Police Powers and Remand Proceedings

MLJ – Police Powers and Remand Proceedings

 

Malayan Law Journal Articles

Police Powers And Remand Proceedings by Jerald Gomez1

Introduction

The purpose of this paper is to consider the law relating to the remand of an accused person, the safeguards accorded by the law as well as the actual problems and abuses of the system. Practical difficulties and real life examples will be used to bring out the magnitude and seriousness of the situation. The paper also sets out proposals for changes and the way forward.

The big picture

Certain minimal rights of man based on the concept of ‘equality and liberty’ were recognized early in human civilization. These were accorded international recognition in the Universal Declaration of Human Rights 1948 and to some extent incorporated into the Federal Constitution of Malaysia. The Judiciary in Malaysia is entrusted as the guardian of these rights under the Constitution. To further enhance the protection of such rights a National Human Rights Commission was established in 1999 under the National Human Rights Act. The Act specifically incorporated that ‘regard shall be had to the Universal Declaration of Human Rights…’2

Consideration of the abuse of s 117 detentions 3 and the need for reforms cannot be done in abstract, but in relation to the interest of a democratic society and the rights and personal freedoms of the individual.

It has often been said that an important measure of society’s civilization is the extent to which human rights are respected and protected within the context of criminal proceedings.4 On the other side of the coin are the rights of society protected by the Government who must do so within the laws promulgated by a democratically elected legislature (Parliament).5

The balance

A balance must be struck between the interests of society and that of the individual.

In discussing the individual’s personal freedom in the context of criminal procedure, Lord Denning said,

It must be matched with social security, by which I mean, peace and good order of the community in which we live. The freedom of a just man is worth little to him if he can be preyed upon by the murderer or the thief. Every society must have means to protect itself from marauders. It must have powers  to arrest, to search and imprison those who break its laws. So long as those powers are properly exercised, they are safeguards of freedom. But powers may be abused, and if those powers are abused, there is no tyranny like them.6

Raja Azlan Shah FCJ (as he then was), in Hashim bin Saud v Yahya bin Hashim & Anor7 held,

We too often think of the administration of justice simply as it relates to the protection of the rights of an accused person, that is, to know the charge against him, to be represented by counsel, to be confronted by witnesses, to have an impartial trial. But justice does not mean only for the accused; it also means the interests of the State, and not enough is paid to the interests of the State.

And recently, Abdul Wahab Patail J stated, in relation to remand applications under s 117,

It must be borne in mind that in considering remand applications, the Magistrate must balance fairly between the right of personal liberty of the individual who has not yet been proven guilty, against the equally important public interest, the object that is the duty of the police, that crimes be investigated effectively and offenders be brought to justice. The latter is an equally important consideration.8

The overemphasis on the protection of one interest over another is bound to have an adverse impact. An even balance must be struck between the two.

The judiciary: the balancer and protector

The duty of keeping this fine balance has been entrusted to the Judiciary. In the words of the former Chief Justice of India, PN Bhagwati, in his paper on Human Rights in the Criminal Justice system,

The task in a democracy governed by the rule of law is entrusted to the judiciary and it is the judiciary which has to find a dividing line so as to harmonize the two interests without over emphasizing one to the detriment of the other.9

The former Lord President Tun Salleh Abas in Lim Kit Siang v Dato’ Seri Dr Mahathir Mohamad10 stated,

The Courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role, they must of necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional legislations or excesses in administrative action.

The judiciary is the ultimate protector of the individual’s rights and liberties. It also keeps the fine balance between the common good of society as a whole and the rights and liberties of the individuals who make up that society.11

The verdict

In 2002 the Chief Justice of Malaysia, Tun Dzaiddin, stated the position clearly,12

In my personal view, the current criminal procedures as we know them, when set against the backdrop of real life situations now, appear to be wanting.

The learned Chief Justice went on say that,

In fact, there should be a bundle of protections, such as against unreasonable search and seizure, arbitrary detention and right to counsel upon detention.

It is clear that the head of the judiciary found that the pendulum has swung too much in favor of protecting society and there is a serious imbalance with regard to the rights of an individual person.

The learned Chief Justice called for a re-evaluation and a revisit of these issues.

The Human Rights Commission of Malaysia has also studied these issues and have called for reform in this area.13

The law: arrest, detention and remand

There are specific Constitutional safeguards enshrined in the Constitution to protect the personal liberty of every person in this country. For our purposes, art 5 of the Constitution provides precise safeguards for an arrested person.14

In that light, s 28 of the Criminal Procedure Code (‘the CPC’),15 which deals with the arrest of a person, states that

No Police officer shall detain in custody a person arrested without a warrant for a longer period than under all circumstances of the case is reasonable.

The section goes on to state that:

Such period shall not in the absence or after the expiry of a special order of a Magistrate under section 117, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrates Court.

There is a very strict embargo on the police. They are not allowed to detain a person for a period longer than reasonable, and in any event not beyond 24 hours.16 The discretion to further detain a person is bestowed only on a Judicial officer. The separation of powers clearly is in place here to ensure a proper check and balance.

In the words of KC Vohrah J, one of our more highly regarded and respected judges,

It will be noted that sections 28 and 117 have been inserted into the CPC for a good reason, so that the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the Federal Constitution17

Though the discretion to detain an individual is transferred to a Magistrate, it is not without fetters and the strict requirements of the law.18

The case of Re The Detention of R Sivarasa & Ors19 highlights some of the requirements laid down by the law. Sivarasa was arrested under s 27A(1)(c) of the Police Act, for the offence of meeting unlawfully or failing to disperse on the order of the police.

He was arrested20 and detained for more than 24 hours. The police sought a remand order from the Magistrate and obtained one for a period of 4 days.21 After the expiry of the order, the police sought a further remand order for another 10 days,22 which the Magistrate allowed. The case was taken up on revision that very day, 13 November 1996 at 3.15 pm. The High Court fixed the application for full arguments on the next day and after hearing both the Deputy Public Prosecutor and counsel for the accused, the remand order was set aside and Sivarasa was released.

It is the writer’s view that if individuals meet without police permits or refuse to disperse, these are not offences, if at all, that justify their remand. In fact the learned judge in Sivarasa‘s case posed the question,

In other words why was there a need to detain each and every of the 10 suspects?23

The proper course is for that individual to be charged with the offence and not to be detained, as a form of punishment.

In Sivarasa‘s case, the Magistrate ordered the remand of the arrested person even without satisfying herself whether there was a reasonable suspicion that justified the arrest as required by law.

As the learned Dato’ KC Vohrah J held,

I cannot see anywhere anything in the application — even if one were to assume that copies of the entries of the diary had been produced to the Magistrate — to show a basis for the arrest and detention of each of the 10 persons, be it on even a ‘reasonable suspicion’.24

Even the mandatory requirement under s 117 that the police officer making the accusation

shall forthwith transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before such Magistrate.

was not complied with. It was tantamount to an unlawful remand.

Section 119 of the CPC specifically states what must be entered in the diaries. There is no ambiguity.

In fact, two years before Sivarasa was remanded, the High Court had in another case, Polis Di Raja Malaysia v Keong Mei Cheng Audrey,25 affirmed by the Court of Appeal, set down what the Magistrate must be supplied with before a remand order can be made. The learned High Court judge held,

These details provide the true proceedings in the investigations in compliance with what is required by s 119(1) of the CPC. A copy of this is what the officer must supply the Magistrate under s 117.

The learned judge went on to state what the law is.

As a matter of law, not only must the diary be in the form specified by s 119 of the CPC but it must also be replete with grounds indicating the information against the accused (respondent) is well founded.26

Anything short of that again is not acceptable as otherwise the police will be on a frolic of their own and the citizens and subjects (and foreigners) can be in grave danger of losing their liberty if not their limb.

The police officers and Magistrate in Kuala Lumpur in Sivarasa‘s case did not follow the law as clearly laid down.27

More recently in Re Syed Mohammad b Syed Isa; Mohd Rosdi bin Jaafar; Thiagarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors28 Abdul Wahab Patail J, in reviewing applications for further detention, clearly reaffirmed the position:

Section 117(iii) CPC provides that in authorizing remand the Magistrate shall record his reasons for doing so. The requirement is mandatory — Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611, [1997] 1 CLJ 471. Thus in Saul Hamid Pakir Mohamed v PP [1987] 2 CLJ 257, Edgar Joseph Jr, J (as he then was), held that the President of the Sessions Court had erred when he failed to record his reasons for extending the order for remand. It underlines the need to consider the application carefully.

 It is imperative to record his reasons so as to enable review of the remand order if occasion should arise, as when an application for further remand is made. Failure to do so may gravely prejudice the person so remanded: Daulatram AIR 1933 Or 315.

 Remand orders should not be taken lightly or as a mere formality (Artatran AIR 1956 Or 129). A bare statement accepting the reasons given in an application is thus insufficient compliance with section 117(iii) CPC. It does not uphold the spirit and substance of section 117(iii) CPC.

 The importance of these reasons is best understood from the perspective that a remand order deprives a person of his personal liberty, a fundamental right guaranteed by the Federal Constitution.

In these cases the police and Magistrate breached the law. If it were a common citizen who had breached the law, he would have been arrested and charged. However the police officers and Magistrate concerned did not suffer any form of punishment for their wrongdoing. It is common ground that persons entrusted with such powers and who are well versed in the law have a higher duty to comply with the law and if they breach the law and the trust reposed in them, the degree of accountability on their part must be much higher.29

Because this has not been the case in Malaysia, these breaches continue with impunity.

The general response of the more senior police officers when confronted with the question on why the police make such arrests and decide unnecessarily to apply for further remand of a person under s 117 for 14 days and sometimes even longer, is that it is not they who remand the accused but the Magistrate. The investigating officer only makes a request as to what he needs. This surely cannot be a satisfactory answer to justify improper requests for remand.

The Magistrates are usually junior judicial officers, often just qualified and with hardly any experience and a limited knowledge of the big picture and the importance of their role. More often than not, it becomes a mere rubber-stamping exercise.30

Both parties, the Magistrate and the investigating officer, claim immunity for all their actions and orders as provided for by law.31 This cavalier attitude compounded by the immunities, perpetuates the problem.32

Therein lies one of the main reasons why the abuse and injustice continue.

Magistrates and the members of the Police Force fail to appreciate that,

Remands should not be taken lightly as a matter of mere formality (see for example Artatran AIR 1956 Or 129).

By comparison, sentencing a person, whether to a fine or a term of imprisonment, is a less onerous burden since it is only done with the confidence that the person being sentenced has been proven beyond reasonable doubt to be guilty.

A remand order, on the other hand, must always be considered along with the knowledge that the person sought to be remanded has not been proven beyond reasonable doubt to be guilty, and is entitled to be presumed to be innocent.

It must always be borne in mind that be it a remand or imprisonment, the subject is deprived of his liberty. It follows that a remand order cannot be based solely on that a serious crime has been committed and the [person] brought before the Magistrate seems to be a suspicious person, but must be based on some degree of confidence that he is the wrongdoer, that his remand is necessary to complete investigations and which cannot be achieved if he is released on bail. The onus is however, upon the prosecution to advance the grounds.33

The Courts have given clear guidelines:

  1. Section 117 requires more investigations to be carried out before an arrest. An arrest should not be the first step in an investigation, except in cases of an arrest in the course of a crime.34
  2. There must be grounds for believing that the accusation and information is well founded, suspicion is insufficient.35
  3. The entries of the investigation diaries provide the foundation upon which the reason or ground supporting the application are identified and weighed.36
  4. The police officer has a mandatory duty to transmit to the Magistrate a copy of the entries in the diary.37
  5. The investigation diary must be in the form stipulated under s 119 CPC.38
  6. The police must account for the period between the arrest and appearance before the Magistrate before a further remand is ordered.39
  7. If the police had previously obtained a remand order, but no diligent investigations were carried out, it is a correct exercise of the Magistrate’s discretion to refuse the application … 40
  8. The police must show that the remand of the arrested person is necessary to complete investigations, which cannot be achieved if he is released on bail.41
  9. Since completion of investigations is the purpose of the application under s 117(i) CPC, it cannot itself be the reasons or grounds supporting the application42. There must be something more than a mere assertion that investigations cannot be completed.
  10. Section 117 does not authorize detention of a person at leisure to conduct further investigations as to his involvement in other offences.43
  11. To remand a person until he gives a s 113 statement44 only makes the statement inadmissible and does not satisfy the onus on the police to show that a remand is necessary.45
  12. Grounds such as the remand is necessary for the suspect to be questioned, interrogated or for purpose of obtaining a cautioned statement are not valid.46
  13. If no more useful progress can be achieved but the person cannot yet be charged, or that further remand is not necessary because investigations are completed, he should be released on sufficient bail terms to ensure his attendance when required.47
  14. To check the suspect’s background, his friends and the stolen goods, begs the question of the quality and value of police information and in any case does not require remand of the arrested person. Similarly, completion of investigation papers is purely clerical work on the part of the police.48
  15. The police must satisfy the Magistrate why the accused person should be held in police custody and not in prison custody.49

Other safeguards, like the constitutional safeguard of the arrested person’s right to consult counsel has also been whittled down.

In Ooi Ah Phua‘s case,50 Suffian LP in the Federal Court held that

The right of an arrested person to consult his lawyer begins from the moment of arrest but that right cannot be exercised immediately after arrest… . The right should not be exercised to the detriment of any investigation by the police.51

In most cases, the counsel is not allowed to see the arrested person until investigations are completed. In some cases where access is given it is in the presence of the police officers.

What seems to have been missed is the substance. As Raja Azlan Shah J (as he then was) put it,

It is at the police station that the real trial begins and a Court which limits the concept of fairness until the period of police investigations are completed, recognizes only the form of the criminal process and ignores its substance.52

To even get access to an arrested person before a Magistrate in a remand proceeding is difficult, although the courts have clearly said that:

… In all cases, the police should, upon request, cooperate by keeping relatives of an arrested person or his counsel informed of the dates, times and the name of the Magistrate from whom a remand is going to be sought so as to enable counsel to appear before the Magistrate and apply to be heard.53

In reality, what actually happens is that the family members of the arrested person wait around the police station hoping to get a glimpse of the arrested person as he/she is being escorted to the Black Maria and immediately call the lawyer who is on standby at the Magistrates court of that particular district where the police station is located. Sometimes lawyers wait until the afternoon for the arrested person to be brought.

There have also been cases where the arrested person is brought and taken through a back door and not through the main entrance of the chambers. The remand order is given and the lawyer appointed is still waiting at the main entrance or court.54

Then there is what is called ‘chain-smoking remand orders’ — where the arrested person is taken to one Magistrate for 14 days, then to a different Magistrate for another 14 days and it continues like that. The writer knows of several instances where this has happened and has personally had conduct of a case where a habeas corpus application was filed as the arrested persons were detained for over 100 days. As soon as the date was fixed for hearing of the habeas corpus application, the arrested persons were released on bail and two of them charged. The High Court did not proceed with the application as it had become academic.

These types of abuses continue to this day, making a mockery of the safeguards afforded by the Constitution and the CPC.

The Magistrate is not informed that this arrested person has been kept in detention for more than 100 days. He only concerns himself with the investigation before him and not what investigation has been done in the various police stations.55

Abdul Wahab Patail J has held that,

To restrict the application of s 117 detentions to only 15 days to dispose of all matters relating to any report made before arrest ignores the fact that the alleged offence may be committed and reported in different police districts and police stations, and as a result falls under the jurisdiction of not only different police stations but different police districts and investigation officers in the ordinary performance of their duties are properly independent.56

With due respect, the writer disagrees for the following reasons:

  • The Constitution is the supreme law of the land. Article 5 is framed to ensure that no person is deprived of his life or personal liberty save in accordance with the law. Article 5(4) provides that a person shall not be detained beyond 24 hours without the Magistrate’s authority. Parliament has clearly stipulated in s 117 of the CPC that the Magistrate can only authorize the detention of an accused for a period not exceeding 15 days. It does not specify how many Magistrates or how many police officers or how many remand orders can be made but it does specify that ‘a person shall not be detained… ‘ It is clear from a plain reading of the Constitution that the intention of the legislature is to limit the detention of the accused to no more than 15 days at any one time. Any other interpretation will render illusory the protection provided for under the Constitution and the CPC.
  • Even in the case of a multiple offender, there is no need for the accused to be remanded and sitting in the police station while the police investigate. He can be released on police bail and be required to come back to the police station at any time for whatever reason the police may need him. As pointed out earlier, the police must investigate and then arrest. Not the other way round.

‘The liberty of the subject should not be sacrificed for administrative expediency’57

  • Today the police are equipped with computers and cutting-edge technology and forensic ability. They are in touch with each other throughout the country. They should be more efficient in law enforcement and it should not be at the expense of a fundamental right to personal liberty.
  • Our whole criminal jurisprudence is based on the presumption of innocence. In Khoon Chye Hin v Public Prosecutor58 Thompson CJ quotes Holroyd J:59

It is maxim in English law that it is better that ten guilty men should escape than that one innocent man should suffer.

Thomson CJ went on to hold that,

In other words it is but another way, perhaps a vivid way, of enunciating the presumption of innocence.

How then can one justify the detention of a man presumed innocent for a continuous period of remand of over 100 days on the basis of a variety of reports in different districts?

It must always be remembered that when a person is arrested and remanded for a long period of time, a social stigma immediately attaches to him, his friends desert him, his business and work is affected, his right to livelihood jeopardized, his creditors close on him, he is mentally tormented and put to the expense of engaging a lawyer. It is no consolation that he may turn out to be totally innocent after the police have completed their investigations.60

  • Where does one draw the line? 15 days each for different states or for different districts or for different police stations or different divisions (like special branch, commercial crime or criminal investigations) or different units or different investigating officers in the same police station or different reports even if it is under the same investigating officer? As a result a person can be detained for long periods of time almost indefinitely in our country on this basis without accountability.

The ‘police’ means the whole police force for the purposes of the Constitution and the CPC. Each police personnel is an agent of the whole force. The principal through its agent is only allowed, pursuant to s 117 of the CPC, a remand order/detention of the accused of a maximum period of 15 days, 14 of which must be by way of a Magistrate’s order. Each agent cannot have 15 days based on their various investigations all over the country. The whole basis of prohibiting the police from detaining a person beyond 24 hours and a Magistrate from remanding a person beyond 14 days, should not be thwarted by procedural gymnastics.

  • There are other specific legislation that allow for long periods of remand and detention.61 These statutes can be resorted to if the threat to society is so great. It is not in the interest of society and it was never the intention of legislature to give the power to the police and Magistrates to remand a person for more than 15 days under the general provision of s 117 of the CPC.

Abdul Wahab Patail J has taken the view that the proper way to avoid abuse is by the courts applying s 117 strictly and exercising its discretion to remand under s 117 not solely by the demands of convenience of the investigative and prosecution authorities, but by balancing such needs against the fact that any remand order is a restriction of a fundamental liberty against a person who has not been convicted of an offence.62

Unfortunately this is precisely where the system fails. Even when there is only the power to decide on remanding an accused person for 14 days leave alone ‘chain smoking orders’, the Magistrates are too young and inexperienced and the High Court is normally too taxed to entertain an application for revision.

To relate a typical incident — the writer recently appeared before a Magistrate in PJ to contest the request from the police for further remand (a chain smoking order). The first thing that struck the writer was the Magistrate’s youth. She seemed younger than his chambering student. Throughout the proceedings she did not look up once. She stared at the papers in front of her and gave the order the police asked for, even after Sivarasa‘s case was extensively quoted and brought to her attention. To her credit, she recorded her reasons for giving the remand order and read it aloud as follows ‘Reman diberi atas alasan merujuk kertas siasatan kepada TPR’63 — which on the face, is wrong in law.

On that basis, the writer rushed to the Shah Alam High Court and arrived at 11 am. He asked to see the Judge who was in chambers and related to the interpreter what had transpired in the Magistrates court. The Judge sent word through the interpreter that she would not see counsel without a letter. With great difficulty a letter was prepared narrating all the events that had transpired, and handed in by 2.15pm. The writer was informed that there was a farewell tea party for a staff in the Judge’s Chambers and was requested to come next week to which he replied, that it would be academic by then. The writer waited and the Judge finally came out of chambers and met the writer after 4.15pm only to say that it was too late, nothing could be done. The writer politely requested the Judge to look into this so that it would not happen to another citizen. That in a nutshell is the present state.

This brings out the next important point, delays and the attitude of those in authority. It has been well stated by Mr DR Karthikeyan, Director General of the Indian National Human Rights Commission that

The biggest contributing factor for the denial of human rights to a majority of people is ‘delay’ — delay in taking decisions, delay in communicating decisions, delay by those holding any authority at various levels in government. Most public servants are insensitive to their fellow citizens… Unless we devise a system where delay in the decision-making process is avoided, millions of people will remain victims of human rights violations… We can ensure better observation and protection of human rights only by increasing people’s awareness about their rights, and sensitizing security forces and public servants of their duties.64

There are many abuses that are never made known as a result of persons being detained without adequate safeguards. The statutory declarations of Munawar Anees and Meor Abdul Razak relate frightening experiences in police custody. It is the writer’s humble view that the safeguards did not work and the judiciary failed in these instances to protect the basic rights of these persons. Their statutory declarations stand as a reminder of what can happen.

It must be remembered that

In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of a police station or lockup.65

High Court judges have time and time again reminded the police and Magistrates of their role. Sharma J in Public Prosecutor v Law Say Seck & Ors66 said,

It may be that there is no justification for me to say that the police investigating agency in our country has not yet acquired a reputation of being proof against the temptation of attempting to secure confessions by questionable methods. I might say that such means and methods are capable of being used and it is the duty of the magistrate to see that they devote their attention to all the safeguards provided for ensuring that the confessions they record are truly voluntary.67

The warning given by the Syed Idid J in Polis Di Raja Malaysia v Keong Mei Cheng Audrey68 has not been heeded.

Anything short of that again is not acceptable as otherwise the police will be on a frolic of their own and the citizens and subjects (and foreigners) can be in grave danger of losing their liberty if not their limb.

And that of Lord Denning,

So long as those powers are properly exercised, they are safeguards of freedom. But powers may be abused, and if those powers are abused, there is no tyranny like them.69

The abuses

It must be appreciated that the police have extensive powers. They have power to detain people and keep them in places to which others have no access.

In the words of Anand J of the Indian Supreme Court,

Death in police custody is not generally shown in the records of the lockup and every effort is made by the police to dispose (sic) of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher officers turn a blind eye to such complaints. Even where formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting in death, as the police lockup where generally torture or injury is caused is away from public gaze and the witnesses are either policemen or co-prisoners who are highly reluctant to appear as prosecution witnesses due to fear of retaliation by the superior officers of the police… since they are in charge of the police station records which they do not find difficult to manipulate.70

The same situation exists here.

Therefore it is almost impossible to secure evidence of what transpires in the police station by way of witnesses or even documents if the police themselves do not cooperate. Taking the matter to court does not help.

The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a (sic) suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lockup, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture.71

The safeguard that an arrested person has a right to consult a legal practitioner under art 5(3) has as mentioned earlier been diluted by judicial pronouncement in Ooi Ah Phua‘s case,72 which allows delays and restrictions to this right.73

No one is allowed to have access to these individuals unless the police say so — not even an advocate and solicitor of the High Court of Malaya who is an officer of the court.

The way remand orders are obtained as well as the lack of cooperation by senior police officers make it extremely difficult, for even the safeguards against detention beyond 24 hours to be effective.

As a result many who are clothed with power and authority, continue to commit crime and injustices on individuals as they please and continue to enjoy the protection of the law with no or very limited recourse on the part of the victim.74

Though the writer appreciates that there are honorable police officers and magistrates who do their best to uphold and enforce the law, there are a great many who do not.

Therefore, all the writer can do apart from sharing his own experiences is to highlight what has happened to people who have been arrested, those few of which have been reported in the press. It cannot be proven who committed the crime. The conclusion is yours to make based on your personal experience and from the brief facts that we are allowed to know.

On 13 April 1993, the New Straits Times (NST) reported — Police said teenaged fisherman Manaf Mat died while in custody of prison authorities and not under police custody. Manaf died in Alor Star General Hospital on 8 February 1993, nine days after he was arrested for alleged drug possession.

On 13 May 1994, the NST reported — Police detainee found dead in cell. A 45-year-old detainee was found dead inside the Klang police station lockup. Lim defaulted supervision after serving sentence for dadah offences in 1990.

On 15 May 1995, the NST reported — An air-conditioner mechanic detained by police under the Emergency Ordinance 1969 to facilitate investigations into a financial institution break in March died under detention.

On 19 May 1995, the NST reported — City Police Chief, Datuk Ismail Che Rus has denied that the death of a 40-year old air-conditioner mechanic while in police custody was due to internal bleeding.

On 11 October 1995, the NST reported — Attorney-General, Datuk Mokhtar Abdullah ordered a judicial inquiry following dissatisfaction with police failure to identify the person or persons responsible for the death of an air-conditioner mechanic in a police lockup.

On 21 November 1995, the NST reported — A police officer told the Magistrate’s court that the suspect identified as detainee No 37/95 was found dead, naked and in half-kneeling position at the Police Remand Centre, DSP Paul Keong, who is PRC commandant said.

On 22 November 1995, the NST reported — A detainee was in the interrogation room for over 96 hours at the police remand centre before he died several days later.

On 23 November 1995, the NST reported — A detainee at the Police Remand Centre complained of being assaulted at an interrogation room where he had been kept for four days. The complaint by detainee Lee Quat Leong was made to L/Cpl Khalid Ahmad who told the court that Lee however, did not tell him who had assaulted him.

On 24 November 1995, the NST reported — A teacher, Daniel Hasni Mustaffa, who is Lee’s friend and former neighbour said, Chief Inspector Ng Koh Siew denied the deceased was assaulted while in detention.

On 25 November 1995, the NST reported — Mechanic Lee Quat Leong who died while being detained at the police remand centre had succumbed to subconscious bleeding caused by violent blows on many parts of his body, a forensic pathologist told the Magistrate’s court.

On 29 November 1995, the NST reported — Eleven policemen including the City Deputy Head of Criminal Investigations were criminally involved in the death of mechanic Lee Quat Leong at the police remand centre.

