Malaysian Bar Presses for the Abolition of the Death Penalty and Calls for Regional Cooperation to Uphold the Right to Life(A Bar Statement- 11/3/2025)

 

The Malaysian Bar Presses for the Abolition of the Death Penalty and Calls for Regional Cooperation to Uphold the Right to Life  

11 Mar 2025 2:24 pm

In the light of the recent last-minute stay of execution granted to Singaporean death row inmate Hamzah Azhar,¹ just days after Malaysian Pannir Selvam was also granted a stay of execution,² the Malaysian Bar reiterates its unwavering call for the complete abolition of the death penalty.

The Malaysian Bar has consistently opposed the death penalty on the grounds that it is a cruel, inhumane, and irreversible form of punishment that has no place in a just and compassionate society.³  A key reason for this is the very real risk of wrongful convictions.  Governments and judicial authorities — even in the most developed legal systems — find it difficult to admit that wrongful convictions occur.  However, they do happen, and the consequences in death penalty cases are irreversible.⁴

The death penalty has also long been justified by some governments as a tool to deter serious crimes.  However, there is no credible evidence to support this claim.  The most comprehensive global study on this issue, commissioned by the United Nations in 1988 and updated in 1996, concluded that “research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment.  Such proof is unlikely to be forthcoming.  The evidence as a whole gives no positive support to the deterrent hypothesis.”⁵

Further, the death penalty disproportionately affects marginalised communities.  This includes people with mental disabilities, individuals who lack access to competent legal representation, and those who face systemic biases in the legal system.  In many instances, a defendant’s financial resources dictate the quality of their defence, leaving the most vulnerable to bear the brunt of the harshest punishments.⁶

The Malaysian Bar also urges the Malaysian Government to use its ASEAN Chairmanship to initiate regional dialogue and cooperation towards the abolition of the death penalty across Southeast Asia.

The agreement between the Philippines and Indonesia regarding the repatriation of Mary Jane Veloso, a Filipina who has been on death row in Indonesia since 2010, demonstrates that diplomatic and legal mechanisms for prisoner transfer are not only feasible, but can also be a powerful tool for regional cooperation.⁷  Mary Jane Veloso was convicted of drug trafficking in Indonesia, but her case sparked widespread concern in the Philippines and internationally due to allegations that she was a victim of human trafficking and was unwittingly used as a drug courier.  Over the years, the Philippines consistently sought clemency, legal reviews, and alternative measures that would allow her to return home, while respecting Indonesia’s judicial sovereignty.

The latest development — a formal agreement in 2024 where Indonesia acknowledged a proposal from the Philippines for Veloso’s repatriation — represents a diplomatic breakthrough.  This proposal, facilitated through high-level bilateral talks, envisions allowing Veloso to serve her remaining sentence in the Philippines and be closer to her family, while enabling the Philippines to take responsibility for her rehabilitation and reintegration. The agreement is built on principles of humanitarianism, respect for legal processes, and the preservation of bilateral relations.

This development presents a valuable precedent for Malaysia to seize this opportunity to lead the creation of an ASEAN Multilateral Treaty on Regional Framework on Prisoner Transfers, ensuring that all ASEAN nationals who face incarceration abroad have access to similar processes, anchored in transparency, humanitarian principles, and mutual respect for domestic legal frameworks.

A multilateral ASEAN-wide agreement would institutionalise a consistent approach, reducing the need for ad hoc negotiations each time a high-profile case emerges.  Such a framework could outline clear criteria for eligibility, procedural safeguards, and the rights of prisoners and their families.  Importantly, it would reflect ASEAN’s commitment to its people-centred and people-oriented agenda, where the welfare and dignity of ASEAN citizens are prioritised — even in situations where they have run afoul of the law.

By taking the lead in proposing this regional agreement, Malaysia would demonstrate bold regional leadership, foster deeper legal cooperation within ASEAN, and ensure that no ASEAN citizen is left vulnerable to inconsistent or arbitrary processes when facing imprisonment abroad.  This would also position Malaysia as a strong advocate for balancing justice with compassion, reinforcing ASEAN’s broader commitment to human rights and the rule of law.

