Bar Council Resolution
October 10, 1998
|Resolutions adopted by the Malaysian
Bar at the EGM held on 10th October 1998 at 10.00 am at the Renaissance
Resolution No. 1
THE MALAYSIAN BAR in the discharge of its statutory duty under Section 42 (1)(a) of the Legal Profession Act 1976 to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour,
VIEWS with grave concern the detention of numerous persons under the Internal Security Act and recent legal development in connection thereof;
REAFFIRMS that the ISA is an obnoxious piece of legislation undermining fundamental Human Rights, basic Democratic Principles and The Rule of Law;
CALLS for all persons detained under the ISA either to be released or charged expeditiously in court under the relevant laws so that the principles of the The Rule of Law and the right to faire trial and Justice shall prevail;
DEMANDS that all Members of the Bar who are acting in the defence of their clients be allowed to carry out their duties freely without any harassment, hindrance or restraint by the authorities; and
ABHORS the condemnation, vilification and pre judgment of any person in the media.
Resolution No. 2
WHEREAS 1. The Federal Constitution is the supreme law that enshrines the fundamental rights and liberties of the people.
2. The right of a person to be allowed to consult and be defended by a legal practitioner of his choice, the right to be treated equally before the law and the entitlement to equal protection of the law, the right to freedom of speech and expression, the right to assemble peaceably and without arms, the right to form associations and the right to move freely throughout the Federation are such rights and liberties.
3. Faithful adherence to the Rule of Law and principles of natural justice ensures a free, just and civilised society.
AND WHEREAS 4. Of late, various persons have been arrested and detained under the Internal Security Act, 1960 (Act 82):
(a) for alleged offences ranging from rumour-mongering, telephone cloning and harbouring illegal immigrants;
(b) for expressing dissenting views;
(c) as a threat for interrogation on matters not envisaged by the Act. 5. a) The offences mentioned in Recital 4 (a) are chargeable under various other legislation enacted by Parliament;
b) The expression of dissenting views is a fundamental right of the individual. 6. The continued use of the Internal Security Act 1960 (Act 82) and the denial of legal consultation for persons detained thereto amount to an abuse and misuse of power.
7. a) The police have required legal practitioners representing persons recently detained under the Internal Security Act, 1960 to present themselves for questioning, in circumstances which amounts to harassment and interference with the discharge of their duties.
b) The police have recently detained under the Internal Security Act, 1960 Encik Zulkifli Nordin and Encik Ruslan Kassim, members of the Malaysian Bar.
8. Students and civil servants have been warned that disciplinary action would be taken against them if any of them is found to have attended gatherings called to express dissenting views. Members of the public have also been warned against attending such gatherings.
9. The police appear to have exercised unnecessary and excessive force in:-
(a) dispersing peaceful assemblies and arresting persons participating in them;
(b) arresting Datuk Seri Anwar Ibrahim.
10. By curtailing the right of members of the public and of the press to visit Datin Seri Dr. Wan Azizah, the authorities have unreasonably restricted freedom of speech, movement and association.
11. The authorities have unreasonably curtailed the dissemination of information by restricting news reports by the media.
12. The publication in the media of four affidavits filed on behalf of the prosecution in relation to the application filed by Datuk Nallakaruppan to be returned to the Sungai Buloh prison, the statements made, amongst others by the former Inspector General of Police Tun Hanif Omar and the Prime Minister relating to allegations of sexual impropriety by Datuk Seri Anwar Ibrahim, raise serious issues including those of interference with the administration of justice, trial in the media and contempt of court.
13. The making of the statement by the Chief Justice that an affidavit once filed is a public document is improper in view that such issue is pending before the Court.
14. In the manner in which he dismissed the Finance Minister from his post on 2/9/98, the Prime Minister appears to have paid scant regard to the Constitution, in particular Article 43 (5) of the Constitution.
15. There have been instances in which the Attorney General appears to have failed to discharge his role properly.
16. The Malaysian Bar has statutory duties, inter-alia, to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour, and to protect and assist the public in all matters touching, ancillary or incidental to the law.