On 18 January 1996, the NST reported — A detainee collapsed in the lockup of the District Police Headquarters and died on the way to the Tengku Ampuan Rahimah Hospital in Klang.

On 4 July 1997, the NST reported that a 25-year-old man who was detained for suspected car and motorcycle thefts was found dead in a toilet at the Cheras Police Headquarters.

On 21 December 1997, the New Sunday Times reported that the Perak Police Chief Deputy Commissioner, Mariman Mohd Taib said the police were awaiting post-mortem and chemist reports pertaining to the death of Othman Mohd Hashim in a police lockup in Parit. Othman, who was detained for alleged theft, was found hanged with a towel in a lockup.

On 2 September 1997, the NST reported that a second-hand car dealer, R Shanmugam, who was found dead at the Kampong Tawas Police Station lockup, was in police lockup for 66 days. The death certificate issued by the hospital authorities stated he died of hanging.

On 10 February 1998, the NST reported that the Selangor police offered to record statements from seven Indonesian workers who claimed to have watched their colleague being assaulted by two plainclothes detectives. As a result, the victim died in police custody at the Seri Kembangan Police Station.

On 4 March 1998, the NST reported that police said that the cause of death of the 36-year-old labourer while in police custody at the Bentong District Police Headquarters was liver failure. However, the victim’s wife claimed that there were a few bruises on her husband’s body and hands and legs.

On 15 April 1999, The Sun reported that police are investigating the death of a 20-year-old drug suspect at the Nilam Puri Police Station two hours after his arrest. Police were about to take him to the Kota Bahru Police Headquarters when they found him dead in the lockup.

On 17 March 2000, the NST reported that the Bar Council today called for an inquest into the death of a man while in police custody four months ago. Francis Nathan, 21, who was held for questioning in connection with dadah related offences, died at the Kuala Lumpur Hospital on 26 October last year.

On 29 April 2000, The Sun reported that a 22-year-old assistant driving instructor who drowned in the Malacca river four years ago after escaping from police custody was found to have been handcuffed at the time of his death, a sessions court was told today.

On 20 May 2000, The Star reported that a widow who is suing the police and the government claimed that her 31-year-old husband was taken from her house by policemen in August last year and brought back ‘as a corpse’ eight days later.

On 20 May 2000, Berita Harian reported that a woman whose husband died while in police custody at Rawang Police Station last year, filed a summons against the Royal Malaysian Police Force and the government of Malaysia for damages amounting to RM 682, 400 (Pada 20 Mei 2000, Berita Harian melaporkan seorang isteri yang suaminya mati ketika dalam tahanan polis di Balai Polis Rawang tahun lalu, mengemukakan saman menuntut gantirugi sebanyak RM 682, 400 daripada Polis Diraja Malaysia (PDRM) dan Kerajaan Malaysia).

On 13 June 2001, Harian Metro reported that a detainee was killed from injuries to the head, ribs and other parts of the body as a result of being assaulted by other detainees in the Setapak Police Station lockup — (Pada 13 Jun 2001, Harian Metro melaporkan seorang tahanan terbunuh apabila cedera di kepala, rusuk dan beberapa bahagian lain akibat dipukul sekumpulan tahanan lain di lokap di Balai Polis Setapak, di sini).

On 26 January 2002, the NST reported that a man has sued the officer in charge of the police station in Parit, Perak and two others for negligence involving the death of his son in the police lockup a day after his arrest on Dec 16, 1997.

On 5 August 2002, Malaysiakini reported that Suhakam had begun probing the mysterious deaths of two suspects detained at the Putrajaya police station lockup. On June 21, a 20-year-old waiter died at the Putrajaya Hospital after he was sent there from the lockup. Another suspect died at the Putrajaya Hospital on July 28 after spending more than a week at the lockup.

On 10 February 2003, The Star reported that according to police, a suspect who fell to his death after questioning at the district police headquarters had minutes earlier confessed to killing a bank cashier.

On 14 March 2003, The Star reported that a Barisan MP had voiced his concerns over the image of the police, citing cases of criminal acts committed by police officers including having sex with female detainees. He said statistics between 2000 and last year showed 44 detainees died in police detention. These should not be regarded as isolated cases. He proposed the setting up of a special commission to conduct research on how to improve the force, and the formation of an independent body to investigate and prosecute police who had committed offences.

On 8 April 2003, The Star reported that the Inspector-General of Police said that six policemen, including one or two ‘senior police officers’ were found to have abused their powers during a raid at the Palm Court apartments. The police had rounded up 196 people including 186 Indian nationals, most of whom were IT experts. The Indians had complained of physical abuse by the police and some claimed that their passports were defaced.

There is an expectation of society that the government and their law enforcement functionaries deal with criminals in an efficient and effective way and bring to justice those involved in crime. But the cure cannot be worse than the disease itself.75

As the Supreme Court of India reminded members of the judiciary,

The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society.76

A core problem

In remand proceedings, the problem seems to persist. It continues even though judges have decided on, pronounced and declared the law. Most, if not all decisions on remands, are made by Magistrates. The checks and balances do not seem to be working. There is something amiss.

In Re The Detention of R Sivarasa & Ors,77 KC Vohrah J held,

It will be noted that ss 28 and 117 have been inserted into the CPC for a good reason, so that the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the Federal Constitution.

However, Magistrates are part of the judicial and legal service, as provided under art 132 of the Federal Constitution. The service is run by a commission, of which the Attorney General is a member.78 The Attorney-General however, is known as the head of the judicial and legal services.79

The police conduct the investigations and the Attorney General’s chambers prosecute. The AG’s chambers work closely with the police (quite rightly) and are very much involved and often times direct the investigating officers.

How can Magistrates be expected to adjudicate fairly on remand applications, when the application is made under the directions of their head/chairman? The Magistrates may fear that their career advancement in the judicial and legal service may be affected apart from being penalized by way of transfers.

Magistrates often serve as Public Prosecutors and are interchanged, which compounds the problem. It is often their former colleagues or Senior DPPs or division heads of the AGs chambers who are directing the investigation or who appear before the Magistrate, placing the magistrate in a difficult position, especially in light of the great possibility that they may go back into the AGs chambers. Magistrates who have been DPPs would have worked very closely with the police and formed close ties and these factors may be weighing on their minds when deciding on remand applications.

In the case of Cheak Yoke Thong v PP,80 an application was made asking the Magistrate to disqualify himself from hearing the case on the ground that the Magistrate would be biased because the Magistrate is a member of the judicial and legal services of which the Public Prosecutor at whose instance the charge against Cheak was preferred, is its head. The Magistrate refused the application. But on the day before upon a similar application in another case, the same Magistrate allowed the application and disqualified himself.

Salleh Abas FCJ held:81

With regard to actual or likelihood of bias, the learned Magistrate said in his grounds of judgment that although he feared the Attorney-General, he gave an assurance that he would never give in to the Public Prosecutor’s convenience…

We see no reason not to accept his assurances, unless he did not mean what he said. After all the fear that he entertained is a self induced and misguided fear…

… The Attorney General today is a civil servant. He belongs to the judicial and legal service and being the highest paid officer in the service it is natural that he assumes the leadership in the service and is thus referred to as head of the service for better or worse…

… If the submission of Cheak is accepted it will mean that all Magistrates and presidents of sessions courts in this country will have to disqualify themselves from hearing any criminal prosecutions at the suit of the Public Prosecutor. Such a situation will cause a failure of justice as the whole administration of justice in the subordinate courts will come to a standstill. The law will not be so powerless as to allow the situation to develop. The doctrine of necessity can always be invoked to prevent it from happening. Just as ex necessitate the Yang DiPertuan Agung is authorized by the Constitution to declare a state of emergency when he is satisfied that an emergency situation exists, similarly ex necessitate the Magistrate is competent and obliged to adjudicate even though he is prima facie disqualified for interest or bias…

… The learned judge who heard the appeal held that the Attorney General is not the head of the judicial and legal service, that it is not his decision alone which decides the fate of the Magistrates career in government service because the Magistrate together with all the other officers in the judicial and legal service is under the jurisdiction of the Judicial and Legal Service Commission. We see no reason to disagree with him.

The key feature in a democratic government is the separation of powers. Separation obviously means that it is separate and independent, on an objective, not subjective assessment. Any person exercising a judicial function must adjudicate between individual and state and individuals inter se. That person must be separate from the other organs and independent for the system of checks and balances to work.

Even in civil law, as stated in the leading textbook on administrative law,82 the principle that bias disqualifies an individual from acting as an adjudicator flows from two fundamental maxims, that a man should not be judge in his own cause, and secondly, justice must not only be done but seen to be done.

The first maxim applies not only when the adjudicator is himself a party to the dispute but also when he has some interest therein. According to the second maxim, it is not necessary to prove that a particular decision was in fact influenced by bias. It is sufficient if there is reasonable suspicion about the adjudicator’s fairness.

The fountain of administrative justice must not only be pure but it must also enjoy public confidence and credibility.83

In the words of Lord Denning,

Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking: the judge was biased.84

The Magistrate may not be actually biased but it is the perception and public confidence that is being addressed.

If this is the position in civil law, what more in criminal law, where the personal liberty of an individual is at stake?

Conclusion

The substantive law as to how and when a person can be arrested, the constitutional safeguards as to how and for how long a person can be remanded, are fair and just. These sacred and cherished rights of life and personal liberty have been enshrined in the Constitution.

The expression ‘life or personal liberty’ has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.85

The problems lie in the structure, procedure, delay and the personalities who carry out these functions. The police are given wide powers affecting the rights and liberty of individual citizens. Powers of arrest, search, seizure, detention and application for remand and police bail, mark several stages in executive police action which afford vast scope for misconduct by police personnel at the operational level.

 In fact, recently there have been reports of police officers being involved in crimes, a whole team of them. How could this have gone undetected for so long? Even the highest-ranking police officer, the former Inspector General of Police86 was charged for inflicting bodily injury to the former Deputy Prime Minister, which received international publicity and provoked concern. The assault87 and battery was initially denied. But after a Royal Commission of Inquiry was formed in view of the growing international and local pressure, the former IGP himself admitted his guilt. He was charged and convicted of the crime committed on a person at the complete mercy of the police while in custody. How could this have happened?

What about those who kept silent and acquiesced to the crime? They were never brought to justice. They continue to be our law enforcers. If a former Deputy Prime Minister can be subject to such a crime at the hands of the highest ranking officers in the presence and/or knowledge of other high ranking officers in our police force, what about a mere citizen in the hands of the lower ranking officers and constables?

If functionaries of the Government become law breakers, it is bound to breed contempt of the law and would encourage lawlessness and every man would have a tendency to become a law unto himself thereby leading to anarchy. No civilized nation can permit that to happen.88

The safeguard in requiring a Magistrate to consider any application by the police, is at present ineffective, as they do not understand, appreciate or are unable to play their vital role in remand proceedings.

There is no proper accountability.

That is why, apart from denying a person his freedom and liberty, and subjecting him to the humiliation and distress, the further remand of a person in police custody after 24 hours should be the exception rather than the norm that it has now become.

Recommendations

The recommendations that follow seek to redress some of the weaknesses in the system, highlighted in this paper.

  • Structure

It is of fundamental importance to ensure that the doctrine of separation of powers applies to any person or body who adjudicates disputes between individual and state and individuals inter se. Therefore, the most important recommendation is to truly have a separation between the legal service headed by the Attorney-General and the judicial service headed by the Chief Justice. Its importance cannot be overemphasized.

  • Procedure
    • A fixed time be given every day for remand applications to be heard for specific police stations in a particular court only. This list must be made public. Remand hearings must be conducted in open court with the decorum and seriousness it rightly deserves.
    • High Court judges to be available at short notice to hear an application for revision and ensure that the safeguards and law are being followed. There must always be a High Court judge designated and free to hear applications for revision orally on the very day or at the latest within 24 hours of the remand order being made.
    • The constitutional right of an arrested person to counsel be given immediate effect. The Magistrates or sessions court judges must ensure that the accused has access to his counsel at the remand hearing. In line with the Federal Constitution, this could be included in the IGP standing orders and the Courts’ Practice Directions.
    • The right of an accused person to consult and be defended by a legal practitioner of his choice is illusory if there is no privacy during that consultation. There must be a conducive environment for the arrested person to be able to tell his counsel how he is being treated and to give instructions on his case.
    • If possible, remand applications should be heard only by senior judicial officers (sessions court judges).
    • A person can only be detained by the police and Magistrate at any one time for a maximum period of 15 days but can be arrested any number of times and released on police bail with the requirement to present himself at the police station on and at a specific date and time.
    • Any person remanded under s 117 must be detained in a remand centre managed by prison authorities.
  • Sanctions/Accountability
    • Absence of proper supervision of police officers encourage abuse. When police officers feel that their activities are not monitored, they take liberties. Imposition of deterrent punishment on erring officers by departmental superiors can go a long way in enforcing norms of discipline and ensuring compliance of the law.
    • An effective internal self-monitoring system must be set up with some degree of independence and transparency in the police force.
    • There should also be adverse consequences for Magistrates who continue to flout basic procedure and requirements of the law.
    • Sanctions both civil and criminal for breaching the provisions of the law with regard to false arrest, detentions, remands and abuse by those in power must be imposed if it can be shown that they acted in reckless or total disregard of the law and the safeguards established by it. There must be severe consequences not only for those officers who commit the crime, but also those who knew of it and kept quiet. There must also be some disciplinary action taken against those who are in charge who could with reasonable diligence have found out. There must be a clear mechanism for this and a report, which must be tabled in Parliament annually.
    • External accountability is essential. There must be an independent and transparent board apart from the internal self-monitoring system. The board could comprise of representatives from Suhakam (one commissioner), the Bar Council (two members), Hakam (one member), Attorney General’s Chambers (two members), one member of Parliament, senior police officers (two members), the judiciary (two members). Its function is to monitor the abuses and recommend changes to the procedural and substantive law in this area. Ideally it should be chaired by a Commissioner from Suhakam who should preferably be a former judge.
    • Police abuse occurs mainly because of corruption, psychological pressures or over-zealousness. Every police officer must be required to undergo and pass a yearly psychological assessment, like that instituted in Australia for their police officers (Western Australia).
  • Training & Education
    • Respect for human rights should be incorporated into the professional ethics course of the police force. A board should be set up comprising two Commissioners of Suhakam, two members of the Bar Council and two members from the AG’s chambers to come up with a syllabus for inculcating these values into the members of our police force. Every police officer must realize that he is responsible for upholding human rights both in prevention of crime and in enforcement of the law.
    • 2 MLJ cxxix at clvi
    • A similar programme needs to be organized for all Magistrates and sessions court judges on a yearly basis.
  • Adequate remuneration and public recognition
    • Police officers should be adequately remunerated for the perilous jobs that they perform and those who execute their jobs well should be recognized and rewarded.
    • There should be a review of the salary scale of our police force, they should be paid well and rewarded both monetarily and by way of promotion for doing what is right. We must give them the proper motivation.
    • There should be a transparent and public system of rewards for the police officers deserving of the same. The public should be encouraged to play their part in writing in to praise the police officers who are doing an excellent job, well above and beyond the call of duty.
  • Redress for victims and public investigations to address public perceptions

Though not directly on point, this is relevant due to deaths of arrested persons while in remand. Some mechanism needs to be put in place to ensure the perpetrators of these crimes are brought to justice.

  • Death in police custody
    • A police report must be lodged by the investigating officer of what exactly transpired resulting in the death of the arrested person within two hours of the death.
    • Medical and forensic experts appointed by the deceased’s family must be given access to the body and allowed to be present throughout the post-mortem.
    • An inquest must be held immediately
    • The court must determine the cause of death with the aid of experts with the issue of culpability in mind. If the death is due to natural causes, the court should clear the police of any culpability, which must be done clearly, precisely and publicly. If the cause of death is not because of natural causes but due to beatings then all those who had custody care and control of the arrested person while in police custody must be charged for the offence. They will have to defend themselves in court. The officer in charge of the police station should be fined or disciplined in some way.
    • In order for this to be credible, just and transparent, the family of the deceased person should be allowed to adduce evidence and through counsel cross-examine all witnesses in an inquest before a decision is made.
  • Injury in police custody
    • The victim must be given immediate medical treatment
    • 2 MLJ cxxix at clvii
    • The victim must be given immediate access to his lawyer and family
    • A police report must be lodged by the investigating officer immediately or at the very latest within two hours as to how it happened and this report must be immediately made available to the victim or his lawyers.
    • The arrested person must be immediately placed in the custody of prison authorities or at the very least in the custody of another police officer in a different police station.
    • Civil and criminal sanctions will apply.
  • Reversing the burden of proof

The Law Commission of India in its 113th Report 89 recommended that the following rebuttable presumption be incorporated into the Evidence Act, which in the writer’s opinion would be an effective way to address the abuse of police powers. The Indian Supreme Court also called upon Parliament to incorporate the amendments suggested.90 The Law Commission recommended that in the prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the court may presume that the injury was caused by the police officer having the custody of that person during that period. This should apply both where injury or death is caused to a person while in police custody. We can include this rebuttable presumption in our Evidence Act 1950 under s 114.

Finally

Power tends to corrupt and absolute power corrupts absolutely.91 It is so often quoted but seldom really appreciated. We cannot place in the hands of any one person, absolute power over another. There must always be a check and balance. It is the balance that is difficult to attain. But if we have adequate laws and procedures in place, the proper checks and balances, effective safeguards for the individual, programs to educate on fundamental rights and personal liberty of human beings and to sensitize those entrusted with the power to detain and remand — we will help those in power stay clear of the temptation and corruption that power inevitably brings.

Slowly we will achieve that fine balance between respecting and protecting the individual’s human rights within the context of criminal proceedings and the interest of society in bringing criminals to justice.

We can then truly say, we are governed by laws not by men.92

 

 

1  Articleship, CLE (Malaya), CLC (IALS, UK), LLM (UK), MCIArb (UK), Mediator – Australia & Malaysia, Member of the Bar Council, Malaysia; Member of the Human Rights Committee of the Malaysian Bar; Appointed lecturer on Police Powers and Human Rights by Suhakam, the Human Rights Commission of Malaysia.

2 The writer does not share the view taken by Siti Norma FCJ in Mohd Ezam bin Mohd Noor v Ketua Polis Negara & other appeals [2002] 4 MLJ 449 at 514 that it means only ‘an invitation to look at the 1948 Declaration if one is disposed to do so…’ The writer is of the view that once Malaysia became a member of the United Nations, it pledged itself to achieve, in co-operation with the UN, the promotion of universal respect for and observance of human rights and fundamental freedoms. The UN General Assembly proclaims the common standard of achievement for all peoples and all nations, to the end that every individual and organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance both among the peoples of Member States themselves and among people of territories under their jurisdiction. As a Member State we must honour our pledge. Parliament, in line with that, enacted s 4(4) of the Human Rights Commission Act 1999 with the words ‘regard shall be’ not making it an option.

3 Under s 117 of the Criminal Procedure Code 1927 — hereinafter referred to as remand proceedings/orders.

4 PN Bhagwati at the Kumarappa-Lecture delivered at the TATA Institute of Social Sciences, Bombay, on 23 February, 1985. Also found in Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing House, at p 11.

5 ‘It must always be remembered that the freedom to which we aspire is freedom to govern ourselves under a system in which parliamentary institutions shall be exclusively representative of the people’s will’ — Tunku Abdul Rahman in moving the second reading of the Federal Constitution Bill on 15 August 1957 — Malaysian Constitutional Documents (2nd Ed) Vol 1 at p iv. Also see Cyrus V Das Governments & Crisis Powers (1996) The Malaysian Current Law Journal Sdn Bhd, Kuala Lumpur at p 69.

6 The Rt Hon Lord Denning, The Due Process of Law (1980) London, Butterworths, at p 101.

7 [1977] 2 MLJ 116.

8 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

9 Kumarappa-Lecture delivered at the TATA Institute of Social Sciences, Bombay, on 23 February 1985. Also found in Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing House at p 11-12.

10 [1987] 1 MLJ 383 at p 387.

11 To do this, the judiciary must always keep in mind the most important and general principle stated by John Stuart Mill in his Essay on Liberty that, ‘The only purpose for which power can be rightfully exercised over any member of civilized community against his will, is to prevent harm to others.’

12 Keynote Address by the Rt Hon Tun Mohamed Dzaiddin Hj Abdullah, Chief   Justice Malaysia, at the opening of the seminar entitled ‘A Practical Approach to Criminal Procedure’ on Tuesday, 15 October 2002 at Dewan Tun Hussein Onn, Putra World Trade Centre, Kuala Lumpur. [2002] 4 MLJ at i-lxiv.

13 The Human Rights Commission of Malaysia (Suhakam) decided that this should be one of the priority areas to be studied for the year 2000 and published a report entitled ‘SUHAKAM Law Reform Report: Rights of Remand Prisoners December 2001’ (hereinafter referred to as ‘the Suhakam Report’). The report raises several shortcomings of the present remand proceeding and has recommended changes to be made.

14 Article 5(1) — No person shall be deprived of his life or personal liberty save in accordance to law.

Article 5(3) — Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

Article 5(4) — Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty four hours (excluding the time of any necessary journey) be produced before a Magistrate and shall not be further detained in custody without the Magistrate’s authority …

15 Criminal Procedure Code (1927) FMS Cap 6.

16 It is worthy of note that Suhakam has recommended that a person be brought before a Magistrate within 24 hours as specified in the Constitution and ss 28 and 117 of the CPC, regardless of whether the 24 hours would fall within a Saturday, Sunday or Public Holiday. The liberty of the individual should not be sacrificed for administrative expediency.

17 Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611 at p 619.

18 Section 117 in its entirety:

  • Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by section 28 and there are grounds for believing that the accusation or information is well-founded the police officer making the accusation shall forthwith transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before such Magistrate.
  • The Magistrate before whom an accused person is produced under this section may, whether he has or has not jurisdiction to try the case, from time to time authorize the detention of the accused person in such custody as such Magistrate thinks fit for a term not exceeding 15 days in the whole. If he has not jurisdiction to try the case and considers further detention unnecessary he may order the accused person to be produced before a Magistrate having such jurisdiction.
  • A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.

19 [1996] 3 MLJ 611.

20 He was arrested with 66 other people in an alleged demonstration, which took place at Asia Hotel Kuala Lumpur on 9 November 1996.

21 Sivarasa and the others were remanded from 10 November 1996 to 13 November 1996.

22 The remand order was for another 10 days, which makes it the maximum period of remand that is permissible under the law for the Magistrate to allow. Bearing in mind the offence investigated it is difficult if not impossible to understand the legal basis the police had, for requesting further remand and of greater concern is how the Magistrate made the remand order. In many instances this injustice continues today.

23 KC Vohrah J in Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611 at     619.

24 Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611at 619. See Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 at 221. However Shaik Daud J in the case of Audrey Keong v PDRM [1997] 3 MLJ 477 at the Court of Appeal stage took the view that the Magistrate should not at that stage concern himself with the legality or otherwise of the arrest but nevertheless affirmed the High Court’s decision on a different ground.

25 Polis Di Raja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296at 303.

26 Polis Di Raja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296 at 303.

27 In fact, in Sivarasa‘s case as well, the court went on to re-emphasize the point and held that failure to transmit to the Magistrate a copy of the entries was fatal — Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611 at 618.

28 [2001] MLJU 163.

29 Factors such as these are taken into account when sentencing a person.

30 In Suhakam’s report at p 7 it states ‘The hearing, in Kuala Lumpur, is conducted in the Magistrate’s Chambers and not in open Court. The arrested person is locked in a cell at a distance from the Magistrate and is unable to communicate either with the Magistrate or his counsel, if he has one. The arrested person in not in the same room as the Magistrate and cannot hear what is going on between the Police officer and Magistrate. The arrested person is not given an opportunity to challenge the information put before the Magistrate’.

31 An order of a Magistrate authorizing the detention of an arrested person beyond the period of 24 hours made under s 117 is a judicial act and cannot found a claim for damages against the Magistrate: Chong Fook Kam v Audrey Keong [1994] 3 MLJ 296 at 303 See also Hamid Ibrahim, Hamid’s Criminal Procedure (1994) Kuala Lumpur, Denning’s Book Centre at p 268.

32 In other jurisdiction like in India, Canada and Ireland the courts have ruled that the state is liable, sovereign immunity is not available for violations of fundamental right to life or basic human rights.

33 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

34 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

35 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

36 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

37 Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611.

38 Polis Di Raja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296.

39 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

40 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

41 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

42 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

43 Ibid.

44 Cautioned statement pursuant to s 113 of the CPC.

45 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

46 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

47 Ibid.

48 Ibid.

49 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

50 [1975] 2 MLJ at p 198.

51 In fact in the case of Ooi Ah Phua v Officer-in-charge of Criminal Investigations Kedah/Perlis [1975] 2 MLJ at 198 the Federal Court went further and held that the right to file a habeas corpus was not the correct remedy. The writer is of the view that the Court should not and cannot take away a constitutional right afforded to every citizen who believes he/she is unlawfully detained. How much more unlawful can a detention be, if the detaining authority breaches the express right guaranteed under the Constitution?

52 Raja Azlan Shah J in the Federal Court in Hamid Bin Saud v Yahaya bin Hashim & Anor [1977] 2 MLJ 116 at p 118.

53 Saul Hamid v Public Prosecutor [1987] 2 MLJ 736 at p 740 as per Edgar Joseph J. In Suhakam’s report at p 7 it states ‘The hearing, in Kuala Lumpur, is conducted in the Magistrates Chambers and not in open court. The arrested person is locked in a cell at a distance from the Magistrate and is unable to communicate either with the Magistrate or his counsel, if he has one. The arrested person in not in the same room as the Magistrate and cannot hear what is going on between the Police officer and Magistrate. The arrested person is not given an opportunity to challenge the information put before the Magistrate’.

54 Suhakam in its report at p 9 recognizes this problem and recommends that all remand proceedings be held in open court. ‘The proceedings be carried out in open court with the arrested person in the dock and in a position to communicate with the Magistrate as well as counsel.’

55 Suhakam in its report at p 8 adverted to this problem and at p 10 stated that ‘Magistrates should inquire when the person was first arrested and whether he has been moved from one district to another and more importantly, how long he has already been in custody’.

