?

In view of this, CAP calls for penal action to be taken against all parties who have been involved in the project. They should all be held accountable even if they were not directly involved.

By S. M. MOHAMED IDRIS President Consumers Association of Penang

[PDF]The Law of Construction Defects and Failures

 Worker killed in bridge collapse tragedy

https://www.youtube-nocookie.com/embed/3QFRF_5oRAY

The Star Graphics:  http://clips.thestar.com.my.s3.amazonaws.com/Interactive/midvalley/midvalley.mp4

KUALA LUMPUR: A Vietnamese construction worker was killed and five others were injured when a 70m yet-to-be-completed bridge near Jalan Kampung Haji Abdullah Hukum and Mid Valley Megamall collapsed.

The victim was buried in the rubble of the collapsed pedestrian bridge.

As of press time, rescue workers were still searching for a Bangladeshi worker believed to be trapped in the rubble.

The authorities have since mobilised the K9 unit to locate him.

The firemen and paramedics were seen changing shift as the rescue mission continued into the night. Some were heard saying that locating the victim would be challenging.

However, all the rescuers were resolute in their attempt to find the last victim, never once giving up hope.

The five injured workers – two Vietnamese, two Bangladeshis and an Indonesian – were sent to the Universiti Malaya Medical Centre for treatment.

Brickfields OCPD Asst Comm Sharul Othman Mansor said the bridge was 80% completed when the incident occurred.

“We are still investigating the incident.

“We were alerted at about 4pm of the incident and quickly mobilised a search-and-rescue team,” he said at the scene.

Four roads were also affected by massive jams due to the incident.

According to Star Media Radio Traffic, the affected roads were the Federal Highway from the arch, the Kerinchi Link after the Pantai toll plaza, Kerinchi Intersection from Bangsar South or Pantai Medical Centre and Jalan Syed Putra from the Kuen Cheng School till the Robson Intersection.

While the main reason for the traffic congestion was due to certain road closures to make way for rescue workers, traffic was backed up near the mall due to many motorists slowing down to see the collapsed bridge.

Mall patrons, construction workers and curious onlookers were seen crowding the area near the bridge, where it was cordoned off for safety precautions.

By Farik Zolkepli, Jastin Ahmad Tarmizi, and Austin Camoens The Star/ANN

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 Developer to investigate

‘The ground shook and the bridge came crashing down’

Pedestrian bridge collapse: Long road to recovery for injured victims

Bridge collapse: SAR operations stopped, one worker still missing 

Govt may handle workplace safety

Fadillah: Independent monitoring likely

KUALA LUMPUR: The Government would like to take over the job of monitoring safety at construction sites away from developers following a string of deaths as a result of mishaps in the last three months.

Those duties, said Works Minister Datuk Seri Fadillah Yusof, may be entrusted to third party organisations that will be given autonomy in the planning, execution and supervision of workplace safety at construction sites.

Usually, these jobs are handled by contractors hired by the project developers but Fadillah said that this would mean the monitoring process was not independent.

Speaking at the launch of the Sustainable Construction Excellence Centre (Mampan), the minister said the suggestion for independent monitoring was brought up by the experts at the centre.

Mampan is headed by the Construction Research Institute of Malaysia (Cream), a subsidiary of the Government’s Construction Industry Development Board (CIDB).

Fadillah said the proposal to appoint third party safety monitors would be implemented first in Government construction projects.

He added that he hoped the private sector construction industry would do the same.

Currently, the Department of Occupational and Safety Hazard (DOSH) monitors government projects but it is reportedly too understaffed to keep track of every project.

For now we will have to make do with existing laws. This is why we need a commitment from the industry players,” he told reporters after the launch.

For now we will have to make do with existing laws. This is why we need a commitment from the industry players. Datuk Seri Fadillah Yusof

He said that Mampan would be a key organisation under the Government’s environmental sustainability initiative for its Construction Industry Transformation Programme.

The centre will undertake research with Universiti Teknologi Malaysia, Universiti Kebangsaan Malaysia, Universiti Sains Malaysia and the Rehda Institute to instil better industry practices, certification and awareness in the construction industry.

“We don’t want to build bridges that have no resilience and collapse when there is a flood.

