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Insaf the Journal of the Malaysian Bar INSAF THE JOURNAL OF THE MALAYSIAN BAR Vol XXXIII No 1 KDN PP 987/11/2004 ISSN 01268538 2004 (Volume 1) Published by the Bar Council, Nos. 13, 15 & 17, Jalan Leboh Pasar Besar, 50050 Kuala Lumpur, Malaysia. Tel No. (03) 2031 3003. Fax Nos. (03) 2026 1313 / 2034 2825 / 2072 5818. E-mail: [email protected] INSAF PUBLICATION COMMITTEE 2003/2004 EDITOR Ambiga Sreenevasan MEMBERS Ragunath Kesavan Colin Andrew Pereira Hj Kuthubul Zaman Bukhari Frederick Nicholas Yeo Yang Poh George Varughese Cecil Rajendra P K Yang S Gunasegaran Jerald Gomez Andrew Das Solomon Melina Yong Mei Lin Chan Kheng Hoe Sanjeev Kumar Rasiah BAR COUNCIL 2004/2005 OFFICE BEARERS Hj Kuthubul Zaman Bukhari (Chairman) Yeo Yang Poh (Vice-Chairman) Ambiga Sreenevasan (Secretary) Ragunath Kesavan (Treasurer) MEMBERS Hendon Mohamed Aloysius Ng Hj Sulaiman Abdullah R R Chelvarajah Mah Weng Kwai E Ramasamy Dato’ Dr Cyrus Das Suppiah a/l Pakrisamy Dato’ Mohd Sofian Abd Razak Ong Siew Wan Malik Imtiaz Sarwar Hon Kai Ping Low Beng Choo Faridah bte Yusoff Hj Hamid Sultan Abu Backer Hj Asmadi bin Awang Christopher Leong Aziz b Haniff Cecil Rajendra Indran Rajalingam Yasmeen Hj Muhamad Shariff Hj Vazeer Alam Mydin Meera Jerald Gomez Jegadeeson Thavasu George Varughese Fredrick Indran Nicholas S Ravichandran Ngan Siong Hing Tony Woon Yeow Thong V Sithambaram Krishna Dallumah Petra Oon The Insaf Publication Committee welcomes articles for publication in INSAF. The Committee, however, reserves the right, at its discretion, not to publish any articles, or if published, to edit them for space, clarity and content. The views expressed in any editorials or articles published are not necessarily the views of the Bar Council. CONTENTS Corruption: The Role of the Judiciary by Malik Imtiaz Sarwar 1 Medical Negligence Litigation in Malaysia: Whither Should We Travel? by Dr Puteri Nemie Bt Jahn Kassim 14 The Need for Legally Standardised Systems in the Valuation and Management of Intellectual Propeties in Malaysia-An Analysis of the Current and Future Options by Eva N Dzepina & Sonya Liew Yee Aun 26 The Impact of Money Laundering Legislation on Advocates and Solicitors by Assoc Prof Dr Norhashimah Mohd Yasin 47 The Role of Public Interest Litigation in Promoting Good Governance in Malaysia and Singapore by Roger Tan Kor Mee 58 COVER PHOTOGRAPH features Tunku Abdul Rahman, when he was being admitted to the Bar. Malaysia’s first Prime Minister, Tunku Abdul Rahman became the first Prime Minister to be admitted to the Bar, when he was called on 4th July 1974. A large gathering of dignitaries and lawyers graced the occasion, which was held in the Penang High Court. The Court was presided over by Justice Chang Min Tat. His call was moved by a senior lawyer, Dato’ Eusoffe Abdoolcader, later a judge of the Supreme Court. Also present were the Penang Governor Tun Syed Sheh Barakbah, and the Chief Minister Dr Lim Chong Eu. In addressing the Bench after the call, the Tunku described the event as ‘the proudest moment of his life’. Correction In the article entitled ‘MyKad: Invasion of Privacy’ by Lim Kean Chye published in Insaf, Volume 3 of 2003, the source of the letter quoted on page 94 is erroneously stated as the Star Newspaper. The quotation is in fact taken from a letter posted in Malaysiakini by Belkisa Lim on 11 July 2003. We apologise for any inconvenience and embarrassment caused by the error. (2004) XXXIII No 1 INSAF 1 Corruption: The Role of the Judiciary* By Malik Imtiaz Sarwar** I Introduction 1. The role of the judiciary in a democratic society such as ours is a pivotal one. The judiciary is one of the three pillars of the modern democratic nation state and is essential to the process of check and balance so fundamental to the way societies such as ours are meant to operate and function. Lawyers describe this process of check and balance as emanating from the doctrine of the separation of powers between the Executive, the Legislature and the Judiciary. 2. Narrowing down the focus of discussion, the question of what the role of the judiciary is in the fight against corruption is an interesting one. By its very nature, the Judiciary is required to adjudicate in matters involving corruption where moved to do so. The courts are not intended to descend into the arena, they are not meant to seek out this scourge with a view to stamping it out, no matter how much they would like to do so, or how much we may want them to do so. So, it would seem that all we can expect of the courts in this regard is to ensure that justice is not only done but is also seen to be done. To convict where such convictions are warranted, acquit where the law requires this to be done, and sentence appropriately in accordance with guiding principles. And above all, to ensure adherence to and respect for all safeguards. 