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T-Shirt "Walk for Justice" Base Ball Cap "Walk for Justice" RM20 RM10 Polo T-Shirt "Walk for Justice" RM20 News Editorial PRAXIS 2 CJ’s Appointment Speech CHRONICLE OF THE MALAYSIAN BAR 4 How have we fared? 6 Bar hands over memorandum on fraudulent land transactions to the Government 7 Women’s Rights’ Forum: Equality is still a long way to go 10 Workshop: “Getting Started!” BAR COUNCIL OF MALAYSIA 13 Bar Councillors’ walkabout in Seremban to meet BAR COUNCIL NS Bar Nos 13, 15 & 17 Leboh Pasar Besar 14 Islamic Banking Seminar Series by 50050 Kuala Lumpur Mohamed Ismail Shariff Malaysia 17 The Standard of care in Medical Practice Telephone (03) 2031 3003 18 Memorial for the late Justice Datuk KP. Gengadharan Fax (03) 2026 1313, 2034 2825, 2072 5818 e-mail: [email protected] Nair Website: www.malaysianbar.org.my 20 Veteran and rights activist and lawyer passes on 21 BAR COUNCIL Diary of upcoming Events BAR COUNCIL 2007/2008 President Ambiga Sreenevasan State Bar News Vice President Ragunath Kesavan 22 Bar Rooms ready for use Secretary Lim Chee Wee Treasurer George Varughese 24 Kejohanan Sukan antara Peguam Pulau Pinang-Perak Yeo Yang Poh, Datuk Haji Kuthubul Zaman 2007 Bukhari, Hendon Mohamed, Hj Vazeer Alam Mydin 25 Law Awareness Day at Multimedia University School of Meera, Dato’ Muhammad Shafee bin Md Abdullah, Law Edmund Bon, Cecil Rajendra, Low Beng Choo, 26 Selangor Law Games and Family Day 2007 Christopher Leong, Roger Tan Kor Mee, K Mohan a/l K Kumaran, Loh Wann Yuan, G Balakrishnan, 27 Johor Bar bids farewell to four judicial officers R Subramaniam, Dato’ Hj Sukri bin Haji Mohamed, 29 Johore YLC organises first ever Charity Night! Hj Aziz Bin Haniff, Ravindra Kumar, Steven Thiruneelakandan, Ng Kong Peng, R R Comment Chelvarajah, Tee Kim Chan, Pretam Singh, Syed Azimal Amir bin Syed Abu Bakar, Hj Mohamed 30 My Experience at EGM – 22 Nov 2007 Sazali Abd Aziz, Lalitha Menon, Dato’ V 32 Why control of cyber space is crucial Sithambaram, Ngan Siong Hing, Shan 34 The Merdeka Statement Theivanthiran, R V Lingam, Anuwar bin Mohd, Hj Asmadi bin Awang, Yasmeen Hj Muhamad 37 Time To Stop Believing Your Own Propaganda Shariff Committee Publications Committee Hj Vazeer Alam Mydin Meera (Chairman), 38 1st Anniversary of LawCare Group Life Insurance Policy K Shanmuga (Deputy Chairman), Ng Kong Peng, 39 LawCare: Beneficiary gets RM30,000.00 Andrew Das Solomon, Cecil Rajendra, Colin Andrew Pereira, Edmund Bon, S Gunasegaran, Speeches Sanjeev Kumar Rasiah, Tan Ban Cheng , PK Yang, Nicole Tan Lee Koon, Jahaberdeen Mohamed 40 The Standard of care in Medical Practice: Yunoos, Avtaran Singh Has The Pendulum Swung in Favour of Patients in Secretariat Malaysia Chief Executive Officer: Corrinne Wong 44 Speech by Ng Kong Peng, Chair of Melaka Bar at its Directors: Cindy Chan and Rajen Devaraj Annual Dinner & Dance 2007 Publication Executive Wong Ying Loon Article Tel: +603 2031 3003 extn 143 48 The Conference of Rulers and Judicial Appointments DL: + 603 2031 4857 Fax: + 603 2032 2043 [email protected] Human Writes 53 ‘Bringing Human Rights Home’ tour heads south Advertisement Executive Chandrika Bhaskaran 54 Review and Analysis of SUHAKAM’s 2005 Annual Tel: +603 2031 3003 extn 192 Report: Law Enforcement and Human Rights DL: + 603 2031 3180 59 Wither free speech? Bloggers under attack! Fax: + 603 2026 1313 [email protected] Putik Lada Design & Layout: 61 NYLC & CPPS dialogue with Parliamentary Select Khairul Anuar / Norazaliza Azlin Committee on National Unity Praxis is the chronicle of the Malaysian Bar, published bi-monthly by the Bar Council of Disciplinary Oders Malaysia. 63 Disciplinary Matters – Updates Contribution: The Bar Council welcomes letters, articles, views and news (including photographs) for possible inclusion in the publication. However, Press Statements the Bar Council reserves the right not to publish 64 Unauthorised Persons - Public Beware! them or to edit those published as regards content, clarity, style and space considerations. 64 CTOS 64 Malaysia should join the ICC Articles from individuals that are published here contain the personal views of the writers concerned 66 Malaysia a secular State and are not necessarily the views of the Bar 67 The elevation to the Court of Appeal of eight High Court Council. Contributions and enquiries should be directed to [email protected] Judges 68 Comment on Federal Court decision in Latifah Bte Mat Zin Library Update Certificate No: 22470 69 Legislative updates and Library Notice MAY / JUNE_2007 PRAXIS 1 News

CJ’s Appointment Speech

Speech on the appointment as Chief Justice of Malaysia by Dato’ Abdul Hamid Bin Haji Mohamad at the Istana Kehakiman, Putrajaya nn 11th December 2007

am grateful to God Al-Mighty for, confidence in the integrity cases and their complexity. Just Iwithout His blessing, even though not and the effectiveness of the look at the number of lawyers mentioned in the Constitution, this courts, there is still room for in practice, the number of cases appointment would not have happened. the continuity of a civil fixed at every sitting, the I thank His Majesty the Yang di-Pertuan society and law and order. length of the trials or hearings, Agong, the Rulers’ Conference and the When the people no longer the length of the notes of Rt. Hon. The Prime Minister of Malaysia have confidence in the courts, evidence recorded by the for this appointment. there will be chaos. judges themselves, the thickness of the appeal records I am aware that this appointment is a heavy Therefore, to me, whether the and authorities that the judges burden on me. It is more so when it perceptions are true or not is have to read and the length and happens at a very challenging time, that immaterial. What is important is that they complexity of the grounds of judgments is, when public perceptions of the exist. So, we have to act to correct the that they write. Judiciary are disturbing; when the perceptions and we have to act fast. There integrity of the courts in the is really no short cut to it. The only Besides, Judges do all these work administration of justice is doubted; when effective way is for all judges, officers and themselves. They themselves try the cases, appointments and the behavior of Judges staff of the courts at all levels to work hard, listen to the witnesses and the arguments and their commitments in the discharge honestly and transparently. We have to of counsel, record the notes of evidence, of their duties, are all being questioned. reflect on ourselves to see whether there is read and analyze the documents and the anything in our behavior, our records of appeals, research and read the The fact that such negative perceptions relationships, including those of our authorities and write the grounds of exist does not necessarily mean such immediate family members and close judgments. All these should be perceptions are all true. But, public associates which may give rise to such understood. perceptions are not formed in a matter of negative perceptions and, if there are, to days. It takes time to develop and spread correct the situation. We have to work hard Similarly, when we talk about the number based on facts heard and seen by them to prove that the perceptions are wrong, of judgments not written or delayed, we which may be true and may be not. In or even if there are some truths, that the should also take note of the number of any event, we cannot simply brush them causes have been remedied. In other judgments that have been written by a aside. To the Judiciary, the very fact that words, we have to revive public judge, the complexity of the cases and the such negative perceptions exist is sufficient confidence, not through slogans, not quality of the judgments. The volume of for us to take them seriously. This is through propaganda, not only through work at one place is not the same as at because the Judiciary is the only agency prayers, but by showing results which by another place. The volume of work and that has been entrusted by the themselves will negate the perceptions. the complexity of the cases at the High Constitution to administer justice between Toward that end, we will have to work Court at Kuala Trengganu or Bintulu, for individuals and individuals, individuals hard and honestly. example, cannot be compared with those and the government, individuals and in Shah Alam and Kuala Lumpur. This companies, companies and companies and I do not say that the Judges are not too should be taken into account. so on, involving human life, property, hardworking or are not committed. In fact, human rights and so on. Besides, the I dare say that they are, on the whole, very Perhaps, as in any organization, there are Judiciary is the last frontier of a nation. committed and that they are very some judges whose performance is not Whatever views the people may have hardworking. One of the factors that have satisfactory. They should work even harder. regarding the other branches of the led to the problems that we now face is government, so long as they still have the tremendous increase in the number of At times, we hear rumors regarding

PRAXIS 2 JULY / DECEMBER_2007 News allegations of corruption involving judges not a sound judgment. On the other hand, try but unsuccessful, they would not try and officers of the courts. So far, I do not if the decision, coincidentally, is contrary again. But, if we ourselves go about know whether they are true or not. If they to the stand that they have taken, they lobbying for appointment as judges or to are true, I appeal to those who have the would condemn it even though, in law be promoted, then, we are the ones who information about such wrong doings to and on the facts adduced in court, it is a have compromised our independence. To come forward. I shall not compromise on sound judgment. In such a situation, the me, a person who lobbies to be appointed this issue. In this regard, I would also like “independence of the Judiciary”, a judge has compromised the to draw the attention of lawyers that, from “impartiality” and “justice” is equated with independence of the Judiciary even before my own observations, there is hardly any a decision that is favored by a party or a he is appointed. A judge who lobbies to allegation of corruption or wrong doing group. Very often, praises and be promoted has compromised the involving a judge or an officer of the court condemnations are made without even independence of the Judiciary even before in which at least one lawyer is not involved. reading the judgment and analyzing the he is promoted. Similarly, if we ourselves, I appeal to the Bar Council to co-operate reasons. Judges should not be perturbed directly or indirectly, give the impression to discipline their members while I will do by such reactions. What is important is that we can be approached, then, actually, my part to discipline the members and that we discharge our duties honestly and we are inviting it. What more if we officers of the Judiciary. to the best of our ability, according to law. ourselves are the ones who look for it. The question is: is our character strong enough? The independence of the Judiciary must Regarding the independence of the be safeguarded. However, the Judiciary and separation of powers, the To those who have or intend to pervert independence of the Judiciary does not relationship between the Judiciary and the the course of justice whether through mean siding any party in any dispute such other branches of the Government should influence, pressure or money, no matter as siding an individual as against the be based on mutual respect. Just as the how big, influential or rich they are, I say Government, an employee as against an Judiciary does not like its jurisdiction to that they are the enemies of justice. employer, a victim of an accident as against be encroached upon, the Judiciary too an insurance company or vice versa. should respect the jurisdiction of the other While justice is our aim, we should branches of the Government. The three remember that the justice that we The independence of the Judiciary means branches of the Government should move administer is justice according to law, not giving decision in a case based on law and in tandem, within the limits of their justice according to our own whims and evidence adduced in court without bias, respective jurisdictions, in the interest of fancies. And the law that we apply is the without being influenced or pressured by Malaysia. law of Malaysia. any party. That our decision is not favorably received by a party is normal. In Quite often, the independence of the As has often been said, the administration every decision, at least one party is unhappy Judiciary is seen from the angle of the of justice requires the support of the legal because he loses. At times, both parties are pressure and influence of the Executive profession, including members of the Bar unhappy because even the party who wins on the Judiciary while certain groups, and officers of the Attorney General’s the case may not get everything he wants. including those from abroad, that try to Chambers, the Ministries and That is why there are appellate courts. But, do the same, on the ground of assisting Government Departments. I appeal for no matter how many tiers are provided the court, is not seen in the same light. their co-operation. If there is any issue that for appeals, the decision of the final court The reality is, they too have taken a stand need be discussed for the improvement of will still be questioned. That is normal. in the case and they would like the court the administration of justice, I am always to decide the way they want it to be. To prepared to meet them. Please come with Beside, whenever there is a case that attracts me, that is a double standard. honesty and leave with a smile. Besides, public attention, the public, indeed even we also have custom and etiquette. organizations, usually, have taken their I believe that the independence of judges stand on the decision that they would like in the discharge of their duties comes from One of the problems faced by the courts the court to deliver. If, coincidentally, the within themselves. If we are firm, honest all the time and everywhere is the problem decision of the court suits their view, they and clean in the discharge of our duties, of delay in the disposal of cases. There are would praise it, even if the judgment, in no one would dare to approach us to many factors that cause it. While I admit law and on the facts adduced in court is influence or to buy us out, or once they continued on page 21

JULY / DECEMBER_2007 PRAXIS 3 News

How have we fared? The Sunday Star (Reproduced with permission) by Shaila Koshy

he 14th Malaysian Law Conference Tlast week discussed candidly whether the Federal Constitution of today is the same as the Merdeka Constitution of 1957 and whether the judiciary – the guardian of constitutionalism – has lived up to its oath.

THERE is no way that one can ascertain if the aspirations articulated at a country’s birth have come to fruition unless one knows what those aspirations were. Royal interest: Ambiga (left) chatting with Sultan Azlan Shah at the exhibition booths just before the opening of the 14th Malaysian Law Conference at the Thus, at the 14th Malaysian Law Kuala Lumpur Convention Centre on 29 Oct 2007. On the right is Roger Tan Conference themed “50 Years of Merdeka” earlier in the week, knowing one’s history ! THAT Sabah and Sarawak’s entry into is said to be based on ideals of individual was never more important. the federation strengthened the freedom, community rights, and limited importance of the Merdeka social government power. Looking at the big picture at the contract and elevated it to international conference was senior lawyer Tommy law status with treaty ramifications? How have we fared? Not well enough, if Thomas in his paper Social Contract: The we look at the breakdown in ethnic Constitutional Covenant. The most radical change to the social relations and the social contract our contract was the establishment of the New founding fathers had brokered, defended For a start, do Malaysians know that: Economic Policy after the 1969 race riots. and modified in the early days of ! THE social contract at Merdeka was nationhood, said Thomas. this – undivided loyalty to Malaya While Thomas lauded it as “one of the from the non-Malays, a right to use greatest achievements of peaceful wealth Judging the judiciary their language and observe their generation; a revolutionary effect by Calling for a return to the wisdom of religion with the trade-off being special evolutionary means”, he added that even 1957, lawyer-cum-politician Datuk Zaid privileges to help Malays up the Deputy Prime Minister Datuk Seri Najib Ibrahim noted: “In the comfort of our economic ladder; Tun Razak had acknowledged on Sept 4 economic growth, people don’t seem to ! THAT citizenship was not on a two- that affirmative action must also assist the care too much about the independence of tier basis, and there would be no non-bumiputra, especially the poor and the judiciary and separation of powers.” apartheid, partition or repatriation; the low-income households. ! THAT the social contract provisions Speaking at the session What The were sacrosanct and enjoy While the Federal Constitution contains Constitution Means To Me, he added: “A constitutional status because they have the most important laws which government cannot build a lasting been included (Articles 3, 4, 8(1) and Malaysians have agreed to live by and it peaceful country on arrogance.” (2), 11, 12, 14-31, 152, 153 and 161- outlines the basic structure of their 161H); and government, democratic constitutionalism In Malaysia, there is very little to separate

PRAXIS 4 JULY / DECEMBER_2007 News the Legislature from the Executive, so how over the past few years and in the more cultural rights, lawyers becoming working has the judiciary – the last bastion for recent past.” machines, the Myanmar impasse and the constitutionalism – performed as the invisible refugee and migrant worker guardian of our Constitution? A former Lord President himself, Sultan communities. Azlan called for reforms, adding that an Universiti Teknologi Mara law professor independent judiciary was depended on Royal presence Dr Shad Saleem Faruqi gave this as well as an independent Bar with a high A good first for the Bar was the attendance indictment: “Barring a few honourable standard of integrity and ethics among its of a prime minister to deliver the keynote exceptions, our judges have not lived up members. address and of a ruler to open the law to their solemn promise to ‘preserve, conference. There was also good protect and defend’ our document of He didn’t let the lawyers off, referring to participation from the Attorney-General’s destiny. allegations against some lawyers, that is, Chambers and the police force. those who have “either misled the courts, “They have not employed the doctrines, or attempted to choose the judges or courts A dent in the buzz, however, was the poor principles and methods of public law to for their cases to be heard so as to obtain a representation from the judiciary: the only preserve and strengthen the rule of law favourable decision in their client’s favour”. ones who accepted the Bar’s invitation to and to enforce accountability in the opening on Oct 29 were President of government.” In the session 50 Years After Independence: the Court of Appeal Datuk Abdul Hamid Is All Well With The Malaysian Legal System? Mohamed, who is acting Chief Justice Fellow panellist in the session the chair, lawyer Steven Thiru, since Nov 1, Federal Court Justice Tan Sri Contributions of the Judiciary to Malaysian acknowledged there had been an overall Zaki Tun Azmi and 10 judges of the Court Constitutional Law, senior constitutional deterioration in standards in all areas of of Appeal and High Court. Chief Judge lawyer Datuk Dr Cyrus Das, said courts the legal system, adding that the infamous of Malaya Justice Datuk Alauddin Mohd in many countries accepted that while a video clip that had come to light had Sheriff was abroad on leave. two-thirds majority in Parliament allowed exposed both the judiciary and the legal a ruling party to amend the constitution, profession to public ridicule. One important repercussion for the public it did not mean that alterations changing would be the execution of a suggestion the basic structure of the constitution The session discussed the important made during the forum on the video clip could be made. question of ethics, the quality of legal for lawyers to boycott the courts in an education on offer and the need for a effort to clean up the judiciary. And although the Malaysian constitution common Bar examination and for was based on a social contract, he said, this continuing legal education. Lawyer Haris Ibrahim, who had had yet to be accepted and adopted by submitted a petition to the King last week the judiciary here. This conference was also important containing 5,036 signatures from the because of the varied current issues it public for a Royal Commission of Inquiry “To me, the constitution now means covered: challenges in Islamic commercial into the video clip, had proposed the drastic nothing because it can be changed at any law, property rights, technology and the step if a meeting between Bar president time,” Raja Aziz Addruse, another senior law, the family unit, the role of local Ambiga Sreenevasan and the Prime constitutional lawyer, had lamented in the authorities, the future of policing, Minister on the issues raised by the tape session with Zaid. malpractice litigation, freedom of came to nought. expression in the arts and freedom of The most powerful indictment against the religion and information. The proposed boycott raises crucial judiciary came from the Sultan of Perak questions for everyone: What do we really Sultan Azlan Shah, who said in his opening It also touched on electronic evidence, want of the judiciary and Malaysia? address: “Sadly, I must acknowledge there corporate law, indigenous customs and has been some disquiet about our judiciary

JULY / DECEMBER_2007 PRAXIS 5 News

Bar hands over memorandum on fraudulent land transactions to the Government by Rohani Adnan (Executive Officer)

he President of the Malaysian Bar, also agreed to submit a copy TAmbiga Sreenevasan, accompanied of the memorandum to the by Roger Tan, Chairman of the Attorney General. Conveyancing Practice Committee, Bernard Kok, member of the In the meeting, Ambiga Conveyancing Practice Committee and voiced the Council’s concern the Sub-Committee appointed by the Bar for registered landowners Council to study the issue of fraudulent who had lost their lands in land transactions and Rohani Adnan, various fraudulent land Malaysian Bar President, Ambiga Sreenevasan Executive Officer of the Bar Council’s transactions and for whom hands over the Bar’s memorandum “Prevention Conveyancing Practice Department today there was no compensation and Protection Against Fraudulent Land Transactions” to Natural Resources and presented a Memorandum titled whatsoever. Environment Minister Datuk Seri Adzmi Khalid. Prevention and Protection against On her left is Conveyancing Practice Committee Fraudulent Land Transactions, to the In its Memorandum, the Bar member, Bernard Kok Minister of Natural Resources and Council proposed amendments to section representatives from the Bar Council in Environment, Datuk Seri Hj. Azmi bin 340 (3) and (4) and section 187B of the an effort to address the problems faced Khalid at a meeting with the Minister in National Land Code. The Council also with the Land Registries/Offices with a his office here at Wisma Sumber Asli. proposed that the Government look into view to improving the system. the possibility of setting up an assurance Also present at the meeting were officials fund to compensate aggrieved land owners Datuk Seri Azmi also mentioned that the from the relevant Departments under the and bona fide purchasers similar to that Government was in the process of said Ministry including the Director- practised in some other jurisdictions. implementing the “e-tanah” pilot project. General of Lands and Mines, Datuk Zoal He added that this was a sincere approach Azha Bin Yusof and the Ministry’s legal Datuk Seri Azmi was very receptive to the from both sides to attempt to address officers. proposal from the Bar Council. The problems in relation to the land Minister also proposed that the Heads of administration system. What is important, While the Ministry is the secretariat to the the relevant Departments from his he said, is that the public must have faith National Land Council, the Bar Council Ministry have regular dialogues with in the system.

Ambiga, in turn, expressed the Bar Council’s willingness to assist in any manner possible including in providing legal training to officers and staff of the relevant Departments and various land offices.

As regards the Strata Titles Board, the Bar’s representatives were also informed that the Minister is in the midst of appointing The Bar’s representatives with Datuk Seri Azmi Khalid members to the Board.

PRAXIS 6 JULY / DECEMBER_2007 News

Women’s Rights’ Forum: Equality is still a long way to go by Noreen Ahmad Ariff

hen told to a friend that I was balancing it with a sense Wgoing to a forum on women’s of realism and an rights, he asked what more rights did the awareness of the possible women want - you already have the right existing hurdles in law, to vote. His question albeit done jokingly, which are in the way of probably hovers among many, both men gender equality. and women included. In this day and age, where women are more liberated and The hurdles are: empowered, what else is still considered Qualified ban: The ban unequal treatment? Are the existing laws on gender discrimination is subject to two of syariah judges or ratu cantik contests is adequate to ensure that women continue important qualifications. The rule of not protected by Article 8(5). Further, to receive equal treatment and their rights equality is not absolute. There are several there is nothing to prevent legislative are protected? exceptions over many areas of the FCM innovations as in countries like Tunisia to in particular citizenship laws where bring personal laws closer to modern ideals The Perak Bar Committee through its descents from Malaysian males carry of egalitarianism. Human Rights/Legal Aid Sub-Committee greater weight. The registration of on a joint effort with Sisters in Islam recently citizenship also is discriminating to women Multiplicity of grounds: Discrimination endeavoured to explore these issues because Malaysian females who married solely on account of gender is relating to women’s rights at a Human foreign males have to wait for eleven years unconstitutional but if the discrimination Right’s Forum held at Impiana Casuarina before their husbands can get Malaysian is based on gender plus other grounds, Hotel, Ipoh Perak on 25 August 2007. citizenship. There is also Article 161A(6) the constitutional guarantee in Article 8(2) where a father’s domicile is the cannot be invoked. Thus, maleness may The event that was chaired by Kenny Lai determining factor to define a native in be a genuine occupational qualification for Choe Ken for the morning session and Sabah. the job of a security guard for a male hostel. Nik Elin Zurina Nik Abdul Rashid in the It is noteworthy that the amended Article afternoon drew audience from the legal Private sector: The constitutional 8(2) reads: “There shall be no profession, NGOs and individuals protection afforded by Article 8 appears discrimination against citizens on the including the wife of the Menteri Besar of to be against state action only. Private sector ground only of religion, race, descent, place Perak. employment may be unaffected by the of birth or gender…” requirement of equality. The recent Federal The first speaker at the Forum was none Court decision in Beatrice Fernandez is Myth of constitutional supremacy: The other than the constitutional law expert most unhelpful and unenlightened. bold pronouncement of constitutional Professor Dr Shad Saleem Faruqi giving supremacy is not working well in a his opinion on “The Malaysian Personal laws: Under Article 8(5) the number of areas. Constitution and Gender Equality”. Dr equality clauses do not invalidate or • The federal-state division of power is Shad started his speech by saying that prohibit any provision regulating being ignored in many areas. EPF, although gender equality is now assured “personal law”. The words personal law SOCSO, insurance, pension and trusts by Article 8(2) of the Federal Constitution must be interpreted narrowly. Personal law are federal matters. State laws have of Malaysia (FCM), the effectiveness of cannot mean “all religious laws”. Therefore, taken over control and distribution of the said Article can only be overcome by gender bias in the matter of appointment these assets in accordance with Islamic