“Our short-term goal is to position Malaysia as a regional leader in sustainability in construction and to raise the perception of sustainability in construction here,” he said.

Fadillah witnessed the signing of a Memorandum of Understanding between Cream chairman Tan Sri Dr Ahmad Tajuddin Ali and academics from the four universities and research institutes which will be a part of the new centre.

By NICHOLAS CHENG The Star/ANN

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A-G should not lead both services, it’s long overdue!


Otherwise, it will create a negative perception of judiciary’s independence, says CJ

https://www.youtube-nocookie.com/embed/rKJy0vpNVlA

KUALA LUMPUR: The Attorney-General must stop leading the Judicial and Legal Service Commission to ensure that the judiciary can be seen as a truly independent body, says the Chief Justice.

The head of the judiciary, Tun Arifin Zakaria, said that it would be a conflict of interest for the A-G to lead both services as he was a member of the Executive, when judicial officers comes under the judiciary.

In a democracy, the three branches of Government – the Legislative, Executive and Judiciary – must remain independent of each other.

“If the A-G continues to lead both services, I worry it would create a negative perception of the judiciary’s independence, an opinion many parties share,” said Arifin in a speech at the Judicial Officers Conference here yesterday.

The Chief Justice’s call is in line with the universal concept of judicial independence, whereby the courts should not be subject to undue influence from other branches of the Government or persons with partisan interests.

In an immediate reaction, Attorney-General Tan Sri Mohd Apandi Ali confirmed that the A-G’s Chambers (AGC) had received the proposal and was still studying it from the point of view of the Constitution and from a historic perspective.

“We will come up with the AGC’s views and discuss it at our next Legal and Judicial Service Commission’s meeting before the end of the year,” he told The Star.

Currently, the Judicial and Legal Service Commission managed the careers – from appointing, promoting, transferring and disciplining – of its members, which includes judicial officers like Sessions Court judges and magistrates, and legal officers like deputy public prosecutors and senior federal counsels.

Later, during a press conference, Arifin said people who disagreed with a judgment might say the magistrates were toeing the line with the A-G’s Chambers as they were effectively the same body.

“Imagine if a senior officer from the AGC or even the A-G himself was prosecuting. Lagi menggeletar (they’ll be even more nervous) to handle the case,” he said.

Arifin said Public Service Circular 6/2010 which made the A-G the chief of the judicial service was a contradiction to an existing decision by the Federal Court and no longer relevant

He pointed out that when the Commission was formed, the two groups were placed together as there were only a few hundred staff members. However, there were now 636 employees in the legal service and 4,787 serving in the judicial service as of April this year.

“The time has come for the judicial service to be lead by an someone from within its ranks,” he said, adding that such a candidate would be better equipped to run the service.

Arifin suggested that the Chief Court Registrar lead the judicial service while the Attorney-General lead the legal service.

The separation would also stop judicial officers and legal officers from being transferred between departments, unless the move is approved in writing by their chiefs.

However, Arifin said transfers should still be allowed, with due process, to ensure staff get experience as both judges and prosecutors.

Chief Registrar Datin Latifah Mohd Tahar, who also attended the conference, told reporters the paper on the proposal had been submitted to the Commission and the matter could be decided on within the year.

In 2006, the then Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim said the Judiciary intended to propose to the Government to abolish the Judicial and Legal Service Commission.

He added that magistrates and Sessions Court judges should be absorbed into the judiciary, fearing that there would be interference by “unseen hands” if they remain as civil servants.

by Chelsea L.Y. Ng and Qishin Tariq The Star/Asia News Network

 

It’s about time, says thelegal fraternity of proposal

 

PETALING JAYA: The legal fraternity applauded the Chief Justice’s proposal for greater separation between judicial and legal services, calling it long overdue.

Former Court of Appeals Justice Mah Weng Kwai (pic) said the proposal finally presented a clear demarcation between the judicial and legal services.

“It has been a combined service for the longest time, since before I joined the service in 1973,” said Mah, who started his career as a magistrate before becoming a deputy public prosecutor and then senior federal counsel.

Responding to the Chief Justice’s suggestion that officers would still be allowed to be transferred between the services, Mah said it should be taken one step further with both services completely independent and non-transferable.