The abolition of the death penalty is not just a matter of policy — it is a statement of who we are as a society.  The Malaysian Bar stands firm in its belief that justice must be tempered with mercy and that no legal system should ever take away what it cannot restore — a human life.

Mohamad Ezri b Abdul Wahab
President
Malaysian Bar

11 March 2025

---

¹ “After Malaysian Pannir gets reprieve, Singaporean death row inmate Hamzah also granted last-minute stay of execution”, Malay Mail, 28 February 2025.

² “Singapore court grants Malaysian death row inmate Pannir Selvam 11th hour stay to execution meant to happen today”, Malay Mail, 20 February 2025.

³ “Press Release | Abolition of Mandatory Death Penalty a Step Towards the Right Direction, But Abolish Capital Punishment Entirely”, Malaysian Bar website, 10 June 2022; “Press Comment | In Commemoration of the World Day Against the Death Penalty, the Malaysian Bar Renews Its Call for the Abolition of the Death Penalty”, Malaysian Bar website, 10 October 2020; “Press Comment | The Malaysian Bar Renews its Calls to Abolish the Death Penalty”, Malaysian Bar website, 19 November 2020.

⁴ “Moving Away from the Death Penalty: Arguments, Trends and Perspectives”, Office of the High Commissioner for Human Rights, United Nations, 2015.

⁵ The Death Penalty: A Worldwide Perspective (Fifth Edition), Roger Hood and Carolyn Hoyle, p 238, Clarendon Press, 2015.

⁶ Supra note 4.                                                                         

⁷ “Indonesia, Philippines agree details on repatriating Mary Jane Veloso”, Reuters, 6 December 2024. - Malaysian Bar Website

Pannir Selvam - Nagaenthran Was Executed The Day After The Court Heard And Dismissed His Application - Singapore's obligation to Comply with UNGA Resolution (Statement by MADPET)

 Media Statement – 21/2/2025

King, PM And Government Must Act Speedily To Save Malaysian Pannir Selvam’s Life Recalling How Nagaenthran Was Executed The Day After The Court Heard And Dismissed His Application

Singapore’s Obligation To Follow UNGA Resolution – Moratorium of Execution

Whilst Malaysian convicted drug trafficker Pannir Selvam, who was scheduled to be executed to death today (20/2/2025) had been TEMPORARILY stayed by the Singapore Court of Appeal at the eleventh hour, pending the hearing and disposal of the Pannir’s application/s to the court, there is nothing to be happy about as immediately after the application is disposed of, he can still be taken to be hanged to death speedily. This may happen very fast. Malaysian Nagaenthran Dharmalingam was executed the day after the Court dismissed his application.

Philippines saves its citizen from being executed by Indonesia

In November 2024, Philippines managed to save a life of a citizen, convicted for drug trafficking, from being executed by Indonesia. Mary Jane got a reprieve, a postponement of the carrying out of the sentence, and in December, she was transferred back to Philippines.

‘The dramatic turn of events began last month, when in an unusual last-ditch effort to delay Veloso’s death, Philippine President Ferdinand Marcos Jr. announced that a deal had been reached for Indonesia to send Veloso home after a decade of pleading from Manila. “Mary Jane Veloso is coming home,” Marcos said in a statement. “Arrested in 2010 on drug trafficking charges and sentenced to death, Mary Jane’s case has been a long and difficult journey.” AP, 15/12/2024

MADPET(Malaysians Against Death Penalty and Torture) hopes that Malaysia too, will be able to achieve the same, and save the life of Pannir Selvam and bring this Malaysian home. Or at the vey least get his sentence commuted to imprisonment.

In the past, the Malaysian government acted so that Malaysians facing the death penalty will be saved from execution.

Has PM, our King and the Government tried to save Pannir? Tell us

In case of Malaysian Nagaenthran Dharmalingam, who was finally executed 27/4/2022, the then Prime Minister, our King and the Malaysian government put in some effort to save him.

"In the first attempt last year, the Prime Minister (Datuk Seri Ismail Sabri Yaakob) and myself wrote to our counterparts in Singapore. The Yang di-Pertuan Agong also appealed to the Singapore president, seeking clemency for Nagaenthran. "A few days before the sentencing (last week), the Prime Minister and myself sent another letter to Singapore's prime minister (Lee Hsien Loong) and foreign minister (Vivian Balakrishnan) proposing a prisoner exchange programme," he [Foreign Minister Saifuddin Abdullah] said. Saifuddin said the Singapore government had replied to all appeal letters sent by Malaysia. – NST, 30/4/2022.

