Melaka, 18th July 2009 – Multimedia University’s Law Society (MULS) organized the Law Seminar 2009, fifth in its series on the 18th July 2009, which fell on a Saturday. As in past years, the event was held on a grand scale, with several prominent legal figures present as the VVIPs. The speakers were The Honourable Datuk Gopal Sri Ram – Federal Court Judge of Malaysia and Associate Professor Dr. Azmi Sharom from the Faculty of Law in University of Malaya as well as MMU’s own Associate Professor. Dr. Myint Zan.
The theme for this year, was yet another ‘hot topic’ – “Government’s Role in the Implementation of Human Rights”, bearing in mind recent events and concerns that needed to be addressed in the justice system of Malaysia. The objective of the seminar was to enlighten students and the public alike on their basic human rights
The event was held in the Main Hall of Multimedia University, Melaka campus. The masters of ceremony for the seminar were Multimedia University’s very own law students namely Mr. Ali Syafiq, Miss Kesinee Aiyalu Parthasarathee, Mr. Amirul Izzat and Miss Hafiza Hamid. The seminar commenced with an opening address by Professor Dr. Zaharin Yusoff, the President of Multimedia University; followed by the Event Director, Miss Nurshahira Abdul Salim.
“Datuk Gopal Sri Ram was giving his speech”
Following that, the keynote address was given by The Honorable Datuk Gopal Sri Ram. His Lordship talked about the development of Human Rights in Malaysia and said that he believed strongly in the advancement of this particular area. His Lordship also stressed that Human Rights is not conferred by statute, but it is inherent in every human being. To support this, His Lordship quoted Finn v Attorney General, an Irish case, with the judgment from Justice Barrington, saying that: “It is arguable that these rights derive not from a man’s citizenship but from his nature as a human being. The State does not create these rights, it recognizes them, and promises to protect them.” He also noted that the function of a court under a written constitution is to interpret that document in a prismatic fashion as to derive human rights and to enforce them. There are several decisions which discusses the way in which courts should interpret a written constitution, in particular those provisions which guarantee fundamental rights or liberties, as seen in the most authoritative judgment of Lord Bingham in Reyes v The Queen where he said that “As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution…” It can also be seen in the case of Dato Menteri Othman bin Baginda v Dato Ombu Syed Alwi bin Syed Idrus that the Malaysian courts prefer the literal approach to constitutional interpretation. On the other hand, the courts in Malaysia have protected human rights, mainly in the six areas to be discussed below.
The first is the right to travel abroad. By citing the case of Satwant Singh Sawhney v Ramarthnam, Assistant Passport Officer, New Delhi, the Indian Supreme Court held that the right to travel abroad is a fundamental right by virtue of Article 21 of the Indian Constitution. It is derived form Article 31 of the Japanese Constitution. In Malaysia, the case of Government of Malaysia v Loh Wai Kong also protects this right by virtue of Article 5(1) of the Federal Constitution.
The second right is the right of life. It is protected under Article 5(1) of the Federal Constitution and can be seen in the case of Tan Tek Seng, the concept of “life” as referred in the Court of Appeal is not referred to mere existence, but it incorporates all assets. However, for all practical purposes, Tan Tek Seng remains disapproved buy the Federal Court. It follows that “life” in Article 5(1) means mere animal existence.
The third right is the right to access of justice. This is also a fundamental right encompassed in Article 5(1). The narrow interpretation in the case of Loh Wai Kong should be followed. Article 8(1) state that all persons are equal in the eyes of the law. Next in line is the right to counsel. Under Article 5(3), a detainee is entitled to two separate rights – which are to be informed of the grounds of his arrest; second is to consult an advocate of his choice. An arrest of the detainee without a warrant may only be justified only if it was on a charge which was made know n to the detainee unless the circumstances were such that the detainee must know the substance of the alleged offence. But the second, that is the right to counsel, has been diluted to such the extent that it has been rendered misleading. This all began with the case of Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis. Suffian LP held in that case that the right of an arrested person to consult his lawyer begins from the moment of arrest, but the right cannot be exercised immediately after arrest. The case of Theresa Lim Chin Chin v Inspector General of Police held that whether a detainee should be permitted to consult a counsel of his choice is something that should be left to the good judgment of the authority as and when such right might not interfere with police investigation.
The right to be present at habeas corpus hearing is also one of the human rights protected by the Malaysian courts. Article 5(2) governs this right and as a course of action, as seen in the case of Lee Sew Kai v Menteri Dalam Negeri Malaysia, a detainee is entitled to file affidavit evidence in support of his application for habeas corpus. He is also entitled to apply to cross examine the deponent of any affidavit filed in opposition. In this case, such application was permitted. The last right is the right to administrative fairness. This is both constitutional and statutory compliant. Compared to other countries, a Malaysian has no right to receive administrative fairness as proven in the case of Sugumar Balakrishnan as it was held that there is no statutory duty on a public authority to give reasons, and then even if it gives irrelevant or irrational reasons for its decision, the court cannot scrutinize it. It was also held in the same case that there is no power in a court to undertake a substantive review of a public law decision. His Lordship ended his address by asking the audience to decide for themselves whether there has been any development of Human Rights in Malaysia.
