[CALS] Jones Day Professorial Lecture on the Rule of Law in Asia, “International Sanctions and the Rule of Law”

On 18 January 2024,  Tun Richard Malanjum, Ombudsperson to the United Nations Security Council and (Retired) 9^th Chief Justice of Malaysia delivered the Jones Day-Centre for Asian Legal Studies Lecture on the Rule of Law in Asia, on the subject of ‘International Sanctions and the Rule of Law’. The event was attended by over a hundred legal practitioners, government officers and academic, and was prefaced by a welcome address by the Chief Justice of Singapore, Sundaresh Menon, as well as opening remarks from Associate Professor and Director of the Centre for Asian Legal Studies, Dr Jaclyn Neo, and Mr Zac Sharpe of Jones Day.

In her opening remarks, Professor Neo noted that the purpose of events such as this are to provide an opportunity for NUS and Singapore’s legal community to interact with and learn directly from leading practitioners, judges, and scholars, particularly in the field of civil law and cross-border matters. Drawing from judgments of the Singapore and Malaysian Supreme Courts, Professor Neo emphasized the importance of the rule of law, and the value of mutual legal borrowing and the sharing of knowledge.

The Honourable Chief Justice Sundaresh Menon welcomed Tun Richard Malanjum to the event, presenting a brief outline of Tun Richard Malanjum’s contributions to the rule of law in his capacity as both, a judge, and as ombudsman to the United Nations Security Council. Chief Justice Menon noted that the rule of law should be conceived broadly, and can be undermined by the existence of a justice gap, which occurs when there are limitations in accessing resources, remedies, and literacy about access to justice. He presented Tun Richard Malanjum’s work in creating mobile courts during his tenure as Chief Justice of Sabah and Sarawak as a valuable means to bridge this justice gap.

Tun Richard Malanjum addressed guests on the subject of ‘International Sanctions and the Rule of Law’, drawing from his experiences as Ombudsperson to the United Nations Security Council, in terms of UN Resolution 2610 (2021), by which the United Nations Security Council decided that individuals or entities may be eligible to be included in the ISIL (Da’esh) & Al-Qaida Sanctions List if they are associated with ISIL (Da’esh) or Al-Qaida. Tun Richard Malanjum began his lecture by outlining the function of sanctions, noting that they served three, preventive purposes: to coerce, constrain, and stigmatize conduct that contributed to terrorism. At the time of inclusion on the list, individuals or entities have no opportunity to be heard; consequently, while recognising the importance of sanctions as a tool, Tun Richard Malanjum noted that the rule of law required the administration of such sanctions should be conducted with regard to the requirements of due process. Drawing from a framework outlined by former Secretary-General to the United Nations, Kofi Annan, Tun Richard Malanjum noted that due process in imposing sanctions included the right to be informed of sanctions, the right to be heard, the right to effective review, and to periodic review of sanctions.

Tun Richard Malajum then spoke of the importance of due process in administering and reviewing sanctions, noting that they were intended as a targeted, or smart tool, rather than a comprehensive one. He noted that the effect of an incorrectly administered sanction extended far beyond the named individual, and could impact associated persons, including family, friends, and colleagues. Recognising this collective impact of imposing sanctions, and the relatively low standard of ‘reasonable and credible’ proof for sanctions to be applied, Tun Richard Malanjum emphasized the importance of the office of the Ombudsperson in providing an avenue for seeking review and delisting, and the relation this remedy had establishing the rule of law within the regime of international sanctions.

Tun Richard Malanjum went on to provide a detailed account of the work that the Ombudsperson does in reviewing sanctions, and the process by which each claim is evaluated and considered before the Ombudsperson makes a recommendation to the Security Council on whether a person affected by sanctions should be delisted. He noted that recommendations for delisting were made cautiously, and after several months of reviewing evidence from intelligence agencies, member countries, and international bodies. Describing the delisting process, he noted that a sanctioned person had the opportunity to engage in dialogue, with counsel, with the Ombudperson’s office before a recommendation was made. Countering criticism that the following of such procedures reflected leniency, he proposed that due process in following sanctions contributed to establishing their legitimacy. Tun Richard Malanjum noted that while the United Nations Security Council effectively followed a ‘reverse veto’ in examining the Ombudsperson’s recommendations, in practice, it had not yet rejected any recommendation made by the Ombudsperson. The contribution of an effective delisting procedure, he noted, was reflected by the fact that other international bodies, such as the European Court of Justice, now directed applicants to the Ombudsperson’s office, rather than take up such questions judicially. Of the cases raised before the Ombudsperson’s office thus far, 70% have resulted in delisting.

In conclusion, Tun Richard Malanjum noted that terrorism is a global problem, and that South East states are not immune from the dangers posed by it. He noted that despite the availability of recourse to the delisting process, the number of persons availing of it from Asia was negligible. Linking this to Chief Justice Menon’s identification of a ‘justice gap,’ Tun Richard Malanjum encouraged guests, and lawyers, particularly, to help raise awareness of this remedy, and to extend their support in legal aid to applicants seeking delisting. He called on the Singapore legal fraternity to take up this challenge and support the upholding of the rule of law.

Following the lecture, a lively Q & A followed, in which Tun Richard Malanjum responded to audience questions on a number of issues, including the role of lawyers in delisting applications, the need to develop legal standards for reviewing evidence in the sanctions process, accessibility to information about the Ombudsperson’s work, and the effectiveness of the present delisting process from a rule of law perspective.