Former magistrate Akbardin Abdul Kader said, if implemented, the move would ensure former DPPs were not biased when they were elevated to the bench.

“Hence, they will remain as DPPs until they retire and so the same for judicial officers,” he said.

Malaysian Bar president Steven Thiru said the Chief Justice’s concerns were valid and deserved due consideration.

He said the fact the Attorney-General was a member of the commission could open the judiciary to questions in any decision in favour of the prosecution.

He noted that the proposal would appear to require a constitutional amendment that would place Sessions Court judges and magistrates under the sole jurisdiction of the judiciary, and no longer under the Commission.

“This strengthens the concept of separation of powers that vests judicial power in the judiciary and requires the exercise of those powers without any influence by the other arms of Government,” he said, adding that the removal of any conflict of interest would inspire more confidence in the decisions of Sessions Court judges and magistrates.

Former Malaysian Bar president Yeo Yang Poh said the Bar had called for the change for decades, adding that from time to time, a Chief Justice of the day would “warm up” to the idea.

In 2006, when Yeo was serving as president, Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim made a similar call for a separation of the judiciary from the commission.

Yeo added that it was the first time he had heard of a proposal being handed to the commission by the Chief Registrar.

He said having the judicial and legal services combined was not desirable for two reasons: in practical terms, not every one could be fearless; while in theory, even if all legal officers could overcome the pressure, there would still be the perception of impartiality.

“You can’t blame an observer that perceives something is not quite right. A judge could say they would remain impartial even if judging their father; but does it look right?” he asked.

A former officer from the Judicial And Legal Services, who declined to be named, said the risk of transfers were a common reality.

“We used to threaten judges up to the Sessions Court (level), if they misbehave, we will get them transferred as DPPs. A few of them were actually transferred,” he said.

He said though the “threats” were in jest, it shocked him that they were sometimes really carried out, adding that not all moves were sinister, as it was occasionally meant as a lesson for subordinate courts which had made errant judgments.

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Curtain falls on S.China Sea arbitration farce; Tribunal manipulators will be revealed


Foreign ministers of ASEAN member states and China at the ASEAN-China Ministerial Meeting in Vientiane, Laos. — VNA/VNS

https://www.youtube-nocookie.com/embed/i_J3TQKTXcc

The 49th ASEAN Foreign Ministers’ Meeting on Monday issued a joint communiqué, which didn’t breathe a word about the South China Sea arbitration, or harbor any overt criticism against China. Although the South China Sea issue was mentioned many times in the communiqué, it only gave a general overview of principles that must be stuck to. Most foreign media view the communiqué as a triumph for China’s diplomacy.

On the same day, a joint statement on how to effectively implement the Declaration on the Conduct of Parties in the South China Sea was issued.

The two statements reflect the consistent stand of ASEAN. Attempts at pressuring China through the ASEAN Foreign Ministers’ Meeting have failed.

As the first foreign ministers’ meeting after the so-called South China Sea arbitration award was issued, the US and Japan hoped to use the meeting in Laos to solicit ASEAN’s collective support for the arbitration and impose unprecedented diplomatic pressure on China. But such expectations do not correspond with the realities in East Asia.

Hype was running high among American and Japanese media that only Cambodia was standing in the way of a joint statement that incorporates the South China Sea arbitration, and Laos as the host country didn’t voice any firm opposition.

From another perspective, only the Philippines wanted a joint statement with reference to the arbitration, and Vietnam was not so persistent in its demands. Most ASEAN countries have maintained a neutral attitude. They neither want to see a division within the bloc, nor to be dragged into a conflict with China over arbitration.

Manila compromised this time, giving consent to a communiqué without mention of the arbitration. It showed flexibility compared with 2012, when the 45th ASEAN Foreign Ministers’ Meeting ended with no joint statement because the Philippines’ propositions over the South China Sea issue were firmly opposed.

It’s in the common interests of China and ASEAN to maintain peace and stability in the South China Sea. But the US and Japan are willing to see conflicts between China and the Philippines and Vietnam escalate. If the arbitration leads to overall confrontation between ASEAN and China, it will fullfil the desires of the US and Japan.