JULY / DECEMBER_2007 PRAXIS 7 News

personal law. The wishes of the account and biological factors and traditions as old what is not right. She said that the Federal owner are ignored. as society have to be modified. Constitution only provides a general view • States are punishing many “offences but does not in effect, guarantees against the precepts of Islam” which, In this area there are no destinations, only anything because women who are beaten under the Constitution belong to the uncertain journeys. The battle has to be up by their husbands are certainly not federal jurisdiction. For example, waged at many fronts. guaranteed by justice if they brought the homosexuality, betting, gambling. Federal Constitution to the police station. The hudud laws of Terrengganu and Equal rights versus separate rights: In a Kelantan are clearly outside their male dominated society, an equal She pointed out that there are two limbs powers. As no one is challenging these treatment approach only benefits women in equality - like being treated alike and laws, the belief is growing that all who meet male norms. Feminists have to the different being treated differently. matters of Islam are in State hands. decide whether separate rights are better Women are biologically different from • The power of the States to create and than equal rights. A large amount of men so treating them the same as male punish offences against the precepts feminist literature is suspicious of the employees is discrimination. We need to of Islam is often used in disregard of liberal notion of equality. “Equality as stop thinking that that the measure is man, the guarantees of fundamental rights what?” it asks. so if we want to be equal, we have to in Articles 5 -13 e.g. compulsory compare with man. True equality does not rehabilitation orders against murtads In sum, according to Dr Shad, the ideal of take man into measure. Sometimes treating raise important constitutional issues. equality before the law is unsurpassed in woman like man is discrimination; • Article 121(1A) is used as an excuse its beauty and potential. But it is such a sometimes treating them differently is by many civil judges to avoid or evade complex bundle of contradictory discrimination. jurisdiction even when grave ramifications that its goal will for ever and constitutional issues are at stake e.g. in everywhere remain only partially and Both speakers mentioned about the case the Lina Joy, Moorthy and Shamala formally realised. of Beatrice Fernandez where she was cases. dismissed by the MAS due to her Injustice against women, is it a man thing? pregnancy. The Federal Court [2005] 3 Work of equal value: It is not enough to The very informative MLJ 681 decided against her and get equal pay for equal work. Protection speech by Dr Shad was dismissed the decision of the Court of should extend to equal pay for work of followed by an Appeal [2004] 4 MLJ 466. The Federal equal worth. A nursing job, dominated interactive session by Court decided that she signed the contract by women, tends to pay lesser than the the Deputy and bound by the terms of the contract. post of an excavator operator where men Chairperson of the Bar Dr Shad was also of the opinion that the predominate. Concil’s Human Rights’ Federal Court was being pedantic in its Committee, Zarizana Abdul Aziz. Her judgment and the decision is a step Paradigms will have to shift to determine topic was “Injustices against women in backward. what jobs are of comparable worth. I Malaysia, is it a man thing?” suspect that the staggering economic Zarizana however, was of the opinion that implications are what prevent us from She began her talk by inviting the dismissal due to pregnancy is sex being fair and just and equal in this area. audience to participate and answer discrimination because it is something questions such as what causes injustice, experienced by only one group. Beatrice No magic wand: Gender bias cannot be what shapes behaviour, who determines Fernandez is a case example where removed by recourse to the law alone. The behaviour and what stops people from different is being treated alike. Constitution can confer legal and formal committing injustice. She told the equality. Social and functional equality are audience that each and every one of them The afternoon session was primed by more difficult. Deep-seated cultural values, have a duty to play in order to educate representatives from Sisters In Islam with socio-economic imperatives, psychological ourselves to shape society by voicing out their Special Policy Officer, Razlinawati

PRAXIS 8 JULY / DECEMBER_2007 News

Razali giving a talk under the heading (disobedience) to husbands is not found women in Malaysia as compared to the “Perbandingan Undang-Undang Syariah in Act 1976 but still exists in our syariah LRA that ensures equality for women. di Negara-negara lain” examined the laws law. She opines that the syariah law in Before amendments to the LRA were from Algeria, Bangladesh, Morocco, Malaysia is passé and does not protect the made, there was a parliamentary select Turkey and Tunisia with Malaysia. women at all. committee formed and they traveled all over the country to get information and From matters such as the minimum age of The last speaker of the day was the feedback but for the IFL, all decisions marriage to custody and guardianship, her Executive Director of the regarding the amendments were made by talk clearly showed that Malaysian syariah SIS, Zainah Anwar. In her religious authorities. law is lacking behind other countries in talk, titled “Pindaan particular the new Moudawanna in Undang-Undang Keluarga She also expressed her frustrations that for Morocco. The revised Moudawanna even Islam 2005 – mengapa perlu Islamic Banking, medical technology and did away with the consent of wali, where dipinda juga?”, she took the development, new opinions can emerge a woman gains the capacity to contract audience through the history of the Act but when it comes to women’s rights, her own marriage upon reaching the age where the Islamic Family Law Act 1984 opinions are cast in stones. of majority. The Moudawanna also (“IFL”) when first enforced, was a pioneer specifies the “mutual rights and duties of its kind and had increased the rights of She ended her talk by saying that the between spouses” including both wife and women but the later amendments saw the society must voice out their grievances husband assuming the responsibility of rights of women decreasing. because change will only come when managing and protecting household society speaks out. affairs and the children’s education and One example is the amendment to the consultation on decisions. The IFL in 1994 which allowed out of court Not only women, but judges also must Moudawanna is mostly praiseworthy divorces and the fifth requirement for educate themselves to know more about because all divorces in Morocco can only polygamy, which is no drop in the rights and be sensitive to gender issues. be done in court. A husband must provide standard of living, had been removed. She the religious court with a written also was of the opinion that the IFL 1984 The forum ended around 5.30pm. notification of his intention to divorce. is passé and discriminating to Muslim The six grounds for divorce are available to both husbands and wives. Reconciliation meetings are called separately, failing which the court calls the I am personally convinced that one person can parties to witness the divorce. Revocable divorce is not recognized. be a change catalyst, a 'transformer' in any situation, any organization. Such an individual The afternoon session came alive when “ Nik Noraini Nik Badlishah took the stage is yeast that can leaven an entire loaf. It gave and gave her opinion on “Prosedur requires vision, initiative, patience, respect, dan Kaedah Penyelesaian Isu Perkahwinan dan Perceraian Menurut Sistem Undang- persistence, courage, and faith to be a Undang Syariah di Malaysia”. transforming leader.

In her talk, she compared the Law Reform (Marriage and Divorces) Act 1976 and Stephen R. Covey concluded that the latter Act is far more advanced than the syariah law in Malaysia. ” For example, the concept of nusyuz

JULY / DECEMBER_2007 PRAXIS 9 News

Workshop: “Getting Started!” by Syamsuriatina Ishak

“ asy to start, sometimes The Workshop began with prospective partners would better Edifficult to sustain, an introduction by the understand their rights and the effect of difficult to slow down and Chairman of the PII terms under the partnership agreement, certainly difficult to stop Committee, Ragunath learn management tools and procedures altogether!” That’s how Kesavan, who pointed out that would enable them to keep a healthy speaker, Lee Swee Seng, that many lawyers who set up check and balance on their partners and described a law firm at the a law firm or joined a firm’s practises to prevent the occurrence Workshop entitled “Getting partnership were driven out of the unwanted events that could cost Started!” held on 17 August 2007 at the of practice due to poor management or them their own practising licences. Bar Council Auditorium. The Workshop lack of planning. During his time there was aimed to give Malaysian legal were no such courses available to lawyers The first invited speaker, lawyer Jerald practitioners an insight and practical tips wanting to take the leap; they relied on Gomez, began with citing the pros and on joining as a partner or setting up a law the advice of more experienced friends, cons of setting up a sole proprietorship as firm. common sense, trial and error. Ragunath opposed to a partnership. He related that explained that this Workshop was initially, a sole proprietorship would mean A captive audience of 60 members of the organised with the objective of properly you could set up a firm with a small Malaysian Bar participated in this effort equipping those wanting to set up a firm investment, because one could work from organised as a part of the Risk or entering a partnership. Reminding the home or with small overheads. It would Management Training Series 2007, an participants that undoing a mistake could also grant you relative freedom, having to initiative by the Professional Indemnity take a lot of time and money, Ragunath answer to no one but yourself and your Insurance Committee in collaboration commented that the sometime fatal clients. On the other hand, going solo with the Risk Management Department mistakes of legal practise, especially those meant you would have to handle of the Bar Council. The Workshop was in arising out of sheer ignorance, could easily everything yourself and once your fact oversubscribed (over 200 signed up) be avoided if only by attending Workshops business got going, you would always and had to be limited to enable the such as this. have to be there for your clients, sometimes programme to be more interactive. Late at the expense of your personal life and registrants had to be turned away with a On the issue of partnership, Ragunath family obligations. The advantages of promise of another workshop being held related on how the Bar Council often practicing as a partnership meant that you before the end of this year. reviewed cases on lawyers who ended up could attract ‘bigger’ clients, share suffering due to their partners’ misdeeds responsibilities and pool resources. A vast range of participants (ranging from to clients. Through the Workshop, newly called lawyers and senior With that in mind, Jerald went practitioners) came from all through the basic requirements of corners of the nation, including a partnership agreement, which he from East Malaysia, to attend this quipped would certainly ensure whole day course to find out how every party would enter the they could take their practice up partnership with a clear a level as they contemplated or understanding into the legal perhaps recently set-up a law relationship between them; saving firm on their own or joined time, money, legal suits, pain, loss another as a partner. of clients, reputation and

PRAXIS 10 JULY / DECEMBER_2007 News credibility among judges, colleagues and application for a practicing certificate and as the participants were exposed to the public. He warned that a partnership sijil annual. marketing booths for products of various was even more onerous than a marriage, suppliers to the legal industry (law journal since unlike a spouse, a partner could be Esther’s colleague, Foong Kok Keong, and case reporters: CCH, CLJ and MLJ; made liable for the acts or omissions of followed by outlining the income tax laws specialists in moving and storage, Allied their partner and suffer greatly for it. on partnerships. Foong explained on Pickfords; accounting and file Giving the participants an insight into the employer’s duties and offences under such management softwares: PCLaw and practical standpoint of a partnership, laws, by going into various public rulings Denning e-Law Office Suite). In addition, Jerald shared his views on how to choose a which could be applicable to the there were lucky draws, product suitable ‘bed fellow’, taking into participants, and instances of tax auditing introductions and demonstrations. consideration factors such as character and on law firms. He proceeded by explaining areas of practice. the requirement of service tax and related In the afternoon, participants were greeted by sharing the experiences of Jerald also related his the fifth invited speaker, lawyer experiences on different legal Lee Swee Seng, on points firm management practices which ‘every partner should and dealing with clients. On know’. In a very lively the latter, Jerald highlighted presentation, Swee Seng set out the difficulties that could the 8 ‘C’s of managing a law arise when clients firm, namely Clients, Counsel (potentially your worse and Colleagues, Costs, Courts, enemy) quibble over fees. Computers, Cashflow and Where possible, he dealing with Crisis. He pointed recommended that a out that the essence of life is to suitably worded written agreement should offences, an issue which gave rise to many be enjoyed, not endured. Therefore, be signed by the client (as allowed under questions by the attendees, being through his instruction, Swee Seng shared section 116 of the Legal Profession Act, understandably an area of concern. Foong good and practical advice on how legal 1976) underlining the fee structure and concluded by touching on the issue of practice was essentially about managing scope of works. In conclusion, Jerald withholding tax and tax incentives for people and having a good system of work. advised that if the proper safeguards were exported legal services. He congratulated the participants who set in place, practising on your own or were brave enough to make the move and with a partner could be a relationship The Workshop proceeded with Kenneth advised them to learn from mistakes of beneficial to all. Goh of the Bar Council Secretariat giving others. a briefing on the requirements and The second invited speaker was Esther prerequisites of setting up a law firm or Swee Seng went on to also talk on the Tan, public accountant and lecturer. She entering into a partnership. He elaborated topic of setting up a Conveyancing guided participants through the world of by going into aspects of the practice of a Practice, highlighting 6 important ‘S’s: the bookkeeping and accounting, a law firm such as the office premises, branch S.R.O. (Solicitor’s Remuneration Order), fundamental part of any business. Having offices, personnel, mergers and Searches, Staff, Stamp Duty, Suits as well assisted many law firms with their amalgamations. Kenneth wrapped up his as Some Pointers. Sharing his experiences accountant’s reports, Esther explained the presentation by explaining on the on the practical aspects of a conveyancing concepts of client’s accounts together with mandatory professional indemnity practice, Swee Seng led an interactive the administrative and practical aspects of insurance scheme. examination of the pitfalls of dealing with record keeping essential to a law firm. She conveyancing staff and ensuring a proper also illustrated the procedure for the Participants to the workshop welcomed a system is in place to prevent severe preparation of an accountant’s report break when they were ushered to a buffet ramifications to one’s firm and clients. He necessary for the lawyer’s annual lunch. This was not uneventful, however, cautioned that sometimes one needs to be

JULY / DECEMBER_2007 PRAXIS 11 News

bold enough to say good riddance to bad rubbish, by practising discerning tactics to detect fraud by a member of staff. Swee Seng ended on a sombre note, concluding that in view of the various difficulties faced and numerous requirements now placed on the practice of conveyancing, he saw the future of the industry moving towards such business being handled by licensed conveyancers rather than law firms.

The Workshop’s last speaker, lawyer S. Nantha Balan, shared his experiences on setting up a Civil Litigation Practice. Striking a chord with all present, Balan pointed out that nowadays, there is no such thing as client loyalty. On the one hand, there was a situation of even your own friend who would shop around for second opinions; on the other, you would face a client who would not hesitate to sue you if only you give him the ammunition. He advised participants that in this day and age, where there existed an information overload, nothing short of an acute awareness and passion would enable a lawyer to come well prepared to deal with their litigation. To prevent being outfoxed by one’s opponents, Balan advised how essential it was to keep updated on legal cases and how a law firm must have quick and clear access to a library of law reports, whether their own collection or of a public library. A good litigator should also know his or her judge; to win them over, not by illicit means but by making arguments intellectually appealing to his frame of mind. He advised that such skills come with experience and time, arguing that the best education can come by sitting in court and emulating the speech and mannerisms of good lawyers. Balan shared his view on an alarming development in professional negligence suits being taken out against lawyers, including suits commenced by the opposing lawyers on a basis of abuse of process. He concluded with his view that a good lawyer was not born, but rather well trained and bred.

The Workshop was certainly an informative and eye-opening event for all its participants. The organising committee also presented them a well put together folder of indispensable references, including online articles on the costs of setting up a legal practice and file management systems; copies of applicable rules and legislation; a checklist for conflicts of interest; Practical Area Checklists for General Litigation and Conveyancing prepared by the Bar Council, and various useful articles.

This reporter highly recommends lawyers who are considering taking the big leap to attend the upcoming Workshop prior to their move out of the ‘safe’ world of employment as a legal assistant, to ensure their move out is a profitable one. After all… while no one plans to fail, failing to plan is the surest way to get there!

PRAXIS 12 JULY / DECEMBER_2007 News

Bar Councillors’ walkabout in Seremban to meet NS Bar by Nicole Tan Lee Koon

he visit initiated by our beloved they may revert to taxing lawyers on the Ambiga then asked the members to be TPresident, Ambiga Sreenevasan was amount accrued instead of the amount prepared for an increment of the indeed timely and commendable. As the received. Members are advised to revamp subscriptions as there was no increase for icing on the cake, all the who’s who of the their accounting practice and/or seek their the last eight years. Bar Council, like the Vice President, accountant’s advice to ensure that they are Ragunath Kesavan; the Secretary, Lim not caught. Members are also advised to George informed the members that the Chee Wee; the Treasurer, George read the Risk Management Quarterly Bar Council has many funds and that the Varughese and the Chairman of the newsletters. As part of the risk main fund is not healthy. Purpose of the Professional Standards and Development management efforts, the Bar Council are main fund is to run the Secretariat. Even Committee, Steven Thiruneelakandan also organising courses for lawyers who intend though there is an increase of 5-7 % in took time off from their busy schedule to to set up their own practice at a subsidised the subscriptions, the increase in the meet in the words of NS Bar’s rate of RM200. Litigation and expenses is about 10-14%. Members are distinguished member, Edmund Hilary conveyancing checklists are also created as also informed that there is a RM1 million Tensing Ponniah, “the poverty-stricken a guide for lawyers. deficit in 2006. The projected deficit for members of the NS Bar in the backwaters 2007 is RM 1.5 million . of Seremban”. Chee Wee informed that the KL Bar has collated a list of accounting softwares and Thavamani then suggested that the The NS Bar Chairman, Tee Kim Chan it is available in the KL Bar website. Chee balance of client’s accounts to be interest (picture) felt that it was a very Wee then informed that the Bar Council bearing and that the interest to be paid to commendable effort on the part of the is in the process of revamping the Bar Council in order to alleviate their President and the abovementioned Bar Secretariat. It involves a massive exercise financial problems. The Bar Council Council members to meet the NS Bar of reorganising and improving the delivery agreed to look into the matter. members with a view to interact with the system of a staff of 84. Members are told NS Bar members on a more personal level. that out of the RM4.5 million collected Steven informed the members that it is In fact, in an earlier circular to the NS Bar from twelve thousand odd members, RM3 the Bar Council’s priority to improve members, he advised all to view the visit million are spent on the salaries and bonuses standards of practice with the following in a positive light and make it a successful of the staff. Steps are made to increase non- three new initiatives. Firstly, the ethics one where problems get resolved. subscription income. For e.g., firstly, the programme which was revamped. negotiation with Lawnet2 (which is Secondly, the mandatory Continuing Ambiga started off by telling the NS Bar cheaper than LexisNexis) to pay Bar Legal Education. The Bar Council felt that members the agenda for the dialogue. Council one month’s subscription for there is a need to have a good foundation Ragunath was the first to speak. He first every yearly subscription from members before lawyers can disseminate knowledge. touched on PII. He informed that of the Bar. Secondly, to go paperless. Every state is asked to have a calendar of members should now feel free to notify Members are encouraged to set up emails events in order to have a structured the insurers as now there would be no and to check out the Bar website. nationwide programme. Thirdly, Bank loading upon notification. There would Members are encouraged to comment on Negara intends to bring the top five only be loading upon payment of the claim Bar Council’s decisions. The Bank Negara lawyers from London to establish Malaysia by insurers. There would only be loading are enforcing the Money Laundering Act as an Islamic finance hub as their upon payment of the claim by insurers. slowly but surely and members are advised contention is that Malaysian Bar lack the Another pertinent point was that the to be careful whenever a transaction reeks Income Tax Department indicated that of suspicion. continued on page 16

JULY / DECEMBER_2007 PRAXIS 13 News

Islamic Banking Seminar Series by Mohamed Ismail Shariff by Nurul Sheila Ibrahim (Executive Officer)

he practice of Islamic banking and finance and capital markets here, targeting Tfinance in Malaysia is relatively new year-end for implementation. There are and fast growing. To provide practitioners concerns whether this move would pose a and others involved in Islamic banking a threat to local practitioners, whether there good working knowledge on the basic would be a transfer of skill and technology principles of Islamic law, the relevant and what would be the regulation and Steven Thiru, Chair of PSDC welcoming participants to the 1st legislation and the products and services registration framework and processes. series of the Seminar available, the Professional Standards and Development Committee (PSDC) has Steven Thiru said that the Bar Council is organised the 3 series seminar on Islamic determined to equip lawyers to face this banking. tide. On Islamic banking alone, two further seminars will take place from The first of the series opened to a 191- September onwards. In tandem with the strong participation at the BC Auditorium agenda for the year, seminars and on 12 July 2007. Despite the short notice, workshops to increase information, attendance was very encouraging, working knowledge and provide training testament to the urgent need for on various areas and aspects have been education in this area. The session even lined-up. Also in the pipeline, is the attracted participants from as far as Johor, proposal to introduce certification for Penang and Pahang. participation. and is equally active in the academia.

In his opening remarks, Steven Thiru, Mohd Shuhaimi Ismail, partner of Messrs The session was carefully structured into Chairman of PSDC, explained that in line Hisham Sobri & Kadir, and head of the 3 sections: with the government’s move to position firm’s Islamic Banking & Finance • The fundamentals and the concept Malaysia as an international Islamic Department moderated the session. After of Islamic banking financial hub, it has launched the Malaysia a generous introduction, he invited the • How Islamic banking differs from International Islamic Financial Centre speaker to take the podium. conventional banking (MIFC) initiative. • Law relating to Islamic banking No one would have been more qualified MIFC comprises of a diversified range of to lead this series than Mohamed Ismail 1. The fundamentals and the concept of financial institutions operating from Shariff. A long-standing member and dear Islamic banking anywhere in Malaysia, who offer Islamic friend of the Bar, En. Ismail, is a senior En. Ismail introduced several relevant financial products and services in any partner of Messrs Mohamed Ismail & Co. principles of Islam, to aid a better currency to non-residents and residents. and has been associated with Islamic understanding of Islamic banking, namely Bank Negara is concerned that Malaysia’s banking since its introduction in 1983. syariah and muamalat. He then proceeded current legal sector lacks the necessary legal He has the distinction of being involved to discuss the nature, characteristics and expertise to attract foreign investment to in the drafting of the 1st Malaysian Islamic composition of Islamic law. He explained Malaysia as an international Islamic banking documents, and has since served that Islamic law was a unique combination financial hub. Thus, Bank Negara intends and continues to serve in various capacities of different types of law, some to facilitate the admission of foreign lawyers in this area; in working committees of Bank unchangeable like divine law as prescribed and firms to practice Islamic banking, Negara and the Securities Commission, in the Al-Quran, and the hadis and sunnah,

PRAXIS 14 JULY / DECEMBER_2007 News being sayings and doings of the Holy 3. Law relating to Islamic banking This poses a “double-jeopardy” situation Prophet; whilst others are open to It was interestingly pointed out the for practitioners, as they cannot flout either modification and re-interpretation. governing legislation, the Islamic Banking of the laws when in conflict, as there is no Act 1983 is regulatory in nature and does specific provision of law as to which law He also touched on the 4 Sunni Schools not touch on Islamic law and principles. should prevail. In such circumstances, it of Law and informed that more than 90% As such, pursuant to an amendment on would be a matter for the Court to decide. of Malaysian Muslims adhere to the Shafi’e 2003, the advice of the Syariah Advisory • As Islamic banking is governed by madzhab. Hence, most of the syariah Council (which was formerly available to Federal Law, it falls under the rulings and Islamic banking conventional banks only) is now made jurisdiction of the civil courts. documentation is based on the principals available to Islamic banks. Hence the • The applicable rules are the RHC and interpretation of this madzhab. Syariah Advisory Council rulings now 1980. apply to both Islamic banking and 2. How Islamic banking differs from conventional banks offering Islamic Another practical area in litigation that was conventional banking banking products and services. probed was whether an expert in Islamic The speaker took pains to clear the law can be called to lead evidence on an common misunderstanding that Islamic En. Ismail strongly suggested the Syariah intricate or difficult issue in contention. banking is merely another form of Rulings published by Securities The answer is a firm “No” following the conventional banking minus the interest Commission as valuable reference on Court of Appeal’s decision in Ramah v element, or a mere play of semantics by clarification and justification of the various Laton (1927) 6 FMSLR 128. Muslim law replacing the word “interest” with “profit”. syariah rulings. is not foreign law, but rather local law of He cautioned that for a correct which the Court must take judicial notice. understanding of Islamic banking, one On the matter of applicable laws, rules However, the Court may be assisted by must recognize and accept that at its very and enforceability in Courts, the speaker rulings of the Syariah Advisory Council essence Islamic banking and conventional elucidated as follows: on matters referred to it, but the Council’s banking are 2 distinct activities based on • Documents and instruments used in rulings are not binding. different principles and considerations. Islamic banking have to: - comply with Islamic law The day ended with a lively Q & A session Conventional banking, in 4 simple words - comply with civil laws that tackled issues of enforcement of Islamic is, “lending money at interest”; whereas - drafted ins such away (eg. as to banking transactions, redemption of non- interest or riba in Islam is strictly form, manner of execution and Islamic loans, applicable law, situations of prohibited. registration) as to be enforceable conflict in interpretation Islamic banking in the civil courts products, amongst others. How then, the question arises, is Islamic continued on next page banking carried on. En. Ismail explained that in Islamic banking, there is no lending or Islamic loans, safe for qard hassan, an interest-free loan. Islamic banking is essentially a trading transaction, based on an asset (which may be tangible or not) or an economic activity. Therefore, what is done with the asset (or the activity) is the underlying transaction as opposed to conventional banking where the underlying transaction is money-lending at an interest. Participants listening attentively and busy taking notes

JULY / DECEMBER_2007 PRAXIS 15 News

In closing, En. Ismail stressed that Islamic banking sectors, particularly the banking banking is still in its infancy and slowly sector, which was well represented. WeWe relyrely onon evolving and so issues of uncertainty and differing views are expected. Going by the success of this session, the youryour 2nd and 3rd sessions scheduled on 16 It was truly a productive afternoon for all. August and 6 September are definitely not contributioncontribution The presentation was lucid and to be missed. As a sneak preview, these instructive, peppered with just the right sessions will touch on specific Islamic touch of humour. banking products and services, as well as recovery actions; and an in-depth analysis The session also provided a valuable of 5 decided cases on financing opportunity for interaction between the transactions. Bar and members of the various Islamic

continued from page 13 Funny how Ambiga described the visit as Praxis depends on you for expertise to attract the work. However, the a “walkabout”. How apt indeed. contributions to make it a Bar Council prefers the FTA basis. Walkabout is defined as a public stroll by valuable resource. Therefore, there are courses for Islamic law celebrities to meet people informally. The amendments to the Legal Profession Act group of councillors certainly do possess State Bar Committees every Saturday. celebrity-like qualities. Ambiga with her are also reminded to aura of incredible professionalism and her send in updates of events The issue of the venerable member of the empathetic outlook; Ragunath with his and regional happenings NS Bar, Seah Choon Chye’s suit against efficiency; wittiness and charm; Chee Wee of the Bar. the Bar Council was brought up for with his fine delivery; matinee idol good discussion. Ambiga expressed reservations looks and friendly disposition; George Original research, reviews on the NS Bar’s resolution to allow the NS with his no-nonsense approach and quiet of legislation, case Bar Chairman, Tee Kim Chan to intervene wit; and Steven with his dynamism and analyses, papers on in the suit. Ambiga wanted the NS Bar to pro-activeness bowled the NS Bar matters of topical interest reexamine the resolution in the light of members over. to legal practitioners and Tee’s position of conflict. Tee reminded seminar papers written as the members that during his inaugural The writer is of the opinion that fraternity articles are all welcome. speech as the NS Bar Chairman, he is the order of the day. Problems are meant Contributions and stressed the importance of fraternity in the to be resolved. The manner in which the enquiries should be NS Bar. Edmund then gave a rousing matter is resolved is indeed praiseworthy. directed to: speech to urge the NS Bar members to We can agree to disagree; we can thrash it [email protected] have the resolution reexamined. He out; we can argue but at the end of the pointed that it was not the intention of day, we should stay united. There should NS Bar to be confrontational with the Bar no enmity between the Bar Council and Council. Thavamani summed it up by any State Bars at all. Even though the saying that this is a historic moment for matter, if unresolved can be a casus belli for NS Bar as no Bar Council President has a full fledged war, it was nipped in the ever made an effort to meet the NS Bar bud in the spirit of fraternity and members in her 30 years of practice. She is friendship. All’s well that ends well. ecstatic about the whole event.