“Eddie Law and the head of MMU Law & Business Faculty and the lectures”
The guests then adjourned for refreshments. During this interval, a short period was allocated to the nominees of the MULS High Committee 2009/2010 to give a little introduction about themselves for the High Committee election before the MULS Annual General Meeting in August.
“Associate Professor Dr. Azmi Sharom”
The Seminar then continued with, the second speaker for the day, Associate Professor Dr. Azmi Sharom, a distinguished law lecturer from the Faculty of Law in University of Malaya, who spoke on “Viability of Human Rights Act in Malaysia”. Dr. Azmi Sharom gave a fiery speech which kept the audience very captivated. He began his speech by asking the audience whether or not we should have a Human Rights Act in Malaysia. His opinion was prima facie (on the face of it), yes but if we were to look deep into the current justice system position in Malaysia, the wisest decision is not to have a Human Rights Act, at least not right now.
He duly noted that there are plenty of laws in Malaysia that disrespects the Human Rights such as the Internal Security Act amongst many others. Dr. Azmi Sharom justified why he believes that the Human Rights Act should not be implemented in Malaysia. The reasons being, firstly, there are many limitations in the Federal Constitution of Malaysia which would prevent the Human Rights Act from being implemented effectively. The limitations which the Federal Constitution provides will render the rights in the HRA futile. Another reason was that the implicit provisions will be made explicit and there will be a quiet distortion of the legal system.
Dr. Azmi Sharom also commented that Malaysia Is turning into a theocracy state – by the statements made by the former Prime Ministers of Malaysia, all of them who declared the Malaysia is not a secular state, but rather an Islamic one. He questioned the issue of freedom of religion citing the case of Lina Joy – are Muslims in Malaysia free to change their religion? The audience was left to construe the meaning behind the legislation of Article 11 of the FC themselves. Dr. Azmi Sharom ended his presentation with a firm stand, saying that change has to come by ensuring the government understands the freedom given in the Federal Constitution and that people will make a difference. It will be best if we fix what we have rather than disrespecting yet another new legislation.
“Associate Professor Dr. Myint Zan”
The final speaker for the event was Multimedia University’s very own Associate Professor Dr. Myint Zan. His presentation was entitled “Human Rights: Brief Glimpses of the Past, Current Trends and Hopes for the Future”. Dr. Myint Zan began his presentation with three quotations by Baruch Spinoza (also known as the God-intoxicated philosopher), Mr. Karpal Singh – about his views on freedom after speech in Malaysia and thirdly a quote from by Ronald Reagan, former president of the United States, saying “Government is not the solution but government is the problem.”.
He also stated that his presentation is not focusing on Malaysia and mainly on ‘other’ governments the government’s role in the implementation of Human Rights is not to violate them and they can be the problem rather than the solution. Just as there are laws which can be said to protect, promote or implement Human Rights there are, in various countries around the world, laws which can be said or have been asserted to violate human rights. One role a government can ‘play’ at the international level and also at the domestic level is to become parties to major international conventions on Human Rights though it can be said that the mere fact that a government is a party to an international treaty concerning human rights is not necessarily a guarantee that, that government respect, protect or promote the human rights of its citizens. He also commented that recently Malaysia had taken several encouraging steps such as the establishment of the Human Rights Commission (SUHAKAM), steps taken to ‘restore’ or enhance the independence of the judiciary, slight encouragement to engage in discourse on ‘sensitive’ issues in public forum but in a ‘sensitive way’, relatively more ‘press freedom’ but retrograde movements recently (although this is highly debatable), attempts by cabinet to resolve or to device methods of solving conversion into (and out of?) Islam in a satisfactory manner, liberalizing or reducing the more harsh or restrictive provisions of the Universities and Colleges Act (if they have not already been amended) and the recognition of the indigenous land rights. Dr. Myint Zan also mentioned issues that have been almost continually raised by human rights activists, opposition politicians and some citizens and he gave some constructive suggestions as to improve the Human Rights protection in Malaysia and he concluded his speech by saying that if the suggestions above cannot be correctly described as ‘trends’, projections or ‘glimpses’ of the best case scenarios of the future they could then they remain and can be described as ‘hopes’, at the very least.
“Datuk Gopal Sri Ram was talking to the law students before his departure”
At the conclusion of the presentation, several challenging questions were posed to the speakers by the audience, which they answered eloquently and satisfactorily. A further highlight to the event was the much awaited Lucky Draw Session, which had several exciting prizes. The seminar concluded with a closing speech by Madam Flora Teichner, the Head of the Multimedia University Law School and the presentations of token of appreciation to the sponsors of the Law Seminar. Thereafter, all guests were invited to a luncheon followed by a photography session to commemorate the event. All in all, the Law Seminar was a tremendous success and each and every one present benefited from it. The organizing committee deserves hearty congratulations for a well organized and excellent event. Let’s hope that this success will continue with each MULS Law Seminar organizing committee taking these seminars to greater heights.
Remark: Mr Eddie Law of eLawyer.com.my was invited as VIP to attend this event and eLawyer has set up a booth on that day too.