ASEAN won’t be so silly as to head toward a confrontation with China. We have carried out construction activities on islands and reefs in the South China Sea, but with our utmost efforts to avoid confrontation.

The possibility of a military solution to the South China Sea dispute has become smaller and smaller. The arbitration has brought about new risks. Instead of a clash between China and the Philippines, or China and Vietnam, there are more worries about conflicts being sparked between China and the US.

Under such conditions, it could never be ASEAN’s desire to amplify the negative influences of the arbitration case. Two weeks after the arbitration result was announced, no other countries outside the region but the US, Japan and Australia have voiced support for it. The farce is coming to an end.- Global Times.

Political manipulation behind arbitral tribunal will be revealed

https://www.youtube-nocookie.com/embed/tUR7WVsmC7k

Spotlight: Chinese FM calls for end to politicization of South China Sea issue, urges parties to return to negotiations

Chinese Foreign Minister Wang Yi said on Tuesday that the political manipulation behind the arbitral tribunal will be revealed, in response to the comments made by some foreign ministers on the South China Sea arbitration case.

Wang expounded on China’s position when attending the 6th East Asia Summit Foreign Ministers’ Meeting held in the Lao capital Vientiane.

Wang said China has not participated in the arbitration case and will not accept the so-called ruling, a position that China has made clear since day one and is supported by strong legal basis.

By adopting this position, China is safeguarding the sanctity and impartiality of the United Nations Convention on the Law of the Sea (UNCLOS), said the Chinese foreign minister.

First, the arbitration unilaterally initiated by the former Philippine government violated the principle of having the consent of concerned parties as the basis of arbitration and failed to meet the prerequisite of conducting full exchange of views beforehand, thus lacking the legal conditions to be initiated.

What the former Philippine government had done also abandoned bilateral agreements between China and the Philippines and violated Article 4 of the Declaration on Conducts of the Parties in the South China Sea (DOC) as well as the principle of estoppel prescribed in international law, according to Wang.

Second, he said, the subject matters of the arbitration, however packaged, in fact directly concern territorial sovereignty and maritime delimitation which are beyond the scope of the UNCLOS and the jurisdiction of the ad hoc tribunal. It is a typical act of overstepping the power and ultra vires as well as the abuse of dispute arbitration mechanism.

Wang said by citing a prominent legal expert from Europe that the arbitration case undoubtedly touches upon territorial sovereignty which is not governed by the UNCLOS. The tribunal’s practice of separating territorial sovereignty dispute with the status of islands and reefs is unseen in international law, which is like “putting the cart before the horse.”

Third, the ruling of the ad hoc tribunal is full of obvious mistakes, Wang said. It blatantly uses its self-invented rules to negate and deprive the lawful and legitimate territorial sovereignty, maritime rights and interests of parties concerned. In particular, it says that Taiping Dao, the largest island in the Nansha Islands with an area of 500,000 square meters, is a rock and has no relevant maritime rights.

If such a judgment can legally stand, the sea map of the world will need to be redrawn, Wang said.

Wang stressed that this ruling runs counter to the spirit of international rule of law as well as the principle and spirit of the UNCLOS.

“This arbitration is imbued with question marks and fallacies in terms of procedure, legal application, fact finding and evidence gathering,” he said.

The so-called ruling is illegal in three aspects: the initiation of the arbitration is illegal, the set-up of the tribunal is illegal, and the result of the arbitration is illegal. Therefore, China’s stance is fully legitimate which serves the purpose of upholding international equity and justice and regional peace and stability, Wang said.

The Chinese foreign minister said more and more countries have come to see the nature and danger of the arbitration case, and understand and acknowledge China’s stance to resolve disputes through direct negotiation and consultation, calling for respect to the rights of sovereign states to independently choose dispute settlement means including respecting the declaration on optional exceptions made under Article 298 of the UNCLOS.

There are also more and more legal experts around the world questioning the legality of the arbitration case and the fairness of the ruling, Wang said, noting that the illegal nature of the so-called South China Sea arbitration case and the political manipulation hidden behind the ad hoc arbitral tribunal will be further revealed. – Global Times

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China-ASEAN exchanges go beyond the arbitration

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 South China Sea arbitration turned a blind eye to UNCLOS, exceeded own competence and exposed tribunal’s ignorance

By now it’s a well-known fact that the South China Sea arbitration was unilaterally initiated by the[Read it]

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Dao inhabits people’s hearts: Tribunal’s dangerous precedent in international law !