PRAXIS 16 JULY / DECEMBER_2007 News

The Standard of care in Medical Practice by S. Radhakrishnan Honorary Secretary Malaysia Inner Temple Alumni Association

he Bolam principle has been the say in relation to the issue of Tbasis in determining the standard negligence. In relation to of care in medical negligence cases in diagnosis, treatment and Malaysia since 1957. disclosure liability the Australian courts have declared that they The legal principle in Bolam restrains the are final arbiters of breaches of judiciary from treating medical experts as the required standard of they would with any other experts. In conduct and not the medical determining whether a doctor has profession itself. breached the duty of care owed to his patient, a judge will not find him negligent The coram of the Federal Court as long as there is a body of medical consisted of Y.A.A. Tun Dato’ Seri doctors resort to defensive medicine in opinion, logically held, that supports his Mohamed Dzaiddin bin Haji Abdullah, view of the perceived threat of litigation. or her actions. the Chief Justice, Malaysia, Y.A.A. Tan Sri Dato’ Sri Ahmad Fairuz bin Dato’ Sheikh These and other related issues were dealt The Federal Court in December last year Abdul Ralim, Chief Judge, Malaya and with in a talk recently delivered by has raised serious doubts on the continued Y.A. Dato’ Siti Norma binti Yaacob, Judge, Professor Dennis A Cusack at the application of the Bolam principle. The Federal Court who delivered the judgment Ballroom of the Royal Selangor Club, Federal Court in Foo Fio Na v Dr. Soo of the court. Kuala Lumpur. The talk was organised by Fook Man and Hospital Assunta has the Asean Law Association of Malaysia declared among other things that the This important decision of our highest together with the Malaysia Inner Temple Bolam principle is no longer good law in court has generated a lot of interest among Alumni Association. The session was Malaysia. The Federal Court adopted the patients, lawyers, doctors, dentists, other chaired by Justice Dato’ James Foong, a decision of the Australian High Court in medical personnel including government judge of the Court of Appeal, Malaysia as Rogers v Whitaker. The decision in Rogers v and private hospitals. The medical well as the Vice President of the Malaysia Whitaker and the cases following that in profession in Malaysia has expressed Inner Temple Alumni Association. The Australia has confirmed that the expert concern over the decision of the Federal talk was held in conjunction with the medical evidence presented in court is not Court. Annual General Meeting of the Asean Law determinative as the court has the final Association of Malaysia. Anxiety about medical negligence The speaker Professor Dennis A Cusack is claims represents a the Head of Subject in Forensic and Legal disturbing aspect of Medicine, School of Medicine and the current medical Medical Science, University College practice. In the light Dublin, Ireland. He is also the visiting of the above professor at the Penang Medical College, decision has the Malaysia. Besides his medical qualification pendulum swung in he is also a Barrister at Law of King’s Inn, favour of the Ireland. patients? Will

JULY / DECEMBER_2007 PRAXIS 17 News

Memorial for the late Justice Datuk KP. Gengadharan Nair by the Kuala Lumpur Bar - Young Lawyers Committee

he late Justice Datuk KP. several tutors. He kept in touch TGengadharan Nair, a with some of them after he left judge of the High Court the United Kingdom and they (Appellate and Special Powers became very close friends of his. Division), Kuala Lumpur Two of them Dr. Eric H. Jones his passed away on 21 April, 2007 English tutor (1964) and his wife after a short illness. Mrs. Siti K. Jones his Malay tutor (1963 1964) were unable to Some close friends of the late attend as they were in the U.K. judge decided to organise an They sent their tributes and it was event in his honour. The read by the Chairman of the memorial was held on 15 June session, Mr. S. Radhakrishnan. 2007 at 5.00 pm. at the Banquet Hall, of the Rotary Club of Damansara) Royal Lake Club, Kuala Lumpur. There Mr. S. Radhakrishnan, Honorary Secretary were five speakers who delivered their Mr. John R. Gurusamy, of the Malaysia Inner Temple Alumni speeches of tribute. The speakers were: Former Secretary General, Association and Chairman of the session National Union of Teachers in his introductory remarks stated that Justice Dato’ Gopal Sri Ram, Judge, (He and Datuk Genga were both teachers. some close friends of the late judge felt Court of Appeal, Malaysia They left together in 1970 to read law at that some event should be organised to the Inner Temple) honour Datuk Genga. He said that when Mother Mangalam, President, a judge or a lawyer dies it is customary for Pure Life Society. In addition to the above speakers, Dato’ the courts to organise an event in memory (Datuk Genga after completing his teacher Mohamed Iqbal who was in the same batch of the person. It is well known in the legal training course at the Malayan Teachers of students selected for teacher training profession and it is called reference College Brinsford Lodge, U.K in 1964 together with Datuk Genga was unable proceedings. The organisers did not wish was posted to Dharma Institute which was to attend the memorial and he arranged to confuse this event with the function under the supervision of the Pure Life for his son, Mr. Mohamed Shafique Iqbal organised by the courts. Therefore, he said Society. Mother Mangalam was the and his daughter, Ms. Shreen Iqbal to that for want of a better word the organisers Headmistress of this school at that time) attend on his behalf and read the tribute have called this event a memorial in loving written by Dato’ Mohamed Iqbal. memory of Datuk Genga. Dato’ Roy Rajasingam, Advocate & Solicitor, Datuk Genga was well known in the trade He pointed out that the organisers of this (Former Chairman of the Labour Law union movement. Dr. S.J.H. Zaidi, the event who are close friends of Datuk Committee of the Bar Council. Datuk former Secretary General of the Malaysian Genga have decided to remain Genga actively served in this committee Trades Union Congress who was originally anonymous. He said that he was therefore for many years) scheduled to speak could not attend as he not permitted to announce their names. was not well. He sent his daughter, Dr. He said he was merely a spokesman for Mr. Unni Kumaran Menon, Noreena Zaidi to represent and speak on the organisers. Academic Director, Stamford College his behalf. She read the tribute prepared (He and Datuk Genga are Barristers of by her father. Mr. Radhakrishnan stated that the the Inner Temple and they were called to organisers are overwhelmed by the the English Bar at the same time in 1972. While Datuk Genga was at the Malayan tremendous response as there were more He and Datuk Genga are both members Teachers College, Brinsford Lodge he had than 250 persons in the banquet hall at

PRAXIS 18 JULY / DECEMBER_2007 News the memorial. He said the mere presence of a large turn out was by itself a fitting tribute to the late Datuk Genga.

He said the speakers will cover various facets of the life of the late judge. He thanked all the speakers for graciously agreeing to attend and deliver their tribute.

Some of the close friends of Datuk Genga organised a memorial ceremony in memory of Datuk Genga on 15 June 2007 at the Royal Lake Club, Kuala Lumpur. It was attended by more than 250 persons. The Banquet Hall was packed to capacity. Among those present of Appeal, High Court and the President including the Chairman, Ms. Ambiga included the Hon’ble Deputy Minister in and Chairmen of the Industrial Courts. Sreenevasan attended the memorial. Many the Prime Minister’s Department, YB There were also Ambassadors/High of his friends from the legal fraternity trade Dato’ M. Kayveas, the Rt. Hon’ble Chief Commissioners from a number of union movement, teachers and members Judge of Sabah and Sarawak, Y.A.A. Tan countries who also attended the memorial. of Rotary Clubs also attended this Sri Dato’ Richard Malanjum, judges and Past President of Bar Council and a memorial besides the members of his retired judges of the Federal Court, Court number of officials of the Bar Council family.

Ruj Kami: KE.HF(11)664/01Klt. 15 (94) Tarikh: 24 September 2004

Y.Bhg. Tan Sri/ Dato’ /Datuk/Tuan/Puan Pemansuhan Threshold Ke Atas Semua Perkhidmatan Professional Termasuk Perkhidmatan Perundingan dan Pengurusan Dalam Jadual Kedua Peraturan-Peraturan Cukai Perkhidmatan 1975

Saya dengan hormatnya diarah merujuk kepada ii. Peniaga yang belum mencapai threshold yang pengumuman YAB Perdana Menteri Malaysia merangkap berkuatkuasa pada masa ini (RM150.000.00). Menteri Kewangan dalam Ucapan Belanjawan 2008 boleh memilih samada untuk dilesenkan lebih berkaitan perkara di atas. awal atau selewat-lewatnya pada 1 Januari 2008.

2. Dimaklumkan perkhidmatan-perkhidmatan berikut iii. peniaga yang mencapai threshold sebelum 1 telah dimansuhkan thresholdnya mulai 1 Januari 2008; Januari 2008, perlulah dilesenkan mengikut i. Perakaunan perundangan sediada. ii. Guaman iii. Kejuruteraan 4. Selaras dengan pengumuman belanjawan tersebut, iv. Arkitek kerjasama Y.Bhg. Tan Sri/ Dato’/ Datuk/ tuan/ puan dipohon v. Jurukur, penilai, penaksir dan ejen harta tanah bagi memastikan semua ahli-ahli pertubuhan Y.Bhg. Tan vi. Perunding Sri/ Dato’/ Datuk/ tuan/ puan memohon lesen-lesen cukai vii. Pengurusan perkhidmatan berkaitan dalam tempoh yang ditetapkan.

3. Implikasi dan pemasuhan threshold berkenaan Sekian, terima kasih adalah; i. Semua perkhidmatan berkenaan adalah tertakluk Yang benar kepada cukai perkhidmatan mulai 1 Januari 2008 SHAHARUDDIN BIN IBRAHIM tanpa mengira threshold dan perlu dilesenkan. Bahagian Cukai Dalaman Cawangan Cukai Perkhidmatan b.p Ketua Pengarah Kastam Malaysia

JULY / DECEMBER_2007 PRAXIS 19 News

Veteran and rights activist and lawyer passes on by Webmaster

he Malaysian Bar is However, he did say in the same the ‘winning side’. He chose not to. He Tsaddened to announce interview that he now agreed with clung on to his convictions. I once asked that Abdul Razak Ahmad, a Singapore Minister Mentor, Lee him whether it had occurred to him to try veteran politician and a Kuan Yew’s 1997 description of to make changes from within the system. respected member of the Bar Johor Bahru as the situation had He replied that, under our system, that who was also a famous social changed. would not be possible. What would activist passed away about an probably happen is that one then becomes hour ago. In a tribute to Abdul Razak over the said part of the system that creates the interview, former President of the problems; and he does not want to become Born on June 6, 1939, Razak Ahmad was Malaysian Bar, Yeo Yang Poh wrote: that. It is easy to proclaim to hold on to called to the Bar on September 10, 1973. “Young members of the Bar may not know principles. It is difficult to continuously of the struggles that Razak Ahmad has do so knowing full well what one is giving Describing himself as a “maverick lawyer” been through, fighting for what he up. Razak passed the test, many times in an interview with Angeline Cheah on believes in. There are a number of things over.” June 25, Razak said he graduated from that I respect about Razak. Years ago, he the Singapore University in 1966, but could have easily joined the ruling party, The Malaysian Bar extends our heartfelt during the last term of his final year in and become a Minister at least. There were, condolences to his wife Kintan Mohd 1966, he was arrested and banished by I believe, more than a few opportunities Amin, and four children - Zulkifli, Juliah, the Singapore Government for alleged in which he could have crossed over to Faizal, and Azlina. subversive and communist front activities which he had always vehemently denied. YEO CHIN AIK In the said interview, Razak said: “I am DECEASED unhappy over the fact that I have been banned from entering Singapore for so We act for Madam Wong Yuet Meng, widow of the long. Singapore is just across the Tebrau abovenamed deceased who passed away on 6 November Straits and I can swim across it in five 1994 in Kuantan, Pahang. minutes. I have relatives and close friends since my student days in the Singapore We are instructed to enquire if any firm of solicitors or anyone University. I have appealed several times had knowledge of or is in possession of a Will executed by for the Singapore government to lift the the deceased in Malaysia. Parties with any information are ban but they turned down my requests. I kindly advised to contact:- think it is unfair for the Singapore government to refuse my requests as I have never been given any opportunity to CHAN YAT HEE & ASSOCIATES defend myself since the banishment order Advocates & Solicitors 40, Jalan SS2/75, was made against me. I will not apologise. 47300 Petaling Jaya I do not feel guilty for what I did during Selangor Darul Ehsan my student days in Singapore as what I Tel: 03 7874 0907 Tel/Fax: 03 7874 1026 did was legitimate and certainly within the law. I have not been involved in violent or subversive activities as alleged by the government.”

PRAXIS 20 JULY / DECEMBER_2007 News

BAR COUNCIL Diary of upcoming Events

JANUARY 26th - 30th January 2008 16th February 2007 5th January 2008 at Bar Council Auditorium at Bar Council Auditorium at Bar Council Auditorium Mediation Skills Training Course ICPC Talk - Interpretation, Variation & Construction Law Officer in Charge: Ms. Marianna Non Compliance Action in the Industrial Officer in Charge: Ms. Marianna Court by Jayasingam, Vickeswaran & 31st January 2008 Industrial Court Chairman 12th January 2008 at Bar Council Auditorium Officer in Charge: Ms. Rajen at Bar Council Auditorium Talk by YP Cheong - Negotiating & Drafting of Licensing Gated Communities & Strata Titles 20th - 21st February 2008 Agreement that works Officer in Charge: Ms. Linda at Bar Council Auditorium Officer in Charge: Ms. Linda Professional Standards & Ethics Course FEBRUARY Officer in Charge: Ms. Lilian 15th - 16th January 2008 8th February 2007 at Bar Council Auditorium at Bar Council Auditorium 23rd February 2007 AMLA Training Shipping Event at Bar Council Auditorium Officer in Charge: Ms. Sumitha Officer in Charge: Ms. Vino ICPC Talk - Interpretation, Variation & Non Compliance Action in the Industrial 18th - 13th January 2008 9th February 2007 Court by Jayasingam, Vickeswaran & at City Bayview Hotel, Penang at Bar Council Auditorium Industrial Court Chairman 3rd Young Lawyers Convention ICPC Talk - Interpretation, Variation & Officer in Charge: Ms. Rajen Officer in Charge: Ms. Chandrika Non Compliance Action in the Industrial Court by Jayasingam, Vickeswaran & MARCH 18th - 19th January 2008 Industrial Court Chairman 1st March 2008 at Bar Council Auditorium Officer in Charge: Ms. Rajen at Bar Council Auditorium Seminar Series Islamic Banking & Children: Right to be Heard by Family Finance - with Bank Negara 15th February 2007 Law Committee Officer in Charge: Ms. Linda at Bar Council Auditorium Officer in Charge: Ms. Sumitha Seminar Plaining Law & Judicial Review 23rd - 24th January 2008 for Administrative by Derek Fernandez at Bar Council Auditorium Officer in Charge: Ms. Linda Professional Standards & Ethics Course Officer in Charge: Ms. Lilian * For updates/changes, please visit our website at www.malaysianbar.org.my continued from page 3 that it is not an easy task to overcome the problem, we should try Ladies and gentlemen, I am aware that even if with the grace of to reduce it. Immediate attention should be given to the God Al-Mighty I were to live long enough, my term of office as negligence factor, for example, negligence in the writing of Chief Justice will be a very brief one. But, even if, by the will of judgments, negligence in the typing of the notes of evidence, God Al-Mighty I were to occupy the office for only one day, negligence in the preparation of the records of appeals in criminal during that one day, I am determined to do what I honestly cases, negligence in informing the judges of the existence of believe to be right, as best I can. Whether my best is good enough appeals against their decisions which require them to write their is for the public to Judge. judgments and negligence in forwarding the notices of appeals by the hearing court to the appellate court. Some of the actions Ladies and gentlemen, Believe me that, eventually, honesty are simple actions performed by junior officers. But, negligence supersedes all. And, believe me that, eventually, truth always in such simple actions has very serious implications. Another prevails. matter that should be given priority is how to overcome the problem caused by interlocutory appeals that multiply the Lastly, if I were asked to choose a slogan, this is my choice: “BUAT number of appeals and costs to litigants and delay the final KERJA” (Do the work). disposal of cases. Indeed, of late we are not even sure when “final” is really final. Thank you.

JULY / DECEMBER_2007 PRAXIS 21 State Bar News

Bar Rooms ready for use by Richard Wee Thiam Seng

of the new Court Complex were renovated he Kuala Lumpur Bar Committee with 50% financial allocation from the held the official opening of the new T Bar Council. With two rooms at separate Bar Rooms at the new Duta Court wings of the Complex, the KL Bar had to Complex on Tuesday, 10 July 2007. carry out two separate renovations.

In a simple ceremony, President of the Bar, However, the Bar Rooms, though just Ambiga Sreenevasan performed the age officially opened, has been used for the old tradition of cutting the ribbon to the post-Long Call ceremony since June two new Bar Rooms. Head Judges of the 2007. There are also plans to equip one of High Court Division, Registrars, Session of KL Bar for a job well done. She also the Rooms with internet wi-fi services. At Court Judges and as well as former KLBC highlighted the special place the Bar the moment a computer with printer, a Chairmen were present to grace the special Rooms had in the hearts of lawyers and facsimile machine as well as Law Reports occasion. the untold importance of the Rooms to the daily working routine of a litigation are available in both Bar rooms. In her speech, Ambiga thanked the KL lawyer. All members are invited to utilise the Bar for the invitation and went on to rooms and KL Bar is open to suggestions congratulate Ravindra Kumar, Chairman The spanking new Rooms at the 5th floor to further improve the rooms.

PRAXIS 22 JULY / DECEMBER_2007 State Bar News

JULY / DECEMBER_2007 PRAXIS 23 State Bar News

Kejohanan Sukan antara Peguam Pulau Pinang-Perak 2007 by Dara Waheda Mohd Rufin

awatankuasa Peguam Pulau Pinang- JPerak meneruskan tradisi semangat kesukanan apabila sekali lagi menganjurkan “Kejohanan Sukan Antara Peguam Pulau Pinang-Perak 2007 (Penang-Perak Bar Games 2007)”, kali ini dihoskan oleh Jawatankuasa Peguam Pulau Pinang.

Bertempat di Kelab Sukan Pulau Pinang, kejohanan dua hari yang telah diadakan pada 21-22 July 2007 ini telah menerima penyertaan dari kedua-dua buah Jawatankuasa Peguam Negeri.

setiap acara yang dipertandingkan. menumpaskan kontinjen Perak dalam Antara acara yang dipertandingkan acara bola keranjang dan kriket. termasuklah tenis, badminton, snuker, Kedua-dua kontinjen mempamerkan balingan damak (dart), bolasepak, hoki, kekuatan yang setara apabila masing- Kontinjen Pulau Pinang diisytiharkan futsal, bola keranjang, boling dan kriket. masing mencatatkan dua kemenangan sebagai juara keseluruhan bagi kejohanan pada hari kedua kejohanan. Kontinjen kali ini dengan kemenangan agregat 6-5. Kontinjen Perak bermula dengan baik Perak berjaya menewaskan kontinjen pada hari pertama kejohanan apabila Pulau Pinang dalam acara futsal dan boling Tahniah kepada semua peguam yang telah berjaya menewaskan kontinjen Pulau manakala kontinjen Pulau Pinang menjayakan kejohanan ini. Pinang dalam acara sukan tenis.

Seterusnya, kedua-dua kontinjen bersaing PEKELILING PENDAFTAR BIL 3/2007 hebat dalam setiap acara yang TESTE KEPADA WRIT (PINDAAN) dipertandingkan. Kontinjen Pulau Adalah saya diarah untuk memaklumkan bahawa mulai 5 September 2007 Pinang mencatatkan kemenangan awal di pengakusaksian untuk writ of summons yang difailkan dalam Mahkamah hari pertama apabila menang tipis kepada Tinggi Malaya hendaklah dikeluarkan atas nama YAA Hakim Besar Malaya kontinjen Perak dengan kelebihan satu seperti berikut:- kemenangan. ‘YANG AMAT ARIF DATO’ ALAUDDIN BIN DATO’ MOHD. SHERIFF, D.P.M.J., D.S.D.K., S.M.J., P.I.S., HAKIM BESAR MALAYA ATAS NAMA DAN BAGI PIHAK SERI PADUKA Hari pertama kejohanan berakhir dengan BAGINDA YANG DI PERTUAN AGONG’. kemenangan sekali lagi berpihak kepada Dengan ini Pekililing Pendaftar Bil-Bil 1/2007 dan 2/2007 adalah dibatalkan. kontinjen Pulau Pinang yang telah Sekian. Terima Kasih, memenangi acara sampingan “Boat Race” ‘BERKHIDMAT UNTUK NEGARA’ di satu majlis repsepsi yang telah diadakan di Hotel City Bayview, Georgetown bagi Saya yang menurut perintah, meraikan para peguam dari kedua-dua (TARMIZI BIN ABD RAHMAN) buah negeri yang telah datang mengambil Pendaftar Mahkamah Tinggi Malaya Putrajaya bahagian dan memberi sokongan dalam

PRAXIS 24 JULY / DECEMBER_2007 State Bar News

Law Awareness Day at Multimedia University School of Law by Desmond Ho Chee Cheong

n 21 July 2007, the Multimedia OUniversity School of Law organised a Law Awareness Day for their law students with the assistance of the Malacca Young Lawyers and Chambering Pupils Sub-Committee. Five prominent members of the Malacca Bar were invited to speak on their lives as lawyers in their respective fields of practice.

The 2nd to 4th year students were already anticipating an interesting talk from our panel of speakers for the day and Wong Fook Meng started the talk by giving an overview of the transition process from law school to legal practice. He also spoke on how young practitioners can navigate through the challenging first years of practice. Next up was Chee Kong Chi who spoke about life as a corporate lawyer. With his vast experience in handling many complex commercial transactions, he astounded even the lawyers in attendance conveyancing lawyer and gave an and moved from one station to another to about what corporate legal practice entails. overview of conveyancing practice. He also meet with the five speakers. The other Phrases like Reverse Take Over (RTO) and touched on the No Discount Rule and lawyers in attendance assisted the speakers Mergers and Acquisition (M&A) were urged the future lawyers against and gave explanation and insights about explained in easy to understand terms and unhealthy undercutting of fees which is the legal profession. illustrated with current examples. Chee incompatible with the noble profession also advised the students that beyond the of the law. Fatima Tahir was the final Overall, it was a fruitful event as the conundrum of legal terms, “soft skills” were speaker and gave an insightful talk on civil students gained valuable insight into the as equally important for a lawyer. litigation. She also said that lawyers have practical aspects of legal practice and were the privilege of living “vicariously” in the given an overview of the major areas of J. Amardas was the next speaker. He told many different lives of the clients whom practice. With a clearer vision of what legal the audience that he came without a as we serve. practice entails, the students will have a powerpoint presentation and made a more meaningful journey in law school. lasting impression on the students that a After a short tea break, the students had criminal lawyer needs to have the law at the opportunity to come “up close and The Law Awareness day that began at his or her fingertips and ought to be well personal” with the speakers and ask 9.00am ended at 2.00pm to a resounding versed with the facts of the case at hand. questions about legal practice. The success. Nitin K. Gordhan spoke about life as a students were divided into smaller groups

JULY / DECEMBER_2007 PRAXIS 25 State Bar News

Selangor Law Games and Family Day 2007 by Ng Chung Yee

he Selangor Judiciary, Selangor the various games and their family Emotions ran high as everyone played TPolice Contingent, the Law Faculty members on the particular day. There were their level best and in like in all games of University Technologi Mara and the also face painting and other games for the particularly contact sports there were a bit Selangor Bar jointly organised the Selangor young and old alike. The Selangor Bar of tussles and pushes in the futsal pitch Law Games and Family Day 2007. booths were manned by volunteers mostly but the Selangor Bar did well to win both comprising Young Lawyers and the men and women’s event. But in the The event was officiated by Justice Datuk Chambering Pupils. spirit of camaraderie and sportsmanship, Su Geok Yiam and it was a huge success. all differences were set aside as it ended The event formerly known as with a good firm handshake and the Selangor Tripartite Games congratulatory hugs. The crowd was last held in 2000. The was no less interesting. Many organising committee that UiTM students were present to comprises representatives from root for their participants armed the four bodies had sacrificed with whistle, pom-poms and cheer both time and considerable slogans. amount of effort to make this event a success. The futsal pitch saw one of the more memorable moments of the The event dates back to 1994 day when our women team where it was formerly known as managed to beat the skillful and the Selangor Tripartite Games in energetic UiTM team with a 1994 and the newest member swirling free kick that managed to to join us this year is the Royal find the far end of the goal post Selangor Police Contingent. away from the outstretched arms Their strong presence was felt as of the helpless keeper. The final they were crowned the overall scoreline of 1-0 definitely did not champion when they pipped reflect of the energy and euphoria the Selangor Bar to emerge felt in the pitch. victorious. Various games played are futsal, soccer, hockey, The closing ceremony took place badminton, volleyball, netball at 7.00pm with the Selangor and golf. Golf was played on the Police Contingent victorious but 28 July 2007 at a separate venue. not without some ‘scar’ and ‘bruises’ from the ever competitive It was indeed a carnival-like members of the Selangor Bar. atmosphere in the premises of University Technology Mara The Selangor Bar does look where numerous booths were set forward to the inclusion of this up. Foods were aplenty to feast event as an annual event in our both the hungry participants of Selangor Bar’s diary.