3. A closer scrutiny suggests that the courts may have a further, more evolved role. Any effective campaign strategy against corruption will have to be multi- pronged. To this end, it is as necessary to identify the key actors or implementers of the strategy as it is to identify its targets. This paper aims at determining * Paper presented at a seminar organised by the Asian Institute for Development Communication on ‘Fighting Corruption Effectively: A Multi-Pronged Approach’. ** Deputy President, HAKAM The Journal of the Malaysian Bar 2 Corruption: The Role of the Judiciary (2004) XXXIII No 1 whether the judiciary is one such key actor or implementer, and if so, whether this entails more than its apparent role as adjudicator. It will also seek to come to an understanding of whether this extended role, if any, can be reconciled with the functions and limitations of the judiciary, in theory as well as in practice in Malaysia. II The Apparent Role 4. Corruption is wrong. It is safe to say that it would be amongst the key aims of any self-respecting government to stamp out corruption. The United Nations Convention Against Corruption was adopted by the General Assembly on 31 October 20031. Malaysia is a signatory2. 5. The preamble to the Convention is indicative of the contents of the Convention. It forcefully makes several points. Three are relevant to the discussion at hand. Firstly, the problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law is of great concern. Secondly, corruption is no longer a local matter. It has evolved into a transnational phenomenon, which affects all societies and economies. International cooperation is therefore essential. Thirdly, a comprehensive and multi-disciplinary approach is required in order to prevent and combat corruption. 6. The three points highlighted above serve to show that the judiciary is well placed to be one of the key actors in any effective strategy and that it has a role to play in the multi-disciplinary approach advocated if it so chooses. 7. Amongst the chief methods by which policies of governments in this regard have been put into practice is the criminalization of corruption. Simply put, corrupt practices have been made criminal offences. These are sanctioned by way of sentences of fines or jail terms or both. The usefulness of this approach 1 By resolution 58/4. 2 As at 09.12.2003. The Journal of the Malaysian Bar (2004) XXXIII No 1 INSAF 3 lies in the simple truth that the threat of conviction and the sanctions that will follow, as well as the stigma that arises from the same, are a useful deterrent. As an aside, it may be useful to determine statistically how useful this approach is as compared to other approaches, such as education and so on. In this process, the courts play an obviously vital role. They are the final arbiters of guilt. 8. Similarly, and still addressing matters within the traditional court ‘arena’, the courts play a role in ensuring that corrupt practices do not become a platform for bargains in the commercial or civil context. The courts can by way of example strike down for being illegal or against public policy3 contracts which were entered into as a result or consequence of corruption such as government awards; or were entered into on the understanding that performance of the same would be effected through such practices; or contracts that can only be performed through corrupt practices. In the same vein, the civil and commercial courts can also allow for steps to be taken to recover monies which had wrongfully been appropriated through corruption or abuse of position and office4. 9. This ‘litigation’ role has the additional benefit of serving to educate. Trials are held under the public eye. Many of the more sensational trials are those which involve public officers or administrators being brought to book or being held to be accountable for abuses of power or corruption. One can as such expect many an interested citizen to follow the proceedings closely, if not in court than indirectly through the media. 10. This ‘obvious’ role that the Judiciary plays is undeniably one of the cornerstones of any effective strategy against corruption. We must see it as such. III The Evolved Role 11. The nature of the Judiciary and its context – its independence, its function 3 Section 24, Contracts Act 1950 (Act 136). 4 The leading decision from the Commonwealth Courts is the Attorney-General for Hong Kong v Reid [1994] 1 AC 324; [1993] 3 WLR 1143.
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