Letters may not be enough, maybe there is a need for a face to face meeting or something more. What will Malaysia do if its request to Singapore to not execute Pannir is refused? Remember, a convicted criminal must be punished, and all that we are asking is for Singapore not to execute Pannir to death. Should Anwar Ibrahim, on an urgent basis, fly down and meet with Singapore’s leaders to save Pannir?

A government should be concerned for ALL its people.

Should not Singapore follow the UNGA Resolution – moratorium on executions?

Singapore is a UN Member State, and there is a UN General Assembly Resolution that calls for a moratorium on executions pending abolition of the death penalty, which obtained two-third majority in December 2024. 130 UN member states voted in favor of the resolution, while 32 voted against and 22 abstained. Malaysia voted in favour but sadly Singapore voted against.

Singapore may take time to abolish the death penalty, but at the very least in a spirit of democratic respect to the United Nations, Singapore should immediately impose a moratorium on executions.

The acting against Resolutions democratically passed is wrong, and an indication of disrespect to the institution, and in this case also the 130 UN Member states that voted in favour.  

MADPET calls on PM Anwar Ibrahim, our King and the government of Malaysia to act fast to save the life of Malaysian Christian Pannir Selvam. If Philippines can do it, so can Malaysia. There is no time to dilly-dally.

MADPET also calls on Singapore to forthwith impose a moratorium on all executions, in compliance the United Nations General Assembly Resolution which was adopted on 17/12/2024.

MADPET calls for ASEAN to clearly take the position of the imposition of a moratorium on execution pending the abolition of the death penalty.

MADPET also calls for a review of Drug Laws that criminalizes drug trafficking, to ensure that the duty of proving elements of the crimes should remain with the prosecution/State. The legal presumption that one is a ‘drug trafficker’ if one is caught in possession with above a certain weight of drugs unless they can prove otherwise is unjust and EVIL. It is near impossible for any accused to be able to prove that he/she is not a drug trafficker, more so without the State Resources available to prosecution. Legal presumptions should most definitely NEVER be used for crimes that carry the death penalty.

MADPET calls for the abolition of death penalty, and for the death sentence of Pannir Selvam be commuted to imprisonment.

MADPET prays that Pannir Selvam not be executed immediately after if the Court of Appeal decides to dismiss his application, like what happened in the case of Malaysian Nagaenthran Dharmalingam. If this happens, then the right to appeal and even the right to Petition for Pardon is denied.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

See also:-

PM Anwar Ibrahim’s cares about Najib’s sufferings in prison but does Malaysia also care about Malaysians overseas at threat of being executed to death like Pannir Selvam..(MADPET)

Malaysia votes in favour again in 2024 UNGA Resolution for moratorium on executions pending abolition of death penalty

 

Filipino woman on Indonesia death row recalls a stunning last minute reprieve and ‘miracle’ transfer

By  SLAMET RIYADI

Updated 2:14 AM GMT+8, December 15, 2024

YOGYAKARTA, Indonesia (AP) — Filipino death row inmate Mary Jane Fiesta Veloso knelt to pray when officers came to take her to an execution site in May 2015, just a few feet away from her isolation cell on an Indonesian prison island, where a 13-member firing squad was waiting.

While she prayed, the Philippines government was wrapping up a lengthy legal battle over her fate. Veloso’s life was ultimately spared — temporarily — by Indonesia’s Attorney General’s Office, which issued a stay of execution shortly before Veloso was to be executed with eight other death row inmates.

“Lord, many people there believe that I am guilty, but many people out there believe that I am innocent. Lord, You are the One who knows everything, You knew that I am innocent, so I beg You, please prove that by saving me,” Veloso recalled praying in a tearful interview with The Associated Press at a female prison in Yogyakarta on Tuesday.

Duped into becoming a drug courier

The reprieve aimed to provide an opportunity for Veloso’s testimony to expose how a criminal syndicate duped her into being an unwitting accomplice and courier in drug trafficking.