PRAXIS 26 JULY / DECEMBER_2007 State Bar News

Johor Bar bids farewell to four judicial officers by Web Reporter

embers of the Johor Bar today Mbade farewell to Johor Baru High Court judges, Justice Datuk Syed Ahmad Helmy bin Syed Ahmad and Judicial Commissioner Tuan Ahmad Zaidi bin Ibrahim, Muar High Court Judge Puan Lau Bee Lan and Muar’s Magistrate Puan Zuhrina bte Mohamed Nor.

The farewell functions were held simultaneously at the The Zon Regency Hotel By The Sea in Johor Bahru for Syed Ahmad and Ahmad Zaidi and at Hotel L-R: Johor Bahru High Court Judges - Tuan Ahmad Zaidi bin Ibrahim, Pelangi, Muar for Lau and Zuhrina Datuk Jeffrey Tan Kok Wah, Datuk Syed Ahmad Helmy bin Syed Ahmad, Datuk Mohd Zawawi bin Salleh and Datuk Azahar bin Mohamed yesterday evening. whilst Ahmad Zaidi returns to his home many years immediately before his Even though the two functions were put state of Terengganu as a High Court judge elevation. Saying that it was more difficult together at short notice as the judicial at Kuala Terengganu. Lau, who was posted to deliver a speech than to write a officers themselves had been given the to Muar High Court from Kuching on judgment, Ahmad Zaidi’s impromptu transfer orders with less than a week’s February 15 this year, will sit in the speech nevertheless had the audience in notice, the functions were attended by Appellate and Special Powers Division of stitches due to his wit, and a speech that more than 250 members of the Johor Bar. the High Court of Kuala Lumpur, filling came from his heart. Also present at the Johor Bahru function the vacancy arose out of the recent demise were the other three High Court judges, of Justice Gengadharan. Zuhrina will be a Syed Ahmad too delivered a moving Johor Bahru Senior Judge Datuk Jeffrey magistrate at Shah Alam Magistrate’s farewell speech. He said he came to Johor Tan Kok Wah, Datuk Azahar bin Courts. Bahru as a judicial commissioner on June Mohamed and Datuk Mohd Zawawi bin 1, 2000 and was subsequently elevated as Salleh, Bar Councillor, Roger Tan, In both functions, the Johor Bar members a High Court judge here. He said with members of the Johor Bar Committee, expressed their sadness as well as the assistance of his brother judge, Datuk court staff and senior legal practitioners. appreciation to the judicial officers through Jeffrey Tan, he calculated that his tenure their Chairman, K Mohan in Johor Bahru here had been a total period of 7 years 2 It is learnt that Syed Ahmad’s position will and Vijayaretnam, the Chairman of the months and 12 days. be taken over by Kuala Lumpur High North Johor Affairs Sub-Committee in Court Judicial Commissioner, Tuan Abdul Muar. Talking about attendance at farewell Alim bin Abdullah. Tuan Zainal Azman functions for judges, he said there were 3 bin Abd Aziz, former Sessions Court judge In his speech, Ahmad Zaidi thanked categories: here who was made a Judicial members of the Johor Bar for being ! Category 1 - a large attendance Commissioner yesterday will take over gracious during his short three-month stint indicative of the judge’s popularity; from Ahmad Zaidi. Syed Ahmad will join here as the High Court Judge even though ! Category 2 - a small attendance - an the Shah Alam High Court on Monday he was a Sessions Court judge here for indication of the judge’s unpopularity;

JULY / DECEMBER_2007 PRAXIS 27 State Bar News

and practitioners bloom into confident interpreters and Assistant Registrar Tuan ! Category 3 - a large attendance which, litigation lawyers”, added Syed Ahmad. Awang Krisnada. He said even though he far from being an indication of the would now start a new chapter in Shah judge’s popularity, is to ensure the Syed Ahmad went on to urge members of Alam with a new team, he would never departure of the unpopular judge! the Bar to continue to plod on the best we forget their loyalty and devoted service. can and try to administer the justice with Judging from the members’ attendance, the tools that were made available, taking Farewell Syed Ahmad no doubt fell within Category into account that for every case he had You won’t recognise me 1 as he was also the guest-of-honour at disposed of, another 5 new ones were But please don’t forget me the last annual dinner and dance of this added to his list. In your memories, your subconscious mind State Bar. Or your nightmares He added: “It is here both Bench and Bar You are the face I recognise He said in his many years in Johor Bahru, must work harmoniously to ensure that But our way is no longer together many legal practitioners who were babes cases can be disposed of efficiently. Being So say farewell in swaddling clothes had now become difficult with fellow practitioners or being And I will never forget you seasoned practitioners and the advocacy ill-prepared to assist the Bench only of some had also improved. aggravates the speed at which we can deal The Johor Bar then presented the two with the ever-increasing wave of litigation. out-going judges with momentoes. “What I can say with certainty is that the Bar has made me feel most welcome and Turning to the court staff present and with As Syed Ahmad walked down the stage, worked very well with me. choked voice, Syed Ahmad thanked his he also faced a standing ovation from the long-time personal secretary, Puan Zuriha, members. “Hand in hand, we have through our distinct yet integrated roles sought to ensure the smooth administration of YOONG GIAN PIN justice. DECEASED (NRIC NO: 310324-04-5031 / 0484490) “It is my hope that legal practitioners in Johor will continue to maintain the highest We act for Mr Yoong Siong Pin @ Yoong Sioong Pin, the standards expected of the noble Bar and brother of the abovenamed deceased who passed away seek above all to always discharge their duty on 3rd May 2006 in Kuala Lumpur. to the Court”, said Syed Ahmad. We are instructed to enquire whether any firm of solicitors During his tenure here, Syed Ahmad was or anyone with knowledge of or is in possession of a Will determined to improve relations with the executed by the deceased in Malaysia. Bar, having been a practitioner himself before his elevation. Parties with any information are advised to contact:-

“A court gets most out of advocates and SIONG & RITA parties who ware treated with politeness. I Advocates & Solicitors truly believe that I have for my part sought No 8-1, Jalan 1/109E, Desa Business Park to demonstrate daily that efficiency and Taman Desa, 58100 Kuala Lumpur rigour are not incompatible with courtesy. Tel: 03-7982 8461 A source of pride for me is that the Fax: 03-7983 3751 congenial atmosphere that I have created (Ref: YSP/1565/07/OCS) in my court has resulted in novice

PRAXIS 28 JULY / DECEMBER_2007 State Bar News

Johore YLC organises first ever Charity Night! by Lawrence Chiong Sheng Fan

he Johore Charity Night organised abreast of the events in Kuala Tby the Johore Young Lawyers Sub- Lumpur. Further, we managed to Committee (“JYLC”) was held on 29 June chat on-line with the National 2007. The venue of the event was at a Young Lawyers Committee Chair, café, “June Place” in Skudai near Johore Edmund Bon who was away in Bahru and attended by approximately Oxford. 100 people. This was the first event organised by the JYLC since it was We started the first game at around reconstituted last year. In aid of the Johore 8.10pm. We had 6 games in total, Cheshire Home (“JHC”), it was held in and lucky draws in between the conjunction with 3 other states: Kuala games. The JYLC is fully Lumpur, Malacca and Perak on the same appreciative of the strong support day. shown by our Johore Bar members particularly the immediate past By about 7.30pm, throngs of people President of the Bar Council, Yeo started pouring in and the place was Yang Poh who participated in the packed. Some members of the Bar also games with us, the webmaster of brought their families and friends along the Malaysian Bar website, Roger to render support. Representatives and Tan, the Johore Bar Committee residents from JHC also attended the Chair, K. Mohan and the Committee attended. function. Their volunteers from various members, KC Toh and Yusnida Mohd countries such as India, Korea and the Yusof. On 24 July 2007, we presented our Netherlands were present. cheque of RM4,556.70 to JHC. JHC We wrapped up events for the night by informed us that they had collected cash While food and drinks were being served, giving out the “Top Donor Award” to donation of RM423.00 from the Charity we patched in on-line via MSN with the Messrs Gulam & Wong. It was a fun night Night. Hence, we helped raise a total of Kuala Lumpur Charity Night liaison for a good cause, and which put a heartfelt RM4,979.70 for the JHC. May the next officer, Richard Wee to keep ourselves smile on the faces of everyone who year be a greater success!

JULY / DECEMBER_2007 PRAXIS 29 Comment

My Experience at EGM – 22 Nov 2007 by Sumitha, Executive Officer

Dear colleagues, Not even Rezib’s disillusioned look and chatters in the likes of Chandrika, Kelvin henever a Bar event took place, bemoaning of a dreadful day ahead could and I, Suvitha, Devi and Lojini, arranged Wreporting concentrated only on have killed my excitement for the day. The and rearranged the BC souvenirs setting the moods and opinions of the lawyers mood for the EGM had been set without the right view for the best sales strategy. and office bearers. The people behind the even leaving the doors of the Secretariat! Their intellect and hard work paid off scene who made the event a possibility handsomely as sales surged above were always unintentionally neglected. I had a joyful ride conversing with my co- RM4000. Congratulations! pilot Vino, and passengers Devi, Suvitha Here I pay tribute to those neglected souls and Adilah whilst we manoeuvred Not to put rented space to waste, amongst us who give so much and ask through the late morning traffic trailing Chandrika and Rezib intelligently very little in return. closely behind Rajen with his co-pilot positioned posters to advertise their Rezib and Mazni leisurely lazing in the respective Committee events. Thank you When I rose to the chirping of birds amid back seat. At times we resigned amidst for indirectly sharing this wonderful idea the cool breeze on the morning of the giggles that Rajen was taking us on a for a crowd puller! Surely something for EGM, I carefully laid out a meticulous sightseeing tour of Kuala Lumpur. But other EO’s to replicate in future events. plan of getting some work done at office when we finally arrived at the MCA before conserving my energy to face the building, we had to hand it to Rajen and As our lunch drew to a close, apart from EGM with my security team. But it was car-team for their sense of direction. one or two early birds, who may have not meant to be. It was sheer hustle and thought to be rewarded for their extreme bustle in the office starting with Khatijah As the occupants of the two cars above punctuality, no other legal eagles were in scurrying around within her little cubicle made our way up the stairs to the first sight. But what an amazement! As if it ensuring all necessities for the Emergency floor, the sight of our colleagues devouring was the most natural thing in the world, Council meeting were ready for the day. food greeted us. With quick smiles and our colleagues were at their respective It was like watching a pro at work. One- acknowledgements I too joined those in designated duty stations. Indeed it was dimensioned Joey was making sure the the queue to savour the mouth watering heartening to see such maturity and laptops were all packed for the EGM. It delicacies. Lily aptly deserves mentioning responsibility amongst us. It was a still amazes me how one with her size could and a big thank you here for filling our poignant moment! carry bags that looked twice her weight - tummies with a yummy spread. My meal God sure works in mysterious ways! As I companion Tanuja was a natural In the hall, Soon was positioned on stage observed to the further end of the office, conversationalist and in no time we also deftly working his fingers on the laptop Haji, Lojini, Farha and Hidayah were like joined forces to head to the ladies. Witty set up to assist Ken in the smooth flow of little soldier ants working with such Cindy was there too and I light-heartedly the EGM. The mere existence of the tremendous enthusiasm. It would turn thanked her for her strong-messaged email trendy electronic device amidst entwined any observer green with envy for not reminding us to ‘gotong-royong’ to help cables gave a nuance of modish and hip being amongst them. I for one wasn’t Lee and gang with the SAs who despite appearance to the whole EGM itself. Time doing justice to my work. A quick look at their tight schedule still found time to be was closing on us. As the crowd grew my emails and a big thank you to Bar with us. bigger, the Secretariat went into full force. Council‘s very own expert Bahasa I could see Rebecca and Rezib stationed at Malaysia translator, Rohani for grammar- It was close to 12.30 pm; a good 2 ½ one door, eyes prying meticulously for the checking my attempts at drafting decent hours till show time. I saw many hands stickers to allow entry to the legal eagles. Bahasa Malaysia letters, was all I managed. setting up the BC booth. Amongst chit Short of uniforms and rifles, they were a

PRAXIS 30 JULY / DECEMBER_2007 Comment sight not to be messed with. It was more gelled into the latest style looking very seated comfortably outside the hall. A well relaxing at our corner as Anand R, Mazni much like a pin up poster floored the deserved rest. and I joked away whilst straining our eyes young girls. When he turned the full blast for the blue or red tags before allowing of his charm on them their surrender was As the most awaited word was spoken by entry at our door. Lawyers and chambies complete; many left his table giggling Ms Ambi - ‘the meeting is now closed’ I equally had a knack of sticking the tags at girlishly. Nevertheless, Kelvin’s registration felt life and vigour come into me. Even the most unusual places; like the back of task was done. Rezib’s distressed look disappeared. After one’s tie - yes, AT THE BACK OF THE surrendering all used and unused TIE! Phones, pagers, newspapers, As the meeting progressed, I felt my colour appliances to its rightful owner, our handbags, files, office tags and even the drain but my spirits were high. There colleagues made our way out of the hall. inside of shirt pockets were not spared. wasn’t a change in Rezib’s distressing look. While waiting for Lily to appear which After every unusual encounter, the 3 of us Rajen looked important never taking a seat felt like an eternity, Amran generously would have a hearty laugh! (after ensuring to rest his feet. 10 minutes into the meeting offered left over kuih-muihs with only me that we were within miles of the source of and I had already plunged comfortably greedily devouring it. Nonetheless we joke!!) into a chair. Ying Loon looked transfixed saved some for Punitha who held fort at on the meeting. I hardly saw him battering the 2nd floor of the Secretariat. It was close to 3.00pm. By now our of an eyelid; not wanting to miss even a colleagues were swarmed by a sea of second perhaps. Witty remarks from the As I drove my new co-pilot Rebecca (my lawyers gently nudging and harassing to floor kept the atmosphere pleasant and old-pilot Vino having abandoned me register. I managed to get a glimpse of one bearable. somewhere along the way) with Lily and or two of our colleagues head bent, sharp Mazni squashed by a box at the back seat, eyes following the pencil gripping fingers It was nearing 4.30pm, I spied Rebecca at I reminisced the unforgettable moments I running down the list. Smiles, names, a distance, stationed nearer to the entrance penned above. Although I had the reassurances, signatures, thank yous, of the hall, shifting restlessly from one opportunity to attend two EGMs as a stickers, information followed by smiles pretty foot to another. I was still in my member of the Bar, my first experience were the scenes until the EGM was called chair, shamefully. working with all of you at the EGM has to order. been a rewarding experience, hence my The most precious moment had arrived. initiative to capture some of the poignant The mere sight of Lily approaching sent The voting of the motion! It was the time moments in paper. I sincerely do hope to the leaders Cindy, Veni, Lee, Ahmad, to put into practice what the security team capture many more magical moments in Rozi, Li Chin, Marianna and Vino had theoretically played in our minds at my heart or paper in the future, for I know, scurrying to their respective team and after our briefing at the Secretariat. we as the Secretariat have hidden members who diligently dished out the Alas! It was not meant to be. It looked like potentials that can make the Bar Council latest numbers to confirm quorum. Such we were back to square one. The newly second to none. Yesterday I found true automated leadership qualities and designed voting procedure had to be meanings to the words of camaraderie, teamwork reckons mentioning here. abandoned due to unanimous voting and teamwork, maturity, responsibility, later a decrease in members. But looking intellectual, laughter, happiness and I strained to see if Kelvin had lived up to at the bright side, there was indeed a lesson satisfaction and I thank each and every his words of vehemently insisting to be to be learnt: “To always have a backup one mentioned or unmentioned above seated at the BC Booth to be within sight plan to the master plan whilst anticipating who had in one way or another of not only the young chambering chicks every possible change in the scene”. contributed to the meanings of these but also the young hot female lawyers. He words. I went home with feelings of wanted to be at the centre of it all, he As the meeting was drawing to a close, I euphoria and contentment. confessed earlier to Lojini and me. True too twinned Rezib’s distressed look and enough with the young male chambies, was still shamefully seated in a chair. Rajen’s Written on 23 November 07 to capture there wasn’t the slightest spark. But with strong legs did not fail him. Ying Loon by my view of the Secretariat at the EGM on the girls Kelvin was electrifying. His now was hidden from view. Rebecca was 22 November 07. innocent boyish look complete with hair

JULY / DECEMBER_2007 PRAXIS 31 Comment

Why control of cyber space is crucial by Stephen Tan Ban Cheng

ore and more Malaysians are abused and misused cannot be lightly and political moderation. Mgetting more and more conscious dismissed. that some news, especially the critical ones, In the milieu of racial and religious are being “managed,” “manipulated” and Corrupt politicians will find themselves pluralism that is invariably Malaysia, even “slanted.” being easily dislodged where the media is goodwill must be generated at each and free to highlight their depraved and every opportunity. A casual comparison of the print and heinous practices. Media freedom, if broadcast media from the “simple days” of properly used, can also ensure better It is in this context that the final rejection the 1960s till the “complex equation” that management of our local councils, thereby of the memorandum on Press freedom we Malaysians find today will buttress the contributing to the welfare of rakyat signed by so many media practitioners in above belief. If it can be said to be more of everywhere. this country deserves derision, at least on a belief than a suspicion, then we in moral, if not political, grounds. The Malaysia are grappling with rejection tantamounts to an something very serious. opportunity lost – an opportunity to put media freedom on the pedestal of The control, actually the pattern of Malaysian public life and the control, of the print and broadcast attendant opportunity to value media goes against Press and media honesty and trust in public life lost. freedom – one of the basic and fundamental freedoms in an The fact that the prospering cyber operating democracy. space in Malaysia is being seen and taken as more credible than our local Media freedom can, among other newspapers speaks volumes against the things, prevent the spread of corruption credibility of the entire media and media and corrupt practices that appear to be “Little napoleons” or “little caesars” at all practitioners in this country, although galloping in full stride in Malaysia. Media levels in the bureaucracy will know for there is no doubt that some media freedom can act as a safety valve to allow sure that their transgressions will not escape practitioners are trying to do their best in the ordinary citizen to ventilate their the scrutiny of a free media. So will the the constrained circumstances they find grievances so that the powers-that-be can morally self-righteous who conduct raids themselves. investigate whether such grievances have in night clubs. They will know for sure merit or otherwise and take the appropriate that what society needs is the righteous, It cannot be denied that the ownership redressive measures. not the self-righteous. and control of the media are in the hands of those closely related to the ruling clique. Even Judges, lawyers and members of the Even the direction of our march as a police force who believe in the pursuit of nation-state can be robustly debated in a Something must be done to revamp this justice can be emboldened when the media free environment. It is all right, for instance, pattern of control and ownership. Maybe, is free: they can always use the free media for us to take a lurch into Islamisation Malaysians should organise a Trust or to argue their stance. However, the provided the media upholds the socially Foundation to buy over the media. But contrary view that such a freedom can be congealing principles of political toleration then, how many Malaysians have we got

PRAXIS 32 JULY / DECEMBER_2007 Comment who are credible enough to set up and Moreover, the emergence of such a Trust Therein lies the simple answer lies. That is lead such a Foundation or Trust? or Foundation will be viewed probably probably why the ruling clique is moving with distrust by the ruling clique and they in to “control” by administrative fiat and Yes, to be sure we have them, but not will leave no stone unturned to prevent coercion. many. And the numbers available bears the Trust or Foundation from buying over ample testimony to the wrong direction the media. The detention of Parti Keadilan that Malaysia has taken. webmaster Nathaniel Tan and his When the general election comes round consequent travails and tribulations in the Vis-à-vis the people and the politicians, again, the role of the media will assume immediate future must be seen as a nail from the 1980s till today, we Malaysians the importance that it can never discharge being relentlessly driven into the coffin of are living the clear and present danger of – as repeatedly and unashamedly cyber freedom before the coming general moving from a relationship of trust to displayed in the last few general elections. election. distrust, from leadership to misleadership And what do we do about it except to rely and from administration to on the Internet to disseminate maladministration. information?

JULY / DECEMBER_2007 PRAXIS 33 Comment

The Merdeka Statement The Merdeka Statement was launched by the Centre for Public Policy Studies, Asian Strategy & Leadership Institute, on 2 August 2007. This emphasises 8 strategic thrusts for a New Malaysian Agenda that will provide fair and just opportunities for all and unleash and harness the potential of all Malaysians. Andrew Khoo, Deputy Chair of the Bar Council Human Rights Committee, spoke at the Panel Discussion held on 2 August 2007. Set out below is the text of his speech.

xcellencies, ladies and gentlemen, get it in primary school, neither in let us look to the future. I think such Ealthough this is the 50th year of our secondary school, nor in university people forget that there is another saying independence, which ought to be a time either. And all this while I have that goes, “if we do not know where we of celebration, in my view we are studied locally. I think somebody have come from, how would we know approaching this milestone with very somewhere thought that by not where we are going?” mixed feelings. The sense which I get is exposing young Malaysians to this that we are a nation that is not completely chapter of the nation’s past, we I am therefore particular proud of the at ease with itself. That notwithstanding would be better off. But they recommendation in the Merdeka our successes, we acknowledge many should realise that history has a Statement for the setting up of a truth concerns about the future of the country. tendency to repeat itself. Thank and reconciliation committee. There is a you for printing the truth. Now need to come to terms with what has It has already been stated that the Merdeka we all know what really happened happened in our nation’s past. Not just Statement is a forward-looking statement. and can learn to avoid it. about the events of May 13 1969. In a As a corporate lawyer who has drafted Azlan Roni few months, on 27th October 2007, it will company prospectuses, there is a risk with via e-mail” be the 20th anniversary of Operation forward-looking statements. Past Lalang. Next year will be the 20th performance is no guarantee of future When I read this, it triggered a memory of anniversary of the 1988 judicial crisis, and performance. a quotation I had once come across. Some the Bar Council will be organising events of you may have seen the popular version to recognise that anniversary. Yesterday, 1 I would like to lead us in reflecting on the of it, which is “those who ignore history August 2007, we recognised the 47th Merdeka Statement, and to guide us are doomed to repeat it”. The more anniversary of the coming into force of through this reflection I would like to accurate quotation is, “those who cannot the Internal Security Act of 1960. make 3 points. remember the past are condemned to repeat it”. It was written by George Events such as these and the use of such Firstly, we need to emancipate the past. Santayana, a Spanish philosopher in 1905. kinds of legislation have caused much hurt On 26th July 2007 the newspaper and pain. I belong to a generation which “theSun” ran a two-page feature on the There is a play on the word “baggage” had been hurt by the unfair events of 13 May 1969. The following that I have come up with. The word implementation of the New Economic day, 27th July 2007, this letter to the editor “baggage” contains the word “bag” and Policy. In many ways we are all “walking entitled “Learning the truth about May “age”. As we “age”, i.e. get older, we find wounded”, and there is a need for us to 13” appeared: ourselves dragging more “bags”. So we collectively heal. To come to terms with “Thank you for your feature on end up with a lot of baggage. What we the past, in order that we can move on. the 1969 riots. This was the first need to do is to break free from this We should not be afraid, petrified of the informative article about the event baggage. It is like that song that is past. Or maybe I should say we should that I have read in my 24 years of sometimes used in an advertisement for not be “Petra-fied” about the past. And life. Never before have I Shell petrol, “I want to break free…” But we also need to forgive. To quote encountered such a revealing we cannot just cut it away and forget about Archbishop Desmond Tutu, the former account of that episode. I didn’t it. Some people say why dwell in the past, Archbishop of Cape Town in South Africa,

PRAXIS 34 JULY / DECEMBER_2007 Comment

JULY / DECEMBER_2007 PRAXIS 35 Comment who chaired South Africa’s truth and We need to identify what kind of country The Merdeka Statement may be said to reconciliation commission, “Without we would like to become. As we grow in be optimistic; maybe. It could be said to forgiveness, there’s no future.” prosperity, we need to think of how we be idealistic; yes. But is it realistic? can be a better neighbour in our region, Definitely. 50 years ago when our Secondly, we need to educate the present. for example. We have depended on the founding fathers worked for It has already been pointed out by earlier labour of workers from neighbouring independence, their efforts could also have speakers that policy implementation has countries for our prosperity, yet once we been said to be idealistic. Yet they managed not been good, that sometimes those who have got what we wanted out of them we to bring it about. The Merdeka Statement are at the front line of service to the public want to quickly send them away. We have has been drafted in that same spirit of are not aware of the existence of laws, or adopted a “beggar thy neighbour” attitude idealism mixed with realism. We all have the rights of or remedies for those with rather than a “prosper thy neighbour” a role to play in continuing to work whom they are dealing. So there is a need perspective. As we grow in prosperity, we towards and contributing to the concept for us to teach. But not just to teach, but need to share that with others. Not too of nationhood. Let us not do nothing. As also to put it into practice. In the Merdeka long ago our forefathers were immigrants, Edmund Burke, the 18th century Irish Statement there are references to 10 seeking a place to live and work. Let us philosopher and politician, once said, “All international treaties or conventions. We not be xenophobic. The Merdeka that is necessary for the triumph of evil is have signed up to 2, the Convention on Statement is a statement of what we would that good men do nothing”. At the end the Elimination of All Forms of like to see this country doing, the kind of of the day, our worst enemy will be Discrimination against Women, and the policies that it should be pursuing, the indifference. Convention on the Rights of the Child. kind of nation we ought to be becoming. Yet we have taken reservations and so not Thank you very much. fully implemented them. From a human rights perspective, and speaking as Deputy Chairperson of the Malaysian Bar’s Human Rights Committee, we need to infuse an appreciation for human rights in our laws and regulations. For example earlier this year the Anti-Trafficking in Persons Bill was debated in the Dewan Rakyat. During the debate the Minister in charge of Law in the Prime Minister’s Department stated that caning was not included as one of the punishments in the Bill as it was contrary to international human rights norms. We want to congratulate the Minister for making this acknowledgement. But if he accepts that caning is contrary to international human rights norms, then surely the next thing he ought to do is to carry out an immediate review of all legislation which provide for caning as punishment with a view to amending such laws and removing such provisions.

