Surendra Ananth comprehensively explains why the actions of the police are a clear breach of international norms. LoyarBurok supports the Bar Council’s call for lawyers to gather at the Bar Council Secretariat and the police headquarters at Bukit Aman in support of the lawyers who have been called in for questioning.
On 19 March 2016, the Malaysian Bar at their 70th Annual General Meeting passed a motion calling for the resignation of Tan Sri Mohamed Apandi Ali as the Attorney-General (the “said Motion”).
On or around 29 March 2016, the police opened investigation papers (under section 4(1)(a), Sedition Act 1948) on the said motion and proceeded to call in the proposers of the said motion and the Malaysian Bar Secretary for questioning under section 112, Criminal Procedure Code.
Independence and role of lawyers
Members of the Malaysian Bar have the statutory right pursuant to section 64(6) of the Legal Profession Act 1976 (“LPA”) to propose any motion during the Annual General Meeting.
It must be borne in mind that the Malaysian Bar is statutorily empowered “to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour” by virtue of section 42(1)(a) of the LPA. The importance of this provision cannot be overstated. It guarantees the independence of the Malaysian Bar and its vital role in promoting the cause of justice and upholding human rights.
Interference by the Government
The pivotal question is this: Can the government interfere with the activities of the Malaysian Bar when such activities are carried out pursuant to its statutory duty? The answer, as already pointed out by Lawyers for Liberty, can be found in articles 16 and 23 of the Basic Principles on the Role of Lawyers 1990 (the “1990 Principles”).
The 1990 Principles provide:
16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.”
The articles above lucidly answers the posed question in the negative.
The next question is this: what weight do the 1990 Principles carry? It is first necessary to provide a brief background on the 1990 Principles.
The 1990 Principles
The 1990 Principles were adopted unanimously by the Eighth United Nations (“UN”) Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba (27 August to 7 September 1990). Malaysia was represented in the said Congress by Tan Sri Mohd Haniff Omar (Inspector General of Police), Datuk Haji Mohd. Yassin Haji Jaafar (Director General of Prison), Jaffar Abdul Wahid (Director of Rehabilitation Service, Ministry of Welfare), Kang Hwee Gee (Deputy Head of Prosecution Division, Attorney General’s Chambers) and Zainal Abidin Ahmad (Second Secretary, Permanent Mission of Malaysia to the United Nations).
The preamble to the 1990 Principles obliges the Malaysian Government to take into account the same. It states:
“The Basic Principles on the Role of Lawyers, set forth below, which have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general.”
On 18 December 1990, the UN General Assembly welcomed the adoption of the 1990 Principles (see UN Document A/RES/45/166). On 17 December 1991, the UN General Assembly referred to the 1990 Principles as an international standard in the field of the administration of justice (see UN Document A/RES/46/120).
Resolutions and similar instruments as an international norm
Generally, international documents such as the 1990 Principles are declaratory in nature. They are, in essence, not binding on States.
However, when such documents are concerned with general norms of international law and are accepted by all member States, such documents can provide a basis for the progressive development of the law and consolidation of customary rules (see James Crawford (ed), Brownlie’s Principles of Public International Law (8th edition) at p. 42; Malcolm N. Shaw, International Law (7th edition) at pp. 81-81 (“Shaw”); Sir Robert Jennings & Sir Arthur Watts (eds), Oppenheim’s International Law (9th edition) at pp. 48-49).
As the International Court of Justice had observed (on UN General Assembly resolutions) in Nicaragua v United States of America (1986) ICJ Rep 14 (Case Concerning Military and Paramilitary Activities in and Against Nicaragua) at p.100:
“The effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.”
The 1990 Principles as an international norm
The rights entrenched in the 1990 Principles were not created in vacuum. They are subsumed under established fundamental human rights.
The 1990 Principles are a furtherance of fundamental international norms codified in, amongst others, the UN Charter and the Universal Declaration of Human Rights.
The Preamble of the 1990 Principles states:
“Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained, and proclaim as one of their purposes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion,
Whereas the Universal Declaration of Human Rights enshrines the principles of equality before the law, the presumption of innocence, the right to a fair and public hearing by an independent and impartial tribunal, and all the guarantees necessary for the defence of everyone charged with a penal offence,…”
Malaysia, as a member of the UN, has a legal obligation to promote the respect and observance of human rights (see Shaw at pp. 202-203). As the International Court of Justice had noted in its Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (1971) ICJ Rep 16 at p. 57:
“the former Mandatory had pledged itself observe and respect, in a territory having international status, human rights and fundamental freedoms for all without distinctions as to race. To establish instead and to enforce, distinctions, exclusions, restrictions and limitations, exclusively based on grounds of race, colour, descent or national or ethnic origin which constitutes a denial of fundamental human rights is a flagrant violation of the purpose and principles of the Charter.”
As noted above, the 1990 Principles were adopted unanimously. The said principles and its contents were adopted by the Council of Europe on 25 October 2000 (see Recommendation No. R(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer) and have been consistently referred to by the European Court of Human Rights (see Bljakaj and others v Croatia (2014) 38 BHRC 759 and Nikula v Finland (2002) 12 BHRC 51) and the Inter-American Court of Human Rights (see Case of Valle Jaramillo et al. v. Colombia, Judgment of November 27, 2008 and Case of Lori Berenson-Mejía v. Peru, Judgment of November 25, 2004). The 1990 Principles have also been referred to by the courts in Canada (see Canada (Attorney General) v. Federation of Law Societies of Canada  1 SCR 401) and Northern Ireland (see Hanahoe and others v Judge Hussey and others  3 IR 69).
It is pertinent to note that the 1990 Principles were recognised by the Malaysian High Court in Latheefa Beebi Koya & Anor v Suruhanjaya Pencegahan Rasuah Malaysia & Ors  7 MLJ 864.
The importance of the 1990 Principles is further underscored by the appointment of a Special Rapporteur on the Independence of Judges and Lawyers by the UN Commission of Human Rights vide Resolution 1994/41. The UN Commission of Human Rights, in its resolutions, has consistently referred to the 1990 Principles. In general, the said principles have been broadly accepted by many non-governmental organizations (see http://www.advocatenvooradvocaten.nl/basic-principles/ for a complete database).
Understood in the foregoing context, the 1990 Principles cannot be regarded as mere soft law or declaratory in nature. They form part of the corpus of established international human rights principles. There is no basis to say otherwise.
The investigation by the police is a clear breach of the 1990 Principles and the LPA. Pertinently, it just goes on to reinforce the said Motion.
It is fitting to end this article with an excerpt of the judgment of Justice Zaleha Yusof in Latheefa Beebi Koya & Anor v Suruhanjaya Pencegahan Rasuah Malaysia & Ors  7 MLJ 864.
“We must always bear in mind that the independence of lawyers is a fundamental principle recognised internationally. Lawyers play a key role in the administration of justice and protection of human rights.
Talking about the role of lawyers, it is pertinent to note that amongst instruments unanimously adopted at the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Havana from 27 August–7 September 1990 was the United Nation Basic Principles on the Role of Lawyers. Malaysia was represented at the said Congress. Although the Basic Principles are not legally binding they should be held in high regard and be given due respect; and as one of its preamble states, be taken into account by government. Of relevance to the instance are the following articles of the said Basic Principles:
- 16 Government shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
- 17 Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.
- 22 Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
After adopting the Basic Principles it is only right that Malaysia gives due respect and adheres to it. Hence, I am of the view that lawyers must be protected from any form of intimidation and interference in the performance of their obligation to advise and act for clients. In addition, the fundamental principle of solicitor-client confidentiality which lawyers are bound must be preserved.”