56 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

57 Suhakam in its report at p 8 states ‘Suhakam is of the view that the liberty of the subject should not be sacrificed for administrative expediency’.

58 [1961] 27 MLJ 105 at 108.

59 Sarah v Hobson 1 Lewin 261.

60 PP v Tan Kim San [1980] 2 MLJ 98. Though here the learned judge, Harun J (as he then was) rebuked the police for charging first and then investigating, the same stigma attaches to a person arrested and remanded for a long period of time.

61 Internal Security Act 1960.

62 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121 by Abdul Wahab Patail J.

63 Translation: ‘Remand is given on the basis that the investigation papers must be referred to the DPP’.

64 The Delhi Times, December 10, 1998. Also found in Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing House, at p 8.

65 DK Basu v State of West Bengal (1997) AIR SCC 610 at p 615.

66 [1971] 1 MLJ 199.

67 [1971] 1 MLJ 199 at 201 — The position where s 113 Statements under the CPC is inadmissible as evidence may go a long way in helping the police secure convictions by way of evidence rather than by confession. It has been suggested that if what is said by the accused cannot be used in court, it will encourage the accused to speak and tell of things that will assist police investigations — Tan Sri Harun Hashim, Vice Chairman of Suhakam.

68 Polis Di Raja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296 at 303.

69 The Rt Hon Lord Denning, The Due Process of Law (1980) London, Butterworths at p 101.

70 Neelabati Bahera v State of Orissa (1993) 2 SCC 746 also in (1993) AIR SCW 2366. Quoted extensively in the Indian Supreme Court case of DK Basu v State of West Bengal (1997) AIR SCC 610 at p 619.

71 DK Basu v State of West Bengal (1997) AIR SCC 610 at 620.

72 [1975] 2 MLJ at p 198.

73 Suffian LP ‘The right of an arrested person to consult his lawyer begins from the moment of arrest but that right cannot be exercised immediately after arrest. A balance has to be struck between the right of the arrested person to consult his lawyers on the one hand and on the other the duty of the police to protect the public from wrong doers by apprehending them and collecting whatever evidence that exist against them. The right should not be exercised to the detriment of any investigations by the police.’ [1975] 2 MLJ at p 198.

74 The writer is aware that not all members of the police force are doing this but there is a substantial proportion of them who do so and a substantial proportion who cover it up or refuse to take action against these ones who break the law. The proportion is sufficient to no longer be treated as an isolated incident.

75 Supreme Court of India in DK Basu v State of Bengal (1997) AIR SCC 610.

76 Ibid at p 620 — It is with regret that the writer notes that in a recent case of an inquest into the death of a person while in police custody, the lawyer holding a watching brief for the family of the deceased was charged with interfering with court proceedings pursuant to s 228 of the Penal Code and for criminal intimidation pursuant to s 506. The s 228 charge was eventually withdrawn by the Attorney General and the High Court discharged the lawyer of the charge under s 506 — Uthayakumar a/l Ponnusamy v Pendakwa Raya [2003] 3 AMR 592.

77 [1996] 3 MLJ 611 at p 619.

78 Article 138 of the Federal Constitution.

79 Per Salleh Abas FJ in Cheak Yoke Thong v PP [1984] 2 MLJ 119.

80 [1984] 2 MLJ 119.

81 Cheak Yoke Thong v PP [1984] 2 MLJ 119.

82 Administrative Law of Malaysia and Singapore (3rd Ed) by MP Jain, Malayan Law Journal, Butterworths at p 358.

83 Administrative Law of Malaysia and Singapore (3rd Ed) by MP Jain, Malayan Law Journal, Butterworths at p 358.

84 Metropolitan Properties Ltd v Lannon [1968] 3 All ER 304, at pp 310-311.

85 DK Basu v State of West Bengal (1997) AIR SCC 610 at 616.

86 Tan Sri Rahim Nor.

87 The Royal Commission of Inquiry heard evidence from a Government doctor who described the blows as lethal even after being told the meaning and effect of the word lethal.

88 Supreme Court of India in DK Basu v State of Bengal (1997) AIR SCC 610.

89 113th Report of the Law Commission of India.

90 DK Basu v State of West Bengal (1997) AIR SCC 610.

91 Lord Acton, in a letter to Bishop Mandell Creighton, 3rd April 1887 in Creighton L, Life and Letters of Mandell Creighton (1904) Vol 1, Ch 13.

92 Paper presented at a Seminar organized by the Malaysian Bar Council on Police Powers and the Rights of a Remanded Person on 26 April 2003, Kuala Lumpur, with participation from the Judiciary, Suhakam, Non-Governmental Organizations and the Malaysian Bar.

MLJ – Police Powers and Remand Proceedings

Rights of Accused Persons – Are safeguards being Reduced

MLJ Rights of Accused Person – Are Safeguards Being Reduced?

 

Malayan Law Journal

RIGHTS OF ACCUSED PERSONS — ARE SAFEGUARDS BEING REDUCED?by Jerald Gomez

One of the hallmarks of a free society is the ability of citizens to go about their businesses without the need to explain to anyone in authority what they are doing and without fear that they may be subject to arbitrary challenge or arrest2. Personal freedom is of great importance and covers the right to privacy, freedom to enjoy property, freedom of speech and even freedom from disclosure of personal secrets.

A person’s physical freedom is even more important. “To interfere bodily with a person strikes at the heart of their individuality3“. Therefore when the state authorizes the police to arrest, search, question and detain a person, such authority must be clearly stipulated in a statute, be exercised on the clearest grounds and only when it is absolutely necessary.

It is the rights accorded to a person between the time he is arrested up to the point a decision is made as to his guilt or innocence that we are concerned with in this paper.

RIGHTS AND FREEDOM FROM ARBITRARY POWER

The extent to which we provide safeguards to protect these rights indicates our society’s level of maturity and freedom. It has often been said that an important measure of society’s civilization is the extent to which human rights are respected and protected within the context of criminal proceedings4.

On the other side of the coin are the rights of society protected by the government who must do so within the laws promulgated by a democratically elected legislature (Parliament).5

It must be appreciated that the rights which are most often identified as individual – such as the rights of persons accused of crimes – are in fact also rights of society. They are not designed to free the individual from society’s norms; rather, they exist to promote a responsible liberty, to allow each and every person freedom from arbitrary power. In the areas of free expression, the Constitution carves out a space where dissenting voices may be freely heard, both for the benefit of the individual as well as for the society. Rights of any kind are the society’s protection against the unwarranted interference in daily life by an all-powerful government. Rights liberate both the society and the individual6

In discussing the individual’s personal freedom in the context of criminal procedure, Lord Denning said,

“It must be matched with social security, by which I mean, peace and good order of the community in which we live. The freedom of a just man is worth little to him if he can be preyed upon by the murderer or the thief. Every society must have means to protect itself from marauders. It must have powers to arrest, to search and imprison those who break its laws. So long as those powers are properly exercised, they are safeguards of freedom. But powers may be abused, and if those powers are abused, there is no tyranny like them.”7

The balance is achieved basically by two means – legislation and judicial decisions, the latter playing a more effective role in this regard. Overemphasis on the protection of the interest of the state in prevention of crimes against individual rights or vice versa is bound to have an adverse impact.

The main player in keeping this fine balance is the Judiciary. In the words of the former Chief Justice of India, P.N Bhagwati, in his paper on Human Rights in the Criminal Justice System,

“The task in a democracy governed by the rule of law is entrusted to the judiciary and it is the judiciary which has to find a dividing line so as to harmonise the two interests without over emphasising one to the detriment of the other.” 8

The former Lord President Tun Salleh Abas in Lim Kit Siang v Dato’ Seri Dr Mahathir Mohamad9 stated,

“The Courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role, they must of necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional legislations or excesses in administrative action.”

To do this, the judiciary must always keep in mind the most important and general principle stated by John Stuart Mills in his Essay on Liberty that, “The only purpose for which power can be rightfully exercised over any member of civilised community against his will, is to prevent harm to others.”

FUNDAMENTAL AND BASIC RIGHTS

There are certain minimal rights accorded to a person found guilty of a crime10. There are even more specific rights for persons merely accused of an offence. These rights have received recognition by member states of the United Nations including Malaysia, in the Universal Declaration of Human Rights 1948 (UDHR) and to some extent, incorporated in our Federal Constitution (FC).

To further enhance the protection of these rights the National Human Rights Commission was established through the Human Rights Commission Act 1999, which stipulates that “regard shall be had to the Universal Declaration of Human Rights…11“.

Pursuant to the UDHR,

Article 3: Everyone has the right to life, liberty and security of person.

Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 9:  No one shall be subject to arbitrary arrest, detention or exile.

Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in determination of his rights and obligations and of any criminal charge against him.

Article 11:Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in public trial at which he has had all the guarantees necessary for his defence.

The FC provides under Article 5 that,

No person shall be deprived of his life or personal liberty, save in accordance with law” and also that “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

There are many rights that can be discussed, and are available at different stages of criminal proceedings – pretrial, during trial and post trial. However due to constraints of time and space this paper is limited to only the first two stages and confined to 4 specific rights,

  1. the Right to be Presumed Innocent
  2. the Right to be Informed of the Grounds of Arrest
  3. the Right to Counsel
  4. the Right to Silence.

This paper will discuss the origins of these rights, the current law in Malaysia and other jurisdictions with similar Constitutional rights, the rationale and importance of these rights and safeguards, the reduction of these rights and safeguards by legislation and judicial decisions and the consequences.

1.THE RIGHT TO BE PRESUMED INNOCENT

Malaysia follows the common law of England as administered on the 7th day of April 195612. We have also adopted the British adversarial system and laws as well as its parliamentary system of government.

Clauses 39 and 40 of the Magna Carta, signed in 1215 in Runnymede, states

Clause 39: No free man shall be taken or imprisoned, or disused, or outlawed, or exiled or in any way destroyed, nor will we go upon him, nor will we send upon him, except by lawful judgment of his peer.

Clause 40: To no one will we sell, deny or delay right or justice.

From this (the right of all men to be free except by lawful judgment of his peers), evolved the fundamental rule in criminal law that the accused is presumed innocent until proven guilty.

In 1935 Viscount Sankey LC in Woolmington v The Director of Public Prosecution13 restated the common law as follows:

“…at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt…Throughout the web of the English criminal law one golden thread is always to be seen, it is the duty of the prosecution to prove the prisoners guilt…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”

In Arulpragasan a/l Sandaraju v PP14 our Federal Court applied Woolmington and held that,

“Thus it is wrong… to whittle down the cardinal principle of our criminal law on the presumption of innocence of the accused throughout the whole trial…”15

Whittling down of the right to be presumed innocent

  1. Legislation

In Malaysia, we now have laws that do away with even the right to a fair trial, leaving alone the presumption of innocence. One such example is the Internal Security Act 1960.16

The Act provides for deprivation of a person’s liberty by administrative order and not trial. Such laws are adapted from war time legislation employed in the United Kingdom. Section 8 of the ISA is similar to section 18B of the Defence of the Realm Act 1939 in the United Kingdom.

An important point to note is that the records of our Parliamentary debates in 1960 show that this legislation was enacted for the sole purpose of fighting the threat of communist insurgency and intended as a temporary measure until the threat was removed17.

It was never meant to be used on the general public for any sort of crime. It does not reduce safeguards, it completely removes them. It is worthy to note that there have been a few decisions recently on the requirement of an objective test as opposed to a subjective one by the detaining authorities under this statute18. However discussion of the same is not within the ambit of this paper.

There are also other legislations that incorporate presumptions against an accused person thereby reversing the burden of proof19. There is not much that can be said or done here except that this right to be presumed innocent, which is the substratum of the criminal justice system, is being whittled down.

2. Police

The police have often used the power to arrest, pursuant to section 28 and the power of detention, under section 117 of the Criminal Procedure Code (CPC) as a means of punishment20. In its extreme form, an accused is remanded indefinitely, by way of what is now commonly known as “chain smoking orders”, where an accused person is arrested in one district and detained for 14 days (though it is pursuant to a Magistrate’s order), then rearrested in another district and detained for another 14 days and this goes on as long as the police wish to keep the accused in custody. The writer knows of several instances where this had happened and personally had conduct of a case where a habeas corpus application was filed as the arrested persons were detained for a few months. As soon as the date was fixed for hearing of the habeas corpus application, the arrested persons were released on bail and 2 of them were charged. The High Court did not proceed with the application as it had become academic.

These types of abuses continue to this day, making a mockery of the safeguards afforded by the Constitution and the CPC.

The Magistrate is not informed that this arrested person has been kept in detention for long periods of time of more than 14 days. She only concerns herself with the investigation before her and not investigations that had been done in the various other police stations.

Abdul Wahab Patail J has taken a different view and has held that,

“To restrict the application of s117 detentions to only 15 days to dispose of all matters relating to any report made before arrest ignores the fact that the alleged offence may be committed and reported in different police districts and police stations, and as a result falls under the jurisdiction of not only different police stations but different police districts and investigation officers in the ordinary performance of their duties are properly independent21“.

With due respect, the writer disagrees for the following reasons:

  1. The Constitution is the Supreme law of the land. Article 5 is framed to ensure that no person is deprived of his life or personal liberty, save in accordance with law. Article 5 (4) provides that a person shall not be detained beyond 24 hours without the Magistrate’s authority. Parliament has clearly stipulated in s117 of the CPC that the Magistrate can only authorize the detention of an accused for a period not exceeding 15 days in the whole. It does not specify how many Magistrates or how many police officers or how many remand orders can be made but it does specify that ‘not exceeding 15 days in the whole’. It is clear from a plain reading of the Constitution that the intention of the legislature is to limit the detention of the accused to no more than 15 days at any one time. Any other interpretation will render illusory the protection provided for under the Constitution and the CPC.
  2. Even in the case of a multiple offender, there is no need for the accused to be remanded and be sitting in the police station while the police investigate. He can be released on police bail and be required to come back to the police station at any time for whatever reason the police may need him. As pointed out by Harun J, in PP v Tan Kim San22, the police must first investigate and then arrest, not the other way round.
  3. Today the police are equipped with computers and extensive forensic ability. They are in touch with each other throughout the country. They should be more efficient in law enforcement and it should not be at the expense of fundamental right to personal liberty.
  4. Our whole criminal jurisprudence is based on the presumption of innocence. In Khoon Chye Hin v Public Prosecutor23 Thompson CJ quotes Holroyd J24

“It is a maxim in English law that it is better that ten guilty men should escape than that one innocent man should suffer”.

Thomson CJ went on to hold that,

“In other words it is but another way, perhaps a vivid way, of enunciating the presumption of innocence”.

How then can one justify the detention of a person presumed innocent for a continuous period of remand for periods beyond 15 days on the basis of a variety of reports in different districts against the same accused? The presumption of innocence has very little meaning in this context. 25

The learned Abdul Wahab Patail J has taken the view26 that the proper way to avoid abuse is by the courts applying s117 strictly and exercising its discretion to remand under s117 not solely by the demands of convenience of the investigative and prosecution authorities, but rather by balancing such needs against the fact that any remand order is a restriction of a fundamental liberty against a person who has not been convicted of an offence. Unfortunately this is precisely where the system fails. Even when there is only the power to decide on remanding an accused person for 14 days leave alone ‘chain smoking orders’, the Magistrates are too young and inexperienced, merely complying with the request of the police, like a rubber stamping exercise.The High Court is normally too taxed to entertain an application for revision in time.

  1. Where does one draw the line? 15 days each for different states or for different districts or for different police stations or different divisions like special branch, commercial crime or criminal investigations or different units or different investigating officers in the same police station or different reports even if it is under the same investigating officer? As a result a person can be detained for long periods of time almost indefinitely in our country on this basis without accountability.

The ‘police’ means the whole police force for the purposes of the Constitution and the CPC. Every police personnel is an agent of the whole Force. The principal through its agent is only allowed, pursuant to s117 of the CPC, a remand order/detention of the accused of a maximum period of 15 days, 14 of which must be by way of a Magistrate’s order. Each agent cannot have 15 days based on their various investigations all over the country. The whole basis of prohibiting the police from detaining a person beyond 24 hours and a Magistrate from remanding a person beyond 14 days should not be thwarted by procedural gymnastics.

  1. There are other specific legislation that allow for long periods of remand and detention.27 These statutes can be resorted to if the threat to society is so great. It is not in the interest of society and it was never the intention of legislature to give the power to police and Magistrates to remand a person for more than 15 days under the general provision of s117 of the CPC.

Criminal justice, if administered in this way gives little meaning or effect to the fundamental principle of law that a man is presumed innocent until proven guilty.

  1. THE RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST

This is a common law right clearly stated in Christie v Leachinsky,28 where the House of Lords held that,

“It is a condition of a lawful arrest that the party arrested should know on what charge or on suspicion of what crime he is arrested.”

In Abdul Rahman v Tan Jo Koh29  our Federal Court applied the law as stated in Christie v Leachinsky and held that,

“In Christie v Leachinsky, it was held that a person arrested on suspicion of committing an offence, is entitled to know forthwith the reason for his arrest and that if the reason was withheld, the arrest and detention would amount to false imprisonment, until the time he was told the reason. It would follow therefore from this proposition that a person arrested without being told the reason is entitled to resist the arrest and any force used to overcome the resistance would amount to assault”30.

So important is this right that the law permits a person to resist arrest with force, and any force used against him to overcome the same is an offence.

The significance and importance of this right ensures that it be clearly enshrined in the Constitution31.

The law requires that the accused be informed of the grounds of his arrest but in practice, it is difficult, if not impossible, for an accused to prove that he was denied this right. In most cases he would be unrepresented at the time and it would be his uncorroborated word against that of the police officer whose word will be corroborated by other officers32.

To justify an arrest, the police must have reasonable suspicion that a crime has been committed by the person. Therefore the arrest cannot bejustified by something discovered after the arrest or for any other reason. That basis of arrest must be made known to the accused.

The law is clearly laid down in Christie v Leachinsky33 by the House of Lords as follows

“an arrest without warrant can be justified only if it is an arrest on a charge made known to the person arrested”

Generally our courts are more concerned about whether the evidence before it points to the guilt or innocence of the accused, rather than about the legality of the arrest. As a result, the police continue to flaunt this basic right as it has no real consequence to them34as set out in the following discussion.

  1. THE RIGHT TO COUNSEL

This right is also enshrined in our Constitution ensuring that a person arrested has the right to consult and be defended by a legal practitioner of his choice.35

This right in the writer’s view is the most important right to an accused person and also to the proper administration of criminal justice because it ensures that the law enforcement bodies and personnel accord the accused with the safeguards and rights afforded to him under the law36

The law presently governing the interpretation of this right in Malaysia has been stated by the late Suffian LP in Ooi Ah Phua v Officer in Charge of Criminal Investigations, Kedah/Perli37. After quoting Syed Barakbah J in Ramli Bin Salleh v Inspector Yahya bin Husin38 Suffian LP stated,

“With respect I agree that the right of an arrested person to consult his lawyer begins from the moment of arrest, but I am of the opinion that that right cannot be exercised immediately after arrest.”

The opinion expressed by Suffian LP, which is now considered law in our country cannot stand the test of logic, reason or even the normal rules of interpretation.

A right which is acknowledged to ‘exist’ but cannot be exercised is no right at all. It makes nonsense of this important safeguard and right.39

The basis of Suffian LP’s opinion is found in the following two paragraphs in his judgment:

“A balance must be struck between the right of the arrested person to consult his lawyer on the one hand and on the other the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence exists against them. The interest of justice is more important as (sic) the interest of an arrested person and it is well-known that criminal elements are most of all deterred by the certainty of detection, arrest and punishment.”

“In view of the above I am of the opinion that it was unreasonable of Mr. Karpal Singh to expect to be allowed to interview Ooi on Monday, December 30, 1974 and that as in this case there has been a day light robbery committed in the heart of the state capital involving the use of a pistol and the loss of $14,000/- to $15,000/- not to mention the loss of one life and that as many young men are prepared to go to any length in the pursuit of instant wealth, armed robberies are therefore quite common, it was quite reasonable of the police to give facilities to Mr Karpal Singh to interview Ooi for the first time only on January 5, 1975.”

The police were able to legally deny the accused his constitutional right for 6 days, according to Suffian LP.

What does the type of the crime, where it was committed, that young men are prepared to go to any length in the pursuit of wealth, that armed robberies are common, the subject matter and amount of the stolen goods or even proposition that criminal elements are most deterred by the certainty of detection, arrest and punishment have to do with the constitutional right to counsel guaranteed under the Constitution?

The actual effect of Suffian LP’s opinion is that the right does not exist. It is really at the discretion of the police to grant an accused the privilege (and no longer the right) of consulting his lawyer if the police feel that it would be convenient to them and if they think that it does not interfere with their investigations. This is clearly the opinion held and practice as set out in a paper presented by the Deputy Chief of Criminal Investigations, Kuala Lumpur recently40.

“It is relevant to note here that whilst it is clear that an arrested person has the right, the Constitution does not say the time when and the manner in which this right is required by law to be granted. Neither does the Constitution give an arrested person the right to dictate the time at which he will see his lawyer, nor does it operate to compel the police to allow the lawyer’s visit at an inconvenient time or when to permit such a visit would interfere with the interest of justice. In the absence of any specific direction as to the time of consultation with a lawyer this right must be construed in accordance with general rules, that the arrested person may consult a lawyer at a reasonable time. Undoubtedly it is hard to say exactly what is a reasonable time, in the circumstances. The object of detaining the arrested person under s 117 of the CPC is to enable the police to complete their investigations. Police investigation does not merely consist of taking statements from the arrested person, but also arranging for identification parades, and checking the accuracy of the statement already made; all this being done in order to ascertain and arrive at the truth. If the grant of rights of consultation before the completion of the investigation is considered by the police to be prejudicial to the completion of their investigation, it is submitted that the police are entitled to refuse visits by counsel.”

How does allowing an accused person the right to be advised of his legal rights provided by the Constitution and Parliament through legislation prevent the police from apprehending wrongdoers or completing their investigation?

Take for example the right to silence under the common law and statute41. An accused person may not be well versed with this right, and the law ensures that the accused has been given this right in the interest of justice, and not the other way around.

The only person the accused has a constitutional right to consult is an Advocate and Solicitor of the High Court of Malaya, who must be a practitioner, meaning an authorized person, holding a valid practicing certificate pursuant to Legal Profession Act 1956. He is an officer of the Court. He has a very important role to play in the interest of justice.

Arthur Goldberg J in Escobedo v Illinois (1964)42, dealing with an accused person’s right to consult counsel, held

“No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system”.

If Suffian LP is right in his interpretation of the constitutional right of an accused person, what becomes of the right of an accused person to be represented by Counsel in remand proceedings?

The right of an accused person to be represented by counsel is clearly stated in Saul Hamid v Public Prosecuto’43

The Constitution expressly removes from the police the discretion or authority to detain an accused person beyond 24 hours and specifically empowers a judicial officer with this authority. KC Vohrah J, one of our more highly regarded and respected Judges held in Re The Detention of R Sivarasa & Ors 44.

“It will be noted that ss 28 and 117 have been inserted into the CPC for a good reason, so that detention by the police of a person beyond 24 hours after arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the Federal Constitution”.

This safeguard in the constitution has little or no effect if an accused person cannot address the Court and state why his liberty should not be further denied45.

How is an accused person or his counsel going to make proper representation to the judicial officer, for such a judicial officer to apply her mind and consider all the relevant considerations both legal and factual before taking away that most important right to a citizen, his liberty?

The words of the late Harun J ring loud and clear

“There is no consolation in the fact that he eventually be shown to be innocent of the charge. The damage has been done”46.

The right to be heard would be of little consequence if it does not encompass the right to be heard by counsel47. The laymen in society are not familiar with the science of law. To make this hearing fair and meaningful, the accused must be able to exercise the right to consult and be defended by a legal practitioner of his choice at this hearing. How is he to consult if he has no access to Counsel within the first 24 hours of detention?

Even if we assume, which is highly unlikely, that a counsel would impede police investigations, the answer to this objection is found in the article written by Edgar Joseph Jr on the Rights of the Accused48 quoting the editor of the New Law Journal,

“If Lord Widgery had in mind the objection most invariably taken by the police, that a suspect’s solicitor would simply impede police enquiries, then we would, with respect, suggest that His Lordship should initiate a conference between the police authorities and the Law Society to secure from the latter proper assurances for the former that any solicitor who abuses his position and impedes the police in the proper conduct of their duties would be appropriately dealt with. The interest of suspects cannot, however, be left forever on the long finger, while others fail to establish the modus vinendi”.

In this country the writer knows of no instance in which a counsel has been charged and convicted of the offence of impeding police investigations, neither is the writer aware of any complaint lodged with the Bar Council against a counsel with regard to same.

However it is well known that many persons have suffered abuse in police custody. Police personnel have been charged and convicted for causing death and injury to an accused person in police custody. What about the many instances where citizens suffer without anyone’s knowledge?

To highlight the seriousness of the problem the writer refers to those few instances that have been reported in the press.

On 13th April 1993 the New Straits Times (NST) reported – Police said teenaged fisherman Manaf Mat died while in custody of prison authorities and not under police custody. Manaf died in Alor Star General Hospital on 8th February 1993, nine days after he was arrested for alleged drug possession.

On 13th May 1994 NST reported – Police detainee found dead in cell. A 45 year old detainee was found dead inside Klang police station lock up. Lim defaulted supervision after serving sentence for dadah offences in 1990.

On 15th May 1995, NST reported – An air-conditioner mechanic detained by police under the Emergency Ordinance 1969 to facilitate investigations into a financial institution break in March died under detention.

On 19th May 1995, NST reported – City Police Chief, Datuk Ismail Che Rus has denied that the death of a 40-year old air-conditioner mechanic while in police custody was due to internal bleeding.

On 11th October 1995, NST reported – Attorney-General, Datuk Mokhtar Abdullah ordered a judicial inquiry following dissatisfaction with police failure to identify the person or persons responsible for the death of an air-conditioner mechanic in a police lock-up.

On 21st November 1995, NST reported – A police officer told the Magistrate’s Court that the suspect identified as detainee No. 37/95 was found dead, naked and in half kneeling position at the Police Remand Centre, DSP Paul Keong, who is PRC commandant said.