Thirdly, we need to elucidate the future.

PRAXIS 36 JULY / DECEMBER_2007 Comment

Time to Stop Believing Your Own Propaganda By Andrew Khoo

he SUN newspaper on 3 August Malaysia. We do. The world has an the Malaysian Buddhist Association? T2007 carried a report wherein the outsider’s view of racial unity in Malaysia. Rather than face the reality, the preferred Minister of Information was quoted as We live the reality on a daily basis. Yes we response appears to be to classify these having said that he had consulted the did enjoy the spring of greater racial unity groups as an elitist unrepresentative fringe majority of the people in this country and in the earlier years of our lives. But as we group, and then to dismiss them as that they were offended by the first item get older we now experience the “Irrelevant!” of the Merdeka Statement. This states that: increasing winter of discontent, and our “In the struggles towards forging a concerns have grown for the future of our Furthermore, when you actually take a look national identity, great efforts have children, and our children’s children, in at the Merdeka Statement, is it so bad that been taken to strengthen national the next 50 years. If the unity of our under the first item there is a call to ensure unity in the country, which must country is not in trouble, why have there that “all new policies should be tested be supported by all. However, been press reports (which have not been against the tenets of the Federal recently the state of unity has been challenged) about the increase in racial Constitution and the Rukunegara”? Is it fraying at the edges. Ethnic, polarisation in our schools and universities? so horrible that “an independent and linguistic and religious divides have Why has there been a flight from the transparent National Consultative deepened, causing genuine pain sekolah kebangsaan to the sekolah jenis Council on Vision 2020 should be and hurt to many in our nation. kebangsaan? If the unity of our country is established immediately? Is it so intolerable Such a fragile state of unity should not in jeopardy, why was there a need to that “a National Research Institute on not have happened after 50 years start National Service? So that our youths Ethnic Relations should be established”? of nation building. New sustained could play around with M16 rifles? If the Are these things, in and of themselves, so efforts are urgently needed to unity of our country has not been under repugnant to the average person in the rebuild our National Unity.” threat, why is it that we actually have a street that the majority of Malaysians Parliamentary Select Committee on Unity would be offended by such suggestions? He also criticised the Merdeka Statement and National Service looking into issues as being the work of an elitist group of of national unity, having public hearings, And finally, what is so objectionable about organisations, who were instead cleverly compiling a report, etc. Why was the the setting up a truth and reconciliation trying to foster disunity in the country. Jabatan Perpaduan Negara re-named committee, designed to listen to people He referred to leaders of other countries Jabatan Perpaduan Negara dan Integrasi talk about their personal experience of and others who had said during their visits Nasional? nation-building, of instances where to Malaysia that they were impressed by government action or policy has, instead the unity of Malaysians. The 42 organisations which were listed as of bringing good, caused hurt and pain. supporting (whether in whole or in part) It would be ordinary people sharing their On the contrary, I believe it is the the Merdeka Statement either deal with stories, recounting their difficulties, letting Honourable Minister that needs a healthy or represent ordinary people of all walks the rakyat speak for themselves. There are reality check. If the Sun’s report is correct, of life on an everyday basis. Does the so many things that we are not allowed to I am astonished that barely within 24 Honourable Minister really think that the talk about, so many things that are the hours of the launch of the Merdeka Federation of Malaysian Consumer subject of threats of prosecution or Statement he has managed to consult the Associations is elitist? Or the Malaysian incarceration, or actual gag orders. Why majority of the people in this country and, Confederation of the Disabled? Or would a Minister of Information consider having consulted them, he has come to Yayasan Strategik Sosial? This last a suggestion of hearing directly from the the conclusion that the majority of the organisation is a body that works with rakyat something which is “uncalled for”? people in this country are offended by underprivileged and marginalised, mainly If it shatters the picture postcard image of the first item of the Merdeka Statement. Indian, children and youths. How more Malaysia that his ministry tries so hard to “un-elitist” can you get? Does he consider portray, that is unfortunate. He should Be that as it may, the world doesn’t live in the Malaysia Hindu Sangam elitist? Or not believe his own propaganda.

JULY / DECEMBER_2007 PRAXIS 37 Committee

1st Anniversary of LawCare Group Life Insurance Policy by Alex Tan Jee Hian

n early April 2006, the LawCare Fund Management Com On death of members who have filed their nominations, payment Imittee recommended to the Bar Council to sign up for the will be made to the nominee. In all other cases, payment will be Group Life Insurance Policy with TPD and PPD rider with made to the deceased member’s lawful Executor / Administrator Malaysian Assurance Alliance (MAA). The commencement date on production of certified true copy of Grant of Probate / Letters of the Master Policy then took place on 1 July 2006. of Administration.

On 1 July 2007, the Master Policy was renewed with MAA and Therefore, we urge that you assist your loved ones to expeditiously it will be effective till 30 June 2008 with no changes to the receive their benefits from the insurance scheme by filling up premiums to be paid whilst the terms and conditions of the the details of the Malaysian Bar Member’s Beneficiary coverage remain unchanged. Nomination Form as provided herein or alternatively, you may log-in at our website to download the nomination forms. Here are the simple statistics derived from the administration of the Group Life Policy as of 30 June 2007:- It is also to be noted that a couple of members who died were not Total Claims Made : 20 covered by the insurance policy as they had not paid their Death Claims : 19 LawCare levy and had their Practising certificates issued or renewed at the time of their death. Total and Permanent Disability : 1

Total Claims By Gender : 18 male and 2 female Accordingly, the LawCare Fund Management Committee urges Death Claims By Gender : 17 male and 2 female each and every member to pay his / her LawCare levy and renew Death Claims By Age : 2 (31-40), 4 (41-50), his / her Practising certificate in good time. 4 (51-60), 5 (61-70), Please also ensure that your nominee / loved ones are apprised of 3 (71-80), 1 (81 and above) your coverage under the insurance scheme and advise them to Lost of Fellowship With The Bar Council : 517 years complete and file their claim forms as soon as possible after your Amount Paid Out By Insurers : RM330,000.00 demise. Amount To Be Paid Out by Insurers : RM270,000.00 Apart from the above payments, LawCare has also made other There is another record that members might be interested to payments to needy members on a case-to-case basis. Your LawCare know. Of the 12,139 members of the Malaysian Bar who are Fund Management is also currently looking into Medical & insured, only 1,975 members have nominated their intended Hospitalisation insurance coverage for members of the Bar. beneficiaries! This translates into a mere sixteen percent (16%) of our fellow members who made the effort to ensure that their We wish you a long and healthy life but are nevertheless doing loved ones receive the insurance proceeds expediently from the our best to arrange some protection for members in the insurance company. Yes, we repeat it. Only 1.6 members out of unfortunate event of some calamity. 10 have nominated their beneficiaries under the insurance scheme. It is part of the Malaysian Bar’s efforts towards looking to the welfare of our members.

PRAXIS 38 JULY / DECEMBER_2007 Committee

LawCare: Beneficiary gets RM30,000.00 by Wong Fook Meng

he Malacca Bar Committee of the love and care of the Malaysian T presented a cheque for the sum of Bar for one of its members. RM30,000.00 to the beneficiary of Balakrishnan a/l Krishnan in a simple Present at the ceremony was the son of ceremony held at the Malacca Bar the deceased, Dr. Chandraa Shekar. He Secretariat. The RM30,000.00 was the thanked the Malaysian Bar for the entitlement to a death benefit from the cheque and said that the insurance LawCare insurance scheme which covers scheme implemented by LawCare is a all members of the Malaysian Bar. worthy programme. He also added that members of the Malaysian Bar in active the Bar Council had handled all the follow practice, with a valid Sijil Annual for the In his short speech, Ng Kong Peng, the up work in obtaining the death entitlement current year are automatically covered Chairman of the Malacca Bar, said that on behalf of the family of the deceased. under an insurance scheme. Members death, like taxes, is a certainty. However, with a valid Practicing Certificate are Dr Chandraa described the deceased as a in times of sorrows, we can cling on to the entitled to claim Partial and Permanent very principled, optimistic, motivating God given gifts of cherished memories. Disability as well as Death Benefits under and patient man. The deceased left the said insurance scheme. Apart from the Ng said the Malacca Bar has cherished behind his wife, Vimala Devi, 61, son Dr insurance scheme, the Lawcare fund also memories of the deceased both as a friend Chandraa and daughter Premlatha takes care of members who require financial and lawyer. While the RM30,000.00 is Balakrishnan. assistance for medical bills or illnesses, no replacement for the loss of the late subject to a means test. Balakrishnan, Ng said it is an expression With effect from 01.07.2006, all

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Australia & NZ UK and Middle East Asia Asia David Talalla Sean Wilkes John Talalla Nina Beaugeard +61 439 887 288 +44 7703 055 5098 +60 16 296 6088 +60 16 326 0151 [email protected] [email protected] [email protected] [email protected] w w w . d t a s s o c i a t e s . c o m . a uJULY / DECEMBER_2007 PRAXIS 39 Speeches

The Standard of care in Medical Practice: Has The Pendulum Swung in Favour of Patients in Malaysia by Prof Denis Cusack

he Asean Law Association of Medical Association (MMA) who This important decision of our highest T Malaysia and the Malaysia Inner attended this lecture. Amongst them were court has generated a lot of interest Temple Alumni Association jointly the MMA Honorary General Secretary, amongst patients, lawyers, doctors, organised a public lecture entitled, “The Dr. Mary Cardosa and the MMA dentists, nurses, administrators of Standard of Care in Medical Practice: Has Honorary Treasurer, Dr. P. Vythilingam. government and private hospitals. The the Pendulum Swing in Favour of the medical profession in Malaysia consisting Patients”. The lecture was held on 16th In order to understand the significance of of more than 17,000 medical practitioners March, 2007 at the Ballroom of the Royal the subject of the lecture it is important to has expressed serious concern in respect of Selangor Club, Dataran Merdeka, Kuala note that the highest court in the country, the decision of the Federal Court. Anxiety Lumpur in conjunction with the Annual the Federal Court in the appeal case of about medical negligence claims represent General Meeting of the Asean Law Foo Fio Na v Dr. Soo Fook Mun and a disturbing aspect of the current medical Association of Malaysia. Hospital Assunta on 29th December, 2006 practice. delivered its decision declaring among The lecture was delivered by Prof. Denis other things that the Bolam principle Is the concern and anxiety of the medical A. Cusack who is the Head of the Subject which has been the basis in determining profession in Malaysia reasonable or is it in Forensic and Legal Medicine, School of the standard of care in medical negligence misplaced. The decision of the Federal Medicine and Medical Science, University cases in Malaysia since 1957 is no longer Court is binding on all the Malaysian College of Dublin, Ireland. He is also the good law. The Federal Court adopted the courts. It will be necessary to wait and visiting professor at the Penang Medical decision of the highest court in Australia examine how our courts are going to apply College, Malaysia. Besides his medical in the case of Rogers v Whitaker. the decision when medical negligence qualification he is also a Barrister-at-Law cases come before our courts. However, in of King’s Inn, Ireland. In view of his dual The coram (panel) of the Federal Court order to understand and appreciate the qualifications medicine and law he is consisted of the Chief Justice, Malaysia, significance of the Federal Court decision ideally suited to consider this subject of Y.A.A. Tun Dato’ Seri Mohamed Dzaiddin it is necessary in the first place to know the the lecture. bin Haji Abdullah, the Chief Judge Bolam principle. (Malaya), Y.A.A. Tan Sri Dato’ Sri Ahmad The session was chaired by a judge of the Fairuz bin Dato’ Sheikh Abdul Halim and The Bolam principle (or sometimes Court of Appeal, Malaysia, Justice Dato’ the Judge of the Federal Court, Y.A. Dato’ referred to as the Bolam test) is the locus James Foong who is also the Vice President Siti Norma Yaacob. It should be noted that classicus for the standard of care required of the Malaysia Inner Temple Alumni the appeal was heard on 5th April, 2001 of a medical practitioner in the relation to Association. and before the date the judgment was a patient. This principle was formulated delivered the Chief Justice retired. The in the famous case of Bolam v Friern More than 200 persons attended the Chief Judge (Malaya) was appointed as Hospital Management Committee (1957). lecture which was followed by a tea the new Chief Justice and the judge of The facts in this case could be summarised reception. The guests included judges, the Federal Court was promoted as the as follows. The patient (plaintiff) John retired judges, lawyers, doctors, dentists, Chief Judge (Malaya). The judgment was Hector Bolam suffered from a morbid nurses, administrators of hospitals in delivered pursuant to section 78(1) of the mental illness - acute depression with government and in the private sector and Courts of Judicature Act 1964 by Y.A.A. suicidal tendencies. As a last resort, the members of the public. There were also a Tan Sri Dato’ Siti Norma Yaacob, the Chief doctors administered a radical treatment number of officials of the Malaysian Judge (Malaya). known as electro-convulsive therapy on

PRAXIS 40 JULY / DECEMBER_2007 Speeches him. This called for the passage of electric of Lords in the case of Bolitho v City and If the Australian High Court had followed current through the brain to precipitate Hackney Health Authority (1998). There the Bolam principle the surgeon would violent convulsive movements in the form the court stated that the court was not not have been held responsible for the of a fit in the patient. As a result of this, he bound to find for a defendant doctor failure to warn. The High Court suffered a fractured hip. simply because a body of experts testified disapproved the principle stated in Bolam. in his favour. To qualify as a responsible The High Court held that a finding of At the time of the case, professional medical body of opinion, such testimony must medical negligence may be made even opinion was divided on the use of drugs have a logical basis. This meant that the though the conduct of the defendant and physical restraints in electro- medical experts had to have directed their doctor was in accord with a practice convulsive therapy as well as on the need minds to the comparative risks and benefits accepted at the time as proper by a to warn patients of the risks of sustaining and have reached a “defensive conclusion” responsible body of medical opinion. fractures during the treatment. Based on on the matter. The court went on to medical evidence the risk of fracture was 1 emphasise that it would be a rare case The High Court further held that a in 10,000 cases. where professional opinion would fall foul medical practitioner has a duty of of the threshold test of logic. disclosure what the court called duty to The trial judge, McNair J in his direction warn a patient of any material risks inherent to the jury stated: Turning next to the position in Australia, in a proposed treatment. The court has “A doctor is not guilty of the highest court in Australia, the High defined risk as being material, if, in the negligence if he has acted in Court reconsidered the Australian law on circumstances of a particular case and if accordance with a practice accepted the application of the Bolam principle in warned of the risk, a reasonable person in as proper by a responsible body of the now famous case of Rogers v Whitaker the patient’s position, would be likely to medical men skilled in that (1992). This case concerned a woman who attach significance to it or the risk is also particular art ... Putting it the other had lost sight of her right eye when she deemed material if the medical practitioner way round, a doctor is not was a child. Having had her eyes checked is or should reasonably be aware that the negligent, if he is acting in in 1983 she was referred to an ophthalmic particular patient would be likely to attach accordance with such a practice, surgeon. Following extensive consultation significance to it, had they been warned. merely because there is a body of and incessant questioning by the patient In the circumstances since the surgeon had opinion that takes a contrary view”. (Mrs. Maree Lynette Whitaker) she failed to warn the patient of this particular undertook eye surgery. The operation was risk he was held responsible in negligence. The jury found in favour of the performed very skillfully but the patient management committee of the mental developed a condition known as There had been some doubts as to hospital (the defendant), “sympathetic ophthalmia” which resulted whether the decision in Rogers v Whitaker in her becoming almost totally blind. rejected the Bolam principle only in The Bolam principle has since been respect of advice. The subsequent decision approved by the highest court in It was accepted on the basis of medical of the Australian High Court in Naxakis England, the House of Lords in a number evidence that this was a rare complication v Western General Hospital (1999) has of cases including Whitehouse v Jordan with a chance of approximately one in confirmed that the Bolam principle does (1981) and Maynard v West Midlands 14,000 cases. The defendant, Dr. not apply in Australia in the case of advice, Regional Health Authority (1985) on the Christopher Rogers was sued for a diagnosis or treatment. Therefore in issue of treatment and diagnosis. The negligent failure to warn of the risks of relation to diagnosis, treatment and House of Lords in Sidaway v Bethlem Royal sympathetic ophthalmia. Many medical disclosure liability the Australian courts Hospital Governors (1985) also approved experts were called to testify in court on have established that they are the final the Bolam principle to cover the issue of whether the surgeon ought to have arbiters of the breaches of the required advice to the patients. warned the patient of the risk involved. standard of conduct and not the medical The opinions of the medical experts were profession itself. The Bolam principle was subsequently divided. clarified and supplemented by the House Having considered the Bolam principle

JULY / DECEMBER_2007 PRAXIS 41 Speeches and the position adopted by the medical profession? are attended by considerable risks. Every Australian Courts we could now deal with surgical operation is attended by risks. We the presentation of the guest speaker. Professor Cusack pointed out that cannot take the benefits without taking Malaysian medical jurisprudence is at an the risks. Every advance in technique is Professor Denis A. Cusack prefaced his important crossroad. The Federal Court also attended by risk. Doctors, like the rest presentation by stating that common law judgement has moved from the Bolam of us, have to learn by experience; and jurisdictions throughout the world principle. It has adopted the Rogers v experience often teaches in a hard way. continue to develop medical jurisprudence Whitaker test most certainly in relation to Something goes wrong and shows up a and Malaysia in common with Ireland and advices to be given to patients. However, weakness, and then it is put right.” the United Kingdom is no exception. He it does appear clear that there is no certainty said the theme of his presentation pertained that this will not in a future case be applied Second, Singapore has not rejected the to the legal standards for due care and skill also to diagnosis and treatment. Whether Bolam principle. It is still good law in the of the medical profession in its diagnosis Malaysia will extend the Rogers v Whitaker Republic. The highest court in Singapore and treatment of patients and how this is test to diagnosis and treatment or whether in Dr. Khoo James & Anor v Gunapathy d/ balanced with the patient’s right to know it will, as Australia has done in subsequent o Muniandy (2002) reviewed the Bolam as expressed in the law relating to legislation, restrict that test most principle. In a strongly worded judgment disclosure of risks in such diagnosis and definitively and clearly to the giving of the Chief Justice Yong Pung How in his treatment. advice only is a critical decision for the Lordship’s judgment stated: future of healthcare in Malaysian society. “This is why the legal principle in Professor Cusack stated that the seminal Bolam v Friern Hospital case of Foo Fio Na v Dr. Boo Fook Mun He ended his presentation by stressing Management Committee restrains and Assunta Hospital has brought the issue what is now required is an informed and the judiciary from treating medical of the application of the Bolam test to a reasoned debate of where the pendulum experts as they would any other. very critical point for Malaysia. It is clear should swing in order to achieve the In determining whether a doctor from the question posed to the Federal proper balance between medicine and law has breached the duty of care owed Court and from its answer that the Rogers in the best interests of the patient whilst to his patient, a judge will not find v Whitaker test is now to be applied in giving full encouragement and support him negligent as long as there is a Malaysia in determining the standard of to a properly regulated and competent, respectable body of medical care of medical doctors in the area of caring medical profession. opinion, logically held, that disclosure in obtaining informed consent. supports his actions. Beyond this However, the reference to the Naxakis case In conclusion it is necessary to remind time-honoured test of liability, in Australia, which widened the everyone, that is, those who provide neither this court nor any other application of the Rogers approach to medical service and those who seek such should have any business include also diagnosis and treatment, must service to take cognizance of the following vindicating or vilifying the acts of be noted. statements. medical practitioners. It would be pure humbug for a judge, in the He said the pendulum has swung from a First, one of the greatest English judges, rarified atmosphere of the doctor-centred test of disclosure of risk to way back in 1954 in the case of Roe v courtroom and with the benefit of a patient-centred test. But has the Minister of Health (1954) stated that hindsight, to substitute his opinion pendulum swung too far in favour of the for that of the doctor in the patient or has it merely swung to a point “It is so easy to be wise after the event and consultation room or operating where the imbalance in favour of the to condemn as negligence that which was chamber. We often enough tell doctor has now been properly corrected only a misadventure. We ought always to doctors not to play god; it seems in favour of the patient’s legitimate rights? be on our guard against it, especially in only fair that, similarly, judges and Has the swing been too extreme giving cases against hospitals and doctors. lawyers should not play at being rise to the danger of “defensive medicine” Medical science has conferred great doctors”. being practised by a litigation-nervous benefits on mankind, and these benefits

PRAXIS 42 JULY / DECEMBER_2007 Speeches

JULY / DECEMBER_2007 PRAXIS 43 Speeches

Speech by Ng Kong Peng, Chair of Melaka Bar at its Annual Dinner & Dance 2007

our Lordship Tuan Mohtarudin bin My colleagues in the Bar here tonight many don’t seem to realize that their YBaki, Judge High Court of Malaya would agree with me if I say that the reward for selling the best years of their at Melaka, his lovely wife Puan Sweekhin practice of the law these days is very lives is simply the privilege of being bte Zain, Tuan Ahmad Kamar bin onerous and stressful. Almost on a daily allowed to sell the rest of their lives as Jamaludin, Senior Sessions Court Judge basis, we have to deal with unhappy and partners. Melaka, Mr Ragunath Kesavan Vice- demanding clients, face the wrath of President Bar Council Malaysia, Mr irritable judges or confront a difficult and People say that the only advantage of George Varughese Treasurer Bar Council provocative opposing counsel. Add to this being a lawyer is that you will have Malaysia, Mr R.R Chelvarajah, Past the frustration of chasing payments on lots of cash. Leaving aside the question President Bar Council Malaysia, members outstanding bills, meeting deadlines and of whether money can make you of the Malacca Bar, honoured guests, ladies we can safely conclude that the life of a happy, it is pretty obvious it won’t if and gentlemen. lawyer is no bed of roses. It therefore comes you have no time to spend it. as no surprise that a recent article in the It is my pleasure to welcome all of you to Business Times UK reported that one in 2. the yawning gap between their this annual dinner and dance of the four lawyers wants to leave the profession. intelligence and the mind-numbing Malacca Bar. Like most things associated Job satisfaction is replaced with nature of their work. The word with the law, this annual dinner has professional burnout, withdrawal and “lawyer” may trigger images of become a tradition in the social calendar stagnation in practice. attractive people making clever of the Malacca Bar. arguments in wood-panelled This article goes on to suggest a few reasons courtrooms, but most spend the Even though there are some of us here why lawyers are unhappy, which I majority of their time in back offices tonight who may have been arm twisted paraphrased as follows:- drafting and redrafting small print and literally force to attend, I believe that “1. the dehumanizing hours. Remember that almost no one will read. At least if there are also many others who look that bit in the movie “The Firm” where you flipped Ramli burgers for a living forward to this Dinner with anticipation Tom Cruise’s character is told that if you’d have the satisfaction of giving and attend faithfully every year. Whatever he even thinks of a client in the shower, people momentary pleasure. may be the reason that you are here, I’m he should bill it? indeed happy to see all of you and I thank 3. the yawning gap between the ideals you for your attendance tonight Not only can one imagine this actually of those entering the profession and happening now – lawyers generally the reality. Some go into law because Our Bar continues to grow each day and charge on the basis of billable hours, they dream of fighting injustice all we have grown quite large in a relatively and annual billing targets can be brutal seduced by the apparent glamour of short time that it is not uncommon for – but the shower might even be taken the trade, as portrayed in Ally McBeal many of us not to know one another as in the office. Many firms in Kuala and LA Law, only to find that the members of the same Bar. This annual Lumpur and perhaps 1 or 2 in work is about as exciting as watching dinner is an opportunity for all of us to Malacca offer beds and washrooms in grass grow. get to know one another better outside offices to enable staff to work longer. the confines of our law offices and the 4. the cumulatively lowering nature of courts. Indeed it is an occasion to let our While those entering the profession the work. We all end up being shaped hair down, even for those of us who may may be prepared for this – an excessive by our careers. By the nature of our have receding hair lines or worse still workload is seen as a rite of passage – profession, lawyers become minimal hair left.

