Monday, 26 January 2015

20-Point Agreement stipulates No right to secede, says A-G

Kota Kinabalu: Calls for the secession of Sabah and Sarawak from the Federation of Malaysia are arguably seditious and against the spirit of federalisation, said Attorney-General Tan Sri Abdul Gani Patail.

"As I have stressed on other occasions, if there is consensus for change, let it be done by the people affected. More importantly, let it be done through an agreed constitutional mechanism and without infringing parliamentary democracy.

"But if the issue is really about how the constitutional safeguards for Sabah and Sarawak are being implemented, then the arguments and debate should be focused accordingly and discourse carried out rationally," said Abdul Gani at the opening of the Sabah and Sarawak Legal Year at the courthouse, here, Friday.

He said the "Social Contract" with Sabah was based on the safeguards mooted in the "20-Point" Agreement while with Sarawak it was based on the "18-Point" Agreement.

"The memoranda containing these safeguard conditions were considered by the Inter-Governmental Commission set up on the recommendation of the Cobbold Commission in 1962. The safeguard conditions, with some modification, were included in the Malaysia Act, the Federal Constitution and the State Constitutions of Sabah and Sarawak.

"These are historical facts. They are recorded for posterity in the relevant reports of these Commissions. They should be read, appreciated and properly understood by every succeeding generation of Malaysians," he said.

He also highlighted that both the 20-Point Agreement and the 18-Point Agreement expressly stated that "There should be no right to secede from the Federation".

"This was therefore the agreed position taken by the people of Sabah and Sarawak themselves when Sabah and Sarawak agreed to the formation of Malaysia. It cannot now be for a disgruntled minority to unilaterally change it," he said.

On another note, Abdul Gani said the threats from terrorism, extremism and radicalisation are particularly insidious and that they are the most difficult kind to root out and address which requires firm and resolute, yet level-headed, calm and humane responses.

He said the Attorney General's Chambers, in this regard, is committed to ensure the highest quality of legal advice and timely prosecution in the ongoing security cases in Sabah and Sarawak.

Resident Deputy Public Prosecutors have been placed in the major districts such as Lahad Datu, Sandakan and Tawau to fortify public confidence that offenders will be brought to justice immediately.

"With the release of the report of the Royal Commission of Inquiry on Immigrants in Sabah at the end of last year, further action is also anticipated in relation to the enforcement of Malaysia's immigration laws."

On the Native Customary Rights to land (NCR) issue, he said the International Centre for Law and Legal Studies (I-CeLLS) – the Attorney General's Chambers research vehicle — initiated a study on the effectiveness of the existing legal framework in dealing with indigenous issues brought before the Native Courts and the continued relevancy of these courts.

"The study is being undertaken in collaboration with offices of the State Attorney Generals of Sabah and Sarawak. We hope to make better headway on this project in 2015," he said.

He said the NCR to land and the distinct concept of "Native Customary Land" was a matter of concern to note the disparate court decisions being issued.

"There must be a proper understanding of the "Adat" (customary laws) which governs the respective indigenous communities in dealing with such cases," he said.

On another note, Abdul Gani also called for more participation from lawyers in Sabah and Sarawak in legal aid services through the National Legal Aid Foundation (YBGK) because as at December 2014, out of 1,499 YBGK panel lawyers throughout Malaysia, only 25 panel lawyers were from Sabah and 46 from Sarawak.

Furthermore, out of 666 active registered panel lawyers, only three appear to be active in Sabah while in Sarawak the figure is nine, he said, adding that YBGK services are currently only available in the city, Papar, Penampang, Tuaran, Sandakan and Kota Belud.

"In the face of such challenges, lawyers should be placing equal, if not more emphasis, on Article 5 of the Federal Constitution, rather than just on Article 10 of the Federal Constitution. I am of course referring to the enshrined right to due process, the right of every person to be informed of the grounds of his arrest and to be allowed to consult and be defended by a legal practitioner of his choice.

"I am also referring to the need for comprehensive and sustainable legal aid services for those who would otherwise not be able to afford legal representation.

"It may seem strange that the Public Prosecutor should be giving such advice. Nor do I raise this annually merely in my capacity as the Chairman of the YBGK. As I remind all our Deputy Public Prosecutors, our function is not just to obtain convictions and put people behind bars. Our task is to ensure that justice is done," said Abdul Gani.

In conjunction with the opening of the Legal Year, there was a parade of court officials led by Chief Justice of Malaysia Tun Arifin Zakaria together with Court of Appeal President Tan Sri Md Raus Shariff, Federal Court Judge Tan Sri Abdul Hamid Embong, Chief Justice of Sabah and Sarawak Tan Sri Richard Malanjum, Minister in the Prime Minister's Department Datuk Nancy Shukri, Special Tasks Minister Datuk Teo Chee Kang, Mayor Datuk Abidin Madingkir, judges, lawyers and other members of the legal fraternity from the Community Hall to the courthouse.

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