'Consult stakeholders over Harmony Act'

Hafiz Yatim 3:55PM Sep 26, 2012

The Malaysian Bar has expressed hope that the prime minister and cabinet will keep an open mind with regard to formulating laws, including the proposed National Harmony Act which will replace the Sedition Act.

Its president Lim Chee Wee (left) noted that “you cannot legislate or compel unity and loyalty ...  it is something which needs to be grown and nurtured".

He suggested taking a leaf out of United Kingdom's Equality  Act, which proscribes discrimination on the basis of sex, gender and age, as well as hate speech.

“I know the government must have its plate full with regard to replacing the Sedition Act. We hope that in (formulating the National Harmony Act), there will be engagement between the attorney-general, Human Rights Commission and the Bar,” he said, when asked to comment.

“So far, the draft is not ready and we have not been called to be consulted. While we note that there is no perfect legislation, there is a need for proper political discussion and consultation and debate before it is tabled.”

The Bar had objected strongly to the Peaceful Assembly Bill and insertion of Section 114A into the amended Evidence Act, and has asked for a review of both.
In the case of the Peaceful Assembly bill, they had even marched to the parliament when the bill was tabled as it outlaws street protest.

Needed - permanent Law Reform Commission

Lim also said that a permanent and independent Law Reform Commission which is accountable to the parliament and public should be formed as part of a law-making process.

He said that the body when formed will be tasked with having an inclusive, open and transparent consultation on a particular new legislation.

“Commissioners for the Law Reform Commission can comprise of government and private practice lawyers, judges, academics and members of civil society to provide depth of knowledge and experience.”

Lim also welcomed Minister in the Prime Minister’s Department Nazri Abdul Aziz’s statement in parliament that the government is looking to form a Sentencing Council to streamline and provide consistency in punishment for criminal cases.

The idea was initially mooted by the Bar earlier this year before the public outrage over the former national bowler Noor Afizal Azizan escaping a jail sentence and being bound over for a conviction on statutory rape.

Lim said in that case commentators were too quick to generalise and to criticise the sentence without having full appreciation of the facts.

“The council will promote consistency and raise awareness of sentencing by issuing guidelines (and not legislation) to assist judges in deciding on the appropriate sentence to reflect the seriousness of the crime committed.

“The sentencing guidelines for individual offences should set out sentence ranges reflecting different levels of seriousness and within each range, a starting point for the sentence. It is not a substitute or replacement for judicial discretion in sentencing.”

He emphasised that it was meant not to replace the judicial process of what sentence to pass but to examine various offences from serious to less serious and prepare guidelines.

This, he said, are not mandatory or guidelines to give them a broad range of options in arriving at a decision on sentencing.

“The council can also raise awareness to the public as following the uproar in the national bowler’s case, where if people do some homework a 26-year-old Olympic cyclist in Australia was given a suspended sentence for having underage sex with a 14-year-old.

“Such sentences are not unusual as they do occur in other jurisdictions and the council can educate the public,” he said.

Review on judges’ remuneration to ensure independence

Lim also said to ensure the independence of the judiciary and for them to conduct fair and impartial hearings, the government should ensure that judges and magistrates are given security and financial independence.

He said the appointments and promotion of judges in the Judicial Appointments Commission can be made more open and transparent so that the public are able to see how candidates for the judiciary are evaluated and assessed so there will be greater trust and confidence in the judiciary.

“There should also be an increase in remuneration and benefits for magistrates, session court judges, judicial commissioner and judges commensurate with the importance of judicial responsibilities and comparable to the benefits in private practice.

“This will provide financial independence and attract talent to the bench, thus alleviating the perpetual problem for the president of the Malaysian Bar to persuade top advocates to leave behind their financially rewarding practice and active social life and the long bar and enter a world of solitude on the bench,” he said.

To date, several former and current judges have came from private practice to become a judge including former Chief Justice Zaki Azmi and former Federal Court judge Gopal Sri Ram.

Others who had recently been evaluated are former Bar president Mah Weng Kwai and also Mohd Ariff Mohd Yusof who had been elevated to the Court of Appeal from the High Court.