Shock washed over Veloso as a group of officials from the attorney general’s office informed her of the stay just as she was being led out to the execution site on Nusakambangan prison island. In tears, she remembered a cocoon she saw the previous night hanging from a tree branch near her cell.

“In the Philippines we believe that if there is a cocoon, there will be a new life,” Veloso said. “That means I will not be executed because God will give me a new life.”

Veloso, now 39, was arrested in 2010 at the airport in the Indonesian ancient city of Yogyakarta, where officials discovered about 2.6 kilograms (5.7 pounds) of heroin hidden in her luggage. The single mother of two sons was convicted and sentenced to death.

Veloso has maintained her innocence throughout her 14 years of incarceration. She has spent her time in prison designing Indonesian batik clothing, painting, tailoring and learning interior design and other skills.

Veloso was granted a stay of execution because her alleged boss was arrested in the Philippines, and the authorities there requested Indonesian assistance in pursuing a case against her. The woman, who allegedly recruited Veloso to work in Kuala Lumpur, Maria Kristina Sergio, surrendered to police in the Philippines just two days ahead of her scheduled execution.

The dramatic turn of events began last month, when in an unusual last-ditch effort to delay Veloso’s death, Philippine President Ferdinand Marcos Jr. announced that a deal had been reached for Indonesia to send Veloso home after a decade of pleading from Manila.

“Mary Jane Veloso is coming home,” Marcos said in a statement. “Arrested in 2010 on drug trafficking charges and sentenced to death, Mary Jane’s case has been a long and difficult journey.”

A practical arrangement

A “practical arrangement” between Indonesia and the Philippines was signed on Dec. 6, to send Veloso home, which is expected before Christmas.

Although there is no treaty between the countries, Indonesia and the Philippines are both members of the Association of Southeast Asian Nations and the transfer of convicts in the ASEAN region is in accordance with the bloc’s Mutual Legal Assistance Treaty, said Raul Vasquez, the undersecretary at the Department of Justice of the Philippines, after the signing ceremony.

Indonesia’s Yusril Ihza Mahendra, Indonesia’s coordinating minister for law, human rights, immigration and corrections, lauded the transfer agreement as a “historic milestone” between Indonesia and the Philippines, and part of the new administration of President Prabowo Subianto’s “good neighbor” policy.

Once repatriated, Mahendra said, if the Philippines want to pardon Veloso or grant clemency, “that is entirely their authority in which we must also respect,” the minister added. The Philippines, Asia’s largest Roman Catholic nation, has abolished the death penalty.

‘Like a miracle’

Veloso described the decision as being “like a miracle when I have lost all hope.”

“For almost 15 years I was separated from my children and parents, and I could not see my children grow up,” she said, her eyes filled with tears. “I wish to be given an opportunity to take care of my children and to be close to my parents.”

Born in Cabanatuan, a city in Nueva Ecija province, Veloso was the youngest of five siblings of a family who lived in extreme poverty. Her father worked as a seasonal agricultural worker on a sugar cane plantation and her mother collected discarded bottles and plastic to sell to junk shops. Veloso dropped out of school in her first year of high school and married her husband when she was just 16 years old.

The couple later separated and she became a single mother to two young sons, forcing her to emigrate to Dubai in 2009 to work as maid. She returned to the Philippines before the end of her two-year contract after an attempted rape by her employer. A year later, Veloso was recruited by Sergio to be employed as a domestic servant in Malaysia but later was shifted to Indonesia.

Major drug smuggling hub

The United Nations Office on Drugs and Crime says Indonesia is a major drug smuggling hub despite having some of the strictest drug laws in the world, in part because international drug syndicates target its young population.

Indonesia’s last executions were carried out in July 2016, when an Indonesian and three foreigners were shot by firing squad.

There are about 530 people on death row in Indonesia, mostly for drug-related crimes, including 96 foreigners, the Ministry of Immigration and Corrections’ data showed as of last month. The Indonesian government recently agreed in principle to return five Australian nationals and a French national to their home countries.

“I was not a good Catholic before, and prison has changed my life into a skilled person who has become closer to God,” Veloso said. “I am ready to build a new life, like a butterfly emerging from a cocoon.”

