Malaysia in 2020
As a progressive, modern and moderate Muslim country, Malaysia advanced the policy of ‘prosper-thy-neighbour’ in the pursuit of regional and global peace and security through the Global Movement of the Moderates initiative and membership in the UN Security Council (2015–2016). The ASEAN Community was established in 2015 during Malaysia’s Chairmanship. Its role in the decade ahead is envisioned as a rule-based and people-centered entity. (The ASEAN 2025: Forging Ahead Together. See Ministry of Foreign Affairs, Strategic Plan 2016–2020.) Malaysia was supposed to attain a developed nation status by 2020, but that dream was postponed as Malaysia, like the rest of the world, was hit by the global pandemic caused by the COVID-19 virus and its variants.
In 2020, Malaysia was immersed in controlling the spread of the COVID-19 virus while trying to stimulate a sustainable economy through resilience and self-reliance, even as the shipping industry and the seafarers who are the frontliners in the global supply chain were economically affected. However, the Ministry of Foreign Affairs (Wisma Putra) as the custodian of the nation’s foreign policy, recognised that 2020 was a critical phase in Malaysia’s development trajectory towards realising its aspiration as an advanced economy and an inclusive nation with the impetus from the whole governmental apparatus focused on attaining this objective. (Ministry of Foreign Affairs, Strategic Plan 2016–2020)
Wisma Putra’s Strategic Plan for the period 2016 to 2020, that has charted the path of the nation’s external relations and foreign policy in the lead up to 2020, (Ministry of Foreign Affairs, Strategic Plan 2016–2020) focused on (1) strengthening the bilateral and multilateral relations, (2) strengthening ASEAN as the cornerstone of its foreign policy, (3) enhancing public diplomacy, and (4) providing more efficient and effective services to the Ministry’s stakeholders and clients. In 2020, as the world economy was challenged, Malaysia’s private sector was encouraged to remain bold and find new business ventures and partnerships that had not been fully explored by Malaysia. (Message from the Ministry of Foreign Affairs, Malaysia, Speech by Dato’ Sri Muhammad Shahrul Ikram Yaakob, Secretary General, Ministry of Foreign Affairs, Malaysia) During the pandemic, there was also some political upheaval in the country, and together both events, it may be said, led to passing certain emergency ordinances concerning civil and political rights during the pandemic. State practice of international law in Malaysia in 2020 is etched around these developments.
Mary George
Territory & Jurisdiction
Authority and Sovereignty over Territory
Government of Malaysia v Nurhima Kiram Fornan & Ors [2020] MLJU 425
The Malaysian High Court Judge in Government of Malaysia v Nurhima Kiram Fornan & Ors [2020] MLJU 425, on 17 March 2020, granted an anti-arbitration injunction to restrain foreign arbitration proceedings taken by the current heirs of Sultan Sulu in Spain on the basis of sovereign immunity alongside other reasons. The dispute in the case related to a cession deed dated 22 January 1878 between the Sultan of the Sulu and Baron Gustavus de Overbeck and Alfred Dent relating to a Deed of Cession over lands that were part of the then Sabah (formerly known as North Borneo), which is now part of Malaysia. The deed had a clause averred to be an arbitration clause.
The court, however, held that on construction that there was no arbitration agreement that was binding. The court also held that even if there was an arbitration agreement, the party referred to was no longer in existence. The Sultan of Sulu had, in any event, waived any recourse to arbitration by reason that the Sultan of Sulu had in 1939 commenced a court action in relation to cession monies that the court decided in his favour. In the current matter, the court held that the current sovereign Malaysia had sovereign immunity. The customary international law principle of sovereign immunity is given domestic effect in Malaysia through case law. There is no equivalent statutory provision on State Immunity Act as in Singapore. As such, under domestic case law, Malaysia had sovereign immunity from foreign judicial and arbitration proceedings unless waived or if the dispute falls within the acta jure gestionis exception to the rule.