On 22nd November 1995, NST reported – A detainee was in the interrogation room for over 96 hours at the police remand centre before he died several days later.

On 23rd November 1995, NST reported – A detainee at the Police Remand Centre complained of being assaulted at an interrogation room where he had been kept for four days. The complaint by detainee Lee Quat Leong was made to L/Cpl Khalid Ahmad who told the Court that Lee however, did not tell him who had assaulted him.

On 24th November 1995, NST reported – A teacher Daniel Hasni Mustaffa, who is Lee’s friend and former neighbour said, Chief Inspector Ng Koh Siew denied the deceased was assaulted while in detention.

On 25th November 1995, NST reported – Mechanic Lee Quat Leong who died while being detained at the Police remand centre had succumbed to subconscious bleeding caused by violent blows on many parts of his body, a forensic pathologist told the Magistrate’s Court.

On 29th November 1995, NST reported – Eleven policemen including the City Deputy Head of Criminal Investigations were criminally involved in the death of mechanic Lee Quat Leong at the Police remand centre.

On 18th January 1996, NST reported – A detainee collapsed in the lock-up of the District Police Headquarters and died on the way to the Tengku Ampuan Rahimah Hospital in Klang.

On 4th July 1997, NST reported – A 25 year old man who was detained for suspected car and motorcycle thefts was found dead in a toilet at the Cheras Police Headquarters.

On 21st December 1997, the New Sunday Times reported – Perak Police Chief Deputy Commissioner, Mariman Mohd Taib said the Police were awaiting post-mortem and chemist reports pertaining to the death of Othman Mohd Hashim in a Police lock-up in Parit. Othman who was detained for alleged theft was found hanged with a towel in a lock-up.

On 2nd September 1997, NST reported – A second-hand car dealer R. Shanmugam who was found dead at the Kampong Tawas Police Station lock-up, was in police lock-up for 66 days. The death certificate issued by the Hospital authorities stated he died of hanging.

On 10th February 1998, NST reported – Selangor Police offered to record statements from seven Indonesian workers who claimed to have watched their colleague being assaulted by two plainclothes detectives. As a result the victim died in police custody at the Seri Kembangan Police Station.

On 4th March 1998, NST reported – Police said that the cause of death of the 36 year old labourer while in police custody at the Bentong District Police Headquarters was liver failure. However, the victim’s wife claimed that there were a few bruises on her husband’s body and hands and legs.

On 15th April 1999, The Sun reported – Police are investigating the death of a 20 year old drug suspect at the Nilam Puri Police Station, 2 hours after his arrest. Police were about to take him to the Kota Bahru Police Headquarters when they found him dead in the lock-up.

On 17th March 2000, NST reported – The Bar Council today called for an inquest into the death of a man while in police custody 4 months ago. Francis Nathan, 21, who was held for questioning in connection with dadah related offences died at the Kuala Lumpur Hospital on October 26th last year.

On 11th April 2000, NST reported that a Form Three student had filed a suit against the police and government claiming that he was tortured while he was held under remand in Kulim. He arrived at the High Court with his leg in a cast. He claimed that the police forced him to stand tip-toe with arms outstretched, placed thumb-tacks under the soles of his feet before kicking him, slapping him and slamming his head against the wall and beating him with a length of cable. His claim also included denial of food, being given only breakfast during the first three days he was held in the police lock-up.49

On 29th April 2000, The Sun reported – A 22 year old assistant driving instructor who drowned in the Malacca river 4 years ago after escaping was handcuffed, a Sessions Court was told today.

On 20th May 2000, The Star reported – A widow who is suing the police and the Government claimed that her 31 year old husband was taken from her house by policemen in August last year and brought back “as a corpse” eight days later.

On 20th May 2000 Berita Harian reported – A woman whose husband died while in police custody at Rawang Police Station last year, filed a summons against the Royal Malaysian Police Force and the Government of Malaysia for damages amounting to RM682400 (Pada 20 Mei 2000 Berita Harian melaporkan seorang isteri yang suaminya mati ketika dalam tahanan polis di Balai Polis Rawang tahun lalu, mengemukakan saman menuntut gantirugi sebanyak RM682,400.00 daripada Polis Diraja Malaysia (PDRM) dan Kerajaan Malaysia)

On 13th June 2001, Harian Metro reported – A detainee was killed from injuries to the head, ribs and other parts of the body as a result of being assaulted by other detainees in the Setapak Police Station lockup – (Pada 13 Jun 2001 Harian Metro melaporkan seorang tahanan terbunuh apabila cedera di kepala, rusuk dan beberapa bahagian lain akibat dipukul sekumpulan tahanan lain di lokap di Balai Polis Setapak, di sini).

On 26th January 2002, NST reported – A man has sued the Officer in charge of the Police Station in Parit, Perak and two others for negligence involving the death of his son in the police lock-up a day after his arrest on Dec 16, 1997.

On June 2002 The STAR reported – A man yesterday lodged a police report over the death of his younger brother while in police custody.50

On 8th August 2003, the Sessions Court convicted a police constable of raping a Filipino woman and an Indonesian woman who were detained in lock-up.51

On 1st December 2003, Malaysia Kini reported that a police report had been lodged by the family of G Veerasamy, a 52-year-old security guard who died while he was held in a police lock-up52. Veerasamy’s son Suresh said his father was arrested on Nov 24 by the Pandan Indah police for unknown reasons and remanded until Dec 1 this year. Suresh, 30, said his father was perfectly healthy when he last saw him at the Pandan Indah police station on the day of his arrest. However, Suresh said he was informed on Friday that his father had died while he was in the police lock-up. ‘I met my father at the Pandan Indah police station on Nov 24 at about 9pm and he was really healthy and fine. Yesterday, an ASP Seah called me at about 4:30pm asking me to go to the police station on an urgent matter. Upon my enquiry, he said that my father had died in police custody,’ he said in the report. On identifying Veerasamy’s body at the Kuala Lumpur Hospital (HKL), Suresh said he saw suspicious injury marks on his father’s face. “I saw cuts on his nose and a Professor Dr Sharom (from the hospital) explained to me that my father had died of stomach pains. The professor threatened not to release the body when I questioned him further about my father’s death,” he said.

How is the interest of justice preserved by reducing the constitutional safeguards of the right to counsel? How can the decision for further remand be properly made without proper representations and hearings?53 Raja Azlan Shah J as he then was, was right when His Lordship stated,

“It is at the police station that the real trial begins and a Court which limits the concept of fairness until the police investigations are completed, recognizes only the form of the criminal process and ignores its substance”. 54

There is an expectation of society that the government and their law enforcement functionaries deal with criminals in an efficient and effective way and bring to justice to those involved in crime. But the cure cannot be worse than the disease itself.55

These safeguards provided in the Constitution and the CPC, are the only protection a citizen accused of a crime has. If these safeguards are not effectively enforced, then as Lord Denning said, “there is no tyranny like them”56.

A crime is a crime in any part of the world. India has a similar problem. In the words of Professor S.P. Srivastava of Lucknow University ‘57

“The main culprits of human rights abuses are police, prisons and the State… Police in our context has a long history of law-breaking. Its record of little regard of human rights is not a thing of the past; it is flourishing now as ever before. Our police has (sic) perfected a torture technology of a horrible and horrendous kind. It consists of several ingenious ways of torture and tyranny, all in the name of crime prevention and control. In the arrogance of authority the policemen often become the worst violators of law. In the garb of combating criminality, the police takes (sic) law into their own hands and systematically violates the basic rights of individuals and groups of people belonging to weaker sections – those who are unresourced and underpriviledged.”

It is not only the police who are responsible for these atrocities but also the courts and the legislature because whenever power is given absolutely to any individual over another, it corrupts absolutely58. Therefore in any jurisdiction, there must be proper safeguards, checks and balances that will ensure that individuals placed in the custody of another for the interest of society, will not suffer the abuse and corruption that absolute power brings.

Other jurisdictions recognize this and have enshrined similar safeguards and rights in their Constitution.

The 6th Amendment to the Constitution of the United States reads as follows

“In all criminal trials, the accused shall enjoy the right to a speedy and public trial…and to have assistance of counsel for his defence.”

In Powell v Alabama (1932) Oliver J held

“The right to be heard would be in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be out on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both skill and knowledge adequately to prepare his defence, even though he may have a perfect one. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that is true of men of intelligence how much more true is it of the ignorant and illiterate or those of feeble intellect.”59

This decision established the rule that in capital cases, effective assistance of counsel is constitutionally required.

In Gideon v Wainwright60 the Supreme Court, under the leadership of Earl Warren CJ, held that there could never be a truly fair trial and the requirements of due process could never be met, unless the defendant, no matter what his financial resources, could have the services of an attorney. The Supreme Court extended this basic right to all persons charged with a felony. A few years later the Supreme Court, under the Warren Burger CJ, extended this safeguard to misdemeanor charges that could lead to a jail sentence.

Today in the United States, every accused person has the right to counsel upon arrest unless he waives that right.61 If those rights are infringed the whole case against the accused is thrown out and there is good reason for this.

“Although there have been critics of the exclusionary rule – Justice Cardozo once famously said that because of the rule “the criminal is to go free because the constable blundered” – there is also general agreement that it is the only means to enforce the requirement of the Fourth Amendment. It makes sure that the state, with all the power behind it, plays by the rules. And if it doesn’t, then it cannot use evidence illegally gained in prosecuting a person, even if that person is in fact guilty. While it may seem extreme to some, it serves a higher good – ensuring proper behavior of the police.” 62

The point is the same in our context – how does one enforce the safeguards and his Constitutional right to Counsel or to be informed of his grounds of arrest upon arrest as well as the right to remain silent. How do our Courts ensure these safeguards, checks and balances are followed?

Suffian LP in Ooi Ah Phua said that

“It is possible for a person to be lawfully detained and yet unlawfully denied communication with his lawyer.”

In deciding that unlawful denial of the right to counsel under Article 5(3) does not necessarily render the detention unlawful, and further holding that a habeas corpus application on this ground will not succeed,63what avenue then is left to the accused person to immediately remedy the denial of this constitutional safeguard and right? It reduces these constitutional safeguards to pious platitudes with no legal effect, leaving the road to tyranny open.

Visu Sinnadurai J in Public Prosecutor v Basri bin Salihin64 quoted Lord Griffiths in Lam Chi Ming & ors v R65 and stated,

“Their Lordships are of the view that the more recent English cases establish that the rejection of an improperly obtained confession is not dependent on its unreliability but also…upon the importance that attaches in a civilized society to proper behavior by police towards those in their custody.”

The point is clearly made by Warren CJ in Miranda v Arizona66

“It is not admissible to do a great right by doing a little wrong…It is not sufficient to do justice by obtaining a proper result by irregular or improper means.”

In India this right is enshrined in Article 22 of the Indian Constitution which reads,

“No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice”

In Sudha Sindhu Dey v Emperor 67Cunlifee J stated

“But it seems to me that unless in certain offences persons are directed by the government to be tried by drumhead Court martial, it is of paramount importance that advocates should have access to their clients and should obtain all support they are entitled to look for in seeking such (sic) success. The more serious the offence the greater the need of the advocate’s help and more especially where persons are charged with taking part in what I may term a ‘group crime’68

Countries enshrine this safeguard in their constitution because of its degree of importance. The Courts are the ‘ultimate bulwark’ and protector of individual rights and freedoms. What more if these rights are specifically enshrined in our Constitution.

4.THE RIGHT TO SILENCE

The right to silence encompasses the two fundamental principles in the criminal justice system – the privilege against self incrimination and the presumption of innocence69.

There are a number of theories as to how the right evolved in the common law of England. Wigmore’s theory is that the right to silence gained acceptance in the early 17th century in response to forced interrogation and arbitrary power of the courts like the “Star Chamber” and Ecclesiastical courts. Methods used by these courts included torture, mutilations, forfeiture and imprisonment. These courts were the source of censorship by the monarch of any political works or any unorthodox religious ideas until their abolition in 1641.

It was in these circumstances that the right to silence emerged to protect the accused, as one of the most significant features of these courts was that interrogation constituted a fishing expedition. Instead of being confronted with a particular charge by a complainant, the accused was compelled to speak on oath before being charged in the hope that he would come forth with an incriminating statement. The principle that no man should be compelled to give evidence against himself, emerged as a protection against such courts and improper procedures, and was eventually extended to and adopted by the Common Law courts, which had established their supremacy by 1660.

MacNair’s view was that Wigmore had put the cart before the horse. MacNair states that this right originated from Roman Canon Law, applying first to allegations of crime in civil proceedings before being extended to the accused in criminal trials. This came about through Roman Canon Law tradition and religious objections to compulsory testimony.

The Criminal Law Revision Law Committee (UK) in their Eleventh Report stated that the right to silence in Common Law did not fully emerge until the early 19th Century, when courts attempted to offset the disadvantage to the accused caused by the prohibition against the defendant’s testimony70, poor quality of juries, magistrates and legal representation and the haste in which cases were concluded. There was judicial recognition that a balance had to be struck between the power of the State and the rights of individuals.

Whatever theory one may be inclined to believe, it appears that the right to silence is an essential safeguard against state power and ensures a fair trial in the context of an adversarial system.71

In Malaysia, this safeguard exists and is stated clearly under section 113 of the CPC. The law requires under section 113(1) a (ii), that the police must administer a caution in the following words or words to the like effect:

“It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a question or not, may be given in evidence”.

Therefore the law now is, if there is no inducement, threat or promise72 and the caution has been administered in the prescribed form, the statement made by an accused person is admissible.

Let me digress for a moment to state that the late Tan Sri Harun Hashim did not think it feasible that the police should be allowed to record cautioned statements. The learned former Supreme Court Judge felt that it would be better for a magistrate to record any statement freely given to avoid abuse or accusations of abuse by the police73.

However Sharma J in the case of Public Prosecutor v Law Say Seck & ors74 had this to say, when the law authorized only magistrates to record confessions which can be used as evidence:’75

“It may be that there is no justification for me to say that the police investigating agency in our country has not yet acquired a reputation of being proof against the temptation of attempting to secure confessions by questionable methods. I might say that such means and methods are capable of being used and it is the duty of the magistrate to see that they devote their attention to all the safeguards provided to ensuring that the confessions they record are truly voluntary.”

Clearly, even when magistrates were taking confessions of an accused person while they were in police custody, the court recognized the danger of attempting to secure confessions by questionable methods. This is the very reason why the right to counsel upon arrest is essential. It has the advantage of also ensuring that when the accused gives evidence it is truly voluntary, free from inducement, threat or promise.

It is worthy of note that the US Supreme Court held in Miranda v Arizona76 that

“…the modern practice of in-custody interrogation is psychologically, rather physically, oriented. As we have stated before, since Chambers v Florida 309 US 227, this court has recognized that coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of unconstitutional inquisition.”

The caution provided for under our law, incorporating the right to silence, is taken from the case of Miranda v Arizona (1966)77. According to Warren CJ, a person under arrest had to be informed in clear and unequivocal terms of the constitutional right to remain silent, and that anything said at that point could be used against him later in court. In addition, the officers had to tell the suspect of the right to counsel and that if he or she had no money to hire a lawyer, the state would provide one. If the police investigation continued without a lawyer present, the Chief Justice warned, “a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and the right to counsel.”

The Miranda decision unleashed a storm of criticism of the Court for its alleged coddling of criminals, but within a short time the basic soundness of Miranda became clear. The more progressive police departments in the United States lost no time in announcing that they had been following similar practices for years, and that doing so had not undermined their effectiveness in investigating or solving crimes. Felons who wanted to confess did so anyway; in other cases, the lack of a confession merely required more efficient police work to find and convict the guilty party. As to charges that the decision encouraged crime, Attorney General Ramsey Clark explained that “court rules do not cause crime”.78

UK has whittled down the right to silence against the recommendation of the Royal Commission on Criminal Justice:

“The majority of the members of the RCCJ recommended that the position as regards the right of silence, and the inferences to be drawn from silence, should remain unchanged (Report, chapter 4, para. 22). Nevertheless on 6 October 1993, the then Home Secretary Michael Howard announced at the Conservative Party Conference that he intended to remove the ‘so-called right to silence’.

The right was in the end modified by s. 34 of the Criminal Justice and Public Order Act 1994. This provides that a court may draw ‘such inferences … as appear proper’.”79

In R v Condron80 the accused remained silent on the advice of his solicitor. The trial judge directed the jury that they could draw an adverse inference from the defendants’ silence if they thought it proper to do so. The accused were convicted and on appeal the Court of Appeal confirmed the conviction. The matter was appealed and went up to the European Court of Justice in Condron v United Kingdom (May 2000, unreported). The ECJ found that the Condrons had been denied a fair trial as they felt that the judge’s direction had not properly reflected the balance between the right to silence and the drawing of an adverse inference.

In Saunders v UK81 the ECJ cited Funke v France82, and confirmed

“Although not mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognized international standards which lie at the heart of the notion of a fair procedure under Article 6.”

The Court held further 83 that

“The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during trial proceedings.”

The Judges find it difficult to know when an adverse inference should be drawn based on the amendment. How can one expect an accused or even his solicitor to know when to speak and when not to?

As stated by the then Secretary of the Criminal Law Committee of the Law Society of England, Roger Ede, curtailing the right to silence in certain circumstances would be forcing the accused to play Russian roulette. He will not know which questions to answer and which not to84.

The law, especially criminal law, must be certain in its application and the rights and safeguards must be clear and unambiguous in order for it to be effectively exercised by an accused person. Members of society must know exactly what questions they must answer and what they need not with utmost certainty as their life and liberty depend on it.

In commenting on the effect of similar provisions in Northern Ireland, a report in “Justice” summarized the position as follows:

“Restrictions on criminal suspects’ right to silence for the last six years in Northern Ireland are unsafe and inefficient according to a research report by “Justice”. The report states that the order is used to put pressure on suspects to speak and this has an unfair impact on the vulnerable as well as those who may have reasons for not speaking, such as being suspicious of the police, wishing to protect family members or fearing intimidation. Ulster solicitors commenting to researchers broadly came down against the right to silence restrictions. ‘The police are using the order to frighten the daylights out of people’, said one.”85

In Malaysia, there has also been a slight shift by the legislature to whittling down the right to silence under specific legislations.86

There are many arguments advanced for abolishing the right to silence. Three, which the writer believes are most persuasive, relate to the pre-trial stage.

The first argument is that the right to silence evolved as a protection against courts like the Star Chamber and methods used by them to extract evidence or confessions which became the basis of conviction. Today, it is said that torture and compulsion no longer exist; therefore the right to silence no longer serves its purpose and can be abolished87 The reality is very different from this theoretical view.

The second argument is that of “ambush defences”. These are defences which take the prosecution by surprise during trial, allowing insufficient time for the preparation of the prosecution’s case and consequently, when argued, leads to wrongful acquittals. It is argued that consent to rape, belief that the goods were not stolen and self defence in a robbery are all “ambush defences”. An alibi defence may be an ambush defence but statute has already dealt with this problem in that there is now a requirement for the accused to give the prosecution sufficient notice if an alibi defence is to be relied on. Consent in a rape case and belief that the goods were not stolen, self defence in a robbery cannot be termed “ambush defences” as these are the very ingredients of the offence that the prosecution must prove. How then can they be taken by surprise when these defences are raised?

The third argument is the actual basis for this move by the authorities to change the status quo. There has been a change of view or thinking by some quarters from what used to be the view and thinking of our predecessors. Simply put, it is in line with Bentham’s view, when he said, “Innocence claims the right to speak as guilt invokes the privilege of silence”. Lord Denning echoed this when he said, “Silence is the refuge of the guilty”. This view is based on the premise that there can be no other reason why a person remains silent, other than guilt.

The writer does not agree with the view that accused persons who choose to remain silent, do so only because they are guilty. They may be other reasons for his silence, for example,

His lawyer advised him to

He may be emotional and not in a proper frame of mind to speak

He may be afraid that if he speaks he may incriminate himself in relation to an offence that he did not commit

He may not know the answers to the questions asked and is unable to explain away otherwise suspicious circumstances

He may have done something morally wrong and dose not want that to come to light

He may be protecting others

He may not want to be stigmatized as an informer

He may remain silent during a formal interview because his earlier explanations were not accepted by the police or dismissed as ridiculous at the scene or in the patrol car

There are many more reasons but the above examples are sufficient to show that an accused person may remain silent for reasons other than guilt.

But it is not “why” the accused remains silent that enshrines the right in our criminal justice system, it is to protect the accused from the abuse and the arbitrary exercise of power by the state. “It makes sure that the State with all the power behind it plays by the rules.”88

The right is not absolute in the sense that persons may not refuse to be fingerprinted, to have their blood samples taken, voice recordings made or other physical evidence taken or even submit to an intoxication test even though all this may incriminate the accused during trial.

CONCLUSION

In 2002 the then Chief Justice of Malaysia, Tun Dzaiddin, stated the position clearly,89

“In my personal view, the current criminal procedures as we know them, when set against the backdrop of real life situations now appear to be wanting”.

The learned Chief Justice went on say that,

“In fact, there should be a bundle of protections, such as against unreasonable search and seizure, arbitrary detention and right to counsel upon detention.”

It is clear that the Head of the Judiciary found that the pendulum has swung too much in favour of protecting society and there is a serious imbalance with regard to the rights of an individual person.

The learned Chief Justice called for a re-evaluation and a revisit of these issues.

The Human Rights Commission of Malaysia has also called for reform of the law in the context of our criminal proceedings. 90

The Judiciary – and the Constitution – can do very little should a person commit a crime. Their concern, and the concern of society, is that when the police apprehend a suspect, that man or woman is not harmed or sent to jail or condemned to die without a fair trial according to law. The prevention of crime is the responsibility of the legislative and executive branches, which make the laws and retain the ultimate responsibility for enforcement. But they must do so within the parameters drawn by the Constitution incorporating all the safeguards, checks and balances. History has shown how the courts could be perverted by an overbearing ruler91 and how the criminal law could be used to persecute political opponents. 92

Adherence to the doctrine of separation of powers and the due recognition and protection of fundamental liberties with safeguards enshrined in the Constitution go a long way to reducing such abuses. It ensures a proper check and balance between the awesome power of the State against the individual, and that no arbitrary power would be exercised by any person over another. In this context, even the power to prosecute should be exercised by an independent body, accountable only to Parliament.

Professor Wu Ming Aun93, in making recommendations for the delivery of a more efficient and transparent system of justice suggested, that in light of the already onerous duties on the office of the Attorney General, the first law officer whose constitutional duty94 is to provide advice to the YDPA and the Government, a separate but independent office of Director of Public Prosecutions should be established.95

The entire criminal justice system rests on the assumption that a person accused of a crime is considered innocent until proven guilty beyond the reasonable doubt. In a democratic society, no person should have to prove that he or she is innocent when accused of a crime. Rather, the burden is on the state to prove guilt and to do so convincingly. In the final analysis, the law is and should be as stated by Holroyd J 96

“… it is better that ten guilty men should escape that that one innocent man should suffer.”

Will some criminals escape justice because they have hidden their tracks well and the police cannot make a case? Yes, and that is one of the prices we have to pay for a system that insists on fair trials in accordance to our Constitution and law. An occasional criminal may go free, but the goal is to ensure that no innocent person is wrongfully punished. The system is not perfect but its ideals do indeed govern. Fair trial in accordance to law in a democracy must be more than a mere phrase if the rights of the people are to be protected.97

We should strive to ensure that these rights and safeguards are realized not just in form but also in substance.98


1 This paper was presented at the 12th Malaysian Law Conference held in Kuala Lumpur from 10th – 12th December 2003.

2 Richard Stone Civil Liberties and Human Rights 3rd Ed. (2000) London, Blackstone Press Ltd. at p 38.

3 Richard Stone Civil Liberties and Human Rights 3rd Ed. (2000) London, Blackstone Press Ltd. at p 3.

4 P.N. Bhagwati at the Kumarappa-Lecture delivered at the TATA Institute of Social Sciences, Bombay, on 23rd February, 1985. Also found in Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing House at p 11.

5 “It must always be remembered that the freedom to which we aspire is freedom to govern ourselves under a system in which parliamentary institutions shall be exclusively representative of the people’s will” – Tunku Abdul Rahman in moving the second reading of the Federal Constitution Bill on 15 August 1957 – Malaysian Constitutional Documents (2nd Ed) Vol. 1 at p iv. Also see Cyrus V Das Governments & Crisis Powers (1996) Kuala Lumpur, The Malaysian Current Law Journal Sdn Bhd at p 69.

6 See US Department of State Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused at p 11, The US Department of State – International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm.

7 The Rt Hon Lord Denning, The Due Process of Law (1980) London, Butterworths, at p 101.

8 Kumarappa-Lecture delivered at the TATA Institute of Social Sciences, Bombay, on 23 February 1985. Also found in Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing House at p 11, 12.

9 .

10 Like the prohibition against torture or cruel and degrading treatment. UDHR Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

11 Section 4(4) of the Human Rights Commission Act 1999

12 Section 3(1) of Civil Law Act 1956.

13 [1935] AC 462 at 481.

14 [1997] 1 MLJ 1 at 24.

15 Justice Mohd Azmi at page 24 of the judgment. It has been recently applied in PP v Chia Leong Foo [2000] 6 MLJ 705 at 730.

16 Other legislation include the Emergency (Public Order and Prevention of Crime) Ordinance 1969 , the Dangerous Drugs (Special Prevention Measures) Act 1985, Restricted Residence Act 1933, Public Order Preservation Act 1958 and many others.

17 Deputy Prime Minister Tun Abdul Razak moved the bill in Parliament.

18 Mohamad Ezam bin Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449. See also “Human Rights Advocacy in Court”, Raja Aziz Addruse, Paper presented at a conference organized by SUHAKAM on “Human Rights and the Administration of the Law” on 9-10 September 2003

19 Under the Dangerous Drugs Act 1952 which carries the death penalty, the presumption is that you are trafficking if you are found in possession of a certain amount of drugs. No longer is the accused presumed innocent, here he is presumed guilty of trafficking until he is able to rebut that presumption. Some feel that this is a justified shift due to the type of crime and the consequences involved.

20 Senator Valli Muthusamy once addressed Parliament on this section describing it as a “money making section for the police”. There is much abuse here and Criminal practitioners at the Bar complain that often times their clients have been asked to pay monies to the police to avoid continued remand.