___

Associated Press writer Niniek Karmini in Jakarta, Indonesia, contributed to this report. - AP, 15/12/2024

Nagaenthran's execution no threat to diplomatic ties

By T.n. Alagesh - April 30, 2022 @ 2:42pm

Foreign Minister Datuk Seri Saifuddin Abdullah (2nd right) said both countries mutually understood the need for each government to always uphold the rule of law. - NSTP/ ASROL AWANG

KUANTAN: Malaysia's diplomatic ties with Singapore is unshaken following the execution of Nagaenthran Dharmalingam for drug trafficking on April 27, despite pleas by various quarters including the Yang di-Pertuan Agong, Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah for clemency.

Foreign Minister Datuk Seri Saifuddin Abdullah said both countries mutually understood the need for each government to always uphold the rule of law.

"This is not the first time a Malaysian is serving the death penalty in Singapore. We abide by Singapore's legal system.

"Diplomatic ties between both Malaysia and Singapore are not affected as we understand the needs of each country to uphold the supremacy of the law," he said when met after the 'MyRakyat Sentuhan Kasih Aidilfitri' programme at Wisma Belia Indera Mahkota here today.

Saifuddin said prior to Nagaenthran's execution, the Malaysian government had pleaded for Singapore to pardon the 34-year-old or at least reduce his sentence.

"In the first attempt last year, the Prime Minister (Datuk Seri Ismail Sabri Yaakob) and myself wrote to our counterparts in Singapore. The Yang di-Pertuan Agong also appealed to the Singapore president, seeking clemency for Nagaenthran.

"A few days before the sentencing (last week), the Prime Minister and myself sent another letter to Singapore's prime minister (Lee Hsien Loong) and foreign minister (Vivian Balakrishnan) proposing a prisoner exchange programme," he said.

Saifuddin said the Singapore government had replied to all appeal letters sent by Malaysia.

On the possibility of implementing the International Prisoner Exchange Programme with Singapore to avoid future executions involving other Malaysians, Saifuddin, who is also the Indera Mahkota member of parliament, said currently there was no agreement in place and a proposal on the matter needs to be put forward.

"I believe Home Minister Datuk Seri Hamzah Zainuddin is looking into the details on how the programme can be implemented. It might be successful to be implemented in the future, but we are prepared to start talks on the exchange programme," he said.

Nagaenthran was executed in Singapore on April 27 after the last-ditch legal challenge by his mother proved futile in the high-profile case which attracted international calls for clemency.

Nagaentharan, an intellectually impaired man with an IQ of 69, was on death row for more than a decade for trafficking 44 grams (1.5 oz) of heroin into Singapore in 2009.

His case had drawn the support of foreign personalities, including British business magnate Sir Richard Branson as well as actor and writer Stephen Fry, who sent out a powerful plea to Singapore to spare his life.

The Singapore court rejected his last appeal against the death sentence imposed for drug trafficking on March 29 before he was executed in Singapore's Changi prison.

His remains were buried in Buntong, Ipoh, yesterday.

On the 'MyRakyat Sentuhan Kasih Aidilfitri' programme in his constituency, Saifuddin said the event organised by the Federal Agricultural Marketing Authority (Fama) saw people arriving as early as 7am to purchase various products for the festive season including beef and chicken.

He said during the 'happy hour' at the programme, special discounts will be provided to customers.- NST, 30/4/2022

Singapore court grants Malaysian death row inmate Pannir Selvam 11th hour stay to execution meant to happen today

A participant holds up a placard during a candlelight vigil against the impending execution of Malaysian death row inmate Pannir Selvam Pranthaman in Singapore outside the Singaporean High Commission in Kuala Lumpur on February 19, 2025. — Picture by Firdaus Latif

Thursday, 20 Feb 2025 8:33 AM MYT

SINGAPORE, Feb 20 — Singapore Court of Appeal on Wednesday has granted Malaysian death row inmate Pannir Selvam Pranthaman a stay of execution just hours before he was scheduled to be executed on Thursday (Feb 20).

Judge of the Appellate Division Woo Bih Li, in his judgment, said the stay was granted pending the determination of Pannir Selvam’s Post-Appeal Applications in Capital Cases (PACC) application.

Woo granted Pannir Selvam permission to make a PACC application under Section 60(G) of the Supreme Court of Judicature Act 1969 (SCJA) without it being set down for hearing.

