Our legal system is in need of reforms, points out Hamid Ibrahim. Our major criminal laws were imported from India, but while the laws in India and elsewhere have been reformed, ours are ripe for change.
Malaysia’s first Lord President (now known as Chief Justice) was invited by the A.I.R.and His Lordship delivered the V.V. Chitaley Memorial Lectures at the University of Nagpur on 7-8 February1980. Among other things, Tun Dr. Mohamed Suffian said and I quote:
Part I - Imported Laws: Laws imported from India during 19th Century.
Thus even long before the arrival of colonists from Europe, Malaysia had been used to importing and accepting ideas from India, and it was painless for us to import, receive and accept legal concepts exported to us by the British via your country. These imports entered first the three British colonies on the sea and slowly seeped through to the Malaysia States on the peninsula after 1874, when the Treaty of Pangkor was signed with the Sultan of Perak, under which his state agreed to receive a British agent, the first Malay state to do so.
As earlier stated, during the period 1833 to 1867, the colony of the Straits Settlements was governed from India and during that period certain Acts of the Governor-General of India were applied to the Colony as part of India by virtue of statute 3 and 4 William IV c. 85. Examples are Acts on Wills, Slavery, Merchant Shipping, Parsee Marriage and Divorce, Supreme Court, Judicial Officers, Lunatics, and so on.
Indian Code of Criminal Procedure
But the most important of these laws is the Indian Criminal Procedure Code which was first introduced to our part of the world by Indian Act XVI of 1852 introduced into the Straits Settlements. Strangely enough, it was abolished and replaced 18 years later by English criminal procedure by the Criminal Procedure Ordinance V of 1870. However, this was found impracticable, and 1873 saw the passage of the Criminal Procedure Ordinance, which marked the final abandonment of English in favour of Indian criminal procedure. You probably know that your code was exported as far as to Queensland in Australia and to New Zealand. It would appear that it was exported to the Malay states probably in 1902.
Today criminal procedure in our courts in Malaysia and also in Singapore is still very much based on yours, and you will certainly feel at home in our criminal courts hearing authorities citied from A.I.R. and frequent references made to Sohoni.
The Indian Penal Code
The great Indian penal Code was first introduced into the Straits Settlements in 1870, and from there it too spread to the Malay States, so that today it applies throughout Malaysia, and in our courts Indian judgments on the Penal Code are read and cited with respect, and the names of Gour, Ratanlal, and others are familiar to generations of Malaysian and Singapore lawyers.
The Indian Evidence Act
Your Evidence Act was first introduced to the S.S. in 1893 and it too spread to the Malay States, and today it applies throughout Malaysia as well as Singapore, and here Woodroffe and Ameer Ali, and Sarkar on Evidence, are the favourite authorities.
Still very much ours are, however, your Contract Act, your law on Specific Relief, your law on Land Acquisition and last but not least, our Constitution. In Contract matters, the great book that we use is Pollock and Mulla; in land acquisition cases Om Prakash Agarwalla; and in constitutional matters Basu and Seervai. I shall say more about the constitution later.
In India, the Attorney-General is appointed from amongst practising members of the profession and not a member of cabinet.
In Malaysia, the provisions relating to the A-G are slightly different. Our constitution allows the appointment of an Attorney-General from amongst members of Parliament in which case he will be a member of Cabinet, as is the present position, or from amongst members of the Judicial and Legal Service in which case he will not be a member of Cabinet unless he resigns to go into politics. Or he may be appointed from amongst practising members of the Bar, in which case he may remain outside the Cabinet or, if he decides to go into politics, enter Cabinet.
The first two A-Gs. After independence were expatriate officers who had joined the Judicial and Legal Service before independence and none of them was a member of Cabinet. The next A-G was a local man, a member of the Service; within a few years he retired from the Service and entered Cabinet as Minister of Law and Attorney-General. His successor, the present incumbent, was appointed from amongst members of parliament and is a member of Cabinet.
I understand that there was some discussion in India of the question whether or not the A-G should be a politically committed man, in tune with the philosophy of the ruling party, and that the prevailing view is that he should be an uncommitted lawyer, who is able to give Government the best available professional advice.
There are of course two views about this.