Political manipulation violates combined concept of fairness, justice, rule, trend and direction.

ON July 12, the award on the South China Sea arbitration came out. This political anti-China farce in the disguise of law, manipulated by the United States, and acted by the former Philippine Government, eventually came to an awful end.

This award caused a storm of questions and negative comments in the international community. A lot of professionals are shocked, not to speak of how ridiculous it is to define Taiping Island as a “reef”.

As Professor Tom Zwart from the Netherlands said, “In the region (East Asia), the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support.”

Abraham Sofaer, former legal advisor to the US State Department, also pointed out that the arbitration had brought a lot of difficulties and anxiety, which were not good for any parties.

The US attempted to smear and “isolate” China with the arbitration, but unexpectedly received little response. China’s position of non-acceptance of and non-participation in the arbitration has won more and more support.

Even the Philippine people realised that the arbitration is a total conspiracy of the US for its own agenda. This proves again the age old saying, “a just cause enjoys abundant support while an unjust cause finds little support”.

Dao, a combined concept of fairness, justice, rule, trend and direction, and derived from ancient Chinese philosophy, inhabits people’s hearts. The Dao of the present world lies in peace, development and winwin cooperation, and the Dao of solving international disputes lies in fair, lawful and peaceful solutions. On the premise of peaceful settlement, international law provides the right of every state to choose the means of dispute settlement, which should be based on consent, used in good faith and in the spirit of cooperation.

China persists unswervingly in pursuing an independent foreign policy of peace; advocates the awareness about human common destiny; and opposes the Cold War mindset and zero-sum games, and the bullying of the weak by the strong.

China will never seek hegemony or engage in expansion. With regard to territorial issues and maritime delimitation disputes, China adheres to settlement through amicable consultation and negotiation by directly concerned countries, and does not accept any means of third-party dispute settlement or any solution imposed on it.

The violation of Dao by the US lies in its “imperialist mindset” and pursuit of hegemony. After World War II, the US global strategy has always been seeking the “leadership of the world”.

In 2009, the Obama administration launched the Asia Pacific Rebalance Strategy, and took the South China Sea issue as the pivot to maintain its regional hegemony and achieve strategic containment of China.

It is obvious that during the whole process of the arbitration unilaterally initiated and pushed by the Aquino III administration, the US was deeply involved in every step. Although alleging “neutrality and non-involvement”, the US manipulated behind the scene, and tried to forge a “coalition” to hype up the issue, resulting in rise of tension in the South China Sea.

The US always regards itself as “judge of the world”, but history and reality have repeatedly shown that the US has always adopted double standards. In the eyes of the US, international law is only applicable to other countries rather than itself. It only applies the law when it is consistent with its own interest and resolutely abandons it otherwise.

For instance, while advocating “the rule of law on the sea”, it has not acceded to the United Nations Convention on the Law of the Sea (UNCLOS).

While insisting that China must accept the arbitration award, it chooses to forget the Nicaragua case in which it not only withdrew from the proceedings and refused to implement the ruling, but also revoked the declaration of accepting the compulsory jurisdiction by the International Court of Justice. While opposing militarisation in the South China Sea, it has been provocatively dispatching military aircraft and warships into the area, and even deploying aircraft carrier fleets to this region.

More and more countries have found out who is the biggest “trouble-maker” in the world. It is the US intervention that makes the world worse. Afghanistan, Iraq and Libya have all fallen into its trap and are left with mess in the region. As the new Philippine President Rodrigo Duterte frankly said, the root of the bloodshed in Iraq and other Middle Eastern countries lies in the intervention of the US.

Furthermore, just prior to the arbitration award, the UK Iraq Inquiry published its report, stating that the decision of the US and UK to start the Iraq War was based on “flawed” intelligence. Under such circumstance, who will follow such a “leader of the world”?

The violation of Dao by the former government of the Philippines lies in breaching previous commitment and causing a lot of trouble in the shelter of a superpower.

The Philippines and China had been friendly neighbours over a long history. However, in recent years, the bilateral ties were damaged by the Philippine policy of confrontation, especially the unilateral arbitration claim.