It was the judgment of the court that the Deed of Cession did not deal with trading nor was commercial in nature. Rather, the deed concerned cession of land by a prior sovereign which is the predecessor of the current sovereign state of Malaysia. There has been no waiver by the Malaysian current sovereign government to the absolute immunity that could be asserted to disclaim the jurisdiction of the Spanish proceedings that appointed the arbitrator. The court held also that the dispute related to territorial rights over Sabah that was held to be non-arbitrable.
The court was also of the view that it was the natural and proper forum to adjudicate on the dispute as the successor to the former state of North Borneo. Additionally, the fact that defendant had submitted previously to the jurisdiction of the court gave the parties liberty to apply to the court for any dispute arising therefrom. The Spanish government Madrid Protocol of 1885 (“Protocol”) had the effect of renunciation of the Spanish Government of all claims of sovereignty over the territories in the State of North Borneo making Spain not the natural forum to decide the dispute. Hence, in this case, despite the absence of the defendants who were duly served, the court decided the case on merits to allow the injunction sought by the plaintiff to restrain the arbitration proceedings.
Usharani Balasingam
Sovereign/State Immunity
The United States of America v Menteri Sumber Manusia Malaysia & Ors [2020] MLJU 779
This case involved the application of judicial review by the applicant to the High Court with regard to the decision of the Minister of Human Resources for referring a case to the Industrial Court for adjudication. The said case involved a security guard’s representation that he was unfairly dismissed by the American Embassy in Kuala Lumpur pursuant to the contract of employment.
The main issue and point of interest here was whether the dismissal of security guard by the American Embassy in Kuala Lumpur was an act in the course of performing its sovereign action and thus the US Embassy was immune from the jurisdiction of the industrial court.
As such, the court had to determine whether the guard was performing a governmental and sovereign function of the United States of America in protecting its embassy and its occupants and property from any form of threat or attack; and whether the doctrine of sovereign immunity applied to deny the jurisdiction of Industrial Court over embassy’s action in dismissing guard.
The High Court allowed the judicial review application and set aside the decision of the Minster of Human Resource on the grounds that the Minister’s decision to refer the Security Guard’s representation to the Industrial Court suffered infirmities of error of law and irrationality. The guard was employed directly by the embassy and not by any private security company. The Court further added that a security guard’s duty was integral to the sovereign activity of the state and its embassy, in that his duty was not only to provide security but also to maintain the inviolability of the embassy’s premises.
In this case, the Court reaffirmed the practice of the restrictive doctrine of state immunity in Malaysia. The restrictive doctrine recognises state immunity only in respect of acts done by a state in the exercise of sovereign authority (jure imperii), as opposed to acts of a private law nature (jure gestionis).
Izura Masdina Mohamed Zakri
Su Wai Mon
Treaties
Ratification of the Treaty on the Prohibition of Nuclear Weapons (TPNW)
Malaysia ratified the Treaty on the Prohibition of Nuclear Weapons (TPNW) on 30 September 2020 and became the 46th nation to ratify the Convention. The Minister of Foreign Affairs, Hishammuddin Hussein, signed the instrument of ratification for the landmark disarmament treaty at a ceremony in the nation’s capital, Kuala Lumpur, on 30 September 2020.
The TPNW was adopted on 7 July 2017 with the purpose of prohibiting all activities related to nuclear weapons, including, its development, testing, manufacturing, acquisition, possession, stockpiling, use and stationing. Malaysia signed the TPNW as soon as it was opened for signature on 20 September 2017. The ratification of the TPNW showed Malaysia’s effort to support nuclear disarmament leading to the total elimination of nuclear weapons.