PRAXIS 44 JULY / DECEMBER_2007 Speeches

competitive, aggressive, judgmental, asked the third man and received this picture” perspective, we can see analytical, adversarial, emotionally answer: “I’m raising a great cathedral”. meaningfulness in what we do. detached, paranoid of being sued and, worst of all, pessimistic. Being a good For the first worker, all he saw were the Many of us sacrificed a lot to achieve our lawyer involves assuming that people bricks and he wasn’t wrong – Bricks made ambitions to be lawyers. Having attained will do the most awful things and that up his entire life. In fact, the rest of his our desired careers, finding meaning and treachery is to be expected. Its reply was: “…one blooming brick after purpose in what we do as lawyers will keep inevitable that this negativity another.” us going. There is the tragedy of the man eventually seeps into their personal who works all his life for something and lives. The second worker saw that when he had never gets it. There is the even more bitter completed laying all the bricks, he got a tragedy of the man who gets what he wants 5. the vortex of hatred that envelops wall. But it was the third who had the big and finds it empty. Purposefulness lends them entirely. I’m not only referring picture, an understanding of what the end significance to our work. here to those surveys that put lawyers looked like right at the beginning. All the among politicians and journalists as the bricks fell into place and became an One touching story I treasure is that of least popular of professionals. I’m also architectural wonder and a place of two world class artists who were close referring to the fact that lawyers worship, where God and man could keep friends. In old age, Pierre Renoir the great despise each other, despise themselves, their appointment. French painter suffered from arthritis, are despised by their clients (for which twisted and cramped his hand. charging too much, not always Often our works feels heavy and onerous Henry Matisse, his artist friend, watched winning cases) and, in return, despise because we miss the big picture, When sadly while Renoir, grasping the brush their clients back. we represent a purchaser in the purchase with only his fingertips, continued to paint of a house, it is not merely preparation of even though every movement caused Handling others people’s problems, unless a sale and purchase agreement. We are stabbing pain. One day, Matisse asked you are Mother Theresa, eventually acting for him in perhaps one of the most Renoir why he persisted in painting even becomes tedious, especially, when most of important events in his life. When we at the expense of such torture. Renoir these problems relate to money.” prepare a will for a testator, it is beyond replied, “The pain passes, but the beauty drafting of a legal document – we are remains.” All these sound bleak and miserable. Is ensuring that his beneficiaries are there more to the practice of law than what adequately taken care of in accordance with Here’s purpose behind the purpose: he I have just shared? I believe the answer to his wishes. When we act for a person who painted despite great personal discomfort this question can be in the affirmative if is badly injured in an accident, we may because he knew the end product held we choose to adopt the following regard it as another one of the routine cases special significance and would survive long principles in our practice of law. we conduct in court. We need to after him. remember that we are doing our part to 1 Have the Right Vision – seeing the Big ensure the well-being of his wife and Imbued by that same sense, how would Picture children who would otherwise be helpless. we go about our daily legal practice? Work There is this story of a man who passed When we represent adoptive parents in is more than just earning more and more three bricklayers hard at work. They were an adoption case, we are not merely filing Ringgit Malaysia. When we see performing identical tasks. He asked the some legal forms based on precedents and purposefulness and meaning in our work first workman, “Sir, what are you doing?” obtaining order in terms of the same. We and practice, we will then contribute to The man replied: “Can’t you see. I’m a are actually sharing their joy and doing the profession, society and to humankind, bricklayer. I lay bricks. He then apologized our part to uphold the sanctity of the which is sufficient rewards beyond our for interrupting the man’s work and institution of the family. salaries, titles or prestige. These proceeded to the second worker with the contributions would survive long after we same question. The second bricklayer Day in day out, our legal work hardly are gone. replied: “Me? I’m building a wall” He then changes. But when we adopt a “big

JULY / DECEMBER_2007 PRAXIS 45 Speeches

2 Choose to be Uncommon Alan Ashley Pitt wrote this poem entitled “Sound a Different Note” “The man who follows the crowd will usually get no farther than the crowd. The man who walks alone is likely to find himself in places that no one else has ever been before. TH Creativity in living is not without its 15 ENTRY LEVEL COURSE th attendant difficulties, 19 & 20th January 2008 for particularity breeds contempt; And the unfortunate thing about being ahead of your time, he Chartered Institute of Arbitrators Malaysia will they’ll say that they knew it all along. be conducting an Entry Level course ( Part 1 You have two choices in life: Exam) which entitles successful candidates to you can dissolve into the mainstream, T be admitted as Associates of the Institute. The course or you can be different will be held on Saturday 19th January and Sunday 20th To be different, you must be distinct. January 2008 in Kuala Lumpur. To be distinct, you must strive to be what no else can but you can be.” The syllabus of the Part 1 Examination includes Law and Practice of Arbitration, Powers, Jurisdiction and Indeed, all members of the Bar must be Appointment of the Arbitrator, Preliminary Meetings and proud that the Legal Profession is a distinct Interlocutories, Submissions to the Arbitrator, Procedure profession, a profession that no other at the Hearing, Essentials of the Award, Interest and profession can but we can be. Costs. The course will be an intensive course, which includes tutorials and a written examination on the 2nd The legal profession is the only profession day and an assignment to be delivered two weeks after that is given the right to speak up for the course. another person in defence of his or her rights. We are given rights of audience that no other profession has the privilege of. We are in the process of applying to the Board of With such privilege comes the Architects, Board of Engineers, Board of Valuers, responsibility to exercise the same for the Appraisers and Estate Agents and the Board of benefit of society. Quantity Surveyors Malaysia for the award of CPD points. The lawyer today should not content himself only with the conduct of his Persons who are interested are invited to write in to practice and the administration of justice. enquire at the Institute through email to the Secretariat He cannot remain a stranger to important developments in economic, political and social affairs if he is to fulfil his vocation as Ms Flora Kang a lawyer: he should take an active part in Tel: 03-62035457 Fax: 03-62035471 the process of change. He will do this by Email: [email protected] inspiring and promoting economic development and social justice.

It is the duty of lawyers in every country,

PRAXIS 46 JULY / DECEMBER_2007 Speeches both in the conduct of their practice and was heading the wrong way. “Do you Let me not defer nor neglect it. in public life, to help ensure the existence know where you’re going?” he asked. For I shall not pass this way again. of a responsible Legislature elected by democratic process and an independent, Came the classic reply: “No sir, but I’m Amidst the busyness of our practice, we Judiciary, and to be always vigilant in the hurrying.” need to take time out. Reflect on our protection of civil liberties and human motivation. What do we really care for? rights. Our skills and knowledge as lawyers The practice of law today is very different What moves us deeply? What can I do to should not be used purely to benefit from that of say 10 – 20 years ago. The improve the society and world that I’m ourselves but should be regarded as held pace of practice is spinning faster and faster. going to hand over to my children? What in trust for society. In this regard, we are Pressure from clients, opponents and the would our answers be if one day, our compelled to speak out without fear or court build up around us. Competition children were to ask us ‘Mum, Dad, what favour whenever necessary even when makes it impossible for us to slow down, did you do to help, to contribute?’ As nobody is prepared to do so. let alone stop. lawyers, we are in a privileged position to help to contribute in the many areas At all times the lawyer should strive to be Many of us live our lives running behind affecting our society – human rights, a visible example of the ideals of his time, but we only reach it when we die of justice, non-discrimination, equality, profession – integrity, competence, a heart attack or in a car accident rushing personal freedoms and liberties. courage and dedication to the service of to be on time. Others are so anxious of his fellow men. (as resolved at the Congress living the future that they forget to live Eleanor Roosevelt once said: “One’s of the International Commission of Jurists, the present, which is the only time that philosophy is not best expressed in words. It is 1963) truly exists. We all have equal time expressed in the choices we make. In the long throughout the world. No one has more run, we shape our lives and we shape ourselves. It is my hope that the members of the or less. The difference lies in what each The process never ends. All the choices we make Malacca Bar will choose to be uncommon one of us does with our time. We need to are ultimately our responsibilities.” in these aspects. It is not going to be easy. live each moment. As John Lennon said It is much easier to be like everybody else “Life is what happen to you while you are Let me conclude with these words, and any other profession. We can expect busy making other plans.” “As long as it is a free man’s world, somebody to be criticized, ridiculed, even considered has to lead. as anti establishment but I believe at the Many lawyers choose to use their time in Somebody has to carry the ball, in word, in end of the day, the public and society looks the pursuit of the Ringgit Malaysia sign thought, in deed. up to us as that beacon of light and tower or in the climb up the partnership ladder. Somebody has to knock on doors that have of justice that will stand firm and protect May I suggest that there is more to law never known a key. what is right even though it be than billable hours and the race to a And somebody has to see the things that the uncommon. partnership. There must be a conscious world will never see.” decision and choice on our part to use our 3 Make the Right Choice legal knowledge and standing to do It is my hope that this “somebody” will be Philosopher Thomas Huxley was in something to make a difference and to help each one of us, members of the Malaysian Dublin, Ireland, a city famous for its horse- change our society for the better. Bar, and in particular the Malacca Bar. drawn carriages. One day he was in a hurry and he rushed out of the hotel and jumped The Quaker, Stephen Greller (1773 – On that note, I thank you for being an into this taxicab. He assumed the porter 1855) captured it best in these almost- attentive and patient audience. Have a or somebody must have told the driver immortalised words : good evening. where to go. So he just said, “Faster, I’m I expect to pass through this world but once. late. Hurry, hurry, hurry” Any good thing, therefore that I can do. Footnote: The speaker expresses his gratitude Or any kindness I can show to any human to Mr Andrew Goh (Singapore) for being Fifteen minutes later, looking at the being. the source of much of the inspirational quotes direction of the sun, he noticed that he Let me do it now. and illustrations expressed in this speech.

JULY / DECEMBER_2007 PRAXIS 47 Articles

The Conference of Rulers and Judicial Appointments By Tommy Thomas

he recent controversy over the diPertuan Besar and other judges coming into effect on 31st August 1957. Tproper constitutional role of the shall be appointed by him after In a speech given to the Federal Legislative Conference of Rulers in respect of judicial consultation with the Chief Judge.” Council in Kuala Lumpur on 10th July appointments has prompted me to 1957 when moving the White Paper, research the subject. The critical words in Indeed, the only function given to the Chief Minister Tunku recognized the Article 122 B (1) of the Federal Conference of Rulers in the Reid Draft considerable amendments to the Constitution are “after consulting the Constitution was to elect the Yang di- recommendation of the Reid Commission Conference of Rulers”. Article 122 B (1) in Pertuan Besar pursuant to Article 27(1). relating to the Conference of Rulers, and its entirety reads:- then stated: “The Chief Justice of the Federal Shortly after the publication in February “The Yang diPertuan Agong will Court, the President of the Court of 1957 of the Report of the Reid normally act in accordance with the Appeal and the Chief Judges of the Commission, a Working Party comprising advice of the Cabinet but it is High Courts and (subject to Article representatives of the British Government, proposed that he should be given 122C) the other judges of the Federal the Malay Rulers and the Alliance powers to act at his discretion in Court, of the Court of Appeal and of Coalition was appointed to review the certain matters; for example, he may the High Courts shall be appointed Reid Report to ensure that their act in his discretion in appointing by the Yang di-Pertuan Agong, recommendations were generally the Chief Justice, after considering acting on the advice of the Prime acceptable to the people of Malaya. The the advice of the Prime Minister and Minister, after consulting the Working Party met 23 times between 22nd views of the Conference of Rulers”. Conference of Rulers.” February and 27th April 1957. The (my emphasis) London Conference of 13th to 21st May The extended role of the Conference of 1957 followed, again with representatives Rulers is found in Article 38, : Clauses (2) The starting point is the history of the from the same 3 parties. Thereafter, the and (3) refer to its functions other than making of the Federal Constitution. The British and Malayan Governments electing the Yang di-Pertuan Agong (which Supreme Court in Teoh Eng Huat v. Kadhi, simultaneously issued a White Paper in was the only function given to it under Pasir Mas [1990] 2 MLJ 300, 301 held June 1957 containing the Constitutional the Reid Commission). Article 38 (6) of that in interpreting the Constitution, Proposals for independent Malaya. It is the Constitution is highly significant. It regard can be made to history, including stated in Paragraph 4 of the White Paper reads:- the recommendations of the Reid that the draft Constitution recommended “The members of the Conference of Commission and other historical by the Reid Commission had “undergone Rulers may act in their discretion in instruments preceding Merdeka, and the changes both of substance and of form”. any proceedings relating to the subsequent establishment of Malaysia on Among the major changes made by the following functions, that is to say:- 16th September 1963. The draft Working Party are those dealing with the Constitution of the Federation of Malaya Conference of Rulers. (b) the advising on any prepared by the Reid Commission had appointment.” no role for the Conference of Rulers in The White Paper proposals were accepted appointing judges. Article 114(2) of their by the British and Malayan Governments, Thus, when the Conference of Rulers sits draft read:- and the draft Constitution accompanying as a collective or collegiate body to advise “The Chief Justice of the Supreme it became the “Merdeka Constitution” of on appointments or to be consulted, each Court shall be appointed by the Yang the new independent nation of Malaya, Ruler acts in his own discretion. In

PRAXIS 48 JULY / DECEMBER_2007 Articles consequence of such discretion, it is be so that the Prime Minister can take into stated more than 100 years ago that a foreseeable that the Conference of Rulers account the views expressed by the Heads constitutional monarch enjoys 3 rights: may not reach an unanimous decision on of the 4 Courts with regard to judges “The right to be consulted, the right to appointments: in such event by virtue of appointed to their respective Courts. In encourage, the right to warn”, and advised Paragraphs 8 and 9 of the Fifth Schedule the case of the appointment of the Chief that “a King of great sense and sagacity would to the Constitution, a majority decision of Judge of Sabah and Sarawak, the Prime want no others”. In Malaysia, in addition the Rulers is sufficient. Among the other Minister is also required to consult the to the Yang di-Pertuan Agong being a appointments for which the Conference Chief Ministers of those states. Further, constitutional monarch acting on the of Rulers shall be consulted are the under Article 122 B (6) the Yang di- advice of the Prime Minister, as the elected Auditor-General (Article 105(a)), the Pertuan Agong, acting on the advice of head of the Executive, and thus Election Commission (Article 114 (1)) and the Prime Minister, given after consulting conforming to Bagehot’s wisdom, the the Education Service Commission the Chief Justice, may determine the order Conference of Rulers exists as an (Article 141 A(2)). of precedence of the judges between independent and separate institution themselves in the Federal Court, Court of under the Federal Constitution, But none of the appointments compare Appeal and the High Court. Hence, the performing constitutional functions which in importance to that of the 4 Heads of striking theme of the 6 Clauses in Article may elevate it to a fourth branch of the 4 Superior Courts constituting the 122B is the need to consult various parties government together with the Executive, higher Judiciary, the third branch of with regard to appointments, and the Legislature and Judiciary, in Government. I therefore turn to Part IX order of precedence. In other words, Montesquieu’s doctrine of separation of of the Constitution dealing with the consultation is the hallmark of Article powers. With regard to Article 122 B(1) Judiciary. It is significant that the 122B. The reality is that the Prime the critical words are “……..after Conference of Rulers is not concerned with Minister, as head of the Executive, is not consulting the Conference of Rulers”. The two types of judicial appointments. First, in a position to know the personalities and Yang di-Pertuan Agong, as a Malay ruler under Article 122 (1A), “the Yang di- character of the judges whose number himself, is also a member of the Pertuan Agong acting on the advice of the now well exceeds 50. Therefore, Conference of Rulers and in such capacity Chief Justice” may appoint any person who substantial weight must be given to the (and not as King) has a discretion of his has held high judicial office in Malaysia as views of those consulted. In these own in commenting and advising on an “additional” judge of the Federal Court. circumstances, one can understand the judicial appointment: see Articles 38 Secondly, under Article 122 AB(1) “the constitutional requirement that the fruits (6)(b) and 40 (2). Yang di-Pertuan Agong acting on the advice of consultation must be carried through of the Prime Minister, after consulting the in the advice. What is not expressly set out in Article Chief Justice of the Federal Court” may 122 B(1) is the extent and scope of appoint Judicial Commissioners. The Insofar as Article 122 B(1) is concerned, consultation that constitutionally must common feature of these two kinds of the appointing authority is the Yang di- take place between the Executive (acting judicial appointment is that by their nature Pertuan Agong acting as the “executive through the Prime Minister) and the their office is intended to be temporary, authority of the Federation” pursuant to Conference of Rulers. What is evident is and therefore the Conference of Rulers Article 39 of the Constitution. That the that consultation must be real, substantive does not have to be consulted. Yang di-Pertuan Agong is acting as a and meaningful. It cannot be “lip service” Constitutional Monarch when making consultation or in form only. It is neither The position alters when one considers judicial appointments under Article 122 the intention nor the spirit of the Article 122 B. It should be noted that B(1) is made clear not only by the words Constitution that the Conference must Clauses (2), (3) and (4) in Article 122 B “…acting on the advice of the Prime “rubber stamp” every candidate proposed also require the Prime Minister to consult Minister” which appear in that Article, but by the Prime Minister. On the contrary, the Chief Justice, the President of the also by virtue of Article 40 (1) and (1A). the Conference is entitled to bring its Court of Appeal and the Chief Judge of It should be recalled that the eminent independent opinion on the matter. each of the High Courts as the case may constitutional historian Walter Bagehot Article 122 B(1), like any other

JULY / DECEMBER_2007 PRAXIS 49 Articles constitutional provision, must be the Executive are not specified therein, negative comments to the Conference of interpreted generously, broadly, widely thereby suggesting that all the authorities Rulers concerning Justice Mokhtar Sidin. and “sui generis, calling for principles of referred to in that Article must approve a It was thus a recusal application, and the interpretation of its own, suitable to its particular candidate. Thus, in my opinion, only matter for decision for the Court of character” and not as an ordinary Act of the Conference of Rulers is entitled to Appeal was whether to grant or dismiss Parliament: see Lord Wilberforce in reject a candidate for appointment Anwar’s application. Nonetheless, the Minister of Home Affairs v. Fisher [1980[ submitted to it if a majority of Rulers deem judgement of the Court of Appeal went AC 319 (PC), and accepted as good law him unsuitable for the constitutional office outside the issue for determination, and in Malaysia in the landmark case of Dewan of judge. What may be beyond their clearly as “obiter dicta” stated: Undangan Negeri Kelantan c. Nordin constitutional right to be consulted is to “In the matter of an oral application Salleh [1992] 1 MLJ 697 [SC]. repeatedly reject several candidates for a by Dato’ Seri Anwar bin Ibrahim single position which would then remain to disqualify a judge of the Court of Although the word used in Article 122 vacant for a substantial period of time Appeal. B(1) is “consulting”, it can be argued that resulting in a constitutional impasse. No [2000] 2 MLJ 481 [CA] it may be akin to approval, agreement or doubt, the good sense of those involved consent by the Conference of Rulers. in the selection process would ensure that The intention of this article (Article Thus, the language employed in Article such an eventuality does not occur. The 122 B(1)) is clear, i.e, the Yang di- 122 B(1) must be contrasted with the checks and balances system under Article Pertuan Agong must act on the words used in Article 66 (4) and (4A) 122 B(1) was put in place so that no one advice of the Prime Minister. which read:- authority has sole monopoly over judicial However, the Yang di-Pertuan Agong (4) “The Yang di-Pertuan Agong appointments. In order for the is required to consult the Conference shall within thirty days after constitutional system to work efficaciously of Rulers before making the a Bill is presented to him assent some “give and take” has to take place. appointment. To consult means to to the Bill by causing the Public Consensus is the objective; not brushing refer a matter for advice, opinion or seal to be affixed thereto. aside of the views of the major actors. The views. For a quick reference as to the importance of the constitutional right of meaning of this word, I refer to the (4A) If a Bill is not assented within the Conference of Rulers to be consulted Black’s Law Dictionary (7th Ed), the time specified in Clause 4, on judicial appointments under Article which is the latest edition, the word it shall become law at the 122 B(1) is further demonstrated by ‘consultation’ carried the meaning expiration of the time specified Article 38 (4) which declares that no law inter alia thus: in that Clause in the like directly affecting “the privileges, position, The act of asking the advice or manner as if he had assented honour or dignities of the Rulers shall be passed opinion of someone…consult vb. thereto.” without the consent of the Conference of Rulers”. In my opinion, the right to be To ‘consult’ does not mean to Thus, Article 66 (4) and (4A) expressly consulted under Article 122 B(1) ‘consent’. The Constitution uses the state the legal consequences of the King constitutes a “privilege” or “position” within words ‘consent’ and ‘consult’ not assenting to Bills passed by both the meaning of Article 38 (6). Hence, the separately. For example the word Houses of Parliament: they become law right of the Conference of Rulers to be ‘consent’ is used in Article 159(5) of within the 30-day period allotted to the consulted thereunder cannot be removed the Constitution which states that King to give his assent, regardless of or diminished without their consent. the amendments to certain whether such assent is actually given. provisions of the Constitution cannot In one of his appeals to the Court of be passed by Parliament without the In the case of Article 122 B (1) there are Appeal, Anwar Ibrahim applied to ‘consent’ of the Conference of Rulers. no similar express words. Hence, the legal disqualify Mokhtar Sidin JCA as a member The Black’s Law Dictionary consequences of failure to consult the of the panel on the ground that he provides for the meaning of the word Conference of Rulers or the Conference (Anwar), while representing the Prime ‘consent’ thus, ‘Agreement, approval not approving a candidate submitted by Minister Dr. Mahathir, had expressed or permission as to some act or purpose

PRAXIS 50 JULY / DECEMBER_2007 Articles especially given voluntarily by a Likewise in the case of a request formulated with the participation competent person’. from the Conference of Rulers for of the Malay Rulers, and as such a revocation of an appointment or constitutional role was prescribed to So in the matter of the appointment an advice from it to revoke an them. Furthermore, when the Reid of judges, when the Yang di-Pertuan appointment already made, the Commission made its Report, the Agong consults the Conference of Prime Minister need not Commission was of the view that Rulers, he does not seek its ‘consent’. respond.” the Rulers, collectively to be known He merely consults. So when the as the Conference of Rulers, should Conference of Rulers gives its advice, Lamin PCA serve as a check and balance in some opinion or views, the question is, is Page 484) of the constitutional processes under the Yang di-Pertuan Agong bound (my emphasis) the Federal Constitution. For this to accept. Clearly he is not. He may purpose, in several important matters consider the advice or opinion given In my opinion, the “obiter” views expressed under the Constitution, it was but he is not bound by it. But Article by Lamin PCA (made without the benefit provided that the Conference of Rulers 40 (1A) of the Constitution provides of reasoned submissions) are not correct. was to participate in the process.” specifically as to whose advice the The Court is giving a literal interpretation (Page 390) yang di-Pertuan Agong must act to the words employed in Article 122 upon. Clause (1A) of Article 40 B(1), thereby giving them a limited “(3) Whatever strict legal reads: meaning, not befitting an important distinction may exist between the ‘In the exercise of his functions constitutional provision. They do not terms ‘consult’ and ‘consent’ (or even under this Constitution or reflect the checks and balances structure, ‘advise’), the role played by the federal law, where the Yang di- whether under the doctrine of separation Conference of Rulers cannot be Pertuan Agong is to act in of powers or otherwise, which underpins diminished by drawing such slight accordance with advice on the Federal Constitution, and is an over- distinction in terminology. advice or after considering simplistic approach to a complex problem. advice the Yang di-Pertuan To say that appointments can be Agong shall accept and act in After Lamin’s PCA dicta was issued, His made even if the ‘Conference of accordance with such advice.’ Majesty Sultan Azlan Shah, wrote an Rulers….withholds its views or delays article entitled “The Role of Constitutional the giving of its advice’ clearly goes Clearly therefore the Yang di-Pertuan Rulers and The Judiciary, Revisited” which against the grain and spirit of the Agong must act upon the advice of was published in 2004 in a collection of Constitution. the Prime Minister. The Advice speeches and essays of His Majesty under envisaged by Article 40 (1A) is the the title “Constitutional Monarchy, Rule of The entire process of consultation direct advice given by the Law and Good Governance”. His Majesty, with the Conference of Rulers cannot recommender and not advice as befitting the learning and wisdom of a simply be relegated to a mere obtained after consultation. Lord President, correctly interpreted the formality. The key words here, as constitutional requirements of the “consent stated in Article 38 (2)(c), are So in the context of Article 122B and consultation” privilege conferred on ‘giving advice on any appointment’. (1) of the Constitution, where the the Conference of Rulers. I would like to This is a constitutional role that was Prime Minister has advised that rely upon 3 passages from His Majesty’s contemplated by the drafters of the a person be appointed a judge and speech:- Constitution — a role of checks and if the Conference of Rulers does “The Federal Constitution expressly balances that ensures the not agree or withholds it views or provides that on certain matters, the appointment of the best persons to delays the giving of its advice with Conference of Rulers is to play an important constitutional positions. or without reasons, legally the important role in the constitutional It was also clearly intended to prevent Prime Minister can insist that the process. It must be remembered that any abuses of power by not giving appointment be proceeded with. the Merdeka Constitution was the appointment authority the sole