The government of Aquino III willingly acted as the pawn of the US Rebalance Strategy and took the road to confront China. It deliberately provoked the Huangyan Island (Scarborough Shoal) incident, unilaterally initiated and pushed the arbitration, and tried to hijack other Asean countries to smear China and benefit from the unlawful arbitration award. Its intention is vicious, and its action illegal.

First, although fully aware that territorial issues are not subject to UNCLOS and that maritime delimitation disputes have been excluded from the UNCLOS compulsory dispute settlement procedures by China, the Philippines deliberately packaged the disputes as mere issues concerning the interpretation or application of UNCLOS.

Second, the arbitration infringes upon China’s right to choose the procedures and means for dispute settlement. In 2006, pursuant to Article 298 of UNCLOS, China declared to exclude from the compulsory procedures disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities. There are over 30 countries that have made similar declaration.

Third, the unilateral arbitration broke the bilateral agreements reached between China and the Philippines over the years to resolve relevant disputes in the South China Sea through negotiation.

Fourth, the arbitration violated the commitment jointly made by China and Asean countries, including the Philippines, in the Declaration on the Conduct of Parties in the South China Sea (DOC) to resolve the relevant disputes through negotiations by states directly concerned.

The Aquino III administration thought itself clever, but how can it deceive the whole world? As Cambodian Prime Minister Hun Sen said, the arbitration is “the worst political collusion in the framework of international politics”, and “would bring negative impacts to Asean and peace in the region”.

Rod P. Kapunan, Philippine columnist of The Standard newspaper, pointed out that “after six years of hypocrisy and deceit, this shameless stooge (here refers to Aquino III) has brought us right into the doorstep of possible armed conflict with China all because it has chosen to pursue the US-designed policy of inciting hostility with our neighbour”.

Regarding the South China Sea situation, he wrote that “the lives of the Filipinos would be sacrificed to enforce a decision that if examined closely is a US proxy war which the Philippines would serve as cannon fodder in securing its interest in this part of the globe”.

The escalation in the South China Sea will bring enormous risks to the regional and even global security. The Philippines should recognise its mistakes and return to bilateral negotiation with China.

The violation of Dao by the arbitral tribunal lies in political manipulation, unfairness and unlawfulness. The arbitration is completely a political farce under legal pretext. The establishment of this tribunal lacks legitimacy.

The arbitrators it chose lack fairness. The tribunal lacks jurisdiction, and it evidently expanded, exceeded and abused its power.

The so-called “award” is even ridiculous. Experts pointed out that all the fees of the tribunal, including the huge reimbursement to the arbitrators, are borne by the Philippines alone. This has raised a lot of concerns and problems. People are asking if the Philippines “hired the judges”.

The composition of the tribunal is a result of political manipulation. Japan and Yanai Shunji, then president of the International Tribunal for the Law of the Sea, acted as the broker.

The composition of the tribunal is quite weird: four of the five arbitrators are from Europe, the fifth one is a permanent resident in Europe, and all of them lack basic understanding of Asian culture and the South China Sea issue.

One fact could better show the play under the table. When the tribunal was established in April 2013, the first president appointed by Yanai was Chris Pinto, a senior Sri Lankan diplomat. Since Pinto’s wife is Philippine, he especially asked advice from both parties to the dispute and was recognised by the Philippines.

However, when Pinto later hinted that the tribunal might not have jurisdiction over the case, it raised deep concern of the US, Japan and the Philippines. The latter asked Yanai to find somebody to replace Pinto for a so-called “just cause”. In May 2013, Pinto was forced to resign.

The tribunal abused power for its own interest. Many experts of international law believe that the tribunal has no jurisdiction over territorial sovereignty and maritime delimitation. Just as Sofaer said, this arbitration is related to sovereignty disputes. It shouldn’t have been started, especially when a state party has declared in writing that it does not accept compulsory procedures over such disputes as maritime delimitation according to Article 298 of UNCLOS. The tribunal’s ruling “will broadly undermine the potential utility of international adjudication”.

The tribunal disregarded the fact that the essence of the subject matter of the arbitration is the issue of territorial sovereignty and maritime delimitation.