21 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

22 [1980] 2 MLJ.

23 [1961] 27 MLJ 105 at 108.

24 Sarah v Hobson 1 Lewin 261.

25 PP v Tan Kim San [1980] 2 MLJ 98. Though here the learned Judge, Harun J (as he then was) rebuked the police for charging first and then investigating, the same stigma attaches to a person arrested and remanded for a long period of time. “It must always be remembered that when a person is arrested and remanded for a long period of time, a social stigma immediately attaches to him, his friends desert him, his business and work is affected, his right to livelihood jeopardized, his creditors close on him, he is mentally tormented and put to the expense of engaging a lawyer. It is no consolation that he may turn out to be totally innocent after the police have completed their investigations”.

26 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

27 Internal Security Act 1960.

28 [1947] AC 573.

29 [1968] 1 MLJ 205.

30 [1968] 1 MLJ 205 at 207.

31 Article 5(3) of the Federal Constitution.

32 “The Rights of the Accused” Edgar Joseph Jr [1976] MLJ ii.

33 [1947] AC 573

34 Unlike United States where they follow the ‘poison tree’ principle the whole case will be thrown out. Also worthy of note is that even though the police normally make a report called an ‘arresting report’, that report narrates who accompanied the arresting officer and who was arrested but often does not state exactly the grounds of arrest or what offence the person is being arrested for.

35 Article 5(3) of the Federal Constitution.

36 If a lawyer is present when a person is arrested the police more often than not, make a genuine effort to follow the law and observe all the rights and protection afforded to the accused by the law.

37 [1975] 2 MLJ 198.

38 [1973] 1 MLJ 54.

39 It may be restricted by the express provisions of the constitution which is not the case here.

40 “Arrest”, Superintendent Ramli b Mat Arshad, paper presented at the Conference organized by Suhakam on ‘Human Rights and the Administration of the Law’ 9-10 September 2003, Kuala Lumpur

41 Section 113 Criminal Procedure Code.

42 US Department of State Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused at p 4, The US Department of State – International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm.

43 [1987] 2 MLJ 736.

44 [1996] 3 MLJ 611.

45 Suhakam Law Reform Report: Rights of Remand Prisoners December 2001 at page 7 states ‘The hearing, in Kuala Lumpur, is conducted in the Magistrates Chambers and not in open Court. The arrested person is locked in a cell at a distance from the Magistrate and is unable to communicate either with the Magistrate or his counsel, if he has one. The arrested person in not in the same room as the Magistrate and cannot hear what is going on between the Police officer and Magistrate. The arrested person is not given an opportunity to challenge the information put before the Magistrate’ Another safeguard being substantially reduced is not completely lost.

46 [1980] 2 MLJ 98.

47 For detailed explanation refer to “Police Powers and Remand Proceedings” Jerald Gomez [2003] 2 MLJ cxxix.

48 [1976] MLJ ii at iv.

49 http://www.nstpi.com.my/11 April, 2000.

50 It has been suggested that most of the abuse during remand is as a result of police officers trying to secure a confession from the accused rather that trying to secure evidence by way of scientific methods of investigation with patience, tenacity and professional expertise without resorting to short cut methods, which the law does not permit.

51 http://www.mmail.com.my/8August2003. See also http://www.aliran.com/monthly/10 July 2003, Stephanie Bastian, “An Embarrassment For The State: Act now to wipe out custodial violence.”

52 http://www.malaysiakini.com/news/2003113000113158.php.

53 Recommendation and proposals for reforms to correct the imbalance is highlighted in “Police Powers and Remand Proceedings”, Jerald Gomez [2003] 2 MLJ cxxix at cliv.

54 Hamid bin Saud v Yahya bin Hashim & Anor [1977] 2 MLJ 116 at 118.

55 Supreme Court of India in DK Basu v State of Bengal AIR (1997) SCC 6100.

56 The Rt. Hon. Lord Denning The Due Process of Law (1980) London, Butterworths at p 101

57 “Human Rights and Administration of Criminal Justice in India” Prof S.P. Srivastava in Human Rights and Criminal Justice Administration in India Prod (Dr) Noorjahan Bava (ed) (2000) Delhi, Upal Publishing House p.134 at p. 141.

58 Lord Acton, in a letter to Bishop Mandell Creighton, 3rd April 1887 in Creighton L., Life and Letters of Mandell Creighton (1904) Vol 1 Chap 11.

59 Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused pg 4. Published by The US Department of State; International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm.

60 Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused pg 4. Published by The US Department of State; International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm.

61 Miranda v Arizona 384 US 436 (1966) USSC

62 Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused pg 4. Published by The US Department of State; International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm.

63 Rights of the Accused commentary by Wan Arfah Hamzah [1976] MLJ xviii. She adds that the infringement of this Constitutional right based on this decision will not even entitle the accused to succeed in a habeas corpus application.

64 [1994] 2 MLJ 476.

65 [1991] 3 AER 172.

66 384 US 436 (1966) USSC.

67 [1935] AIR Cal. 101.

68 His Lordship went on to hold that the communications between solicitor and client are privileged and police cannot be within earshot of the parties so as to hear what is being discussed.

69 Richard Stone Civil Liberties and Human Rights (2000) 3rd ed, London, Blackstone Press Ltd p 96.

70 See Justin Fleming Barbarism to Verdict – A History of the Common Law (1994) Sydney, Angus & Robertson,  Chapter 3.

71 “The Right to Silence in the United Kingdom and Malaysia”, Jerald Gomez, The Commonwealth Lawyer June 1995 pg 71 at 74.

72 section 113 (1)a (i) CPC.

73 He expressed his view at a Bar Council Seminar this year on Police Powers and Remand Proceedings where he, Makinuddin J and the writer were members of the panel.

74 [1971] 1 MLJ 199.

75 section 115 CPC prior to the s 113 amendment which came into force on 10.1.1976.

76 384 US 436 (1966) USSC.

77 384 US 436 (1966) USSC.

78 Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused pg 11. Published by The US Department of State – International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm.

79 Richard Stone Civil Liberties & Human Rights, (2000) 3rd ed., London, Blackstone Press at p 97. Note : The Malimath Committee on reforms of the Criminal Justice System in India has also recommended moving away from the absolute right to silence. See however the article by K.G. Kannabiran criticizing the recommendations – “Safeguard the rights of the accused” – http://www.pucl.org/Topics/Law/2003/malimath.htm.

80 (1997) 1 WLR 827.

81 (1997) 23 EHRR 313.

82 (1993) EHRR 297.

83 at p 340

84 “The Right to Silence in the United Kingdom and Malaysia” Jerald Gomez, The Commonwealth Lawyer, June 1995 page 71 at p 73.

85 “The Right to Silence in the United Kingdom and Malaysia” Jerald Gomez, The Commonwealth Lawyer, June 1995 page 71 at 73.

86 section 45(3) of the Anti Corruption Act 1997, section 134(2) Securities Commission Act 1993 – see “Fair Trial Procedures”, Ng Aik Guan, paper presented at a conference on ‘Human Rights and the Administration of the Law’ organized by Suhakam on 9-10 September 2003 Kuala Lumpur. There is less difficulty in accepting it at the trial stage, in a courtroom atmosphere, in full public view and after legal advice.

87 In fact when the then Chief Justice of England, Lord Taylor, was asked, “What was the preponderance of judicial reasoning and jurisprudence that warranted the abolition of the right to silence?” he answered that it was safer now for the accused as the whole interview was tape recorded. See “The Right to Silence in the United Kingdom and Malaysia” Jerald Gomez, The Commonwealth Lawyer June 1995 p 71 at p 75.

88 See US Department of State Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused at p 11, The US Department of State – International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm

89 Keynote Address by the Rt Hon Tun Mohamed Dzaiddin Hj Abdullah, Chief Justice Malaysia, at the opening of the seminar entitled ‘A Practical Approach to Criminal Procedure’ on Tuesday, 15 October 2002 at Dewan Tun Hussein Onn, Putra World Trade Centre, Kuala Lumpur. [2002] 4 MLJ at i -lxiv.

90 The Human Rights Commission of Malaysia (Suhakam) decided that this should be one of the priority areas to be studied for the year 2000 and came out with a report entitled ‘SUHAKAM Law Reform Report: Rights of Remand Prisoners December 2001’. The report raises several shortcomings in the present remand proceedings and has recommended changes to be made.

91 See US Department of State Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused at p 11, The US Department of State – International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm.

92 From Socrates to Sir Thomas More it continues – see Thomas C Brickhouse and Nicholas D Smith Socrates on Trial (1989), Princeton, New Jersey, Princeton University Press, and William Roper Life of Sir Thomas More (1963) London, Everyman.

93 “Human Rights and Law Enforcement” Professor Wu Min Aun – paper presented at a conference on ‘Human Rights and the Administration of the Law’ organized by Suhakam on 9-10 September 2003 Kuala Lumpur.

94 Article 145 (1) and (2) of the Federal Constitution.

95 Sarah v Hobson 1 Lewin 261. Also cited in Khoo Chye Hin v PP [1961] 2 MLJ 105 at 108.

96 Sarah v Hobson 1 Lewin 261. Also cited in Khoo Chye Hin v PP [1961] 2 MLJ 105 at 108.

97 See US Department of State Rights of the People: Individual Freedom and the Bill of Rights Chapter 8: Rights of the Accused at p 11, The US Department of State – International Information Programs – http://usinfo.state.gov/products/pubs/rightsof/accused.htm.

98 “These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured ‘for ages to come and …designed to approach immortality as nearly as human institutions can approach it.'”Warren CJ in Miranda v Arizona 384 US 436 (1966) USSC citing Marshall CJ in Cohens v Virginia 6 Wheat 264, 387 (1821).

MLJ Rights of Accused Person – Are Safeguards Being Reduced?

Section 340 of the National Land Code – Before and after Boonsom Boonyanit

MLJ Section 340 of the National Land Code – Before and After Boonsom Boonyanit

 

Malayan Law Journal

SECTION 340 of the NATIONAL LAND CODE –BEFORE AND AFTER BOONSOM BOONYANIT by Jerald Gomez

The law in any area must be clear, certain and final. The Federal Court decision of Adorna Properties Sdn Bhd v Boonsom Boonyanit1 has over the years, created much uncertainty and confusion in the area of land law. The Court of Appeal has recently encapsulated the effect this case has had:

It is no exaggeration to say that Adorna Properties has wreaked havoc in the law of real property. All I have to do is to read our national newspapers. You will find new stories of innocent land owners who found themselves deprived of their land by forged instruments of dealing2‘.

This paper3 seeks to discuss the position in Malaysia pre and post the Federal Court decision in Boonsom Boonyanit. It will also discuss the following areas in relation to s 340 of the National Land Code 1965 (‘NLC’):

  1. Fraud and misrepresentation;
  2. Acts and knowledge of an agent;
  3. Forgery or insufficient or void instrument;
  4. A purchaser in good faith for valuable consideration.

Section 340 (4) is not addressed in this paper4.

THE TORRENS SYSTEM AND THE CENTRAL CONCEPT OF INDEFEASIBILITY

The present system of land tenure provided for in the NLC, is that all lands alienated by the state are held under the Torrens system5. The Torrens system6 was created and first used in South Australia as early as 1885 to overcome the weaknesses of the deeds system. In the deeds system, a purchaser would have to search through and get to the good root of the title or interest before purchasing a deed. This allowed many opportunities for the fraudulent creation and suppression of title deeds. Essentially the deeds system did not guarantee a secure title and proved to be neither cheap, fast nor efficient7.

The central theme of the Torrens system is that land dealings must be recorded in a register which can be inspected by anyone to satisfy themselves of the title, interest and encumbrances to the land. The register is meant to be the mirror of the title deeds, containing all the information one needs to know on a particular piece of land8. No dealing in land under this system is recognised as valid unless and until registered. This does not however, affect the contractual obligations between the parties to a transaction involving land9.

Section 340 of the NLC is the section which confers indefeasibility of title or interest on a bona fide purchaser for valuable consideration. Though it is true that once registered the title becomes indefeasible, there are very clear exceptions provided for under the NLC. Therefore it would be misleading to say that the ‘register is everything’.

SECTION 340

  1. The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.
  2. The title or interest of any such person or body shall not be indefeasible:
    • in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or
    • where registration was obtained by forgery, or by means of an insufficient or void instrument; or
    • where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.
  3. Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub-s (2):
    • it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and
    • any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested;

Provided that nothing in this subsection shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or any person or body claiming through or under such a purchaser.

4. Nothing in this section shall prejudice or prevent

  • the exercise in respect of any land or interest of any power of forfeiture or sale conferred by this Act or any other written law for the time being in force, or any power of avoidance conferred by any such law; or
  • the determination of any title or interest by operation of law.

 

THE EXCEPTIONS TO INDEFEASIBILITY

I Fraud & Misrepresentation: Section 340(2)(A)

The Malaysian Courts have adopted the definition of fraud in Assets Company Ltd v Mere Roihi10 and Waimiha Sawmilling Company Ltd v Waione Timber Company Ltd11.

In Assets Company v Mere Roihi12, Lord Lindley defined fraud as meaning:

…actual fraud, ie dishonesty of some sort, not what is called constructive or equitable fraud…the mere fact that he might have found out fraud if he had been more vigilant and had he made more enquiries which he omitted to make, does not of itself prove fraud on his part; but if shown that his suspicions were aroused, and he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him.

And in Waimiha Sawmilling13, Lord Buckmaster held:

(if) the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear… (and) the act must be dishonest, and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest.

One of the earliest cases in Malaysia which adopted the definition pursuant to s 42 of the Federated Malay States Land Code (FMSLC) is Tueh Guat Choo v Cheah Ah Hoe14. Section 42 of the FMSLC is the precursor to s 340 of the NLC which housed the Torrens doctrine of indefeasibility15.

The Federal Court in Krishnadas a/l Achutan Nair v Maniyam a/l Samykano16 held:

In our judgment, the difference in language between the two sections — s 42 of the Land Code and s 340 of the Code — does not result in any difference in meaning and consequence. It follows that cases that have interpreted s 42 of the Land Code may safely be relied upon when construing s 340 of the Code17.

In Tueh‘s case the plaintiff, P, bought a piece of land but registered it in the name of her son, the first defendant, D1. P filed a caveat which lapsed and D1 charged the land to D2. P contended that in making the charge, D1 and D2 acted fraudulently and in collusion with intent to deprive her of her property.

Gerahty J found that D2 was aware that P was claiming the property, that P had lodged a caveat and that it was removed. However, the learned judge went on to hold that mere knowledge of an unregistered interest was not sufficient to constitute fraud in P’s case, citing Lord Buckmaster in Waimiha Sawmilling18:

Dishonesty must not be assumed solely by reason of knowledge of an unregistered interest.

Much later in 1983, the Federal Court in Tai Lee Finance19 followed Tueh Guat Choo and applied the definitions of fraud as stated in Mere Roihi and Waimaha. In Tai Lee‘s case the crux of the appellants’ contention was that the respondents failed or omitted to make proper enquiries,

both as regards to the land and the building erected thereon… if proper enquiries had been made the appellant would have discovered that the chargor had entered into sale agreements with them20.

The Federal Court again distinguished21 the cases of PJTV Denson22 and Public Finance v Nayaranasamy23 and held that the respondents must be guilty of actual fraud not constructive or equitable fraud.

Mere Knowledge or Something More?

The law seems to be that mere knowledge of an unregistered interest is insufficient to constitute fraud and there is no duty to make further enquiries, as held by the Supreme Court in Lian Keow Sdn Bhd (in liquidation) v Overseas Credit Finance (M) Sdn Bhd24 per Syed Agil Barakbah SCJ:

Fraud under the Code means actual and not constructive or equitable fraud. Actual fraud must be proved in order to deprive a purchaser for value of the absolute title conferred by the Code. Actual fraud means dishonesty of some sort proved against the person whose registered title is impeached or his agents. Bona fide mistake or negligence is not fraud and each case must depend on its own particular circumstances. The equitable doctrine of constructive fraud has no application under the provisions of the Code.

Therefore, it is clear that if actual fraud or misrepresentation is proved against the registered title holder or his agent, that title is defeasible under s 340(2)(a).

However, since the Federal Court case of Doshi v Yeoh Tiong Lay25, there has been much confusion in this area on whether the knowledge or actions of the agent affect the title of the principal. The brief facts of the case are that:

Doshi obtained a loan from Chooi Mun Sou (CMS). As collateral, he deposited with CMS the title with blank transfer forms executed by him. Doshi defaulted in repaying the loan and interest. CMS transferred the title to EM Sdn Bhd. EM sold the land to YTL. YTL brought an action against Doshi for vacant possession. CMS and wife were sole directors and shareholders of EM. CMS was also the solicitor for YTL in the transaction. Doshi alleged that the loan agreement between him and CMS was in contravention of the Moneylenders Ordinance and was illegal, and that the attestation clause was false. He contended that CMS had knowledge of the illegality and fraud. Therefore that knowledge should be imputed to YTL.

The Federal Court, per Gill CJ at p 88, held:

Now the general rule is that the knowledge of the solicitor is the knowledge of the client… There is, however, an important exception to the above rule in cases of fraud, which is stated in Halsbury’s as follows:

Under the head of actual notice is included notice to an agent employed in the transaction. The notice is imputed to the principal, and it affects him whether communicated to him or not; but an exception is admitted where there has been fraud on the part of the agent in the matter. Although actual communication to the principal is not required yet fraud excludes in practice all probability of communication, and hence the knowledge of the fraudulent agent is not imputed to the principal. It is thus clear that the solicitor’s knowledge of fraud cannot be imputed to the agent. I must therefore reject the appellant’s contention that, if the respondent had notice by his agent of the previous transactions, then his entering into an agreement to purchase the premises was tantamount to fraud.

That exception quoted by Gill CJ in the opinion of the writer will only apply in circumstances where the fraud is committed by the agent against the principal26.

In Abu Bakar Ismail v Ismail bin Husin27, Raus JCA held that:

Doshi‘s case cannot be relied upon in interpreting s 340(2) of the Code.

Sri Ram JCA distinguished Doshi by holding that:

‘Doshi’s was not a case concerning an impeachment of title under s 340(2)(a) of the Code. It was a case in which the Court had to determine whether Chooi’s knowledge could be imputed to the plaintiff and thereby render the plaintiff liable at common law for any fraud (in the widest sense) by Chooi upon the plaintiff so as to raise a bona fide triable issue …

Sri Ram JCA goes on to quote the above passage from Gill CJ’s judgment in Doshi and highlights the following to make the point:

It is thus clear that the solicitor’s knowledge of fraud cannot be imputed to the agent. I must therefore reject the appellant’s contention that if the respondent had notice by his agent of the previous transactions, then his entering into an agreement to purchase the premises was tantamount to fraud as per Gill CJ at p 88.

The learned judge quite rightly pointed out that Gill CJ was considering the common law position of fraud in entering into an agreement to purchase land and not the registration of that land under the NLC. On that basis the Court of Appeal did not follow Doshi in interpreting s 340(2)(a) of the NLC.

Knowledge and Acts of Agents: The Position at Common Law

The locus classicus is found in House of Lords decision of Lloyd v Grace Smith & Co28 where Lord Halsbury states:

Holt CJ was of the opinion that the principal was accountable for the deceit of his agent, though not criminaliter but civiliter, for seeing somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and confidence in a deceiver should be a loser than a stranger … I should be very sorry to see a principle which appears to me of so great value shaken by any authority.

It is trite law that the principal is liable under civil law for the actions of its agent including for the fraud and/or deceit committed against a third party.

Knowledge And Acts Of Agents: The Position Under The Code

In the Singapore case of UOA Finance v Victor Sakayamary29, on a similar section to our s 340(2)(a), GP Selvam J categorically rejected the application of the principles applied in Doshi’s case in the context of a specific statutory provision:

The rule enunciated in Halsbury’s as applied in Doshi, in my view, does not apply in the context of s 38(2)(a) of the (Land Titles) Act because the section in clear language abrogates the restricted rule as regards the agent’s fraud. It expressly provides that the title of a proprietor may be defeated on the ground of fraud or forgery to which the proprietor or his agent was a party or in which he or his agent colluded…

The learned judge goes on to explain the rationale for this rule, which clearly shows that the law cannot be otherwise:

There is a simple rationale for this rule: a proprietor when he asserts a right, title or interest, as distinct from when he seeks to avoid a liability, founds his claim on the acts done and knowledge acquired by his solicitor or other agent. If the solicitor or agent had acted fraudulently, the proprietor inevitably will found his action on, and benefit by, the fraud of his solicitor or agent. The law cannot allow the proprietor such benefit as he appointed the agent and he is bound by his agent’s acts and knowledge. It would be an affront to hold that the proprietor can acquire an indefeasible title because the fraud or illegality was not that of the proprietor but his agent.

The Court of Appeal in Abu Bakar bin Ismail30, after quoting the above two paragraphs from the judgment of GP Selvam J, held at p113:

Hence … having regard to the express wording of s 340(2)(a) of the Code…it was therefore incumbent for the learned judge to apply the clear words of s 340(2)(a) to the facts as found by him. Had he done so, he would have concluded that the fraud of the second defendant as agent of the fourth defendant rendered defeasible the registered charge in the latter’s hands … The learned judge, with respect, erred in law in confining himself to the position at common law without hearkening to the express words of the Code. Had he directed himself correctly on the law, he would have held for the plaintiff.

The law in this area is clear. We have a specific statutory provision which must be interpreted based on the express words of the NLC. The NLC makes the title defeasible if one’s agent was party or privy to the fraud. Therefore there is no need to prove that the principal knew of the acts of his agent or had the knowledge his agent had to render the title defeasible under s 340(2)(a) of the NLC.

II Forgery, Insufficient Or Void Instrument: Section 340(2)(B)

In M&J Frozen Food Sdn Bhd v Siland Sdn Bhd31, the Supreme Court held per Wan Yahya SCJ, that where the vendor’s title is good but the instrument that was used by a purchaser for registration is void or voidable, the effect on such registration will only confer on the person in whose name the land is registered, what is usually referred to as deferred indefeasibility32. Under this principle, the registration of the insufficient and void instrument can be set aside:

In OCBC Bank v Pendaftar Hakmilik, Johor33, the Court of Appeal held:

Under s 340(2)(b), the registered title of the proprietor or registered charge or lease holder (such as the chargee or lessee) becomes defeasible where the registration was obtained by forgery…. In s 340(2)(b) there is no similar limitation as in s 340(2)(a) for the immediate proprietor, chargee or lessee to be party or privy to the ‘forgery’ before the registered title or interest becomes defeasible…. In this country, under the provisions of s 340(2)(b), the very fact of forgery suffices to make a registered title or interest defeasible irrespective of the absence of knowledge or implication of the immediate proprietor, chargee or lessee.

It is clear that under the NLC ss 340(2)(a) and (b) are distinct heads. Under s 340(2)(a), there is a clear limitation requiring the registered proprietor or its agent to be party or privy to the fraud or misrepresentation. Whereas, under s 340(2)(b), all that is needed to be proven is that the registration was obtained by forgery or an insufficient or void instrument. It is irrelevant whether the immediate registered proprietor was a party or privy to the forgery or a bona fide purchaser for good value.

III Bona Fide Purchaser: Section 340(3)

In Adorna Properties v Boonsom Boonyanit34, the brief facts were that someone forged BB’s signature and transferred the subject land to AP. AP had no knowledge of the forgery and had no reason to suspect that the instrument was forged. It was not disputed that the sale was done at arms’ length with each party being represented by different solicitors.

The High Court found in favour of AP, as they came within the proviso to s 340(3). The Court of Appeal reversed the High Court and held that the title was defeasible under sub-s 340(2) and that the proviso under sub-s 340(3) had no application. The Federal Court agreed with the High Court and held that the proviso under sub-s 340(3) was applicable and conferred indefeasibility on AP.

The basis of the Federal Court’s decision is found at p 244:

We are aware that any sovereign country may adopt and apply the Torrens system, but in adopting the system, it may modify the system to suit its own needs. Our Parliament did not slavishly follow the wordings … . We would therefore proceed to interpret s 340 of the NLC as it stands, and find what the real intention of Parliament was when enacting it, for the object of interpretation is to discover the intention of Parliament, and the intention of Parliament must be deduced from the language it used.

In commenting on the Federal Court’s reasoning, Associate Professor Teo Keang Sood35 had this to say:

Unfortunately, in deducing the intention of Parliament, their Lordships … lacked clarity in their reasoning … . In fact, the proviso to s 340(3) was misconstrued. Their Lordships dealt with s 340 in the following manner.

The effect of s 340(1) is to confer on a registered proprietor an indefeasible title or interest so long as his name is on the land register unless the title or interest was obtained in the circumstances set out in sub-s (2) and (3) to section 340. One of the circumstances in s 340(2) which renders a title or interest of a registered proprietor defeasible is where the registration has been obtained by forgery. Such a defeasible title or interest if acquired by and transferred to a subsequent registered proprietor is liable to be set aside as provided in s 340(3). However there is a proviso to sub-s (3).

Their Lordships explained the effect of the proviso as follows:

the proviso states that any purchaser in good faith and for valuable consideration… is excluded from the application of the substantive provision of sub-s (3). For this category of registered proprietor, they obtained immediate indefeasibility notwithstanding that they acquired their titles under a forged document.

Associate Professor Teo makes six succinct points, summarised as follows:

  1. There is no quarrel with their Lordships’ interpretation of s 340(1).
  2. Having said that the effect of s 340(2) has the effect of rendering a registered title or interest defeasible in the circumstances specified therein, their Lordships should have stated further that in the case of forgery, the registered title or interest will remain defeasible notwithstanding that the registered proprietor was not a party or privy to the forgery. In other words, even if the registered proprietor acted in good faith and provided good value for the title or interest and was not either himself or by his agent a party or privy to the forgery, his title or interest remained defeasible.
  3. Given that in Boonsom, the person who committed the forgery did not register the lands in her own name but sold them straight to the appellant, the latter was the immediate purchaser from the respondent. In other words, the appellant was the purchaser immediate to the forgery. That being the case, the appellant came within s 340(2)(b) and its title should be rendered defeasible. It matters not that the appellant was a purchaser in good faith for value. The appellant accordingly did not come within s 340(3).
  4. It is important to note that s 340(3) does not apply until and unless a registered title/interest is found to be defeasible under s 340(2). Even then, it will apply only to a purchaser who subsequently buys from a registered proprietor whose title or interest is defeasible under s 340(2). Even then, as provided for in s 340(3), the title or interest of that subsequent purchaser is liable to be set aside unless such purchaser or anyone claiming through him comes within the proviso to s 340(3).
  5. Any title or interest rendered defeasible under s 340(2) can operate as the root of a good title in favour of a subsequent purchaser who comes within the proviso to s 340(3).
  6. On the facts of Boonsom there was no room for s 340(3) to operate as there was no such subsequent purchaser involved. The title or interest of the appellant would be rendered defeasible under s 340(2).