JULY / DECEMBER_2007 PRAXIS 51 Articles

discretion in the appointment process Alauddin the Chief Judge of Malaya. that the reputation of the Malaysian of key positions under the Even if the intention of the Founding Judiciary was at its highest in the 1970’s Constitution.” Fathers was that the constitutional and 1980’s when judges were appointed [Page 395-396] consultation process contemplated after proper consultation in accordance confidentiality until the successful with true constitutional principles. “Therefore, in this regard, it is candidate was publicly announced, recent generally difficult to rationalize why experience suggests otherwise. Thus, it The early years of Dr Mahathir’s Prime a Prime Minister would not want was an open secret among informed Ministership followed this convention. to consider, or even abide by the views members of the Bar, and no doubt the However, the dismissal of Lord President of nine Rulers and four Governors entire higher Judiciary, that these 2 highly Salleh Abas and 2 Federal Judges and the who constitute the Conference of eminent and senior judges were not the suspension of 6 Federal Court judges in Rulers. These are independent candidates proposed by the Chief Justice. 1988 severely eroded public confidence persons, with vast experiences, and In the case of the Chief Judge of Malaya, in the judiciary. From 1988 to 2003 with no vested interest in the according to well-informed sources, the although constitutional form was nominated candidates. Their duty Chief Justice’s recommendation was a observed, the true “appointer” was Prime is to fulfil their constitutional role newly appointed Judge of the Federal Minister Mahathir, occasionally acting on in ensuring that only the best and Court who was very recently publicly the recommendations of his Lord most suited candidates are selected for embarrassed by the disclosure that some President/Chief Justice. It was well known the posts.” 35 judgments were outstanding during in political circles that despite the objection [Page 397] his tenure on the High Court, including of some members of the Conference of 5 criminal cases with death sentences. But Rulers, the Prime Minister’s candidates I appreciate that it may be said that the for the Conference of Rulers exercising its were always selected. Again, it is no views expressed by a judge and a member constitutional functions properly, he coincidence that the Malaysian Judiciary of the Conference of Rulers may not would have been appointed the Chief was at its nadir in the last 1990’s, perceived as being independent. Judge. Thus, Justice Hamid’s and Justice characterized by Ayer Molek, poison pen Nonetheless, these views reflect their Alauddin’s appointments demonstrate the letters, and numerous other notorious opposing perspectives, and are valuable importance of true consultation. Prime episodes. contributions to the intellectual debate. Minister Abdullah Badawi must be congratulated in accepting the reservations Hence, if the Malaysian judiciary is to This constitutional issue is not free from of the Conference of Rulers on the recover its former glory, as a first step, the doubt or ambiguity. On balance, I am of candidate proposed by the Chief Justice, appointment and promotion process must the opinion that in the case of any which decision has so rapidly been be strengthened. Absent the appointment of a judge to the Federal publicly vindicated. establishment of an independent Judicial Court, Court of Appeal and the High Commission operating under open and Courts of Malaya and Sabah and Sarawak, My article was written in cold legal terms, transparent guidelines which the Bar has on a true interpretation of Article 122 B(1), divorced from actual examples. If one were for years been advocating, Article 122 viewed in its constitutional context, the to consider the historical record since B(1) of the Federal Constitution must be Yang di-Pertuan Agong, the Prime Merdeka, Prime Ministers Tunku Abdul construed in the manner envisaged by the Minister and the Conference of Rulers Rahman, Tun Abdul Razak and Tun Founding Fathers, and especially, the must be ad idem on the choice of the Hussein Onn, perhaps because they were Founder of Merdeka, Tunku Abdul candidate. lawyers, took consultation very seriously, Rahman. The fortuitous circumstance of and Chief Justices and Lord Presidents the Conference of Rulers having as one of POSTCRIPT from 1957 to 1981 were taken into its Rulers, Sultan Azlan Shah, whose After this article was sent for publication, confidence when judicial appointments opinion on judicial character and ability is Justice Hamid was appointed President were made. Occasionally, the Bar Council unsurpassed, must be taken advantage of, of the Court of Appeal and Justice was also sounded out. It is no coincidence and His Majesty’s advice must be given due weight for the nation’s good.

PRAXIS 52 JULY / DECEMBER_2007 Human Writes

‘Bringing Human Rights Home’ tour heads south by Shanmuga Kanesalingam

rom the inaugural training session in the north F(http://www.malaysianbar.org.my/content/view/ 7830/2/), the Education and Training Working Group of the Human Rights Committee (HRC) ventured south to Johor Bahru for its 2nd Human Rights Training programme on 23 June 2007. As part of the ‘Bringing Human Rights Home’ tour, the main aim is to inculcate human rights values among members of the Bar and to equip ourselves with the necessary tools to deal with rights as an advocate of human rights after lunch. In that violations. brief half hour, I had a glimpse of the spirit and dedication of a man who could lie across a railway A diverse audience greeted us here, with a broad track as a sign of protest for a cause he believed in. mix of practitioner levels. A total of about 25 pupils, At the same time, however, what I remember most lawyers and members of the public were present was thinking what a humble unassuming chap he (including the two SUARAM activists who had been was and what a good lawyer he must have been. arrested in conjunction with the gathering outside the Johor Menteri Besar’s residence: (http:// During his talk, he pointed out that the Government www.malaysianbar.org.my/content/view/9407/2/). released him from his detention under the ISA on Special mention is made of the firm of Syarikat the eve of Awal Muharram. His release was Rodziah from Kota Tinggi which provided 8 of the conditional and he was subjected to restricted participants. residence and a curfew. Razak was once arrested for being in a coffee-shop at 10 pm, 2 hours after his 8 The session was well received, with sessions on an pm curfew. He successfully defended himself on overview of human rights (by Rajen Devaraj, HRC the basis that the Government had not interviewed Executive Officer), immigrant and refugee rights (by him prior to extending the restriction order, which Amer Hamzah Arshad, Deputy Chair of the HRC) was a requirement of the law. This story emphasises and Orang Asli rights (by Augustine Anthony, Chair the valuable lesson that more human rights litigation of the Orang Asli Project). I shared on the topics of is won on technical points rather than on high flown international human rights law and religious exhortations to international human rights norms. freedom. I recorded the following wise words by Razak. After Many of the participants were grappling with issues pointing out that cases against the Government was they were involved already in their day-to-day not ‘anti government’ but merely upholding the rule practice, and there were lively discussions during of law, he said “I would urge young lawyers to come all the sessions, particularly the substantive sessions forward together with senior lawyers whenever you on refugee rights, indigenous rights and religious see abuses, and take it up. I am very glad that we freedom. Of particular interest to the participants now have a human rights committee, and that there was the plight of the Orang Asli. This is due to the are quite a number of lawyers from North to the large Orang Asli population in Johor and the South who are helping the poor and the Orang Asli.” heightened awareness amongst lawyers ever since the Malaysian Bar’s community service trip to their Johor lawyers have always been actively pursuing settlements to alleviate their hardship during the human rights issues, and it is no wonder that this great Johor floods earlier this year. training session was so successful. The powerpoint presentations at the session are being compiled and Abdul Razak Ahmad http:// fine-tuned by the HRC with a view to formulating a www.malaysianbar.org.my/content/view/9520/99/ standard curriculum which will be used for human , who has sadly passed on since then, had also rights training throughout the country. been invited to give a short talk on his experiences

JULY / DECEMBER_2007 PRAXIS 53 Review and Analysis of SUHAKAM’s 2005 Annual Report:

Article Law Enforcement and Human Rights Tricia Yeoh Su-Wern* and Edmund Bon Tai Soon**

his paper1 seeks to evaluate the Political Rights and the Convention custodial deaths was not disclosed, Twork of the Human Rights Against Torture and Other Cruel, the causes of the deaths were cited as Commission of Malaysia Inhuman or Degrading Treatment or heart attacks, suicide by hanging, (SUHAKAM) with respect to the Punishment. fights between detainees, slipping in enforcement of the laws of Malaysia, the lock-up toilet and asthma. based on its Annual Report 2005. It This has prevented official and is divided it into three sections: the international monitoring of our SUHAKAM had previously raised its first traces notable violations country’s centres of detention. The concern with the government over perpetrated by law enforcement United Nations Code of Conduct for deaths in police custody. In response agencies and their officers; the second Law Enforcement Officials (CCLEO)2, to SUHAKAM’s Annual Report 2003, highlights corresponding action by which sets basic human rights the Ministry of Internal Security stated SUHAKAM in addressing these issues standards for these officials, has also that there were 38 deaths in police and areas for improvement; and the not been translated into law. custody between 2002 and 2003, but final section outlines challenges facing that the police caused none of these.5 SUHAKAM and society at large, with The Royal Commission to Enhance the While the Criminal Procedure Code key recommendations for Operation and Management of the makes it mandatory for inquests to be consideration. Royal Malaysia Police was established conducted in custodial death cases, by the King on Feb 4, 20043. Its report it is not done in practice. There is an I. Human Rights Violations culminated in 125 recommendations urgent need for SUHAKAM to increase to the government (1st RC Report). It its vigilance of such cases, and call (a) The police highlighted the current lack of public for relevant documents for scrutiny. The Police Act and Criminal confidence and trust in the police This will step up the pressure on the Procedure Code form the legal basis force, and stated that 80 people died authorities to ensure that there is no for police to use “reasonable force” while in police custody between 2000 impropriety in such deaths. in self-defence or in relation to and 2004 and of these, only eight suspects resisting arrest or attempting cases have been investigated. More A key recommendation of the 1st RC to escape. There is no explicit recently, in a written reply to Report is that police must submit all prohibition of torture, cruel, inhuman Parliament, the Prime Minister and sudden-death reports to a magistrate or degrading treatment by law Internal Security Minister revealed that within a week, and that inquests be enforcers in our statute books. 108 deaths occurred in police custody held a month from the time of death. Malaysia has yet to ratify the between 2000 and 2006.4 While the Another was for the formation of an International Covenant of Civil and number of inquiries held over Independent Police Complaints and

* Senior Research Analyst, Centre for Public Policy Studies, Asian Strategy and Leadership Institute (ASLI). ** Advocate and Solicitor, High Court of Malaya, Chairperson of the Human Rights Committee and National Young Lawyers Committee, Bar Council and Secretariat member, Suara Rakyat Malaysia (SUARAM). 1 Commissioned by and written for the Education and Research Association for Consumers, Malaysia (ERA Consumer, Malaysia). 2 Adopted by General Assembly Resolution 34/169, Dec 17, 1979. 3 The Royal Commission was tasked to investigate the roles and responsibilities of the force in law enforcement, including its organisational structure, operating procedures, distribution and development of human resources, work ethics and issues of human rights compliance. 4 Malaysiakini.com, 108 police custody deaths in six years, April 24, 2007. 5 Annual Report 2005, Appendix VII, p. 228.

PRAXIS 54 JULY / DECEMBER_2007 Article

Misconduct Commission (IPCMC). act only where its public image is task. This independent commission would affected. A programmatic be a huge step towards curbing police consultation and feedback Connected with this issue is the role abuses, and increasing accountability mechanism needs to be effected, and of the UNHCR, which carries out its to the public. It may probe allegations SUHAKAM should lead this mandate to document, register and of rights abuses by the police force initiative. intervene on behalf of refugees or and discipline offenders. persons of concern. The government Unfortunately, the government has not (b) Other law enforcement has voiced its displeasure at this by followed through with these agencies implying that UNHCR is “getting in recommendations. As the statutory The law enforcement agency the way” of law enforcement by RELA human rights body, SUHAKAM is in established under our emergency and the Immigration Department. a position to seek information on the laws, People’s Volunteer Corps or status of this matter, and this should RELA6, regularly assists the police in The reality is that the UNHCR was be done. conducting arrest and detention invited by Malaysia in 1975 to assist operations of undocumented migrant both refugees/persons of concern and Police misdemeanour and abuse of workers. According to the government, the government in documentation and power continued to make headlines RELA’s role is necessary to maintain intelligence gathering, which are after a one-minute video clip, showing security and the well being of the essential for national and regional a naked female detainee doing “ear people. In 2005, RELA was given security. At the highest level, UNHCR squats”’ while being observed by a greater powers to stop any person has been assured of support but there policewoman, was circulated in suspected to be a terrorist, undesirable now seems to be a mismatch between November 2005. The police defended person, or illegal immigrant. the promises given and actual this as “standard operating implementation. procedure”. Another Royal This has allowed RELA to become a Commission was established. The law unto itself. RELA members have To effectively advocate human rights, Commission of Inquiry into the been arrested over allegations of SUHAKAM needs to conduct Standard Operating Procedures, robbery, use of excessive force and thorough research and investigation Approaches or Regulations in the breaking and entering migrant housing into the operations of RELA, and at handling of Body Search in areas. Undocumented foreigners have the same time, be unwavering in its Connection with Arrest and been arrested despite being officially position that our emergency laws Detention by the Police examined the recognised as refugees or persons of must go. SUHAKAM also needs to practice of body searches and made concern by the Office of the United be the “bridge” to work out the recommendations that were passed as Nations High Commissioner for conflicting positions of the law in July 2006. New procedures Refugees (UNHCR). After a spate of Immigration Department, RELA and have been introduced to uphold the complaints regarding RELA raids, UNHCR. dignity of suspects while empowering which included theft, extortion and the police to carry out the necessary physical abuse of detainees, Human Moral policing by Islamic religious searches. Rights Watch called for its immediate authorities is a human rights issue. disbandment.7 It is time SUHAKAM However, SUHAKAM has not taken The government continues to react to takes a public stand in calling for the a public position on this issue. Article issues on an ad hoc basis, lacking a repeal of all emergency laws, 18 of the International Covenant on systematic process of deciphering including the deployment of RELA Civil and Political Rights clearly states recommendations made by civil members. Trained law enforcement that everybody shall have the right to society or SUHAKAM. It proceeds to professionals should carry out this freedom of thought, conscience and

6 Known also as ‘Ikatan Relawan Rakyat Malaysia’. It is a voluntary programme established in 1972 under the Home Affairs Ministry to provide assistance to the security forces. 7 Malaysiakini.com, Global rights watchdog: Disband Rela, May 10, 2007.

JULY / DECEMBER_2007 PRAXIS 55 religion. What does this entail? How SUHAKAM conducted human rights subject to the rights to privacy of do Islamic laws impact on the lives workshops for law enforcers, focusing detainees and confidentiality, the Article of Muslims? Are religious laws that mainly on the Prisons Department and visits should be video-recorded and impact the lives of its adherents free the police. These workshops were uploaded on the SUHAKAM website from scrutiny based on rights values? held with the objective of raising rights for public access. Verified physical awareness, enabling discussions on abuse should be reported without The raid by the Federal Territory violations and abuse of powers, and naming the detainee. Religious Department (JAWI) on a developing the officers’ abilities to Recommendations should be nightclub in Kuala Lumpur in which prepare orders or guidelines in line monitored for implementation and numerous Muslim patrons were with human rights principles. Efforts noted in the visitation reports. As subjected to harsh and degrading in human rights education as outlined SUHAKAM is the only independent treatment caused an outcry. In 2006, are commendable. This initiative body empowered to visit places of JAWI defied the Cabinet by seeking should continue with a wider spread detention, information from and to establish a “snoop squad” to spy of officers involved as participants. monitoring by SUHAKAM is vital. on immoral activities by Muslims. The next step is to formulate concrete The Putrajaya Islamic Council resolutions or pledges to be agreed on Out of the 721 complaints received Volunteer Squad was formed to help at the workshops. This should be re- by SUHAKAM in 2005, 217 were religious enforcement officers tackle visited after a specific period of time. made against government agencies, of khalwat or close proximity cases. It Actionable steps need to be taken to which 138 were against the police. would relay the information obtained integrate human rights principles into The highest number of complaints to JAWI for its enforcement officers the police code of conduct. Guidance concerned delays in police to act.8 New guidelines of the Federal must come from SUHAKAM. Further, investigation, followed by police Islamic Development Department a review of the effectiveness of inaction. More importantly, 50 now authorise officials to enter private training programmes held by complaints were on abuse of power premises without a warrant to conduct SUHAKAM should be undertaken. and police violence. Police matters raids on Muslims suspected of in East Malaysia received relatively gambling or consuming alcohol.9 In The Complaints and Inquiries Working fewer complaints, wavering around matters of faith that are part of the Group (CIWG) maintained its regular six per cent of the total complaints, forum internum, the use of Syariah visits to police lock-ups, prisons and largely due to predominant focus on courts to chastise, punish or coerce detention camps to monitor land rights issues. Muslims in matters of their religion conditions. A total of 22 detention is increasingly common. The Ayah Pin centres were visited, but few details The CIWG acted on complaints and Haji Kahar cases are examples. are given in the Annual Report. No against law enforcement officers by These developments are a worrying further explanation was given, or organising meetings with the police trend for human rights in Malaysia, follow-up plans made, to investigate and immigration personnel. These where issues of public/private space persistent problems. It is suggested sessions purportedly achieved greater and the imposition of regulated that future visits be conducted as rights awareness, enhanced morality need to be urgently addressed. “surprise spot checks”. Written reports partnerships and exposure to the SUHAKAM has to weigh-in on this of all visits (with photos where promotion of human rights. While debate. necessary) including detailed these are valid objectives to work observations, findings and towards a long-term structural rights II. SUHAKAM’s Responses and recommendations should be paradigm, the solutions do not Areas for Improvement published. Where possible, and constitute “acting on complaints”. The

8 The Star, FT Religious Department wants to go ahead with its snoop squad, Jan 20, 2006. 9 US Department of State, Bureau of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices - 2006, March 6, 2007.

PRAXIS 56 JULY / DECEMBER_2007 Article fact that almost 20 per cent of the enforcement abuse. Where civil policy paper to this effect must be complaints received were made society and non-governmental formulated. Reading the founding against the police accounts for the organisations may have little traction statute of SUHAKAM in a more liberal gravity of violations by the force. with the government, SUHAKAM is way would also be of assistance. What exactly happened with these in an influential position. In addition, complaints? Did the complainants get resources available to SUHAKAM are With the vast amount of resources at appropriate redress? More details immense as compared to other human its disposal, SUHAKAM is the envy should be given about these cases in rights organisations in Malaysia. of non-governmental rights SUHAKAM’s annual reports. organisations. Yet, a great deal of its III. Challenges and good work is wasted on a government SUHAKAM’s various visits, Recommendations that does not take human rights workshops and meetings with seriously. The response given by the government departments around the It is noted that the Annual Report Ministry of Internal Security to the country have been standard procedure 2005 does not contain the usual charge of police inaction is an for a number of years now. Have the catalogue of observations on human example. It was met with a statement implications of these initiatives upon rights issues and the government’s that the police are continuing to enforcement agencies been translated responses in respect of SUHAKAM’s increase efficiency in “investigation, into principles of action, given that Annual Report 2004. The practice of prosecution and prevention of crime”, SUHAKAM continues to receive listing SUHAKAM’s concerns and among other efforts, as opposed to increasing numbers of complaints feedback from the government on the providing a clear stand on actions yearly? An assessment needs to be same should be continued, and taken or to be implemented.10 Similar carried out. pressure mounted on the government apathetic answers pepper the rest of to submit its responses within a stated the document in Appendix VII. It is encouraging to note that in the timeframe. On-going engagement exercise of its power under section with the government through this With regard to the IPCMC, the 12(1) of the Human Rights process is vital. As much as Attorney General’s Chambers is still Commission of Malaysia Act, SUHAKAM’s annual reports need to studying the matter, but there’s no SUHAKAM has conducted various be read by government leaders, it is deadline in sight.11 SUHAKAM should public inquiries into allegations of disheartening that not one report has take on a greater responsibility to violation by law enforcement ever been debated in Parliament. expedite the process by lobbying the agencies. It has accordingly conducted SUHAKAM must decide on a radical Prime Minister’s Office and the inquiries into the Kesas Highway course of action for the reports to be relevant authorities. Incident, the “Bloody Sunday” at tabled and debated in the relevant KLCC, the custodial death of S. Parliamentary session. SUHAKAM needs to continue Hendry and the inhuman treatment discourse with the government to meted out by the police in Kundasang, Criticised by many as a “toothless enshrine the CCLEO as standard Sabah. tiger”, SUHAKAM’s problem lies in practice for all enforcement agencies. the absence of enforcement power, A policy manual needs to be adopted, This practice of conducting public having been defined merely as an incorporating “human rights policing inquiries should be continued, and advisory body which values” to guide them. The CCLEO SUHAKAM would do well to take up recommendations are not binding on includes eight articles that impose the challenge of conducting public the government. A holistic approach upon law enforcers the need to respect inquiries into every serious or towards seeking greater enforcement and protect human dignity and uphold consistent patterns of law powers has to be made, and a legal the basic rights of all persons. This

10 Annual Report 2005, Appendix VII, p. 215. 11 Malaysiakini.com, No deadline set on IPCMC decision, 11 April 2007.

JULY / DECEMBER_2007 PRAXIS 57 would go some way towards SUHAKAM is bound by the statement above taken at its best is eliminating problems of abuse and provisions of the Universal ambiguous or may be misinterpreted Article misconduct on the part of law Declaration of Human Rights in its as a carte blanche for the silencing of enforcers. work, and by extension, international religious rights violations in the name human rights law such as treaties of religion. Suppressing a cardinal The deployment of the police or RELA agreed upon. It must not shy away right in the name of another arbitrarily in commercial disputes to evict from “sensitive” issues such as Islam would create more problems than it undocumented land settlers or the or the freedom of religion. These would solve. Orang Asli is yet another troubling issues are inextricably linked with issue. SUHAKAM commissioners other rights violations, such as abuse IV. Conclusion should be physically present on these of power by law enforcers. While we occasions to document and monitor understand the context of religion in SUHAKAM has attempted to address the situation. Law enforcers are usually our society, we question the utility basic issues of law enforcement abuse quite wary of being heavy-handed if of the following statement made in and misconduct, particularly those a human rights body such as the Annual Report by a human rights perpetrated by the police. Greater SUHAKAM watches them. Looking body of SUHAKAM’s stature: attention should be given to the other ahead, there is an urgent need for “To comment on or criticise a law enforcement agencies as well, SUHAKAM to look into carving religion – even if by someone such as those dealing with protection rights for undocumented professing the same religion or immigration and Syariah laws. land settlers and the Orang Asli, for more so by someone of another SUHAKAM should increase its speed land disputes concerning them religion – may cause uneasiness in responding to human rights escalate by the day. and lead to disruption of public violations, taking the initiative proprio order and general welfare in a motu without first having to be called SUHAKAM’s presence at the “ground plural society.”12 upon by civil rights organisations. level”, where the human rights battles take place daily, will be welcomed - Adopting a public position on issues Recommendations made should be whether it is the presence of its pertaining to religious freedom is monitored in detail by SUHAKAM to commissioners or officers at necessary; for being overtly silent on ensure that the government takes them assemblies, or through instructions the issue does not advance the human up. Its activities should include given to lawyers to make submissions rights culture of protecting religious practical aid to victims of abuse, and as amicus curiae in human rights pluralism through dialogue and more should be done to expand the cases. discussion. SUHAKAM should educational and practical training of conduct research and craft a legal law enforcers across the country. Among other challenges that continue policy paper to act as a human rights Effects of such training should be to be faced are the lack of public guide on this matter. There is a documented to track through time commitment and awareness levels growing body of opinion today, even whether these have had any successful among Members of Parliament. Many within the Muslim world, that Syariah impact in changing the mentality and of the public statements by MPs laws should be human rights actions of law enforcement agents. continue to demonstrate a severe lack compliant. In line with the robust of understanding of international spirit of free expression for effective The public at large would benefit human rights standards. SUHAKAM human flourishing, everyone should significantly with a fearless, driven must take its educational initiatives be encouraged to discuss issues of and purposeful SUHAKAM. to the next level by bringing human religion and religiosity in an objective rights to Parliament. and rational way. As such, and The country needs no less. without more, the highlighted