17. The Malaysian Bar views the above events as unconscionable and a blatant disregard for the Federal Constitution, the Rule of Law, the doctrine of separation of powers and principles of natural justice.
18. The Malaysian Bar yet again re-affirms its commitment to uphold and defend the Rule Of Law, the Federal Constitution and principles of natural justice without fear or favour and timeously.
NOW IT IS HEREBY RESOLVED: 1. That the Malaysian Bar calls on the Government
(a) to respect and abide by the Rule of Law, Federal Constitution and principles of natural justice;
(b) to respect, uphold and give full effect to the Constitutional rights of the freedoms of movement, peaceful assembly, association, speech and expression for all persons.
2. That the Malaysian Bar calls on the Executive, the Legislature and the Judiciary to abide by and maintain the separation of powers as envisaged in the Federal Constitution.
3. That the Malaysian Bar calls upon the Attorney General:
(a) to play his proper role as befits the guardian of public interest;
(b) to ensure that the system of justice is preserved by taking stern action against any person who resorts to trial by the media:
(c) to act without fear or favour;
(d) to have as his principal concern to maintain the rule of law so that there will be no anarchy; and
(e) to maintain standards in public life and in the private sector.
4. That the Malaysian Bar condemns the continued use of the oppressive Internal Security Act, 1960, and calls for:
(a) the immediate repeal of the Internal Security Act, 1960;
(b) the immediate release of all persons detained under the Internal Security Act, 1960 and, if warranted, for such persons to be charged and tried in a court of law.
5. That the Malaysian Bar condemns the denial by relevant authorities of persons detained under the Internal Security Act, 1960 to legal consultation of their choice.
6. That the Malaysian Bar condemns any harassment of members of the legal profession in the performance of their duties by the police.
7. That the Malaysian Bar condemns the unnecessary and excessive use of force by the police in the performance of their duties and call upon the police to, at all times, exercise due restraint in the exercise of their powers.
8. That the Malaysian Bar condemns the undesirable and despicable practice of trial by media and calls upon the media to maintain its proper and responsible role.
9. That the Bar Council shall forthwith take such steps as are necessary to give effect to the above resolutions and the Bar Council should, henceforth, take immediate action with respect to matters as and when they arise consistent with the duties of the Malaysian Bar set out in Recitals 16 and 18 above and s 42 (1) of the Legal Profession Act. 1976.
Resolution No. 3
The Malaysian Bar notes with grave concern the recent complaints of assault in custody made by Dato Seri Anwar Ibrahim, Mr. Tian Chua and other persons arrested in connection with recent public assemblies.
The Malaysian Bar does not consider the setting up of a police investigation committee an appropriate measure to be adopted to deal with such complaints of police brutality.
The Malaysian Bar calls on the government to set up an Independent Royal Commission of Inquiry consisting of reputable persons of unquestionable integrity to investigate all recent complaints of police brutality. The commission will make public all its reports and recommendations.
Resolution No. 4
1) The freedom of expression, association and movement is a fundamental human right enshrined in the Universal Declaration of Human Rights, and affirmed by international human rights standards.
2) No person should be punished by the means of arrest and detention, or by the imposition of restrictions and conditions as to his/her expression, association and/or movement, without being charged and tried in an open court.
THEREFORE THIS HOUSE HEREBY RESOLVES THAT: 1) The Malaysian Bar hereby adopts the position that all laws providing for arrest and detention without trial, and for the imposing of restrictions and conditions without trial are contrary to the rule of law, international human rights standards and established religious values and norms.
2) The Malaysian Bar calls for:
(a) The repeal of all laws that allow for detention without trial in particular the Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969, Dangerous Drugs (Special Preventive Measures) Act 1985 and the Restricted Residence Enactment 1933, and
(b) The immediate and unconditional release of all persons arrested and detained under the first three mentioned legislations above.
(c) The immediate removal and/or revocation of all Orders imposing restrictions and conditions under the above-mentioned legislations, on all persons, with regard to expression, association and movement, without trial.
3) The Bar Council take all necessary steps to work towards the realisation of the above-mentioned resolutions.