Izura Masdina
Su Wai Mon
International & Regional Organisations
Admission, Membership and Participation in Regional Organisations
Signing of ASEAN Regional Comprehensive Economic Partnership (RCEP)
On 15 November 2020, a virtual meeting of the 4th Regional Comprehensive Economic Partnership (RCEP) Summit as held. Malaysia, represented by Dato’ Seri Mohamed Azmin Ali, Senior Minister of International Trade and Industry, signed the mega-regional trading arrangement of the RCEP Agreement with non-ASEAN states which consists of Australia, China, Japan, Korea, and New Zealand. The RCEP agreement consists of 20 Chapters, 17 Annexes, and 54 schedules of commitments covering market access, rules and disciplines, and economic and technical cooperation. The areas of concern include trade in goods, rules of origin, customs procedures and trade facilitation, sanitary and phytosanitary measures, standards, technical regulations, and conformity assessment procedures, trade remedies, trade in services, temporary movement of natural persons, investment, intellectual property, electronic commerce, competition, small and medium enterprises, economic and technical cooperation, government procurement and dispute settlements. The objectives of RCEP are to establish a modern, comprehensive, high-quality, and mutually beneficial economic partnership framework to facilitate the expansion of regional trade and investment contribute to global economic growth and development; progressively liberalise and facilitate trade in goods among the signatory Parties, progressively liberalise trade in services among the Parties with substantial sectoral coverage to achieve substantial elimination of restrictions and discriminatory measures with respect to trade in services among the Parties and create a liberal, facilitative, and competitive investment environment in the region.
ASEAN Online Business Code of Conduct
In February 2020, ASEAN Committee on Consumer Protection (ACCP) published a Code of Conduct for online businesses in ASEAN to guide the online business to act responsibly and fairly towards consumers. The code consists of 15 Commitments for online businesses: Commitment 1 treats consumers fairly; Commitment 2 upholds responsibilities; Commitment 3 complies with laws and regulations; Commitment 4 conforms to local standards; Commitment 5 ensures quality and safety; Commitment 6 communicates honestly and truthfully; Commitment 7 provides transparency of costs; Commitment 8 keeps proper records of purchases; Commitment 9 offers options for cancellation; Commitment 10 takes consumer complaints seriously; Commitment 11 provides private information to be kept private; Commitment 12 makes sure online payments are safe; Commitment 13 avoids online spamming; Commitment 14 prohibits the production of fake online reviews and Commitment 15 educates consumers about the (online) risk.
ASEAN Consumer Empowerment Index 2020
ASEAN Committee on Consumer Protection (ACCP) produced the Report of ASEAN Consumer Empowerment Index 2020 Pilot Project (ACEI 2020). The ACEI is a composite index, calculated at the country level via questionnaire-based surveys, to benchmark the national level of consumer empowerment in each ASEAN Member States against that of the entire ASEAN region. The ACEI is based on a set of indicators that are categorised according to three main domains/components: (i) Consumer Awareness or Knowledge; (ii) Consumer Skills or Competencies; and (iii) Consumer Behaviours or Assertiveness. Malaysia of ACEI as Moderately Empowered with 94.48 out of 130 in total, Malaysia consumers scored 33.03 in the domain of consumer awareness, 31.01 in consumer behaviours, and 30.44 in the domain of consumer skills. The index will be used to assist in formulating policies, legislation, and regulations as well as consumer advocacy programs towards enhancing consumer empowerment in Malaysia.
Ong Tze Chin
Settlement of Disputes
Menteri Hal Ehwal Luar Negeri, Malaysia & Ors v Sundra Rajoo a/l Nadarajah Decided the Case on 6 October 2020. [2021] 2 MLJ 787
The Court of Appeal in Menteri Hal Ehwal Luar Negeri, Malaysia & Ors v Sundra Rajoo a/l Nadarajah decided the case on 6October 2020. [2021] 2 MLJ 787. The decision of the Court of Appeal reversing the High Court judgment was in turn overturned by the Federal Court on 9 June 2021. This update relates to the 2020 Court of Appeal decision. The respondent was a former director of the Asian International Arbitration Centre (Malaysia) (AIAC). The respondent was arrested on 20 November 2018 and held overnight while he was still the Director. The respondent subsequently resigned. A remand order for seven days was sought but denied. The learned magistrate dismissed the remand application having heard arguments from the counsel for the respondent on the ground of the respondent’s immunity. The respondent acted and commenced the judicial review action to seek inter alia a declaration that he has immunity for actions done within his official capacity and to restrain any charge or action against him for anything done in his capacity of Director of AIAC.