PACC are applications filed by a prisoner awaiting capital punishment (PACP) after all avenues have been exhausted. Pannir Selvam represented himself in the submission.

Woo said that he granted Pannir Selvam permission to make a PACC application on the grounds that he has a pending complaint with the Law Society of Singapore against his former counsel Ong Ying Ping, as well as a pending determination of another case on constitutional challenge related to Singapore’s drug laws.

The judge said in arriving at the decision, he has considered Pannir Selvam’s affidavit and written submission on February 17, as well as his further written submissions on February 18.

Woo also considered the Attorney-General (AG)’s written submissions and the Senior Director in the Policy Development Division of the Home Ministry, Sanjay Nanwani’s affidavit on February 18.

Pannir Selvam was convicted by the High Court on May 2, 2017 for the capital offence of importing 51.84g of diamorphine into Singapore under section 7 of the Misuse of Drugs Act 1973 (MDA).

He was not granted a Certificate of Substantial Assistance (CSA) by the Public Prosecutor and was sentenced to the mandatory death penalty.

Since then, he had exhausted all legal avenues available under Singapore law.

Singapore’s PACC Act, which came into effect on June 28, 2024, allows PACP to make post-appeal applications, which can only be heard by the Court of Appeal.

The PACP must first apply for permission from the court to make a PACC Application.

If permission is granted, the PACC Application must be made to the Court of Appeal within three days from the date of approval.

The Court of Appeal will then determine the PACC Application. — Bernama, Malay Mail, 20/2/2025

 

 

Protect the Independence of the Attorney General/Public Prosecutor by, amongst others, the provision of Security of Tenure, and preventing premature removal by the Prime Minister - 9 Groups Statement

 

Joint Media Statement – 15/2/2025

Protect the Independence of the Attorney General/Public Prosecutor by, amongst others, the provision of Security of Tenure, and preventing premature removal by the Prime Minister

Remove role of Prime Minister in Appointment of the Public Prosecutor and Enable Judicial Review of Public Prosecutor’s decisions

We, the 9 undersigned groups/organization call for the amendment of the Federal Constitution to ensure that the Attorney General, who is also the Public Prosecutor, is Independent and is provided with Security of Tenure, a safeguard to ensure Independence, and to prevent the Prime Minister’s ability to appoint and remove as he/she pleases.

The Constitution, in Article 145(1) states that ‘(1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.’, and this means the King has no choice but to do as the Prime Minister advices.

Security of Tenure and Safeguards for Independence in pre-1963 Constitution

The Federal Constitution today also fails to clearly stipulate the retirement age of the Attorney General, or the procedure for removal.

In the Constitution, prior to the Constitutional amendment vide Act 10/1960, section 26, which came into force from 16-09-1963, stated in Art.145 (4) stated ‘Subject to Clause (5), the Attorney General shall hold office until he attains the age of sixty-five years or such later time, not later than six months after he attains that age, as the Yang di-Pertuan Agong may approve. (5) The Attorney General may at any time resign his office but shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.".

That meant, the Attorney General before had security of tenure until retirement age, and could not be easily removed or replaced according to the whims and fancies of any sitting Prime Minister.

Sadly, today the Attorney General only hold ‘…office during the pleasure of the Yang di-Pertuan Agong[King]...’, and the Federal Constitution does not set a tenure, or a retirement age. This means the Attorney General can also be removed at any time, and this precarious state of affairs threatens the Independence of the Attorney General/Public Prosecutor.

Was the previous AG/PP removal questionable?

Datuk Mohd Dusuki Mokhtar was appointed as the new Attorney General of Malaysia from 12/11/2024, stepping in to replace outgoing Attorney General Tan Sri Ahmad Terrirudin Mohd Salleh who had not yet reached his retirement age of 65. Terrirudin, 56, served as Malaysia’s attorney general for just slightly more than a year was appointed Attorney General from 6/9/2023. When he was appointed, there was even no clear tenure stated, unlike previous attorney generals who had a clear tenure like 2 years or more stated at the point of appointment.

