Saturday, July 27, 2013

'AG's unfettered powers inconsistent with legal norms'

The lack of court oversight on the attorney-general’s (AG) decision on whether or not to prosecute a case is inconsistent with “modern legal standards” in the region, an Asian fact-finding mission found.

NONEAccording to mission member Kishali Pinto-Jayawardena (right), unlike in Malaysia, other Asian courts have the power to review the attorney-general's prosecutorial decisions. 

“The attorney-general (in Malaysia) remains beyond all scrutiny, and his decisions cannot be reviewed by the courts. This is problematic.

“The concept of an unfettered attorney-general cannot be accepted in modern legal standards,” said the senior lawyer from Sri Lanka.

Kishali said this when presenting the preliminary findings of a fact-finding mission from the Asian Forum for Human Rights Development (Forum-Asia) that assessed freedom of expression and peaceful assembly in Malaysia after the 13th general election.

She said that the mission, which carried out its work from July 22 to 25, found several instances of what appeared to be “selective prosecution”. 

“Why is Person A prosecuted for sedition for (promoting) a peaceful protest while Person B who is engaging in things... obviously arousing religious hatred, is not prosecuted? 

“Whose authority is it (to prosecute)? It’s not the police, but the AG, and his role has to be reviewed,” Kishali said. 

Section 3 of Article 145 of the federal constitution states that the attorney-general’s power is “exercised at his discretion”.

Systematic post-election crackdown

Meanwhile, Forum-Asia's East Asia Programme associate Joses Kuan said the mission found that since the general election, the government has used “repressive laws... to suppress legitimate dissent in events surrounding” the May 5 general election.

NONEKuan (left in picture) said examples of violations of freedom of expression included the seizure of publications, unfair media coverage and the use of laws such as the Sedition Act and the Peaceful Assembly Act. 

He said that this was “contradictory” to the government’s pledges of reform and measures taken to safeguard human rights, like the appointment of a minister in charge of governance and integrity.

“It’s a systematic post-election crackdown,” Kuan said.

Malaysia, he added, was chosen for the mission as it had just concluded an election, while other countries in the region were just going into their elections now. 

Kishali said Malaysia's Sedition Act was also inconsistent with regional standards, with many countries already having done away with this “archaic, colonial” law.

“We accept that one cannot incite racial hatred, but there are (provisions) already in the Penal Code that apply to this,” she said. 

‘Laws made in secrecy’

Kishali said the mission also found that lawmaking in Malaysia was done almost in secrecy, with poor engagement with the public, civil society and key institutions such as the Bar Council.

The mission had met with a range of stakeholders from government departments, political parties, the National Human Rights Commission, the Bar Council, NGOs and those facing charges in relation to their advocacy activities post-election.

However, it did not manage to meet with the Home Ministry, Attorney-General’s Chambers and Foreign Affairs Ministry but will continue to seek meetings with the authorities before its final report. 

The final report will be used as an advocacy tool in Malaysia’s upcoming Universal Periodic Review in October 2013.

Also part of the mission is former South Korea National Human Rights Commission chairperson and Seoul National University law professor Kwong-Whan Ahn.

~ Malaysiakini

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