The appellant appealed against the decision of the High Court which allowed the respondent application for judicial review of the decision of the Attorney General to commence the action. The question raised was whether a former director as a former High Officer of AIAC was immune from criminal prosecution, whether the question of immunity should be tested in the criminal court and not by way of judicial review and whether the decision of the Attorney General to charge the defendant was subject to judicial review. The Court construed inter alia the provision of the International Organisation (Privileges and Immunities) Act 1992. It held that after resignation the respondent no longer had the status of a diplomatic agent for actions taken during his time in office and had no absolute immunity from criminal action. The provision of Article 31 was not applicable in the present case. The former High Officer is only entitled to immunity to acts done by him in his capacity as a High Officer and not for acts committed in his personal capacity. Such acts or things done should be tested in a criminal proceeding and not by judicial review as only then it is possible to determine if act was done in capacity as High Officer. Finally, under Article 145 (3) of the Federal Constitution, the Court held that the Attorney General’s decision to institute or not to institute criminal proceedings was not justifiable or amendable to judicial review.
Usharani Balasingam
Human Rights
Accession and Reservations to International Human Rights Treaties and Organizations
Human Rights – Malaysia, Member of the United Nations Human Rights Council
Malaysia bid for a spot on the United Nations Human Rights Council (UNHRC) for the 2022–2024 term. Traditionally, between four and five Asia-Pacific states are elected to the council each term, and the last time Malaysia was on the council was for the 2010–2013 term. Malaysia was first elected to the council for the 2006–2009 term. Malaysia had also been selected by the Office of the United Nations High Commissioner for Human Rights (OHCHR) as one of six model countries for its study on good practices emerging from their universal periodic review (UPR).
Human Rights – Freedom of Movement
Prevention and Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020
Following a sharp increase in the number of persons infected by the COVID-19 virus, the Government of Malaysia has gazetted the Prevention and Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020 (“Regulations”). The Regulations were to have effect from 18 March 2020 to 31 March 2020 (“Restriction Period”). This followed the announcement by the Prime Minister’s Office (“PMO”) on 16 March 2020 of a Movement Control Order, which according to the announcement, will be enforced under the Prevention and Control of Infectious Diseases Act 1988 (“PCID Act”) and the Police Act 1967 (“Police Act”).
The Regulations were issued subsequent to the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020, which declared all states and federal territories of Malaysia as infected local areas (“Declaration Order”).
According to Regulation 3 of the Regulations, no person shall make any journey from one place to another within any infected local area except for the following purposes:
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to perform any official duty;
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to make a journey to and from any premises providing essential services;
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to purchase, supply or deliver food or daily necessities;
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to seek healthcare or medical services; or
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such other special purposes as may be permitted by the Director General of Health.
Further, the Regulations also restrict movement between one infected area to another, unless a prior written permission of a police officer is obtained.
Haezreena Begum
Human Rights – Right to Be Heard – Freedom of Speech and Expression
Islamic Renaissance Front Bhd v The Minister Of Home Affairs [2020] 5 MLJ 399
The Court of Appeal in Islamic Renaissance Front Bhd v The Minister Of Home Affairs [2020] 5 MLJ 399, considered the above issue under the Printing Presses and Publications Act 1964 and the Federal Constitution.
The Court of Appeal (Putrajaya), Abdul Karim, Nor Bee Ariffin and Abu Bakar Jais Jjca, Civil Appeal No W-01(A)-242-05 OF 2019, Judgment Date: 23 June 2020
The respondent (The Minister of Home Affairs) had issued three orders prohibiting the publication, printing, importation, production, reproduction, sale, issuance, circulation, distribution, and possession of three books published by the appellant (Islamic Renaissance Front Bhd) on the ground they were likely to prejudice public order, alarm public opinion and prejudice public interest. The respondent informed the appellant that the orders were issued after consideration of reports from the Jabatan Kemajuan Islam Malaysia (‘Jakim’) and the Publication and Quranic Text Control Division (‘the Division’) which, inter alia, stated that the publications contained matters which deviated from the teachings of Islam as practised in Malaysia. The appellant applied to the High Court by way of judicial review to, inter alia, quash the respondent’s orders. For the purpose of the hearing, the appellant applied for, and was granted, an order for discovery of the reports from Jakim and the Division. The respondent supplied the appellant with the full reports from Jakim in respect of only two of the orders while the report for the third order was incomplete. The Division’s reports were not supplied at all.