The law as laid out in statute is clear and does not lend itself to the interpretations made by their Lordships in Boonsom’s case.

CASE LAW POST-BOONSOM

The following cases were decided after Boonsom Boonyanit:

  1. Subramaniam a/l NS Dhurai v Sandrakasan a/l Retnasamy & Ors36 — Court of Appeal.
  2. Elizabeth Chew v Leong Fook Ngen37 — High Court, common law position.
  3. Rokiah Hassan v Wan Zulkifli38 — High Court.
  4. Abu Bakar bin Ismail & Anor v Ismail bin Husin & Ors and other appeals39 — Court of Appeal, Federal Court (leave dismissed).
  5. Au Meng Nam & Anor v Ung Yak Chew & Ors40 — Court of Appeal.

 

In Subramaniam v Sandrakasan41, Sri Ram & Ahmad Fairuz JJCA, held that Boonsom Boonyanit was decided per incuriam for three reasons.

Firstly, the Federal Court had failed to consider the decision of the Supreme Court in M&J Frozen Food Sdn Bhd & Anor v Siland Sdn Bhd & Anor42.

In M&J Frozen, the Supreme Court per Wan Yahya SCJ, held that:

A purchaser of land may fail to obtain good title in two distinct ways. First, if the title of the vendor is bad. Secondly, even if the vendor has good title, there might be some invalidating defects in conveyance or transactions in which the purchaser attempted to obtain title… In the case of a defect in the vendor’s title, the common law rule is that no person can give better title than he had — nemo dat quod non habet. There are however, important exceptions to this rule, in particular the qualification made under the proviso to s 340(3) of the NLC where a bonafide purchaser for value without notice of the defeasible nature of the vendor’s title acquires an immediate indefeasible title. In the case where the vendor’s title is good but the instrument that was used by a purchaser for registration is void or voidable, the effect on such registration will only confer on the person in whose name the land is registered, what is usually referred to as deferred indefeasibility — see Gibbs v Menser. Under this principle, the registration of the insufficient and void instrument can be set aside.

Secondly, the Federal Court did not consider the distinctive use of the words ‘proprietor’ and ‘purchaser’ in s 340 of the NLC.

Thirdly, the different statutory definitions of ‘purchaser’ and ‘proprietor’ under s 5 of the NLC were also not considered.

In Abu Bakar Ismail v Ismail bin Husin43, the Court of Appeal confirmed its previous decisions and the earlier three reasons in Subramaniam v Sandrakasan, and added a fourth reason that Boonsom must be taken to have been decided per incuriam.

The Court of Appeal noted that s 340(3) in paras (a) and (b) employs the word ‘subsequently‘, meaning that if a registered proprietor gets on the register by any of the means set out in s 340(2), and if the registered proprietor, to use the expression housed in the Code — subsequently — transfers the land to another, the title of that other is also defeasible unless that person is a purchaser in good faith for valuable consideration.

It is clear that s 340(3) does not apply to s 340(2). The proviso states ‘Provided that nothing in this subsection…’ and this subsection refers to the sub-s 3 of s 340.

In Au Meng Nam v Ung Yak Chew44, the Court of Appeal again confirmed the above reasons and added a fifth reason, that is, the Court in Boonsom had failed to take into account the Federal Court decision of Mohammad Buyong v Pemungut Hasil Tanah Gombak45 where the Federal Court held:

What the appellant is claiming is in fact the protection of s 340 NLC. The doctrine carried in s 340 is the doctrine of indefeasibility. What that section protects is that the title or interest of any person for the time being registered as proprietor of any land shall be indefeasible. Sub-section (2) of the section provides for the exceptions in that the title or interest shall not be indefeasible in any case of fraud or misrepresentation or where registration was obtained by forgery or by means of an insufficient or void instrument or where the title or interest was unlawfully acquired. This provision deals with what is called ‘deferred indefeasibility‘ about which we are not presently concerned.

Raus and Hassan Lah JJCA also categorically and rightly stated that:

The Federal Court should review its decision in Boonsom. By virtue of s 340(2)(b), the title of Adorna Properties was not indefeasible as the registration was obtained by forgery46.

It cannot be more clearly stated by lawyers47, academicians, judges both on the bench and those retired and the Bar Council that Boonsom Boonyanit was wrongly decided by the Federal Court.

It has been argued by some that based on the principle of stare decisis the courts should continue to apply this wrongly decided interpretation of s 340 of the NLC to all subsequent cases. For a clear understanding of the application and exceptions to the application of the doctrine of stare decisis, refer to the judgment of Gopal Sri Ram JCA in Au Meng Nam v Ung Yak Chew48.

Burden on the Bona Fide Purchaser

What then is the burden cast upon a purchaser to come within the protection of the proviso to s 340(3)?

In Abu Bakar bin Ismail & Anor v Ismail bin Husin & Ors and other appeals49 the court held:

[T]he proof that one is a purchaser in good faith for valuable consideration lies on the person asserting it.

In Au Meng Nam v Ung Yak Chew50, it was held:

[S]ince the first defendant was relying on the proviso of s 340(3) of the Code, that he was a bona fide purchaser for valuable consideration, the evidential burden falls on him. There is no duty on the plaintiff to prove that the first defendant was a party or privy to the fraud …

The recent Court of Appeal decision in Au Meng Nam makes it very clear that a person claiming that a title is defeasible would have to discharge the burden of proving fraud or misrepresentation or forgery. Once that is done, the burden shifts to the party claiming indefeasibility to prove that he/she is a bona fide purchaser for good value.

A NEW DEVELOPMENT

In Au Meng Nam v Ung Yak Chew51, Raus JCA held:

To the learned judge, the first defendant was a bona fide purchaser and had given valuable consideration because of the existence of a sale and purchase agreement and the purchase price had been paid in full. An existence of a sale and purchase agreement and the payment of the purchase price in full cannot be the only indicator to show whether a person is a bona fide purchaser or otherwise. Other salient features surrounding the sale and purchase agreement must be considered.

In this transaction:

  1. Completion date of SPA nine months after signing.
  2. Purchase price RM400,000, 80% paid on date of signing, balance paid three months after date of signing.
  3. Three months after purchase, first defendant attempted to sell said land for RM1.2m.
  4. Vendors only possessed temporary ICs.
  5. No queries or searches made

 

After considering the above facts, Raus JCA held:

Taking the above facts and circumstances into consideration the learned judge cannot possibly conclude that the first defendant was a bona fide purchaser for valuable consideration so as to be protected under s 340(3) of the Code… A reasonable inference would be that the first defendant knew that at the time he bought the said land, the purchase price was below the market value. But he wanted to take advantage of the low price. He did a fast track to complete the purchase. In doing so, he disregarded his obligations to investigate the alleged proprietors and genuineness of the documents… A purchaser in good faith does not include a purchaser who is careless or who had been negligent.

This would seem to impose a wider duty upon a bona fide purchaser for valuable consideration in order to receive protection under the proviso to s 40(3). In other words, a subsequent purchaser who is not tainted by the fraud or forgery would not be deemed a bona fide purchaser for good value if he was negligent or careless.

It is understandable why Raus and Hasan Lah JJCA may have taken this course. They were trying to find another way to give relief without going against the decision in Boonsom.

However, interpreting the proviso in this manner may lead to uncertainty.

Exactly what must a purchaser do to receive the protection under s 340(3)? How careful must a purchaser be? What searches must be done? If it is a good deal, must a purchaser wait to pay the balance purchase price? Will a purchaser who attempts to sell the property he bought at a higher price lose the protection? It may be a question of degrees.

As Ahmad Moosdeen points out:

… the more the qualifications, the more they undermine the aim of the system which is to give certainty to the register as correctly setting out all , and the only, legally recognised dealings concerning the land52

On the other hand, it gives the courts enough room to maneuver in instances that seem unjust, to protect innocent proprietors from losing their land due to fraudulent transactions53.

The writer would advocate another approach, that is, to apply the rationale as stated by Lord Lindley in Assets Co v Mere Roihi54, which would bring the facts in Au Meng Nam within the definition of fraud under s 340(2)(a):

The mere fact that he might have found out fraud if he had been more vigilant and made further enquiries which he omitted to make does not of itself prove fraud on his part. But if it be shown that his suspicions were aroused and that he abstained from making enquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him.

The facts in Au Meng Nam, by an objective standard would surely arouse the suspicion of any reasonable man. The purchaser refused to make enquiries like the relevant searches and getting proper identification documents from the vendors. The purchaser’s lawyers even testified that they could not do the relevant searches because the purchaser insisted on concluding the transaction on the same day55. If fraud under s 340(2)(a) could have been properly ascribed to him, then he would come within that subsection which would render his title defeasible.

Section 340(3) would not apply and even if it did, he could not be termed a bona fide purchaser as he was party or privy to the fraud as interpreted by Lord Lindley which has been adopted over and over again by our Federal Court.

CONCLUSION

It is clear that the decision and reasoning in Adorna Properties v Boonsom Boonyanit is wrong. Subsequent decisions in the High Court and the Court of Appeal have decided so and then went on to find ways to distinguish it.

The Bar Council has come up with a memorandum which was handed over to the Minister of Law proposing an amendment to this section of the NLC — the writer is not in favour of the proposed amendment as the law as stated in s 340 of the NLC is clear and needs no amendment.

We cannot be redrafting legislation each time a decision of the Federal Court is not in accordance to statute and its previous decision. The better solution would be for the Federal Court to review its previous decision in Adorna Properties v Boonsom Boonyanit sitting in a quorum of five or more judges56 as it has recently done in the case of Joceline Tan Poh Choo & Ors v V Muthusamy57.

 

1 Adorna Properties v Boonsom Boonyanit [2001] 1 MLJ 241.

2 Au Meng Nam & Anor v Ung Yak Chew . A former judge of the Court of Appeal also had this to say about the case, ‘The Federal Court’s decision in Adorna Properties v Boonsom Boonyanit is an infamous example of an unjust judge who had refused to decide the case on the statute as it stands. Instead he went on to make his own decision on s 340 of the National Land Code 1965 by ignoring the true meaning of the words in the statute’ Chan NH Judging the Judges (2007), Kuala Lumpur, Alpha Sigma Sdn Bhd, at p vii.

3 This paper was delivered at a Seminar organised by the Kuala Lumpur Bar Committee on the 12 September 2007 at the Kuala Lumpur Bar Auditorium.

4 However for a general understanding of the effect of this subsection refer to the article written by Yong Chui Mei [2006] 3 MLJ lxxvi and the decision of the Federal Court in Krishnadas v Maniyam [1997] 1 MLJ 94.

5 Teo KS & Khaw LT, Land Law in Malaysia (1995) 2nd Ed, Butterworths, at p 7.

6 Named after Sir Robert Torrens, Collector of Customs at Port Adelaide, Australia.

7 Ricquier WJM Land Law (1995) 2nd Ed, Singapore, Butterworths Asia, at p 96.

8 Which could only be discovered in the ‘deeds system’ by a long drawn out enquiry.

9 Section 206(3) of the National Land Code 1965.

10 [1905] AC 176.

11 [1926] AC 101.

12 At p 210.

13 Waimiha Sawmilling Company Ltd v Waione Timber Company Ltd [1926] AC 101 at p 106, 107.

14 [1932] 1 MLJ 109.

15 Krishnadas a/l Achutan Nair v Maniyam a/l Samykano [1997] 1 MLJ 94. There is no difference in principle between s 42 of the FMSLC and the present s 340 of the National Land Code. Also stated by the Court of Appeal in Boonsom Boonyanit v Adorna Properties Sdn Bhd [1997] 2 MLJ 62 and the Federal Court in Tai Lee Finance Co Sdn Bhd v Official Assignee & Ors [1983] 1 MLJ 81.

16 Krishnadas a/l Achutan Nair v Maniyam a/l Samykano [1997] 1 MLJ 94.

17 Krishnadas a/l Achutan Nair v Maniyam a/l Samykano .

18 Waimiha Sawmilling Company Ltd v Waione Timber Company Ltd [1926] AC 101.

19 Tai Lee Finance Co Sdn Bhd v Official Assignee & Ors [1983] 1 MLJ 81.

20 Tai Lee Finance Co Sdn Bhd v Official Assignee & Ors .

21 The Federal Court distinguished this case from PJTV by holding that ‘fraud was brought home to the persons whose title was impeached’ and that Public Finance ‘was a case where a transferee in collusion with the transferor acted to disregard unregistered (and imperfected by caveat) interest of third parties’.

22 PJTV Denson(M) Sdn Bhd & Ors v Roxy (Malaysia) Sdn Bhd [1980] 2 MLJ 136.

23 Public Finance Bhd v Narayanasamy [1971] 2 MLJ 32.

24 .

25 [1975] 1 MLJ 85.

26 Halsbury’s Laws of England 4th Ed Vol 1(2) p 105 para 150

27 .

28 [1912] AC 716.

29 .

30 [2007] 3 CLJ 97.

31 [1994] 1 MLJ 294.

32 See Gibbs v Messer [1891] AC 248.

33 .

34 [2001] 1 MLJ 241.

35 Teo Keang Sood, ‘Demise of Deferred Indefeasibility under the Malaysian Torrens System?’ (Oct/Nov/Dec 2004) Infoline, p 41.

36 [2005] 6 MLJ 120.

37 [2001] 6 MLJ 403.

38 [2004] 1 CLJ 334.

39 [2007] 4 MLJ 489.

40 [2007] 5 MLJ 136.

41 [2005]3 CLJ 539 at 547

42 [1994] 1 MLJ 294.

43 .

44 [2007] 5 MLJ 136.

45 .

46 Au Meng Nam v Ung Yak Chew .

47 Yang Pei Keng ‘Immediate Indefeasibility or Deferred Indefeasibility’ INSAF [2001] No 3 XXXI, PK Nathan ‘Nightmare for Registered Owners of Landed Property’ [2002] 4 CLJ xiii, Ahmad Moosdeen ‘On the Proviso in s 340(3) of the National Land Code 1965’ [2002] 2 MLJ Ixvi.

48 [2007] 5 MLJ 136. Lord Gardiner, Lord Chancellor of England issued a Practice Statement stating that there was a need to break away from a previous decision when it is right to do so — ‘Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what the law is and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so’ Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. Lord Denning also warns us of too rigid an application of the doctrine of stare decisis ‘Let it not be thought from this discourse that I am against the doctrine of precedent. I am not. All that I am against is its too rigid application — a rigidity which insists that a bad precedent must necessarily be followed. I would treat it as you would a path through the woods. You must follow it certainly so as to reach your end. But you must not let the path become too overgrown. You must cut the dead wood and trim the side branches; else you will find yourself lost in the thickets and brambles. My plea is simply to keep the path of justice clear of obstructions which would impede it‘ Lord Denning, The Discipline of Law, Butterworths, 1993 at p 315.

49 Court of Appeal .

50 .

51 Court of Appeal .

52 Ahmad Moosdeen ‘On the proviso in s 340(3) of the National Land Code 1965’ [2002] 2 MLJ pp lxvi and lxvii .

53 Examples of fraudulent transactions can be found in cases like Tai Lee Finance Co Sdn Bhd v Official Assignee & Ors [1983] 1 MLJ 81 and Public Finance Bhd v Narayanasamy [1971] 2 MLJ 32.

54 [1905] AC 176 at p 210.

55 Au Meng Nam & Anor v Ung Yak Chew & Ors .

56 The Federal Court recently on 14 September 2007 in the case of Joceline Tan Poh Choo & Ors v V Muthusamy [2007] 6 MLJ 485 sat as a five-man panel reviewed its earlier decision and set it aside, ordering that the appeal to be re heard.

57 Joceline Tan Poh Choo & Ors v V Muthusamy [2007] 6 MLJ 485.

MLJ Section 340 of the National Land Code – Before and After Boonsom Boonyanit

The Recognition and Content of Native Title in Peninsular Malaysia

MLJ – The Recognition and Content of Native Title in Peninsular Malaysia

 

Malayan Law Journal

THE RECOGNITION AND CONTENT OF NATIVE TITLE IN PENINSULAR MALAYSIA by Jerald Gomez

INTRODUCTION

In 2002, the High Court of Malaysia handed down the landmark decision of Sagong bin Tasi v Kerajaan Negeri Selangor & Ors,2 in which the writer was a member of the team of lawyers who represented the plaintiffs. The case subsequently went on appeal to the Court of Appeal3 and the Federal Court.4 Whilst this decision finally recognised the aboriginal peoples’ rights in and to the land, as opposed to merely rights of use and enjoyment over the land, other issues such as whether these rights extend to nomadic or unsettled people and even if they are settled people, whether these rights extend to the area where they forage, hunt or fish as well as what constitutes an ‘aborigine’ remains unclear. This paper will deal with those challenges and the orang asli5 land rights in Peninsular Malaysia covering international legislation and jurisprudence, customary laws recognised locally and internationally, local legislation and court decisions with emphasis on Sagong‘s case and references to other jurisdictions, in particular, Australia, Canada and New Zealand.

BACKGROUND

There are about 180,000 aboriginal people in Peninsular Malaysia.6 The laws governing the aboriginal peo-ple in East and West Malaysia are similar but not the same.7

The ‘orang asli’ is a collective term for the original or first peoples of Peninsular Malaysia comprising 188 ethnic sub-groups officially classified for administrative purposes under Negrito, Senoi and Aboriginal-Malay/Proto-Malay. They are the descendants of the earliest known inhabitants in the Peninsular prior to the establishment of the Malay Sultanates.9

The Senoi are the largest group comprising about 54% of the orang asli. They are believed to have entered the Peninsular around 2,000BC from the north. Many of the Senoi10 have now taken to permanent agriculture.11

The Proto-Malays12 are the second largest group. Most of them live in the southern half of the Peninsular and are engaged mainly in permanent agriculture or riverine fishing.13

The Negritos comprise about 1% of the orang asli and are believed to have been in the Peninsular for at least 25,000 years.14 Though direct descendants of largely nomadic foragers, many of the Negrito groups comprising the Kensiu, Kintak, Jahai, Lanoh, Mendriq and Batek now live in permanent settlements largely in the northern and eastern states.15

Less than 1% of all orang asli are still semi-nomadic opportunistic foragers but even so, these communities have their own distinct traditional territories.16

The orang asli groups kept to themselves until about the first millennium AD when they supplied forest prod-ucts to traders from India, China and the Mon civilisations in exchange for salt, cloth and iron tools. However the rise of the Malay Sultanates coincided with a trade in orang asli slaves prompting many orang asli groups to retreat further inland.17

The British colonialists introduced the Torrens system, and with it the alienation of land and title. All lands then belonged to the state including the native territories (‘kawasan saka’) of the orang asli and though some of these lands were gazetted as forest reserves18 and aboriginal reserves, more than 80% of aboriginal peo-ples’ lands remain ungazetted.19

Despite a lack of clear guidance and direction in local legislation, the orang asli‘s struggle for recognition of their land rights has improved incrementally mainly as Malaysian judges have taken heed of international developments and jurisprudence, discussed below.

INTERNATIONAL LAW

The Indigenous and Tribal Peoples Convention 1989 (‘ILO 169’) and the UN Declaration on the Rights of Indigenous Peoples adopted in 2007 (‘UNDRIP’) are specific and mutually reinforcing instruments which now provide the framework for the universal protec-tion of indigenous and tribal peoples’ rights.20 However the ILO 169 is not widely ratified and both are more recent instruments.

UN bodies have effectively used general human rights provisions, enshrined in other older and more widely ratified international instruments, in particular provisions on the prohibition of discrimination, the right to self determination, minorities’ right to culture and right to property, to aid in the recognition and protection of in-digenous peoples’ land rights.

ILO 169

The International Labour Organization was one of the first international bodies to have been concerned with the situation of indigenous and tribal peoples since its inception. Its longstanding engagement in this area led to the adoption in 1957 of the first international instrument concerning indigenous and tribal peoples’ rights, the Indigenous and Tribal Populations Convention (‘Convention 107’).21

In the 1980s, the approach of assimilation adopted by Convention 107 was considered outdated.22 The con-vention was revised and replaced in 1989 by the ILO 169.23

The ILO 169 is based on the recognition of indigenous and tribal peoples’ aspirations to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the states in which they live. The principles of participation and consultation form its cornerstone. It is the only up to date international treaty, which specifically provides protection for indigenous and tribal peoples. Treaty bodies and governments tend to look at the ILO 169 when interpreting other conventions and enacting legislation for their respective countries with regard to indigenous peoples. Courts in various jurisdictions have also applied similar principles.

Articles 13-16 of the ILO 169 set out the following:

13(1)    … governments shall respect the special importance for the cultures and spiritual values of the peoples concerned, their relationship with the lands or territories, or both, which they occupy or otherwise use, particularly the collective aspects of this relationship.

13(2)    the term lands in arts 15 and 16 shall include the concept of territories, covering the total environment of the areas which the peoples concerned occupy or otherwise use.

14(1)    The rights of ownership and possession of the peoples concerned over the lands they traditionally occupy shall be recognized. Measures shall also be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.

14(2)     Governments shall take steps as necessary to identify the lands which the peoples concerned tradi-tionally occupy, and to guarantee effective protection of their rights of ownership and possession.

14(3)    Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

15(1)    The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.

15(2)     … [where] the state retains the ownership of mineral/sub-surface resources/rights to other resources pertaining to lands, governments shall establish/maintain consultation procedures to ascertain how their interests would be prejudiced, before undertaking/permitting any programmes for exploring/exploiting such resources. The peoples concerned shall wherever possible participate in the bene-fits of such activities, and receive fair compensation for damages sustained as a result.

16(1)    … the peoples concerned shall not be removed from the lands which they occupy.

16(2)    If relocation is considered necessary as an exceptional measure, it shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, to provide the opportunity for effective representation.

16(3)    Whenever possible, these peoples shall have the right to return to their traditional lands, once the grounds for relocation cease to exist.

16(4)    When such return is not possible, … these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.

16(5)    Persons thus relocated shall be fully compensated for any resulting loss or injury.24

Although the ILO 169 has been ratified by only 22 states25 — Nepal being the only Asian state26 — it is none-theless now used as a benchmark of standards by other Asian countries. The Philippines, Cambodia and Laos have all used it as a model in drafting their local legislation or reviewing their policies in relation to indigenous peoples:

… the convention had been used as a model in drafting of legislation in the region, such as the Indigenous Peoples’ Rights Act 1997 (Philippines) and the new Land Law 2001 (Cambodia). The Laotian government has expressed interest in the ILO 169 and has conducted a review concerning existing policies of indigenous peoples.27

The Philippines Act follows the ILO 169 closely, providing for ownership over land and resources, the right to occupy and develop land, the right to oppose displacement and the right to free, prior and informed con-sent.28 The right to decision making and traditional governance mechanisms is also stipulated in Cambodia’s Land Law 2001. It is clear that the ILO 169 has inspired governments and indigenous peoples well beyond the states that have ratified it, in their work to promote and protect indigenous peoples’ rights.

CERD, UN Charter, ICCPR, ICESCR, DRD

The International Convention on the Elimination of All Forms of Racial Discrimination 1966 (‘CERD’) provides in article 5(d)(v) for non-discrimination to ‘the right to own property alone as well as in association with others’. CERD’s General Recommendation XXIII encourages states to ‘recognise and protect rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories’.29

Indigenous peoples must not be discriminated against in their rights as stated in the General Recommenda-tion compared to other citizens and it further recognises their right to just, fair and prompt compensation for violations of indigenous land rights.30

Though the ILO 169 and CERD recognise and address land rights of the indigenous peoples independently of their right to self determination, it must be appreciated that rights to land is an essential and integral part of the indigenous peoples’ right to self determination:

Certainly, they themselves pursue their land rights on the basis of their right to self-determination … economic self-determination appears essential to indigenous peoples as the main legal basis for permanent sovereignty over their lands; the exercise of their traditional activities and indigenous practices for sustainable development; the enjoyment of the natural resources of the lands they live in; and the sharing of the benefits of such resources.31

The legal basis and justification for this is enshrined in various general international instruments, for exam-ple, article 1 para 2 and article 55 of the UN Charter as well as common article 1 of the International Cove-nant on Civil and Political Rights 1966 (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights 1966 (‘ICESCR’).

Article 1 para 2 of the UN Charter states that:

The purposes of the United Nations are … to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

Article 55 of the UN Charter provides that:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

  • higher standards of living, full employment, and conditions of economic and social progress and development;
  • solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
  • universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Common article 1 of the ICCPR and ICESCR lays out:

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence.

Article 47 of the ICCPR and article 25 of the ICESCR include a common statement which reads:

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize freely their natural wealth and resources.