Then, on 12/12/2024, the new Attorney General/Public Prosecutor Dusuki discontinued appeal against Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi’s acquittal of 40 corruption charges in the foreign visa system (VLN) contract. Note, when the High Court acquitted on the ground that the Prosecution failed to prove a prima facie case at the end of prosecution’s case, there was public pressure that led to the prosecution filing the appeal when Terrirudin was Attornely General. Was this a possible reason, why the previous Attorney General was replaced ‘suddenly’?

0n 4/9/2023, Zahid Hamidi’s another case was discontinued by then Attorney General Idrus Harun, after prosecution had already successfully proved a prima facie case for 47 charges of criminal breach of trust, corruption and money laundering, and the reason then given was that prosecution needed more time to complete investigation on several letters of representation submitted by the accused. These investigations should have long completed, and the Public Prosecutor have the power to re-charge Zahid for all or some of the 47 charges. Was the previous Attorney General Terrirudin removed as he was more likely than not to re-charge the current Deputy Prime Minister?

The power to institute, conduct or discontinue any criminal proceedings

The ‘…power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, …’ can be ‘abused’ by the government if the Public Prosecutor is not independent. The Public Prosecutor has the power to decide to not charge some, discontinue criminal cases or even withdraw criminal appeals.

After Anwar Ibrahim’s government came into power in November 2022, his ‘political enemies’ seemed to charge a lot in the courts, and members of the parties in government and their associates seem to have their criminal cases dropped or stalled – is this an indication of the amount of power or influence, the government of the day may have over the Public Prosecutor? This reality affects the perception of independence of the Malaysian Public Prosecutor/Attorney General.

Even PM can commit crimes – best he not have power to remove Public Prosecutors

With regard to crime, anyone from the Prime Minister, Ministers, politicians and/or the family members and friends can breach criminal laws, and when that happens, the people expect the Public Prosecutor to act independently and professionally, and charge anyone, including the Prime Minister, if they commit a crimes.

Hence, the Prime Minister’s role in appointment or removal of the Public Prosecutor at least must be extinguished. We do not want any Attorney General/Public Prosecutor to worry about the consequence of not doing what the government wants.

Guidelines on the Role of Prosecutors, that was adopted on 7/9/1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders states, amongst others, that ‘Prosecutors, as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession. 4. States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference…’ and this reasonably will include intimidation, hindrance, harassment or improper interference from Prime Minister or government of the day.

PM ‘Choosing’ Public Prosecutor Must End

In the past, primarily many believed that politicians and the powerful benefited by non-prosecution, in that they do not get charged for crimes – the Attorney General/Public Prosecutor has the power to decide who gets charged, and who does not.

During the time of the Prime Minister Najib Razak, Public Prosecutor Gani Patail was suspected by some to be ‘prematurely removed’ from office because Gani was in the process of preparing for the prosecution of the then sitting Prime Minister related to the 1MDB issue.

In his place, a new Attorney General Apandi Ali was appointed, who later went one to publicly declare or imply that Najib was innocent of any crime related to 1MDB.

When the next Attorney General, Tommy Thomas, was appointed, Najib was charged and he is now in prison serving out his sentence, and that how some Public Prosecutors can be so wrong. It is not the role of the Attorney General/Public Prosecutor to determine the guilt – that is the duty of the Court after a fair trial.

The era of a possibly government influenced Public Prosecutor must end, and the Public Prosecutor must be free and independent of the State, and focused on the administration of criminal justice without fear or favour. Those who committed crimes will be charged and accorded a fair trial. No more discontinuation of cases or ‘selective non-prosecution’ of ‘friends’ of the government’,

Separating Attorney General from Public Prosecutor

The government rightfully have decided that the Attorney General best not also be the Public Prosecutor – and thus they will be separated soon.

The end result hopefully will be that Public Prosecutor shall have the power ‘to institute, conduct or discontinue any proceedings for an offence’. Government will no longer have the power to ‘interfere’.

A perusal of the Malaysian Constitution will show that the Attorney General is essentially the ‘government lawyer’, who advises the government and also acts for the government, Ministers and public officers.

It is indeed difficult for him/her to also be the Public Prosecutor. This will be complicated especially when the accused (or to be charged) is the Prime Minister, Minister or a public officer. An inevitable ‘conflict of interest’ arises. Hence, it is the right move to have an Independent Public Prosecutor, different from the Attorney General.