The High Court dismissed the judicial review application holding, inter alia, that the court would not, without good reason, disturb the respondent’s exercise of his discretion under s 7(1) of the Printing Presses and Publications Act 1984 to issue the orders. The court also dismissed the appellant’s complaint that it had not been heard since there was no procedural requirement giving the appellant the right to be heard before the orders were issued and given the reason that the respondent had to issue the orders expeditiously to protect public order and national security.
The appellant appealed to the Court of Appeal to set aside the High Court’s decisions. During the appeal, the appellant submitted that not only was it his right to be heard is fundamental and not dependent on whether any statutory provision gave him that right, but the respondent had also disobeyed the order of court relating to the discovery of the documents requested. The respondent submitted that any right to be heard had to take second place where national security and public order were involved. The respondent further submitted that freedom of speech and expression as stipulated in the Federal Constitution is not absolute. Therefore, the Federal Constitution provides that such freedom could be restricted by imposition of relevant laws.
However, the Court of Appeal allowed the appeal and quashed the respondent’s orders. The Court of Appeal (inter-alia) decreed that:
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(i) The non-production of the documents covered by the order for discovery raised doubt as to the real reason for the issuance of the orders and also raised suspicion that the respondent was concealing material evidence that was unfavourable to him. The respondent had to show that his exercise of discretion to issue the orders was real and that those documents really existed.
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(ii) The failure to give the appellant the right to be heard rendered the respondent’s orders indefensible. The High Court wrongly found that if there was no statutory provision granting a right of hearing, such right could generally be denied. A right of hearing was basic and fundamental and was always available even though a statute did not provide for it. Only if the respondent had given the appellant a right to be heard and had considered what the appellant had to say would the requirements of natural justice have been fulfilled. In any event, the Printing Presses and Publications Act 1964 did not deny the appellant of a right to be heard.
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(iii) There was no evidence that the respondent had even considered giving the appellant a right of hearing and then decided not to accord such right on grounds of national security. It did not matter that that right was not given eventually. What was important was for the respondent to have shown evidence that he had, in fact, considered giving the appellant the right to be heard. The respondent’s contention that a right of hearing would always come secondary to national security was incorrect. The argument that the right of hearing had to be denied because the respondent had to act immediately or urgently to issue the orders was also untenable on the facts and circumstances of the case given that the books in question had been in circulation for a few years before the orders banning them were issued.
Haezreena Begum
Human Rights – Right to Life – Equality – Jurisdiction of the Court – United Nations Convention against Torture
Letitia Bosman v Public Prosecutor and Other Appeals (No 1) [2020] MLJU 1186; [2020] 5 MLJ 277, Judgment Date: 13/8/2020
The first three appellants herein were separately charged, convicted, and sentenced to death by the High Court for trafficking in dangerous drugs contrary to s 39B of the Dangerous Drugs Act 1952 (‘the DDA’) while the fourth appellant was convicted and sentenced to death for committing murder contrary to s 302 of the Penal Code (‘the Code’). At the time the appellants were convicted, the only punishment that was prescribed under s 39B of the DDA and s 302 of the Code (‘the impugned provisions’) was the mandatory death penalty. All four appellants lost their appeals against their convictions and sentence before the Court of Appeal (‘COA’). In their instant appeals against the COA’s decision, a common ground of appeal was that the mandatory death penalty prescribed in the impugned provisions was unconstitutional as it violates arts 5 (right to life and liberty of a person), 8 (equality) and 121 (judicial power of federation) of the Federal Constitution (‘FC’).
The appellants mounted their challenge on three counts: (a) that it was part of judicial power to determine the measure of punishment and that by prescribing a mandatory death sentence and removing the court’s discretion to impose any other sentence appropriate for a given case, Parliament had usurped judicial power under art 121 of the FC thereby violating the doctrine of separation of powers; (b) that the mandatory death penalty violated an accused’s right to a fair trial under art 5(1) of the FC by effectively denying him of the opportunity to make a plea in mitigation for an appropriate sentence to be imposed; and (c) that the mandatory death penalty was arbitrary, cruel and barbaric and violated the proportionality principle housed in the ‘equal protection’ limb of art 8(1) of the FC. This was because despite the great variance between cases in the facts and circumstances which caused a person to be convicted of murder or for drug trafficking, they were all equally subjected to the death penalty regardless of the existence of varying degrees of moral culpability and/or mitigating factors.