Article 1.2 of the Declaration on the Right to Development 1986 (‘DRD’) suggests that claims relating to natural wealth and resources fall within the scope of the right to self determination.32 It reads:

The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to relevant provisions of both International Covenants, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

Xanthaki however points out the right to self determination and the right to development can be construed as two separate rights as there is no explicit link between common article 1, article 47 of the ICCPR and article 25 of the ICESCR, and though very closely related they have distinct scopes.33 Nevertheless, even if they are deemed as separate rights, this does not weaken the legal basis for recognising indigenous peoples’ land rights as an integral part of protecting either of those rights. In any event the Vienna Declaration and Programme of Action 1993 (‘VDPOA’) provides that all rights are indivisible and interrelated.34

The issue of the right to self determination of peoples also revolves around the question of what constitutes ‘peoples’ as stated in the UN Charter, ICCPR and ICESCR. Many states have opposed the recognition of indigenous communities as ‘peoples’ because the principle of self determination of peoples as proclaimed in these instruments has led to the evolution of a principle of customary international law granting the right of independence to any people under foreign domination.35 In the travaux preparatoires of the 1966 Covenants the issue of peoples living within states in a multicultural population was considered, in particular:36

[t]he word ‘peoples’ was understood to mean peoples in all countries and territories whether independent, trust or self-governing. Suggestions were made to the effect that ‘peoples’ should apply to ‘large compact national groups’, to ‘ethnic, religious or linguistic minorities’, to ‘racial units inhabiting well-defined territories’, etc. It was thought however, that the term peoples should be understood in its most general sense and that no definition is necessary.37

Xanthaki however notes that some states insist that indigenous peoples do not fall within the term ‘peoples’ their concerns being state sovereignty.38

Nevertheless, the HRC has indicated that indigenous people fall within the scope of arts 1(2) and 47. In its comments concerning the latest periodical reports from Australia, Canada and Mexico, the HRC dealt with indigenous peoples’ right to natural resources, in the context of self-determination, as enshrined in common art 1 of the ICCPR and ICESCR.39

As Lenzerini rightly argues, whatever meaning one attributes to the term ‘peoples’, the evolution of interna-tional law from the 1960s leaves no doubt that, in light of article 31.3(c) of the VDPOA, and international cus-tomary law, today the term ‘peoples’ used in common article 1 also encompasses non-national peoples, such as minorities and indigenous peoples.40

In any event, the UNDRIP now clearly recognises indigenous peoples’ right to self determination as set out in various articles in particular article 3:

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

These rights are however subject to the overriding article 46 of the UNDRIP:

46(1) nothing in this declaration may be interpreted as implying for any state, people, group or person any right to engage in any activity, or to perform any Act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember, impair, totally or in part, the territorial integrity or political unity of Sovereign and Independent States.

Thornberry points out that:

the acceptance of indigenous self-determination by states has often been on the basis that it does not disturb territorial integrity and that it is specific to the indigenous.41

He cites Japan’s explanation of support when adopting the UNDRIP:

… The revised version of art 46 correctly clarifies that the right of self-determination does not give indigenous peoples the right to be separate and independent from their country of residence and that that right shall not be invoked for the purpose of impairing a state’s sovereignty, national and political unity or territorial integrity … 42

If ‘peoples’ and self determination is understood in this context, more states would be willing to recognise indigenous people as ‘peoples’ with the right to self determination.

The Human Rights Committee (‘HRC’) has also used the right to minority culture under article 27 of the IC-CPR to give effective protection to land rights. In Jouni Lansman v Finland, the HRC warned that any future mining activities on a large scale ‘may constitute a violation of the … right under art 27 of the ICCPR, particularly the right to enjoy their culture’.43 Article 27 of the ICCPR states:

[I]n those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The HRC in general comment 23 drew a distinction between the right to self determination and the rights protected under article 27.44 Differently from the right to self determination belonging to peoples, the rights under article 27 relate to rights conferred on individuals and are personal rights.45

The enjoyment of the rights to which art 27 relates does not prejudice the sovereignty and territorial integrity of a state party. At the same time, one or other aspect of the rights of individuals protected under that article — for example, to en-joy a particular culture — may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.46

Although the rights protected under art 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by states may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group.47

The HRC interpreted article 27 to extend to protecting indigenous peoples’ special relationship with their land:

With regard to the exercise of the cultural rights protected under art 27, the Committee observes that culture manifests itself in many forms including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in re-serves protected by law.48 (Emphasis added.)

The individual rights to property and non-discrimination have likewise been used in aid of the protection of indigenous peoples’ land rights.49

CRC, Genocide Convention and UNDRIP

Though Malaysia is not a signatory to the above conventions, it is a signatory to the UNDRIP and has ratified the Convention on the Rights of the Child 198950 (‘CRC’) and the Convention on the Prevention of the Crime of Genocide 194851 (‘Genocide Conven-tion’).

CRC provides for protection of the child and makes clear reference to indigenous peoples. Article 17 requires state parties to recognise the important function performed by the mass media and to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health and at article 17(d), to encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous.52 Article 30 provides that in those states in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own lan-guage.53

The Genocide Convention article II defines genocide to include:

deliberately inflicting on the group conditions of life calculated to bring about physical destruction of the whole or in part.

However, an offence is only committed when there is the act of genocide against the group with the requisite intent to destroy that group in whole or in part, which is difficult to prove. Removing indigenous people from their native lands ‘ … often have ramifications for the physical survival of the group’.54 The UNDRIP in article 43 clearly states:

the rights recognised herein constitute the minimum standard for the survival, dignity and well-being of indigenous people of the world.

The UNDRIP has removed the requirement of intent and provides that indigenous people ‘shall not be sub-jected to the act of genocide’.55

All these rights are intrinsically linked to the recognition and protection of indigenous peoples’ rights to land. The importance to the indigenous peoples of their land rights cannot be overemphasised. The interdepend-ence and enjoyment of other indigenous rights are inextricably linked to their land rights56 and is consistent with the position taken in VDPOA that all human rights are indivisible, interdependent and interrelated.57

This is also emphasised in the UNDRIP which was adopted by the General Assembly Resolution 61/295 on 13 September 2007, after two decades of discussions, with 143 state parties voting for its adoption and four state parties voting against. Each of these four countries have since endorsed the UNDRIP — Australia on 3 April 2009,58 New Zealand on 20 April 2010,59 Canada on 12 November 201060 and the United States on 13 December 2010.61

Both the UNDRIP and the ILO 169 recognises the special bond between indigenous peoples and their land. The UNDRIP expands this further by linking, in its preamble, protection of indigenous land rights to indige-nous political, economic and social structures, spiritual traditions, history and philosophies.62

For some indigenous communities, land rights are the central claim in their struggle for protection. Largely, this is be-cause of their special relationship with the land on which they live, a relationship confirmed by the UN Human Rights Committee, the UN Special Rapporteur on Indigenous Issues and ILO Convention No 169. As indigenous peoples have explained:

The land is the basis for the creation stories, for religion, spirituality, art and culture. It is also the basis for relationships between people and with earlier and future generations. The loss of land, or damage to land, can cause immense hardship to indigenous people. Land was indigenous peoples’ sacred mother, lifegiver and source of their survival, and therefore [land rights] were the heart and soul of the draft.63

Land rights often have ramifications for the physical survival of the group.64

The UNDRIP further stipulates that:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used land …65

The UN declared 1993 as The International Year for the World’s Indigenous Peoples66 and the decade from 1995-2004 as the International Decade of the World’s Indigenous Peoples. Recognising the continuing need for attention to indigenous peoples, on 22 December 2004, the General Assembly adopted Resolution A/RES/59/17467 declaring the decade from 2005 through 2014 as the Second International Decade of the World’s Indigenous Peoples.

At the international level, the various conventions and declarations have taken effect slowly but surely. 2010 saw the final three opposing state parties, New Zealand, Canada and the United States giving their en-dorsement to the UNDRIP, and major historic victories in various countries, including India, where the nearly 8,000 Dongria Kondh people succeeded in their bid to block the mining of bauxite by multinational corpora-tion Vedanta Resources from their sacred Niyamgara Hills.68

However, there have been some setbacks in many other countries and in some cases, even criminalising advocates — indigenous Peruvian leaders were sentenced to prison for participating in protests surrounding Peru’s forestry law.69

The greatest recognition of the land rights of indigenous peoples has been in Latin America, largely due to the inter-American system for the protection of human rights, which functions within the Organization of American States (‘OAS’). The OAS Inter-American Commission on Human Rights, in consultation with OAS member states and indigenous peoples’ representatives, has reported on the human rights conditions of par-ticular OAS member states, has accepted several important human rights complaints, which it is currently investigating, brought by indigenous peoples against various OAS member states, and has also prosecuted cases such as the Awas Tingni case from Nicaragua, before the OAS Inter-American Court of Human Rights.70

In the other nations and continents, closing the gap between rhetoric and recognition is one of the major questions of 2011, particularly in Africa and Asia.71 Israel currently faces a challenge by Nuri El-Okbi, a Bed-ouin claiming indigenous land rights, who, despite living in the Negev Desert with his family for hundreds of years on their ancestral land, long before modern day Israel was even formed, are being accused by Israel of ‘trespassing’. The Israeli position is that the Bedouin do not qualify as indigenous people but Israeli geographer Professor Oren Yiftachel, accuses the government of declaring ‘terra nullius in reverse’. None of the previous Bedouin land claims have succeeded, but Nuri and his legal team hopes that this will be their ‘Mabo moment’.72

Malaysia has to some extent, applied the UDHR standards and was an active participant in the drafting of the UNDRIP. However local legislation has yet to fully recognise and protect indigenous people’s rights and falls far short of the rights enshrined in those declarations and conventions.

LOCAL LEGISLATION

Malaysia has specifically incorporated the UDHR into its Human Rights Commission of Malaysia Act 1999 where it states in s 4(4) that ‘for the purpose of this Act, regard shall be had to the UDHR to the extent that it is not inconsistent with the Federal Constitution’.

However, the rights and protection of the aboriginal people in particular their land rights, are not provided for clearly under Malaysian law. One must look at four different pieces of legislation and case law to ascertain these rights:

  • The Federal Constitution 1957 (‘the Constitution’).
  • The Aboriginal Peoples Act 1954 (‘the APA’).
  • The Land Acquisition Act 1960 (‘the LAA’).
  • The National Land Code 1965 (‘the NLC’).

The matter of their welfare comes under federal jurisdiction (First List of the Ninth Schedule of the Constitu-tion), whereas matters of land generally come under state jurisdiction (Second List of the Ninth Schedule).

Article 89(6) of the Constitution defines Malay reservation land as ‘land reserved for alienation to Malays or to natives of a state’. However legislation governing Malay reservation of the various states does not extend the benefit of such legislation to the aboriginal people.

The Constitution ensures under art 13(1) that no person shall be deprived of property save in accordance to law, and in art 13(2), that no law shall provide for compulsory acquisition or use of property without adequate compensation.

Article 4(1) states that the Constitution is the supreme law of the federation and any law passed after Merdeka Day73 which is inconsistent with the Constitution shall, to the extent of its inconsistency, be void.

Article 8(5)(c) provides for the special position of the aboriginal people and allows the government to posi-tively discriminate in favour of the aboriginal peoples. Article 8(5) states that:

This article does not invalidate or prohibit …(c) any provision for the protection, well- being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to the aborigines of a reasonable proportion of suitable positions in the public service.

Article 160(2) defines what is recognised as law in Malaysia, and this includes ‘any custom or usage having the force of law …

If the land rights of the aboriginal people, whether usufruct or in and to the land, are regarded as property rights, then it will fall within the protection of art 13(2).

The Constitution supersedes both statutory law and the common law, and requires that all acquisition of property rights be compensated adequately. Any law made for compulsory acquisition or use of property without adequate compensation shall be rendered void in accordance to the Constitution.

The NLC is a piece of federal legislation which codifies laws relating to the alienation, rights and use of land but does not provide for alienation of land to the aboriginal people or compensation for lands acquired from them. It must be read as being subservient to art 13 of the Constitution.

The APA is a legislation specifically enacted to govern aboriginal peoples. Section 3 defines an aborigine as:

  • Any person whose male parent is or was, a member of an aboriginal ethnic group, who speaks an ab-original language and habitually follows an aboriginal way of life and aboriginal customs and beliefs, and includes a descendent through males of such person.
  • Any person of any race adopted when an infant by aborigines who has been brought up as an aborigine, habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and is a member of the aboriginal community or
  • the child of a union between an aboriginal female and a male of another race, provided that child habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and is a member of the aboriginal community.

This definition has led to difficulties for aboriginal peoples seeking to enforce their land rights, which will be discussed below.

The APA does not in any way treat the aboriginal people as legal owners of the lands inhabited or reserved to them. Section 10 of the APA states that compensation shall and must be paid for the destruction and ac-quisition of aboriginal peoples’ crops. Section 11 merely states that the state ‘may’ pay compensation, which gives the state discretion in the compensatory process. Section 12 empowers the director general with a dis-cretionary power to pay compensation as he thinks fit. Sections 6 and 7 of the same Act allow the Minister to extinguish land designated as aboriginal reserves and areas. This allows the state to avoid paying compen-sation by the simple act of revoking the areas designated to the aboriginal people.

The LAA is the law governing the acquisition of land in Malaysia. Under s 2, the word ‘land’ is defined to mean ‘alienated land within the meaning of state land law, land occupied under customary right and land occupied in expectation of title’. The expression ‘land occupied under customary right’ is not defined under the Act.

Despite the gaps in the local legislation, the Malaysian judiciary has recognised the international standards manifested in case law from various jurisdictions — some of whom are parties to the international conven-tions. The judiciary has done so incrementally with the hope that the executive and Legislature will catch up.

CASE LAW

In the landmark case of Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,74 the plaintiffs were abo-rigines of the Temuan tribe. They brought a representative action for themselves and their respective families for being unlawfully evicted from their lands following the acquisition of 38,477 acres of their land for the pur-pose of construction of the highway to the Kuala Lumpur International Airport. They were compensated for the loss of their crops, fruit trees and loss of their homes but not for the loss of the land. The government re-fused to recognise that the plaintiffs had a proprietary interest in the land. The eviction was done by police operation with support from the Federal Reserve Unit in the presence of government officials. Their fruit trees and crops were destroyed. The houses, community hall and traditional/cultural hall were demolished.

The plaintiffs’ claim was for recognition of their proprietary right to the land and compensation for breach of art 13 of the Constitution. The plaintiffs also argued that the government owed them a fiduciary duty based on constitutional provisions which required the government to protect and ensure the advancement and welfare of the aboriginal peoples in Malaysia. The plaintiffs also claimed for trespass.

Until 1997 the Malaysian courts had denied the orang asli any form of compensation other than under the APA. In Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor,75 the court recognised for the first time that aboriginal peoples had usufructuary rights, rights over the land but not in and to the land. The court found that aborigines had rights at common law over the land vested in the state and such rights existed de-spite the APA. The aborigines here were compensated for loss of land use and livelihood over the land but not for, in and to the land.

Mohd Noor J in Sagong went further:

I follow Adong‘s case, and in addition, by reason of the fact of settlement I am of the opinion based on the findings of facts in this case, in particular on their culture relating to land and their customs on inheritance, not only do they have the right over the land but also an interest in the land.76

The court relied on Amodu Tijani v The Secretary, Southern Nigeria77   which held:

The title such as it is, may not be that of the individual, as in this country it nearly always is in some form, but may be that of the community. Such a community may have possessory title to common enjoyment of the usufruct, with customs which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this latter development of right has progressed involves a study of the history of the particular community and its usages in each case. Abstract principles fashioned a priori are but little assistance, and are as often as not misleading.

The court in Sagong then relied on Mabo & Others v Queensland78 (‘Mabo No 2‘) and The Wiks Peoples v State of Queensland & Ors79 which support this content of native title.80 In Canada, Delgamuukw v The Queen in right of British Columbia et al; First Nations Summit et al, interveners,81 the Supreme Court held that the aboriginal peoples’ right included an interest in the land and not merely usufructuary rights. In America, the position was stated in Johnson and Graham’s Lessee v William M’Intosh82 where Marshall CJ said:

They (Indian tribes or nations) were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, to use it according to their own discretion.83

In Australia, Brennan J of the High Court in Mabo No 2 considered the essential character of aboriginal title to the land as follows:

Whether or not land is owned by individual members of a community, a community which asserts and asserts effective-ly, that none but its members has any right to occupy the land or has an interest in the land that must be a proprietary nature; there is no other proprietor. It would be wrong, in my opinion, to point to inalienability under municipal laws of our society, to deny that indigenous people owned their land. The ownership of land within the territory in the exclusive occupation of the people must be vested in the people: land is susceptible to ownership, and there are no other owners … 84

Brennan J went on to hold that:

there is no impediment to the recognition of individual non-proprietary rights that are derived from community’s laws, and customs and are dependent on community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights.85

An important point to note is that the content of native title is not identified in relation to English common law or that of the state but it is derived from the traditions and customs of the indigenous people.

As early as 1957, in the leading case of Adeyinka Oyekan v Musendiku Adele86   Lord Denning sitting in the Privy Council held:

[I]n inquiring … what rights are recognised, there is one guiding principle. It is this: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. Whilst, therefore, the British Crown, as sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even if those interests are of a kind unknown to English law.

In Mabo No 2, Brennan J put it this way:

native title has its origins in and is given its content by traditional laws acknowledged by and the traditional customs ob-served by the indigenous inhabitants of a territory.87

From the above cases the content of native title can vary depending on the customs, tradition and the prac-tices of the aborigines. The plaintiffs’ lawyers in Sagong distilled from the above cases, that in order to show that the native title of the Temuan tribe was not merely for use and enjoyment but was a proprietary interest in and to the land, the following had to be proven:

  1. The plaintiffs were aboriginal peoples of the Temuan tribe.
  2. They had a connection to the land with continuous occupation to the exclusion of others from time immemorial.
  3. They were an organised society.
  4. They had clear and distinct customs to their land, in particular exercising ownership of the land with the power to give it as an inheritance.
  5. There were clear boundaries to the land that belonged to them.

The High Court, at first instance, held that all the above were proven, and recognised that the native title to the settled areas of the land taken, was a proprietary interest in and to the land, and ordered that compensation be paid to the plaintiffs under the LAA. The court held:

to my mind, as the land was continuously occupied and maintained by them to the exclusion of others in pursuance of their culture and inherited by them from generation to generation in accordance with their customs, it falls within the ambit of ‘land occupied under customary right’ within the meaning of the definition [of the LAA].88

This however only dealt with the settled areas of the land. At the Court of Appeal, Gopal Sri Ram JCA en-dorsed the above finding and went further. He held:

The fact that the plaintiffs enjoy a community title by custom is nothing out of the ordinary. The Privy Council in Amodu Tijani recognised the existence of such title in other jurisdictions. The concept has been re-affirmed by the Constitutional Court of South Africa in Alexkor Ltd v Richtersveld Community [2003] 12 BCLR 130. Chaskalson CJ said:

In light of the evidence and findings of the SCA (Supreme Court of Appeal) and LCC (Land Claims Court), we are of the view that the real character of the title that the Richtersveld community possessed in the subject land was a right to communal ownership under indigenous law. The content of that right included the right to exclusive possession and use of the subject land by members of the community. The community had the right to use its water, to use its land for grazing and hunting and to exploit natural resources, above and beneath the surface. It follows therefore that prior to annexation the Richtersveld community had a right of ownership in the subject land under indigenous law.89

The Court of Appeal was of the view that native title rights extended to areas of land used for hunting or for-aging but did not clearly specify the content of that right.90 It would seem that they followed Amodu Tijani where Viscount Haldane LC in the Privy Council held:

A very usual form of native title is that of a usufructuary right    …91

On another point and more importantly, the Court of Appeal considered the complaint that the land in respect of which the claim for compensation was made was not gazetted as an aboriginal reserve as required under the APA, and second, that there was no duty on the part of the state or federal governments to gazette the land in question, and therefore no liability could attach to pay compensation for depriving those aborigines on the ungazetted lands.92

The Court of Appeal endorsed the following finding of the High Court that the state and federal governments were fiduciaries and had a duty to protect the welfare of the aborigines including their land rights. Quoting Mohd Noor J:

The content of the fiduciary duties has been described in many (sic) ways. But in essence, it is a duty to protect the welfare of the aborigines including their land rights, and not to act in a manner inconsistent with those rights, and fur-ther to provide remedies where an infringement occurs. In Mabo No 2 … it was said that the obligation on the Crown was to ensure that the traditional title was not impaired or destroyed without the consent of or otherwise contrary to the interests of title holders. And in The Wik People’s case, … it was reiterated that the fiduciary must act consistent with its duties to protect the welfare of the aboriginal people. The remedy, where the government as trustee or fiduciary has breached its duties, is in the usual form of legal remedies available, namely by declaration of rights, injunctions or a claim in damages and compensation.93

Gopal Sri Ram JCA at the Court of Appeal went on to hold that having found that they were fiduciaries, and had a duty to protect the welfare of the aborigines including their land rights, the trial judge ought to have included the ungazetted areas in question for purposes of compensation, and further, that the government could not defeat a claim for native title by relying on their own default as a defence to a claim for land by the aboriginal peoples.94

… it was open to the judge to have made a finding that the failure or neglect of the first defendant to gazette the area in question also amounted to a breach of fiduciary duty. Here you have a case where the first defendant had knowledge or means of knowledge that some of the plaintiffs had settled on the ungazetted area. It was aware that so long as the area remained ungazetted, the plaintiffs’ rights in the land were in serious jeopardy. It was aware of the ‘protect and promote’ policy that it and the fourth defendant had committed themselves to. The welfare of the plaintiffs, on the par-ticular facts of this case, was therefore not only not protected, but ignored and/or acted against by the first defendant and/or the fourth defendant. These defendants put it out of their contemplation that they were the ones there to protect the vulnerable first peoples of this country. Whom else could these plaintiffs turn to? In that state of affairs, by leaving the plaintiffs exposed to serious losses in terms of their rights in the land, the first and/or fourth defendants committed a breach of fiduciary duty. While being in breach, it hardly now lies in their mouths to say that no compensation is payable because of non-gazettation which is their fault in the first place.

This part of the judgment effectively removed all doubts that a claim for indigenous land rights will not be de-feated by reason of it being non-gazzetted land as required under the APA and further made the government liable for failing to do so.

ISSUES

In Malaysia, despite the progress in Adong and Sagong, a number of issues still remain at large, for example whether native title includes unsettled or nomadic land, whether there must be exclusive possession or con-trol over the land and whether the definition of ‘aborigine’ and ‘aboriginal way of life’ as set out in the APA is still relevant or crucial to an indigenous claim.

Unsettled or nomadic land

In Adong, the court granted the orang asli land rights over their hunting ground where they looked for food. The compensation was by way of loss of livelihood. They were not compensated for the value of the land or recognised as having an interest in and to the land.

In Sagong, the High Court indicated that it would be reluctant to grant rights in and to the land if the aborigi-nal people were nomadic. The judge held that:

… in the case before me, the acquisition is in respect of a small portion of their traditional and customary or ancestral land where they resided, that is to say, their settlement. I follow the Adong case, and in addition, by reason of the fact of settlement I am of the opinion that based on my findings of fact in this case, in particular on their culture relating to land and their customs on inheritance, not only do they have the right over the land but also an interest in the land.95

After reviewing international jurisprudence on the content of common law native title which included the cases of Amodu Tijani, Mabo No 2, The Wiks Peoples case, Johnson and Delgamuuk, the High Court went on to hold that:

Therefore in keeping with the worldwide recognition now given to aboriginal rights, I conclude that proprietary interest of the orang asli in the customary and ancestral lands is an interest in and to the land. However this conclusion is limited only to the area that forms their settlement, but not the jungles at large where they used to forage for their livelihood in accordance with their tradition. As to the area of settlement and its size, it is a question of fact in each case. In this case the land is clearly within their settlement. I hold that the plaintiffs’ proprietary interest in it is an interest in and to the land.96

The dilemma the High Court judge had was that if they were nomadic and/or if the right was not confined to settled areas, the aborigines could claim the whole country as belonging to them so long as they could show that they had at one time stayed, hunted or foraged there. This was echoed by Hashim Yusoff JCA in the Court of Appeal in Nor Nyawai,97 who expressed this view while considering the case of Sagong:

Further, we are inclined to agree with the view of the learned trial judge in Sagong … that the claim should not be ex-tended to areas where ‘they used to roam to forage for their livelihood in accordance with their tradition’. Such a view is logical as otherwise it may mean that vast areas of land could be under native customary rights simply through assertions by some natives that they and their ancestors had roamed or foraged the areas in search for food.98

This view held by the Malaysian courts is not new. Gilbert99 points out that Locke, Kant and Vattel all fostered the idea that land ownership could only be based on the definite occupancy of such land and agriculture was the only means to define the terms of occupation widely known as the ‘agricultural argument’. The-se theories were used to justify the application of the Roman law principle of terra nullius meaning that any uninhabited land is open to conquests and can be occupied by states.100

The ‘agricultural argument’ coupled with the concept of terra nullius meant that the use and occupation of territories by nomadic peoples had no standing, did not need to be respected, and could not constitute a source of ownership or use of the land.101

It was only in 1975102 that the International Court of Justice (‘ICJ’) in an advisory opinion to the UN General Assembly, with regard to the status of the Western Sahara, while rejecting the application of the terra nullius doctrine, stated that:

territories inhabited by nomadic peoples living as ‘organized societies’ were not to be considered empty nor open to state acquisition on the basis of occupation.

Judge Ammoun, Vice President of the ICJ concluded that:

the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned.103

This was followed in Mabo No 2 where Brennan J referred to Judge Ammoun’s conclusion and held:

Whatever the justification advanced in earlier days for refusing to recognise the rights and interest in land of the indige-nous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.104

Contemporary international law and decision of various courts throughout the Commonwealth have moved away from the ‘agricultural argument’ and the doctrine of terra nullius.

As stated by Brennan J in Mabo No 2:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.105

Therefore, the common law recognises a native title that reflects an entitlement to land that is held in accord-ance with, and is given its content by, the laws and customs of the indigenous inhabitants of that land.106

L’Heureux-Dube J in Van Der Peet107 states in this way:

Finally, it is almost trite to say that what constitutes a practice, tradition or custom to native culture and society must be examined through the eyes of aboriginal people, not through those of the non-native majority or the distorting lens of existing regulations.

PHYSICAL PRESENCE / CONTINUOUS OCCUPATION/EXCLUSIVE POSSESSION

In Delgamuukw, cited with approval in Sagong, Lamer CJC defined native or aboriginal title as follows:

it arises where the connection of a group with a piece of land ‘was of central significance to their distinctive culture’.108

… Physical occupation may be established in a variety of ways, ranging from construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its re-sources … a claim to title is made out when a group can demonstrate ‘that their connection with a piece of land … was of central significance to their distinctive culture’.109 (Emphasis added.)