The Public Prosecutor certainly must be INDEPENDENT, and the Prime Minister and/or the Government should have no role in the choosing of the Public Prosecutor. Best that the power of advising the King to appoint one as Public Prosecutor rest on an independent body/commission. He/she, who is appointed must have security of tenure including a clear retirement age, and other safeguards to ensure independence, just like a Judge.

On, the other hand, the Attorney General, who really is the government’s lawyer and legal adviser, could be appointed on the advice of the Prime Minister and/or government of the day. His/her tenure can reasonably be ended by a subsequent new Prime Minister and/or government, who may desire another person to be the government’s Attorney General.

It is noted, that Prime Minister Anwar Ibrahim recognized that ‘…the separation of powers between AG and PP is not merely a division of responsibilities, but a crucial step in preserving the integrity of the office…’ It has already been approved by Cabinet, and Anwar said that the Cabinet draft paper on the separation of powers between the Attorney General (AG) and the Public Prosecutor (PP) is expected to be ready by the middle 2025. (The Sun 21/12/2024).

We hope the needed amendments to the Federal Constitution and relevant laws be tabled in Parliament soon, and that Malaysia will finally have an independent Public Prosecutor, and a Attorney General by the third quarter of 2025.

Thus, we call the process leading towards Malaysia have an Independent Public Prosecutor, different from the Attorney General be expedited;

We call for the end of days where the perception that Attorney General/Public Prosecutor acts be in ‘prosecuting of non-prosecuting’, appealing and withdrawing of appeals, and discontinuation of cases may be based on the instruction or the will of the Prime Minister or government of the day comes to an end.

Prosecution should not de-rail the court process, by mid-trial discontinuation of the case – leave it to the Court to decide after a fair trial whether a person is guilty or not.

If Prosecution loses a criminal trial at the court of first instance, the best practice is to appeal, giving the appellate Court the opportunity to consider whether the High Court (or lower court) made an error or not in acquitting an accused. The appeal is crucial to prevent any miscarriage of justice, and also removes any doubts about the independence of the Malaysian Courts.

We also call for right of Judicial Review of decisions of a Public Prosecutor, just as we already have the right to go for Judicial Review of the Prime Minister or Minister’s decisions. This will allow the court to consider whether the Public Prosecutor’s decision was illegal, procedurally unfair, irrational or even incompatible with human rights. This will ensure no wrongdoing or abuse of power by the Public Prosecutor, who represent Malaysia and Malaysians in the administration of criminal justice. 

UPHOLD THE CAUSE OF JUSTICE WITHOUT FEAR OR FAVOUR

Addendum

Article 145 Federal Constitution - Attorney General

(1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.

(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.

(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

(3A) Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under Clause (3) to institute shall be instituted or to which such proceedings shall be transferred.

(4) In the performance of his duties the Attorney General shall have the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal in the Federation.

(5) Subject to Clause (6), the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.

(6) The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.

    NOTES

 Art. 145 Federal Constitution (before amendment in 1963)

The present Article was substituted by Act 10/1960, section 26, in force from 16-09-1963. The earlier Article read as follows:

"145. (1) The Yang di-Pertuan Agong shall, after consultation with the Judicial and Legal Service Commission, appoint from among the members of the judicial and legal service an Attorney General, who shall be a person qualified to be a judge of the Federal Court.

(2) The Attorney General shall advise on legal matters referred to him by the Yang di-Pertuan Agong or the Cabinet, and shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Muslim court, a native court or a court-martial.

(3) The Attorney General shall have the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal.

(4) Subject to Clause (5), the Attorney General shall hold office until he attains the age of sixty-five years or such later time, not later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.

(5) The Attorney General may at any time resign his office but shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.".

 

Charles Hector

For and on behalf the below listed 9 groups

 

MADPET (Malaysians Against Death Penalty and Torture)

Center for Orang Asli Concerns (COAC)

Gindol Initiative for Civil Society Borneo

Haiti Action Committee

Parti Rakyat Malaysia (PRM)

Payday Men’s Network, UK & US

Redemption Pakistan

Singapore Anti Death Penalty Campaign (SADPC)

WH4C (Workers Hub For Change)