Based on all the aforesaid grounds, the appellants submitted that the impugned provisions had to be struck down as being unconstitutional, namely, that pursuant to art 4(1) (the supreme law of the federation) of the FC, s 39B was void to the extent of its inconsistency with the provisions of the FC. In the case of s 302, being a pre-Merdeka (independence) law, the court was duty-bound under art 162(6) (temporary and transitional provisions) of the FC to modify s 302 so as to bring it into accord with the provisions of the FC. In response to the appellants’ submissions, the respondent contended, inter alia, that: (i) Parliament had the prerogative to prescribe the punishment for a particular offence even if involves mandatory death penalty on the grounds of the nation’s interest and, in the process, the rights guaranteed under arts 5 and 8 of the FC could be validly eroded if not wholly taken away; (ii) the court’s duty was to impose the punishment prescribed by Parliament; (iii) the jurisdiction and powers of the courts was as conferred upon them by federal law; and (iv) the matter of policy for the Legislature to consider and decide upon based on all the circumstances that prevailed at any given time depended on whether or not a penalty under law was harsh, cruel, or inhumane.
The four appeals against the constitutionality of the impugned provisions was dismissed by a majority of 8–1. Azahar Mohamed CJ (Malaya) (majority) decreed:
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(i) The impugned provisions were valid and binding and did not infringe the appellants’ guaranteed rights under the FC. The appellants failed to show that the impugned provisions were inconsistent with arts 5, 8 and 121 of the FC.
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(ii) Where the death penalty was the only sentence Parliament had prescribed for the commission of an offence, a mitigation plea from the accused played no role in the sentencing process as the court had no power to impose a different or lesser sentence. The fact that the court had no alternative but to pass the death sentence did not make that sentence unconstitutional or result in the accused being denied of the right to a fair trial (for the reason that he had been deprived of a right to make a plea in mitigation) because the constitutional rights guaranteed under art 5(1) of the FC could be taken away in accordance with law. In other words, a law that provided for the deprivation of a person’s life or personal liberty was valid and binding as long as it was validly passed by Parliament.
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(iii) The ‘equal protection’ clause in art 8(1) of the FC is not concerned with equal punitive treatment for equal moral blameworthiness but with equal punitive treatment for similar legal guilt. The mandatory death penalty satisfied the test of reasonable classification, and hence was not unconstitutional vis-à-vis art 8(1) of the FC. The mandatory death penalty for the offences of drug trafficking and murder was an intelligible differentia that bore a rational relation to a valid social object. There was no discrimination against the appellants as the impugned provisions applied to that class of persons who, respectively, offended the provisions relating to drug trafficking under the DDA and murder under the Code.
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(iv) That there was nothing unusual or arbitrary in a death sentence being made mandatory because the legislature was well aware of the objectives and purpose before enacting such mandatory provisions, and hence could not be considered arbitrary.
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(v) The appellants were relying on the decisions of Courts in other jurisdictions to argue that art 5(1) of the FC prohibited the mandatory death penalty. The argument that the death penalty was a cruel and inhumane punishment and an arbitrary deprivation of life could not stand because all the authorities that the appellants had relied upon were from countries whose respective Constitutions provided that no person ‘shall be subjected to torture, cruel, inhumane or degrading punishment’ or of similar phrases as a result of their ratification of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) which Malaysia is not a party to. Those countries are in a different position from Malaysia which had never acceded to UNCAT or any other international treaty to that effect. Thus, the FC had no equivalent provision prohibiting ‘torture or inhumane or degrading punishment or treatment.’ Until incorporated into domestic legislation, international treaty obligations do not form part of domestic law. Malaysia was not a party to the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The fact that the Executive had chosen not to sign, accede to or ratify them clearly suggested that those international principles ought not to be considered applicable in the Malaysian legal context. Since there was no inconsistency between s 302 of the Code and arts 5, 8 and 121 of the FC, there was no necessity to modify s 302 under art 162(6) of the FC to achieve the purpose stated in that article.