It erroneously interprets the common choice of means of dispute settlement already made jointly by China and the Philippines, erroneously construes the legal effect of the relevant commitment in the DOC, deliberately circumvents the optional exceptions declaration made by China, selectively takes relevant islands and reefs out of the macro-geographical framework of the South China Sea Islands, and subjectively and speculatively interprets and applies UNCLOS.

The conduct of the tribunal and its award seriously contravene the general practice of international arbitration, completely deviate from the object and purpose of UNCLOS to promote peaceful settlement of disputes, substantially impair the integrity and authority of UNCLOS, gravely infringe upon China’s legitimate rights as a sovereign state and state party to UNCLOS, and are unjust and unlawful. It has set an extremely dangerous precedent in the history of international law.

The professional ethics of the arbitrators are widely criticised. All the Western arbitrators and expert witnesses played a shameful role as though they were chameleons.

They reversed their previous position as stated in published papers and even backtracked from their long-held views to make the case for the Philippines.

Arbitrator Alfred Soons had published his opinion that the status of islands was closely associated with demarcation and sovereignty issues.

However, when the tribunal ruled on jurisdiction and admissibility, he said the tribunal had the right to decide on the Philippines’ submissions concerning legal status and maritime entitlement of certain islands including Huangyan Island (Scarborough Shoal) and Meiji Reef (Mischief Reef ), which was entirely contradictory to his previous viewpoint.

Expert witness Clive Schofield also changed his views at the proceedings. On the same subject, using the same materials, he drew totally different conclusions in and out of the tribunal.

People must be wondering: how could they discard professional ethics to serve the interests of those who pay them?

Facts speak louder than words. The unilateral arbitration initiated by the Aquino III administration violates international law.

The tribunal has no jurisdiction over this case. The award of the tribunal is null and void. China’s position is justified and lawful.

It is time to put an end to the arbitration on the South China Sea. Consultation is the right way to settle disputes between states.

China will continue to work together with the Asean countries to implement the DOC comprehensively and effectively, promote the consultation on a code of conduct in the South China Sea, manage and control relevant disputes properly and explore maritime cooperation, in order to build the South China Sea into a sea of peace, friendship and cooperation.

by Huang Huikang The Star Malaysia 20 Jul 2016

The writer is a member of the International Law Commission of the United Nations and the Chinese Ambassador to Malaysia. The views expressed here are the writer’s own.

 

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South China Sea arbitration:

Who are the arbitrators?

 https://www.youtube-nocookie.com/embed/j3VsgQQJNZQ

The Xinhua news agency has accused the US government, the Philippines, the arbitration panel and Japan’s prime minister Shinzo Abe of collusion in the recently concluded South China Sea arbitration case.

Four of the five arbitrators of the temporary tribunal were appointed by Shunji Yanai, the former president of the International Tribunal for the Law of the Sea. The former Japanese diplomat’s political stance and speeches went against the principles of the independence of the international judiciary. Shunji Yanai served the Japanese Foreign Ministry for 40 years from 1961. He has been involved in controversial issues, including Japan’s 2015 security bill, and the Diaoyu Islands dispute with China. He has a close relationship with Japanese prime minister, Shinzo Abe.

The fairness of the tribunal’s operations was called into question by the personal wishes of Shunji Yanai. The Xinhua news agency commented that it was not surprising that Yanai generally chose arbitrators who were biased against China.

In addition, an American legal team provided help in drafting thousands of pages of legal documents, representing the Philippines presenting arguments to the tribunal. American lawyer Bernard Oxman, who represented the Philippines, had worked with most of the arbitrators and Yanai. He attended the third United Nations Conference on the Law of the Sea as a representative for United States government. Based on the principles of independence of the international judiciary, the impartiality of a judge can be questioned if there are any links to a party involved in a case. Despite that, Oxman was still involved.

There is no doubt the close relationship between Oxman and US government, the Philippines government, arbitrators, Yanai and Abe. These links form a complex network of special political interests. The Xinhua news agency says they took advantage of legal platform and after three years they issued their pre-arranged ruling and finished their political farce.

Telegraph.co.uk – 

The so-called award made by the South China Sea arbitral tribunal attracted wide attention.

 

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