La Forest J concurred with the Chief Justice that in order to establish title indigenous the plaintiffs must demonstrate that the claimed land is of central significance to them by demonstrating evidence of prior and continuous occupation based on tradition:

… aboriginal occupancy refers not only to the presence of aboriginal peoples in villages or permanently settled areas. Rather, the use of adjacent lands and even remote territories to pursue a traditional mode of life is also related to the notion of occupancy.110

The ILO 169 in article 14 as set out above, recognised the special position of nomadic people in relation to the land to which they had access for sustenance and traditional activities. Article 14 distinguishes between settled peoples who have a right of ownership and those who have access to lands not exclusively occupied by them for subsistence/traditional activities, who have the rights of use.111 It would seem that nomadic people who are seen as sharing the land would have only the right to use.

The words of the text were adopted after the meeting of experts, which was in charge of drafting the new convention, highlighted the danger that nomadic peoples ‘may be compelled to change their lifestyles and lose effective access to their traditional lands’112 in the contest for land in light of many states’ national policies to settle nomadic in-digenous peoples.113

In Sagong, the claimants were not nomadic but nevertheless used the surrounding areas for foraging, hunt-ing and their traditional activities. The Court of Appeal while recognising that the Temuan had settled on the land, stated:

They are, by custom and tradition, settled peoples. In other words, they are not nomadic as are some of their other ab-original brothers and sisters. They settled on the land. They cultivated it with crops. They put up buildings on the land. They also exercised rights of usufruct over the surrounding area. In other words they forage and fish in that area.114

The Court of Appeal drew a distinction between the type of rights under native title for settled areas and the surrounding area where they used to forage and fish. For the settled areas the rights recognised were rights in and to the land and for the surrounding areas, the rights recognised were only for the use and enjoyment of the land, better known as usufructuary rights, similar to the distinction made in art 14, which had in its con-templation nomadic peoples. However the common law requires one to establish ‘exclusive and continuous occupation’ before succeeding in a claim for native title albeit for usufructuary rights.

The Court of Appeal also expressed its approval of Amodu and Alexkor, a decision of the Constitutional Court of South Africa where the Constitutional Court held that the community had the right to use its water, to use its land for grazing and hunting and to exploit natural resources,115 granting them ownership rights within the vicinity of a settled area of which they had proved they had exclusive and continuous occupation. The Constitutional Court recognised the communal native title of the Richtersveld community including lands for grazing and hunting purposes.

The point made in Alexkor‘s case was that on the basis of exclusive use and occupation of the subject land, the Richtersveld community had right of ownership.

Therefore, the distinction between settled or unsettled lands becomes less important and what is more im-portant is exclusive occupation and continuous use of the subject land.

Recently in Madeli116 the Federal Court further qualified the above and held that the element of control over the land exhibited by the claimant is the determinant factor of native title and not so much the use of the land.

On the issue of what is meant by occupation, we agree with the view of the Court of Appeal that actual physical presence on the land is not necessary. There can be occupation without physical presence on the land provided there exist sufficient measures of control to prevent strangers from interfering: see Newcastle City Council v Royal Newcastle Hospital [1959] 1 All ER 734; which was followed by the local case of Hamit Matusin & 6 Ors v Superintendent of Lands and Surveys & Ors [1991] 2 CLJ 1524. 117

In Newcastle‘s case, there was no physical use of the 291 acres by the hospital. It was just vacant land, to provide a buffer from the encroachment of industrial and residential development and to keep the atmos-phere clear and unpolluted. Lord Denning held that this constituted use of the land notwithstanding the lack of physical presence. The rationale is illustrated in Lord Denning’s example:

… but anyone would say that a ‘farmer’ occupies the whole of his farm even though he does not set foot on the wood-lands within it from one year’s end to another.118

Here Lord Denning conceptualised ownership of land in terms of who controls its use, rather than whether the land is physically used in a particular manner. Following Madeli, the limitation imposed in Sagong and Nor Nyawai to recognition of native title on the basis of land use, may no longer be valid in Malaysia.

What Brennan J held in Mabo No 2 that ‘the ownership of land within a territory in the exclusive occupation of a people must be vested in the people’119 must now be seen in light of control over the land. So long as the plaintiffs have control and can prevent strangers from interfering, they have occupation of the land, and that will entitle them to the right in and to the land.

Looking at it from a different perspective, whatever the use and even if such is only intermittent, this cannot be construed as abandonment so long as there is still control over the land. Friedrich von Savigny’s classic Treatise on Possession, a study of the relevant law first published within a few years of the settlement of Australia and republished many times in the 19th Century, set out the main principles of the law of possession as quoted by Reynolds:

Possession can only be lost when the land is physically abandoned and a determination exists to give it up. Land that is only visited occasionally — like alpine pastures, for instance — would not be considered abandoned because of inter-mittent use. As Von Savigny argued, ‘Where the use is of such a nature that it only recurs at certain periods, the omis-sion to visit the land during the interval is not evidence of any intention to give up possession’.120

In Sagong, the plaintiffs foraged and hunted in the areas surrounding the settlement. They used the land to the exclusion of any other community. There were specific borders to their land. No outsiders were allowed to enter the land without permission, and if anyone did, they would be chased out. The only other persons allowed into the land were those who married into the Temuan community who would then have to follow the Temuan peoples’ customs and laws.121

Therefore based on the Federal Court’s control test in Madeli, we are on our way to recognising rights in and to the land even in areas where they used to forage and hunt so long as they have continuous occupation in the context of control over the area.

DEFINITION OF ‘ABORIGINE’ OR ‘INDIGENOUS’ PEOPLE, AND ‘ABORIGINAL WAY OF LIFE’

As to the definition of ‘aborigine’ — the recognition of people as indigenous/aborigines is a threshold question and is a condition precedent before a claim for native title to land can even be considered. International law does not have one universally accepted definition of ‘indigenous peoples’. The three key definitions often referred to are found from the UN, ILO and World Bank.122

Even though each is slightly different, these three definitions have certain common elements. They all offer a mix of objective criteria, such as historical continuity, and ‘subjective’ ones, most commonly self-definition. In particular three features are shared by all definitions; (i) indigenous peoples are descendants of the original inhabitants of territories since colonized by foreigners (having a historical continuity with pre-invasion and pre-colonial societies); (ii) they have distinct cultures, which sets them apart from the dominant society; (iii) they have a strong sense of self identity.123

In Malaysia, s 3 of the APA, set out earlier, defines an ‘aborigine’ which requires that they ‘follow an aborigi-nal way of life’. In Sagong, Mohd Nor J summarised the contention of the defendants:

The defendants recognise the plaintiffs as aboriginal Temuan people but challenge the fact as to whether they still continue to practice their Temuan culture. Therefore, the onus is on the plaintiffs to show that they speak an aboriginal language, follow an aboriginal way of life as well as aboriginal customs and beliefs.124

The objection was actually that they are not aboriginal peoples within the definition of the APA and therefore they are not entitled to make a claim for native title.

To require them to prove they habitually speak an aboriginal language, habitually follow an aboriginal way of life and aboriginal customs and beliefs before they are deemed to be aboriginal is a sure way of making them extinct. The world is changing, developing and fast becoming a village. The aborigines are not exempted. The aborigines are also learning and developing. They cannot be expected to remain static in order to assert their land rights.

In Malaysia, the young ones speak the national language and go to the national type schools; some are even university graduates. Many also convert to other religions. Their traditions, culture, customs and beliefs are impacted by their new religious beliefs. This aspect of change of religion is expressly recognised in s 3(2) of the APA which provides:

Any aborigine who by reason of conversion to any religion or for any other reason ceases to adhere to aboriginal beliefs but who continues to follow an aboriginal way of life and aboriginal customs or speaks an aboriginal language shall not be deemed to have ceased to be an aborigine by reason only of practicing that religion.

This was referred to and applied in Sagong.125 However, would the change of traditional ways and customs and the use of modern technology and knowledge and/or the use of a common national or international lan-guage disqualify them from coming within the definition of an aborigine or indigenous person?

There are clear examples in other countries whose indigenous people have evolved significantly and use modern technology in their everyday life. For example the Inuit hunters of the Arctic now use helicopters for hunting and herding activities and the reindeer breeders of Sami origin in Finland use snow scooters and modern slaughterhouses.126

Some guidance can be gleaned from the HRC’s approach to the adaptation of indigenous peoples’ way of life to modern technologies.127 In Sara v Finland128 the respondent state argued that the ‘concept of culture in the sense of article 27 provides for a certain degree of protection of traditional means of livelihood’ and by using modern technology such as snow scooters and modern slaughterhouses, the reindeer breeders of Sami origin were not entitled to such protection. On this issue the HRC stated:

While Finnish Sami have not been able to maintain all traditional methods of reindeer herding, their practice still is a distinct Sami form of reindeer herding, carried out in community with other members of the group under circumstances prescribed by the natural habitat. Snow scooters have not destroyed this form of nomadic reindeer herding.129

The HRC were of the view that the adaptation to modern technology did not preclude them from enjoying the rights under article 27 of the ICCPR.

In the same way where indigenous peoples have adapted using modern technology and even where they have adopted different religious beliefs, this should not preclude them from being known and recognised as indigenous people for purposes of a claim for indigenous land rights.

A better definition of who is an indigenous person has been distilled by Gilbert,130 that is, a person who can establish that they are the descendants of the first indigenous peoples, have a distinct culture from the domi-nant society and a strong sense of self definition.131 Only after crossing this threshold, can the use of or at-tachment to the land be determined, by adducing evidence of historical connection and occupation/control over the land claimed.

CONCLUSION

Over the years the world has moved from considering indigenous peoples as uncivilised and unworthy of ownership of land using the principle of terra nullius to justify invasion and colonisation, to recognising them as a people with the right to self determination and the right to freely pursue their economic social and cul-tural development.

The international covenants and declarations as well as case law provide a framework of the rights and the protection of indigenous peoples’ land rights. The UNDRIP in particular has not only crystallised indigenous peoples’ right to self determination and rights to land but has also recognised the special bond that they have to their land. This is distinct from the western society’s concept of the commercial nature of land transactions that do not have that special and spiritual bond. This distinction should translate to a higher award in terms of compensation for the deprivation of indigenous peoples’ lands.

Gilbert cites the Inter-American Court of Human Rights (‘IACtHR’)’s landmark decision of Mayagna (Samo) Awas Tingni Community v Nicaragua,132 where the court relied on ‘an evolutionary interpretation of interna-tional instruments for the protection of human rights:

discerning that under the current international regime of human rights protection there is an evolution towards such recognition. This is significant and highlights that the evolution towards a right to property which includes traditional forms of indigenous ownership is not limited to the Americas but is part of a universal advancement in human rights law.133

This is borne out in the evolution of cases in Malaysia from Adong to Sagong and now Madeli. The test of ownership to the land has evolved from physical presence and exclusive occupation to control over the land.

Xanthaki rightly points out that though there are positive results across South East Asia including Malaysia, implementation remains a problem due to ‘… the lack of practical measures to enforce positive provisions for indigenous protection, legislations that contradict favourable provisions in other domestic laws, limited infor-mation provided to indigenous communities about the new measures and dependence on local authorities. All these factors indicate a lack of political motivation and obstruct the improvement of indigenous land rights’.134

The situation of the orang asli is more acute as the current administration appears to be taking steps to re-verse these advancements. On 17 March 2010 an unprecedented number of orang asli gathered at the ad-ministrative capital of Malaysia against a proposed land titles policy which involved the granting of up to 6 acres of land for palm oil cultivation to each orang asli head of household. The policy paid no attention to orang asli customary lands and as Subramaniam reports, more than 70% of orang asli lands would be lost in this process, allowing for no further claims to those who accept the policy.135

On 15 March 2011, at a joint press conference by the Bar Council and the Peninsular Malaysia Orang Asli Network in response to statements by the former Prime Minister Tun Dr Mahathir that the Malay community’s claim to the land is stronger than the orang asli‘s ‘as the latter do not have a civilisation that pre-dates the Malays’, the Bar Council and orang asli expressed concern at the present government’s deafening silence to such divisive remarks, and further, its intention to amend the APA to reverse these progressive court decisions without any consultation with the orang asli in blatant disregard of article 19 of the UNDRIP.136

The Human Rights Commission of Malaysia (SUHAKAM) has recently begun an inquiry into customary land rights of the indigenous people of Malaysia. Orang asli throughout the nation have voiced their dissatisfaction over proposed amendments to laws governing orang asli affairs, particularly in relation to land matters.137

While there have undoubtedly been improvements at the macro level in the recognition and protection of the orang asli land rights in Peninsular Malaysia, the 10th Malaysia Plan (2011-2015) shows that 50% of the orang asli still live below the poverty line, 19% of which are hardcore poor. The key to pulling them out of poverty, as Nicholas points out, is the ownership, control and management of their traditional lands.138

Clearly, despite the advancements in court and Malaysia’s active participation in the drafting of the UNDRIP, there have been setbacks and the present government does not seem to have the political will and commit-ment to fulfill its obligations and the aspirations set out in the UNDRIP. The orang asli must continue their fight for land rights. It is hoped that by increasing public and international awareness of the orang asli situation, together with the Bar Council’s initiative139 of training and providing lawyers nationwide to take up cases and advice the orang asli, recognition and protection of their land rights as envisaged in the UNDRIP will, in the long run, become a reality in Peninsular Malaysia.

 

1 Organised by the Centre for Malaysian Indigenous Studies at the University Malaya on 25-26 January 2011 — The Law on Customary Lands, Territories and Resource Rights — Bridging the Implementation Gap.

2 Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors[2002] 2 MLJ 591[2002] 2 CLJ 543 (HC).

3 Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors[2005] 6 MLJ 289[2005] 4 CLJ 169 (CA).

4 Rita Jong, ‘Orang Asli win 14-year battle’, New Straits Times, (Kuala Lumpur, 26 May 2010) at http://www.nst.com.my/nst/articles/14asal/Article/.

5 The terms ‘aboriginal people’, ‘indigenous people’ and ‘orang asli’ are used interchangeably in this paper to refer to the native people of Malaysia.

6 SUHAKAM (Malaysian Commission on Human Rights), Research on the Rights of Indigenous People in Malaysia: Land Rights of the Orang Asli in Peninsular Malaysia (final draft, 5 February 2010) at p 28.

7 The 20-Point Agreement (between Malaya and Sabah) and 18-Point Agreement (between Malaya and Sarawak) state that ‘ The indigenous races of North Borneo should enjoy special rights analogous to those enjoyed by Malays in Malaya …’ — These agreements were written to safeguard the interests, rights, and autonomy of the people of Sabah and Sarawak upon the formation of the federation of Malaysia; see at http://en.wikipedia.org/wiki/20-point_agreement_(Sabah) and http://untreaty.un.org/unts/1_60000/21/36/00041791.pdf.

8 Colin Nicholas, (2007), The Orang Asli and the Contest for Resources: Indigenous Politics, Development and Identity in Pen-insular Malaysia, International Work Group for Indigenous Affairs at p 14 n 2 — there are in fact 19 subgroups but the Temoq people were subsumed into the Jakun subgroup, for administrative purposes.

9 Nicholas, fn 8 at p 3.

10 Comprising the Semai, Temiar, Jah Hut, Chewong, Mah Meri and Semoq Beri.

11 Nicholas, fn 8 at p 4.

12 Comprising the Temuan, Semelai, Jakun, Orang Kanaq, Orang Kuala and Orang Seletar.

13 Nicholas, fn 8 (above) at p 4.

14 Iskandar Carey, (1976), Orang Asli: The Aboriginal Tribes of Peninsular Malaysia, Oxford University Press — other records indicate their earliest presence between 8000-1000BC — see Nicholas, fn 8 at p 3.

15 Nicholas, fn 8 p 3.

16 Nicholas, fn 8 at p 9.

17 Nicholas, fn 8 at p 11.

18 SUHAKAM Report, fn 6 at p 28.

19 Nicholas, fn 8 at p 34.

20 Monitoring Indigenous and Tribal Peoples’ Rights through ILO Conventions — A Compilation of ILO Supervisory Bodies’ Comments 2009-2010, International Labour Organization at http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—normes/documents/publication/wcms_126028.pdf.

21 Ibid.

22 Ibid.

23 Ibid.

24 The right of indigenous peoples to fair and just compensation is reaffirmed in arts 10 and 28 of the UNDRIP.

25 See http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169.

26 ‘ILO 169: Nepal as a model’, Nepali Times (Kathmandu, 18 February 2011) at http://www.nepalitimes.com/issue/2011/02/18/FromtheNepaliPress/17961.

27 Alexandra Xanthaki, Land Rights of Indigenous Peoples in South-East Asia (2003) 4 Melbourne Journal of International Law

28 Ibid at p 476: see at http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/3rd/docs/contributions/AIPP_2.pdf.

29 CERD, General Recommendation XXIII: Indigenous People, Compilation of General Comments and General Recommenda-tions adopted by Human Rights Treaty Bodies, UN DocHRI/GEN/1/Rev 6 (2003) at para 5. Asian Countries that have ratified CERD include Cambodia, Indonesia, Laos, Philippines, Thailand and Vietnam: see Xanthaki, fn 27 (above) at p 473.

30 Xanthaki, fn 27 at p 494.

31 Alexandra Xanthaki, (2007), Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land, Cam-bridge University Press at pp 238-239.

32 Xanthaki, fn 31 at p 240.

33 Xanthaki, fn 31 at p 241.

34 A/CONF157/23, 12 July 1993, para 5 of the VDPOA.

35 Federico Lenzerini, The Trail of Broken Dreams: The Status of Indigenous Peoples in International Law in Federico Lenzerini (ed), (2008), Reparations for Indigenous Peoples — International and Comparative Perspectives, Oxford University Press at pp 98-99.

36 Ibid at p 99.

37 Ibid, Doc A/2929, Chapter IV, para 10, reprinted in MJ Bossuyt, (1987), Guide to the ‘travaux preparatoires’ of the Interna-tional Covenant on Civil and Political Rights at p 32.

38 Xanthaki, fn 31 at p 487.

39 Ibid.

40 Lenzerini, fn 35 at p 99.

41 Patrick Thornberry, Integrating the UN Declaration on the Rights of Indigenous Peoples into CERD Practice in Stephen Allen and Alexandra Xanthaki (eds), (2011), Reflections on the UN Declaration on the Rights of Indigenous Peoples, Hart Publishing at p 87.

42 Ibid.

43 Jouni Lansman v Finland, HRC, Communication No 671/1995, UN Doc CCPR/C/58/D/671/ (1995) at para 8.

44 See also Lenzerini, fn 35 (above) at p 89.

45 Paragraph 3.1 of general comment 23: see at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8bb21c12563ed004df111?Opendocument.

46 Ibid, para 3.2.

47 Ibid, para 6.2.

48 Ibid, para 7, article 27 (rights of minorities), HRI/GEN/1/Rev 7 at p 158; IHRR 1(1994) at pp 1-3.

49 Xanthaki, fn 27 at p 494; Xanthaki, fn 31 at pp 243-244 and 254.

50 On 17 February 1995: see at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY &mtdsg_no=IV-11&chapter=4&lang=en.

51 On 20 December 1994.

52 See http://www2.ohchr.org/english/law/crc.htm.

53 Ibid.

54 Xanthaki, fn 31 at p 237.

55 Article 7(2) of the UNDRIP.

56 Xanthaki, fn 31 at p 117.

57 A/CONF 157/23, 12 July 1993, para 5.

58 UN News Centre, Experts hail Australia’s backing of UN Declaration of Indigenous People’s Rights, 3 April 2009 at http://www.un.org/apps/news/story.asp?NewsID =30382&Cr=indigenous&Cr1=.

59 Lopaka Purdy, UNDRIP endorsed by New Zealand and under review by the US, 20 April 2010 at http://www.rightsandresources.org/blog.php?id=520.

60 Natural Justice, Canada (finally) endorses UNDRIP, 13 November 2010 at http://natural-justice.blogspot.com/2010/11/canada-finally-endorses-undrip.html.

61 Tribal Link Foundation, US officially endorses UNDRIP, 13 December 2010 at http://triballink.org/2010/12/u-s-officially-endorses-undrip/.

62 UNDRIP Preambular, para 8, articles 25-26.

63 Statement of the International Indian Treaty Council, Report of the Commission Drafting Group, UN Doc E/CN4/1997/102, paras 196-197.

64 Xanthaki, fn 31 at p 237.

65 Article 25 of the UNDRIP.

66 Steven C Perkins, Researching Indigenous Peoples’ Rights under International Law at http://intelligent-internet.info/law/ipr2.html#note3.

67 UNPFII, Second International Decade of the World Indigenous Peoples, 22 December 2004 at http://www.un.org/esa/socdev/unpfii/en/second.html.

68 Rights and Resources Initiative, Pushback: Local Power Global Realignment Report 2010-2011 at p 7: see http://www.rightsandresources.org/documents/files/doc_2072.pdf (‘RRI Report’).

69 RRI Report, fn 68 (above) at p 8.

70 S James Anaya and Robert A Williams Jr, The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources under the Inter-American Human Rights System (2001) 14 Harvard Human Rights Journal 33 at p 35: see http://www.law.harvard.edu/students/orgs/hrj/iss14/williams.shtml.

71 RRI Report, fn 68 (above) at pp 10-11.

72 ‘Israel’s Mabo’, Dateline, 27 March 2011 at http://www.sbs.com.au/dateline/story/about/id/601031/n/Israel-s-Mabo.

73 Independence day, 31 August 1957.

74 [2002] 2 MLJ 591; [2002] 2 CLJ 543 (HC).

75 [1997] 1 MLJ 418 (HC), upheld by the Federal Court.

76 Sagong, fn 2 at p 611 (MLJ); p 565 (CLJ).

77 [1921] 2 AC 399 (PC).

78 (1991-1992) 175 CLR 1.

79 (1996) 187 CLR 1.

80 Sagong, fn 2 (above) at p 567 (CLJ).

81 (1997) 153 DLR (4th) 193.

82 21 US 681 (1823).

83 Ibid at p 688.

84 (1991-1992) 175 CLR 1 at p 51.

85 (1991-1992) 175 CLR 1 at p 52.

86 [1957] 1 WLR 880 (PC).

87 (1991-1992) 175 CLR 1 at p 58.

88 Sagong, fn 2 at p 618 (MLJ); p 573 (CLJ).

89 Sagong, fn 3 at p 308 (MLJ); p 189 (CLJ).

90 That is, whether the rights are usufructuary or rights of full ownership.

91 Amodu, fn 77 at p 399.

92 Sagong, fn 3 at pp 192-193.

93 Sagong, fn 3 at p 312 (MLJ); p 193 (CLJ).

94 Ibid at pp 195-196.

95 Sagong, fn 2 at p 611 (MLJ); p 565 (CLJ).

96 Sagong, fn 2 at p 615 (MLJ); p 570 (CLJ).

97 Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2006] 1 MLJ 256 (CA) (‘Nor Nyawai‘).

98 Ibid at p 269.

99 Jeremie Gilbert, Nomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights (2007) 7(4) Human Rights Law Review 681 at p 687.

100 Ibid at p 688.

101 Ibid.

102 Advisory Opinion [1975] ICJR 12.

103 [1975] ICJR 12 at p 86.

104 (1991-1992) 175 CLR 1 at p 42.

105 (1991-1992) 175 CLR 1at p 58.

106 Ibid.

107 (1996) 2 SCR 507137 DLR (4th) 289 at p 345.

108 Delgamuukw, fn 81 at p 251.

109 Ibid at p 256.

110 Ibid at p 281.

111 Gilbert, fn 99 at p 697.

112 Gilbert, fn 99 at p 696.

113 Ibid. 

114 Sagong, fn 3 at p 298 (MLJ); p 178 (CLJ).

115 Alexkor Ltd v Richtersveld Community (2003) 12 BCLR 130.

116 Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the estate of the de-ceased, Salleh bin Kilong)[2008] 2 MLJ 677;[2007] 6 CLJ 509 (FC).

117 Ibid at p 694 (MLJ); p 532 (CLJ).

118 Newcastle City Council v Royal Newcastle Hospital [1959] 1 All ER 734 (PC) at p 736.

119 (1991-1992) 175 CLR 1 at p 51.

120 Henry Reynolds, (2003), The Law of the Land, Penguin at pp 18-19.

121 Sagong, fn 2.

122 Gilbert, fn 99 at p 693.

123 Ibid at p 694.

124 Sagong, fn 2 at p 557.

125 Sagong, fn 2 at p 560 (CLJ).

126 Gilbert, fn 99 at p 698.

127 Gilbert, fn 99 at pp 697-699.

128 Sara et al v Finland (431/(431/1990) CCPR/C/50/D/431/1990 (1994);1-3 IHRR 14 (1993).

129 Ibid at para 6.4.

130 Gilbert, fn 99 at p 694.

131 Thornberry, fn 41 at p 83: CERD’s understanding of who is ‘indigenous’ also prefers self definition.

132 IACtHR Series C 79 (2001); 10 IHRR 758 (2003). See also Jo M Pasqualucci, The Evolution of Indigenous Rights in the In-ter-American Human Rights System (2006) 6(2) Human Rights Law Review 281.

133 Gilbert, fn 99 at p 700.

134 Xanthaki, fn 27 at p 496.

135 Yogeswaran Subramaniam, Orang Asli Land Policy-Planned Poverty?, 21 April 2010 at http://www.loyarburok.com/human-rights/oasli-oasal/orang-asli-land-policy -planned-poverty/.

136 Aidila Razak ‘Orang Asli and Bar Council ask Mahathir to retract statement and apologise’, Malaysiakini, (Kuala Lumpur, 15 March 2011) at http://www.malaysiakini.com/news/158695. See also Mahathir Mohamad, Semenanjung Tanah Melayu 2, 10 March 2011 at http://chedet.co.cc/chedetblog/.

137 ‘Orang asli not happy with legal changes’, New Straits Times, (Gerik, 18 July 2011).

138 Colin Nicholas, ’10th Malaysia Plan: Land Control is Key For Orang Asli’, New Straits Times, (Kuala Lumpur, 12 June 2010) at http://www.nst.com.my/nst/articles/12mpni/Article/.

139 Bar Council, Urgent Appeal — Lawyers Needed, Circular 277/2010, 23 November 2010 at http://www.malaysianbar.org.my/notices_for_members/urgent_appeal_lawyers_needed.html.

 

MLJ – The Recognition and Content of Native Title in Peninsular Malaysia