Our experience in Malaysia is this: the first expatriate A-G after independence was not considered a successful A-G – he was a brilliant lawyer but not too sympathetic to the policy and aspirations of Government who found him rigid and unbending. His successor, also an expatriate, was flexible but not an outstanding lawyer. His local successor was ready to please and to find ways and means for most things that Government wishes to do.
I am of the opinion that the position of our A-G is more difficult than that of yours – because under the constitution he is also Public Prosecutor, with “power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Muslim court, a native court or a court-martial”.(Art. 145 (3)).
It has frequently been said that in deciding whether or not to prosecute, the A-G should have no regard to personal or party considerations. In the vast majority of cases, he has no trouble following this principle. Many then thought that the PM should have kept in the background and not allowed his name to be associated with the decision-making process, though it was realised that it was difficult for him to do so, as the Anti-Corruption Agency was then within his portfolio. Since then the Agency, has been transferred to the portfolio of the Minister of Law and Attorney-General, where it should have been all the time.
It seems to me that whether or not the A-G should be a politician and member of Cabinet or whether he should be a professional depends on the country concerned, and that in the conditions prevailing in Malaysia he should be a member of Cabinet, and in tune with the aspirations and policy of the ruling party, but that at the same time he should remember that though a politician, he is also a professional man, a lawyer who knows the limits of legislative and executive, especially the executive, should they exceed these limits.
Parliament makes the law, but the A-G knows more than anybody else that it is judges who say what the law means and evolve the law case by case. He knows the mood of the courts and the attitude that is likely to be taken by judges in a given case. While he should welcome arguments with his ministerial colleagues, from time to time he should stand firm and give way and expose government to embarrassment in the courts.
In Malaysia, the prosecution process begins with a report to the police who are then obliged to open a file known as an Investigation Paper (IP), record statements from relevant witnesses and collect necessary exhibits. When the investigation has been completed, the IP is submitted to a Deputy Public Prosecutor, of whom there are one or more in important centres. The DPP advises the Police on such further investigation as is necessary and finally advises on the charge, witness and exhibits. Prosecutions in subordinate courts are conducted by police officers, unless the DPP himself prefers to do so in an important or difficult case. He appears personally in the High and Federal Courts. In an important case or appeal in the superior courts the Solicitor-General himself appears; the Attorney-General with his many meeting commitments seldom appears in court.”
(See Hamid Ibrahim’s commentary in the Criminal Procedure (2nd Edn) published By Sweet & Maxwell Asia in 1998 – at pages 914-942)
The Lord President continued his speech:
“Ideas imported from India”
… Before I elaborate on these legal imports, I think you might be interested to hear that long before the British advent there had been other imports equally enduring from India and that was in the area of ideas and religion.
In religion the original inhabitants of South-East Asia were animist: that is, they believed in the widespread existence of spirits which dwelt in trees, stones, animals and other objects. These spirits affected their everyday lives, and the people believed they had to ensure that the spirit of the forest would be placated before a hunter set off on his trapping, and the spirit of the sea would be pacified before the fisherman sailed away on a fishing expedition.
Traders in South India started sailing to the islands in South-East Asia in the first century after Christ and they continued for hundred of years. They went to Malaya, Sumatra, Java and Borneo, and established themselves and took Indian culture and Indian art with them. Some of the rulers gradually forsook animism and were converted to Hinduism and their states became Hindu states, and Hindu empires were established in these islands.
Advent of Islam
Towards the end of the 13th century, Islam also came to Malaysia – again like the other great religions, from India, this time South India, and not direct from Arabia its country of origin.”
It is clear from the above that the three Major Criminal Laws, e.g. the Evidence Act , The Code of Criminal Procedure and the Penal Code were imported from India during the 19th century . Today we are in the 2lst Century. In this 100-over-year period, the laws have been changed/reformed in the United Kingdom, Australia, USA and the Republic of India. Therefore, the time is more than ripe for a Law Reform Commission to be formed to look into these three major outdated criminal laws with a view to updating them.
Almost all democratic countries have set up Law Reform Commissions, whose function it is to look into in detail each and every old statute and to improve and reform where necessary in accordance with the century we live in.
Hamid Ibrahim is Director of the Denning’s Research Centre in KL
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