Nallini Pathmanathan FCJ (dissenting) decreed:
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(i) The imposition of a mandatory death penalty as the sole punishment for trafficking under the DDA and for murder under s 302 did not allow for (a) the imposition of a penalty that commensurate with the circumstances of commission of the offences in question (b) an opportunity for the accused to be heard as to why the death penalty was not warranted in the particular circumstances of the case, and (c) any other mitigating circumstances. To that extent, the impugned provisions did not satisfy the constitutional safeguards in arts 5(1) and 8(1) of the FC.
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(ii) The situations and circumstances that caused a person to be found guilty of either trafficking in dangerous drugs or for murder varied greatly from case to case. Hence, there was no rational basis to classify all such cases together either under trafficking or murder for the purpose of punishing them equally with the same death penalty. Such classification was irrational, arbitrary, and capricious. The mandatory death penalty as the sole punishment for those offences was a disproportionate punishment to meet the varied circumstances under which those offences were committed, and the different degrees of involvement and culpability of the offenders concerned.
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(iii) Section 39B of the DDA had to be struck down for unconstitutionality since the imposition of a single mandatory death penalty on all manner of persons found to be trafficking in dangerous drugs contravened the doctrine of proportionality housed in art 8(1) of the FC. Consequently, the pre-1983 status of the DDA had to be restored conferring upon the Court the discretion to either sentence the offender to life imprisonment to suffer the death penalty. For the same reason, s 302 of the Code had to be struck down for being unconstitutional and pursuant to art 162(6) of the FC, s 302 had to be modified such that the Court had the option to sentence the offender to life imprisonment instead of passing the sentence of death.
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(iv) While Parliament could provide for a mandatory penalty for an offence, if a challenge was taken that it was unconstitutional, it was the judiciary’s function and duty under art 4 of the FC to ensure that such provision was consonant with, and did not transgress, the FC as the supreme law of the land. The FC required the judiciary to exert a check and balance in relation to, inter alia, the laws enacted by Parliament under the doctrine of separation of powers enshrined in art 4. It was simply not sufficient to state that it was for Parliament to legislate on punishment and for the Courts to execute the same.
Shad Saleem Faruqi
Haezreena Begum
Use or Threat of Force
Responses to Threats and Attacks
In Mustaza bin Abdul Rahman v Public Prosecutor [2020] MLJU 217. 7 September 2020, the Court of Appeal (Putrajaya), considered the offence of terrorism under the Penal Code.
The appellant has committed the offences when he suggested in a Telegram chat group named ‘Amanah (Phb) v Pas’ (‘the chat group’) that an attack be carried out on gambling establishments after the administrator of the chat group ‘AkhiWandy’ announced that a night club known as Kelab Movida in Puchong was bombed. He had also posted an oath of allegiance known as ‘Baiah’ in Arabic pledging loyalty to the ‘Ikhwah Anshar Daulah Islamiyah’ group on the chat group. The conversations in the chat group were given to the police as evidence by the prosecution. The trial court granted ‘protected witness’ status to ST1 under Section 6 of the Security Offences (Special Measures) Act 2012 (‘the SOSMA’). In relation to the ‘Baiah,’ the expert witness testified that the said ‘Baiah’ was valid, but the appellant challenged this evidence. In relation to this issue, it has been stated that the oath was not valid as it was not made in person before a representative of the Caliph. He claimed trial to all three charges. The trial was conducted under the Security Offences (Special Measures) Act 2012 (Act 747). At the end of the trial, the appellant was convicted on all three charges. The appellant was charged with committing three offences relating to terrorism under ss 130J(1)(b) (‘the first charge’), 130M (‘the second charge’) and 130J(1)(a) (‘the third charge’) of the Penal Code. Having due regard to the discussions and the facts and circumstances of the case, the conviction on the first charge and the third charge was affirmed with the sentence of imprisonment of 12 years being reduced to 12 years on the first charge and the third charge. The conviction on the second charge was set aside.
Pardis Moslemzadeh Tehrani