12 Annual Report 2005, p.21.

PRAXIS 58 JULY / DECEMBER_2007 Article Wither free speech? Bloggers under attack! K Shanmuga*

ou will all have read about arrested but his family was not told Malaysiakini in Kuala Lumpur about YMinister in the Prime Minister’s of his arrest until almost 6 hours after publications by them on allegations Department Dato’ Seri Nazri Aziz’s that and he was taken for a hearing of massive corruption in the logging threat to take legal action against for an extension of his remand without industry in Sarawak. bloggers. Bernama on 24 July 20071 prior notice to his lawyer. reports that the Minister said “the The subsequent hullaballoo4 over the government would not hesitate to use Then, a police report was lodged Negarakuku video by a student in the Internal Security Act (ISA), the against Raja Petra Kamarudin3 by Taiwan who goes by the moniker Sedition Act 1948 and Section 121B UMNO Secretary General Tan Sri Namewee (aka Johor born Wee Meng of the Penal Code against these Muhammad bin Muhammad Chee) was another opportunity for bloggers.” apparently because of comments left governmental chest thumping. Threats by readers of his website rather than of prosecutions for sedition and for This chilling threat of action against for what he actually wrote. Raja Petra the stripping of the singer’s citizenship bloggers is one of the latest in a series was interviewed by the police for more were dished out - the usual fare that of worrying events which give rise to than 8 hours, and his wife was later feeds the racial politics of our country. a reasonable apprehension that our interviewed as well. When I saw the video, (which is easily laws on defamation, official secrets found - just go to youtube and search and public order may be abused in The growing use of libel suits is also for namewee or negarakuku) what order to stifle dissent and legitimate a worrying trend in the development struck me most was the passionate free speech. of our freedom for expressing rendition of the national anthem dissenting opinions The NST, which itself. In between the singing of the Some of these events include the arrest is widely known to be controlled by national anthem (which is sang with and detention of Nathaniel Tan for UMNO, the predominant member of gusto, with no modification to the about 5 days, ostensibly for a breach the ruling political coalition, is suing lyrics at all), Namewee intersperses a of the Official Secrets Act. As reported Ahirudin Atan (the former journalist rap where he pretty much condemns in the Sun of 19th July 20072, this was who blogs at http:// many things Malaysian which quite apparently because Nathaniel as a rockybru.blogspot.com and Jeff Ooi, a number find offensive. In parts of blogger and the web master for the the pioneer of socio political blogs the rap, the lyrics of the national Parti Keadilan Rakyat website had in with ‘Screenshots’ (www.jeffooi.com) anthem are modified. But as Shanon his posession confidential documents for defamation. Sarawak Chief Shah5 points out, even if you are relating to a corruption investigation Minister Pehin Sri Taib Mahmud is offended by what he has done and against a Deputy Minister. The suing two opposition politicians in think he is unpatriotic, we should be Harvard educated 25 year old was Sarawak and online news website more secure in ourselves to engage

* This is an expanded version of an urgent request for volunteer lawyers originally appearing at http:// www.malaysianbar.org.my/content/view/10083/226/ 1 ‘Government warns of tough action against bloggers who disparage’ http://www.malaysianbar.org.my/content/view/ 10038/2/ 2 http://www.malaysianbar.org.my/content/view/9930/2/ 3 http://www.malaysianbar.org.my/content/view/10017/2/ 4See generally http://www.malaysianbar.org.my/content/view/10475/2/ and the Joint Statement by several NGOs ‘Constitution guarantees Malaysians’ freedom to celebrate Merdeka’ http://www.malaysianbar.org.my/content/view/10421/ 2/ 5 ‘For art’s sake, ban the ban’: Sun, 13th August 2007 http://www.malaysianbar.org.my/content/view/10422/2/

JULY / DECEMBER_2007 PRAXIS 59 with reason rather than emotion Tamil daily7) is also cause a concern. www.malaysiakini.com, the People’s recalling Voltaire’s famous words “I This is particularly so when it is Parliament (http:// Article disapprove of what you say, but I will recognised that this Tamil newspaper harismibrahim.wordpress.com/), defend to the death your right to say is publicly antagonistic to Dato’ Seri www.citizenthinktank.com and other it,” and “the noble Quran, which tells S Samy Vellu (the leader of the main websites/blogs are cases in point. me not to ban people or arguments I Indian political party the Malaysian disagree with, but to position my own Indian Congress) and widely linked As we move closer towards achieving counter-arguments ‘with wisdom and to his main political opponent Datuk our goal as a developed nation come beautiful preaching; and reason with S Subramaniam8. 2020, we should be allowing them in the best way possible’ (Surah Malaysians the freedom to express An-Nahl, verse 125).” Blogs have become a source of much themselves. Transparency and open information not otherwise in the government will increase The suspension for one month of the public domain and are being utilized development. Rather than attempting Tamil daily newspaper, Makkal Osai6 to garner popular support through to stifle alternative viewpoints with for printing an insulting image of Jesus voter education drives which aim to the sledgehammer of draconian laws Christ (despite the Christian hold politicians more accountable for which are both oppressive and community and the Malaysian their actions. The ever increasing outdated, the government should be Consultative Council of Buddhism, popularity of websites like embracing new technology and Christianity, Hinduism, Sikhism and www.malaysia-today.net, engaging its detractors with reasoned Taoism accepting the apology by the and rational arguments.

Lawyers Needed!

In light of the potential threat to freedom of expression by the use of the repressive Internal Security Act and Sedition Act, the Bar Council Human Rights Committee has formed a pool of volunteer lawyers to be on standby to assist bloggers as part of the Interventions Strike Force led by Deputy Chair Amer Hamzah Arshad.

This is in line with the Bar’s aim to provide legal representation to all those in need, particularly in cases where State action is being taken against freedom of expression. Naturally, this does not in any way amount to the Bar condoning any statements made on any blog which do in fact amount to a legitimate offence.

If you are a lawyer who would like to join the team, please email the Human Rights Research Officer, Mr Rajen Devaraj at [email protected] or send him a fax at 03-20342825 / 20261313 with your Name, Firm and full contact details (including email address and handphone number) so he can liaise with you.

PRAXIS 60 JULY / DECEMBER_2007 Putik Lada

NYLC & CPPS dialogue with Parliamentary Select Committee on National Unity by Syamsuriatina Ishak

“ pplaud the efforts of the young and (MCCBCHST) and Malaysian Interfaith view of Young Malaysians on the issue of Ahear their views in forging National Network. National Unity & Development in Unity!” This was the reverberating stand Malaysia. It had been prepared, collated taken by the Parliamentary Select The dialogues were part of the discussions and agreed upon by the attendees of the Committee on National Unity upon held by the Parliamentary Select 1st Young Malaysians Roundtable receiving audience with the National Committee on National Unity as a part of Discussion held in April 2007, and Young Lawyers Committee (NYLC) of the the Parliament’s initiatives in its policy officially presented to Dato’ Dr. Maximus Bar Council together with the Centre for formulation process. It comes particularly Ongkili later that month. Jo-Ann voiced Public Policy Studies (CPPS) of the Asian apt in view of the statement made by our group’s view that racial harmony was Strategy & Leadership Institute (ASLI) HRH Raja Nazrin Shah, Raja Muda Perak, in a fragile state. She highlighted the yesterday. made at the first Malaysian Student youths’ genuine desire to have meaningful Leaders Summit 2007 last Sunday, in interracial discussion, to voice their views On 6 August 2007, we were fortunate which he lauded the protection of the and be actively involved in efforts to enough to be invited to a panel discussion integrity of the Federal Constitution as improve the National Unity, and and dialogue with the Parliamentary Select every Malaysian’s way of promoting conversely, their lack of avenues or forums Committee on National Unity at the national unity. to achieve this purpose. To this end, Jo- Parliament Building, Kuala Lumpur. The Ann went on to highlight the further joint Committee is headed by Minister in the The discourse began at 2.30pm and was effort of the CPPS and NYLC to embark Prime Minister’s Department, Datuk Dr. part of the Parliamentary Session before a on the Young Malaysian’s Study entitled Maximus Ongkili, who also heads the Committee of approximately 40 “Menjana Integrasi Nasional Dalam Jabatan Perpaduan Negara & Integrasi Members of Parliament and civil servants, Aspirasi Masyarakat Muda” or “MINDA Nasional (JPNIN). which we were made to understand, MUDA”, a nationwide quantitative survey would be recorded as part of the Hansard. with objectives similar to that outlined in The NYLC was represented by Dipendra After the Malaysian Interfaith Network, its Stage I qualitative study, involving over Harshad Rai (Deputy Chairman), Richard “Article 11” coalition and MCCBCHST 1,000 young Malaysians aged 18-35 Wee, Noor Arianti Osman and presented their own papers, it was the turn years, to uncover the youths’ perspectives Syamsuriatina Ishak; accompanied by of the NYLC and CPPS . on Malaysian national unity. Andrew Khoo (Deputy Chairman of the Bar Council’s Human Rights Committee) The invitation to the discourse follows the Comments were then received from the and Sunil Lopez (representative of Kuala presentation of a Consensus Document members of the Parliamentary Select Lumpur Young Lawyers Human Rights prepared pursuant to the 1st Young Committee, Members of Parliament from Unit). CPPS was represented by Ding Jo- Malaysians Roundtable Discussion on Muar (YB Tuan Razali Ibrahim), Batu Ann, also a lawyer (replacing Tricia Yeoh, National Unity & Development in Pahat (YB Puan Fong Po Kuan) and Senior Research Analyst of CPPS, who was Malaysia “Challenges & Prospects for Nation Tuaran (YB Datuk Madius Tangau). overseas) and a few other delegates. It was Building” which was held in Kuala for most of us the first visit into the Lumpur on 3rd April 2007. Therefore, The Muar MP commended the NYLC historical building. our representatives were invited to begin and CPPS representatives on their by outlining the key aspects of the involvement in the National Unity effort, Also invited and present at the dialogue Consensus Document. seeing in his view that we, the youths, were the coalition of NGOs known as were the future which would benefit from “Article 11”, Malaysian Consultative Ding Jo-Ann began with an introduction these National Unity efforts. He sought Council of Buddhism, Christianity, into the background of the formulation our representative’s affirmation on how Hinduism, Sikhism and Taoism of the Consensus Document, a 20-point the studies conducted by us would

JULY / DECEMBER_2007 PRAXIS 61 Putik Lada represent views of all aspects and fabrics Federal Constitution and the the Rukun of the history behind the formation of of society: for example, including those Negara, namely ‘Kedaulatan Undang- Malaysia and the consideration of the dwelling in urban and rural areas, the Undang’ (the Rule of Law) and ‘Keluhuran views of youths from Sabah and Sarawak. wealthy and the poor, the well educated Perlembagaan’ (Supremacy of the He went on to commend the encouraging and those with little access to such quality Constitution) were not truly observed and open and untainted view of the NYLC & education. The Muar MP also asked the followed as of late. He went on to address CPPS’ representatives present. The Muar representatives on our aspirations and how the issue of young Malaysians’ who prefer MP then presented his invitation to join we saw Malaysia in 20 years time. Also, in to live abroad, and stressed the NYLC and him at his Parliamentary Seat at Muar, to drawing attention to Point 10 of the CPPS’ view of that a concerted effort was view firsthand the National Unity policies Consensus Document touching on the necessary to identify, treat and eliminate at work, in particular defending the Government’s educational policies, he its root causes to prevent the country from establishment of the Chinese and Tamil questioned our representatives’ views on losing out in the long run. type National Schools in the state of Johore. the role of vernacular schools in Malaysia. Jo-Ann went on to point out that the On another note, Kubang Kerian MP (YB The Batu Pahat MP posed the question as Quantitative Survey carried out jointly Tuan Salahuddin bin Haji Ayub) to how the NYLC and CPPS’ view, in under the MINDA MUDA project was addressed his concern of how the young rejecting ethnic-based politics and racist conducted randomly and sought to generation, perhaps caught-up by the ideologists in any form as stated in Point 9 represent the views of a healthy cross flow of entertainment, may not be able to of the Consensus Document, could be section of the youth society. Amongst grasp an important issue like National reconciled with the already multi-ethnic others, the Survey sought to find out what Unity adequately. and racial Malaysia. Tuaran MP then were their aspirations, the language they questioned how far the aspect of history speak, who are their friends, which was In response to both views, Jo-Ann was considered at the Young National’s elemental to understanding the youth’s acknowledged the need to incorporate Roundtable Discussions and in the attitude towards National Unity today. more views of the youths of Sabah and preparation of the Consensus Document, Sarawak in their studies. As a young and in particular the various socio-economic Richard Wee addressed the concerns of married professional with plans for achievements made in the past. He also the Tuaran MP by pointing out the children, she also voiced her concerns for expressed his concern that the use of the existing division of the Malaysian Bar and the growing necessity for multi-lingual label ‘National’ for the Roundtable the Sabah and Sarawak Bar, a constraint and multi-cultural based curriculum in Discussion could be misleading if it did already faced by the Bar today. However, Malaysian schools. Subsequently, Richard not involve participants from Sabah and he admitted that participants from Sabah Wee stressed that while young Malaysians’ Sarawak. and Sarawak, were invited and were preoccupation with entertainment and represented at the Roundtable Discussion; their lack of participation or concern with In addressing the points raised by the Muar although few turned out, perhaps due to current affairs have always been MP and Batu Pahat MP, Dipendra the cost factor. Richard Wee admitted that disconcerting, the continuing initiative of brought the Committee’s attention to since the entire Roundtable Discussion the NYLC and CPPS to encourage a Points 15 to 20 of the Consensus was made in reaction to the statement healthy discourse on National Unity, in Document, which states the conclusions made by HRH Raja Nazrin Shah, the issue particular the legal aspects thereof, was for sought by all the participants of the of historical background was not touched. the purpose of providing youths with the Roundtable Discussion to achieve national However, he pointed out that more necessary exposure to encourage an active unity. He pointed out that the Qualitative importantly, the Roundtable Discussion participation of the issues involving Studies of MINDA MUDA attempts to was a thorough discourse that examined Malaysia today. take into considerations of young adults the issue of racial and religious based from all walks of life and backgrounds, politics and education policy, ending in In conclusion, Dipendra thanked the with diverse views and answers on issues the major focus on education and the Muar MP for his invitation to visit his plaguing the country. As lawyers, it was education of educators themselves. constituency and expressed that the critical in understanding that the legality NYLC and CPPS look forward to working of one’s actions are paramount. Dipendra The Muar MP spoke further to emphasise with him in the future. More importantly, raised concerns that the basic tenets of the the importance of the youth’s realisation there is a constant need to engage each

PRAXIS 62 JULY / DECEMBER_2007 DisciplinaryPutik Orders Lada

DISCIPLINARY MATTERS – UPDATES

Penalty Order under s.100 Legal Profession Act 1976 1. Tan Nyap Keong, Tony - 17 November 2007 Struck Off (RM1,000) Order under s.103D Legal Profession Act 1976 2. Farida binti Pardi - 17 November 2007 (RM1,500) 1. Azizi bin Harun, M/s Azizi, Nizam & Anwar (w.e.f. 21 3. Shahaniza binti Shamsuddin - 17 November 2007 days from 15 June 2007) (RM2,500) 2. Nizam bin Yahya, M/s Azizi, Nizam & Anwar (w.e.f. 21 days from 15 June 2007) Order under s.102 Legal Profession Act 1976 3. Kuldip Kaur a/p Harbajan Singh, M/s Kuldip Randhawa 1. Paneerselvam Pandian a/l S Seeralan - 6 September 2007 & Assoc (w.e.f. 21 days from 15 June 2007) (RM3,000) 4. Mohd Kamri bin Ismail, M/s Zul Kamri & Co (w.e.f. 21 2. Mohammad Rashid bin Mokhtar - 6 September 2007 days from 27 July 2007) (RM3,000) 5. Pok Yong Chan, M/s YC Pok & Zurina (w.e.f. 21 days from 6 September 2007) Penalty 6. Paul Ang Chi Seng, M/s Paul Ang & Co (w.e.f. 21 days Order under s.103D Legal Profession Act 1976 from 6 September 2007) 1. Mohd Hatta bin Zakaria - 26 May 2007 (RM7,000) 7. Lim Kim Heng, Michael, M/s Michael Lim & Associates 2. Teh Hock Kee - 26 May 2007 (RM2,000) (w.e.f. 21 days from 19 October 2007) 3. Pok Yong Chan - 26 May 2007 (RM3,000) 8. Suhaimi bin Mahmud, M/s Kartina & Co (w.e.f. 21 4. Charlotte Jennifer Thomas - 15 June 2007 (RM5,000) days from 20 October 2007) 5. Ahmad Fuad bin Hj Sungip - 15 June 2007 (RM10,000) 9. Megat Noor Al-Insan Yasin, M/s Wafee & Co (w.e.f. 21 6. Pathmanathan a/l Ramasamy - 29 June 2007 (RM5,000) days from 16 November 2007) 7. Abd Rahman Hj Ahmad - 29 June 2007 (RM1,000) 10. Adi Farid bin Asmaon, M/s Hilmy & Farid (w.e.f. 21 8. Ahmad Sofian bin Mohd Nor - 30 June 2007 (RM10,000) days from 16 November 2007) 9. C K V Devan - 30 June 2007 (RM2,500) 11. S. Ravi Chandran Nair a/l R. Shreedharan, M/s Ravi Nair 10. Sarasvathy a/p Krishnasamy - 30 June 2007 (RM2,500) & Co (w.e.f. 21 days from 17 November 2007) 11. Mohd Shukri bin Ibrahim - 27 July 2007 (5,000) 12. Wan Mohd Nizar bin Wan Fauzi, M/s Wan Nizar Rais 12. Wong Chim Yiam - 27 July 2007 (3,000) (w.e.f. 21 days from 17 November 2007) 13. Dennis Tan Chia Min - 27 July 2007 (5,000) 14. Lina bt Salam - 3 August 2007 (RM15,000) 15. Shu Chiew Hua - 3 August 2007 (RM1,000) 16. Nakaretnam a/l Narasamah - 3 August 2007 (RM5,000) 17. Sivarajah a/l A Palanisamy - 3 August 2007(RM3,000) NOTICE 18. Pok Yong Chan - 6 September 2007 (RM3,000) KINDLY TAKE NOTE that the Bar Council has, on 19. Vijendram a/l Damodharan - 6 September 2007 (RM3,000) 20. Jefrizal bin Mohd Jaafar - 7 September 2007 (RM10,000) 30.8.2007, issued a Notice of Disqualification against M/ 21. Sahlan bin Saruddin - 7 September 2007 (RM10,000) s Azman Ahmad & Co, Chartered Accountants of Lot 03-17B, Tingkat 3, Kompleks PKNS, 40000 Shah Alam Suspended pursuant to Rule 3(2)(b) of the Accountant’s Report Rules Order under s.103D Legal Profession Act 1976 1990. Accordingly, M/s Azman Ahmad & Co is not 1. Asmahan binti Hj Sulaiman, M/s Asmahan Sulaiman & qualified to give an accountant’s report to any legal firm Assoc (for six (6) months to take effect twenty-one (21) for purposes of the Accountant’s Report Rules 1990 days from 15 June 2007 and to expire on 5 Dec 2007) effective from 30.8.2007 until further notice. 2. Shah Jamal bin Md Taib, M/s Louis K H Wong & Co (to take effect twenty-one (21) days from 6 September 2007 Dated: 30.8.2007 and to expire on 26 September 2008) 3. Teoh Ming, M/s Teoh Ming & Associates (for two (2) Lim Chee Wee years to take effect twenty-one (21) days from 19 October Secretary 2007 and to expire on 8 November 2009) continued form previous page Our representatives conveyed their thanks thanks and informing the representatives to the Parliamentary Select Committee for that this Parliamentary Select Committee other if everyone was committed to making their invitation and hoped that the views was in session until the end of this year. Malaysia a better place to live in and indeed under the Consensus Document would He also informed us that this is not the suggested that the NYLC and CPPS be well received. last but the first of discourses to be held would welcome working with this by them, and that they would be open to Parliamentary Select Committee and The fruitful dialogue ended with the more input from us in the future. JPNIN to achieve the goals above. Chairman, Datuk Dr. Maximus Ongkili’s

JULY / DECEMBER_2007 PRAXIS 63 Press Statements

All statements were issued by Ambiga Sreenevasan, Chairman, Bar Council 2007/2008 unless stated otherwise Unauthorised Persons - Public Beware! 4 July 2007

he Bar Council has, from time to out under a “lawyer’s” or “legal firm’s” named is an advocate and solicitor Ttime, received reports/complaints name, sometimes completely fictitious and registered with the Bar Council and once regarding individuals, firms and sometimes “borrowed” from a registered it is confirmed that the individual is in companies who pass themselves off as firm, inviting the potential victim to fact an unauthorized person, a police report being authorised to offer legal services to participate in a scheme whereby they is lodged. To date, over 50 police reports the general public or who masquerade as stand to inherit a huge sum of money from have been lodged by the Bar Council in licensed West Malaysian advocates and deceased clients who bear the same respect of similar scams. solicitors. surname of the individual, if the said individual consents to be named as next- The Bar Council is concerned at the Pursuant to s. 37 of the Legal Profession of-kin. Once the potential victim shows growing number of such reports being Act 1976, any unauthorised person who interest, official looking “court documents” received, many from foreign nationals and acts as an advocate and solicitor or an agent are forwarded as proof that the deal is strongly advise members of the public to for any party to court proceedings or legitimate. Prior to release of the funds, check with the Bar Council’s Secretariat at wilfully or falsely pretends to be, or uses the victim will be asked to deposit several [email protected] on the any name, title or description implying thousand dollars as an “administrative fee” status of the lawyer/firm should you that he is fully qualified or authorised to payable to the Malaysian Government into receive a similar e-mail or if you are act as an advocate and solicitor shall be a specific bank account. uncertain as to the status of the lawyer/ guilty of a criminal offence. firm. Upon receiving such a report/complaint, One of the most common e-mail scams the Bar Council Malaysia will check its Lim Chee Wee today is in the form of an invitation sent records to ascertain whether the individual Secretary, Bar Council

CTOS 12 July 2007

number of issues have arisen from The Bar Council views this as wholly them to disclose the reason for the rejection Athe recent controversy involving unacceptable as unverified credit status of loan applications to a prospective CTOS. reports are not reflective of the actual credit customer if it is based on the CTOS worthiness of a person or business. We are information. The Bar Council has over the years informed that the reports even include received numerous complaints with information on litigation matters that are The collection of personal information of regard to CTOS and the manner in still pending as well as information on this nature by an organisation relied on which it works as a “blacklisting” invoices that are merely pending payment. by the Banks brings with it a heavy mechanism relied upon by the banks. responsibility to ensure accuracy. A burden The complaint is that such data may not The Bar Council has highlighted this however equally lies upon the Banks to be current and that banks rely on this problem to Bank Negara in the past and verify the accuracy of information that they information without further verification has requested that Bank Negara issue rely on and to be transparent with their by them and without informing their directives to banks and financial customers about this information. customers. institutions not to rely on CTOS as a basis to reject loan applications and requiring It is now timely to introduce the

PRAXIS 64 JULY / DECEMBER_2007 Press Statements

Malaysia should join the ICC 17 July 2007

n the 17th of July each year, the Malaysia has a long and time-honoured The Malaysian Bar is of the view that it is Oworld community celebrates the commitment to the cause of international in Malaysia’s continuing interest as a International Day of Justice. Today is also humanitarian law and peace-keeping. responsible member of the international the 9th anniversary of an important After only 3 years as an independent community to be a part of this worldwide milestone in the quest for world peace. nation, we contributed peace-keepers to initiative towards ending impunity for On 17th July 1998, representatives of the the Congo. We have ratified the Geneva aggressors in conflict-ridden areas of our international community gathered in Conventions, and more recently the global village and obtaining justice for Rome and adopted the Statute for the Chemical Weapons Convention. Over the victims of some of the gravest crimes against International Criminal Court (ICC), the years we have contributed peace-keeping humanity. The long-term solution to first permanent international court before troops to many war-torn and conflict- international conflict must be both a which those who have perpetrated some ridden areas such as Angola, Bosnia and resolute commitment to peace-keeping of the most heinous crimes possible by Herzegovina, Burundi, Cambodia, Chad, and a stern resolve to bring those one human being against another, would Ethiopia, Eritrea, Iran, Iraq, Kuwait, responsible for atrocities to justice. be brought to justice. Lebanon, Liberia, Mozambique, Namibia, Sierra Leone, Somalia and Western Sahara. The Malaysian Bar has therefore joined The ICC aims to bring perpetrators of Our assistance to Indonesia during the an international network of non- genocide, war crimes and crimes against Asian Tsunami and to Timor Leste in her governmental organisations known as the humanity to justice if their home countries progress towards independence and Coalition for the International Criminal (or the countries where those crimes took nation-building also speaks volumes about Court (www.iccnow.org) which advocates place) are unwilling or unable to act against Malaysia’s important role in international a fair, independent and effective Court. them. It is a court of last resort, and is humanitarian efforts. Malaysia now sits on In Malaysia more than 15 non- intended to be an independent and the United Nations Human Rights governmental organisations have attended impartial tribunal to bring such Council and is Chair of the Organisation various meetings hosted by the Bar perpetrators to account. of the Islamic Conference. Council to explore the possibility of forming a Malaysian chapter of this To date, 104 countries have ratified the Yet, despite our obvious commitment to coalition. (See the report at http:// Rome Statute. It is expected that Japan international justice and the rule of law in www.malaysianbar.org.my/content/view/ will formally be the 105th country to join the international arena, we have yet to sign 7669/2) the Court today. or ratify the Rome Statute. We are pleased to note that the Malaysian Human Rights Commission complaints, the information provided appropriate safeguards to protect such by CTOS has caused injustice, hardship (SUHAKAM), other professional information. Credit reference and inconvenience to consumers. The organisations, individuals from across the companies, such as CTOS, must be Bar Council welcomes the recent political spectrum and various human licensed, controlled and regulated. They directive by the Cabinet requiring banks rights organisations have all expressed a must also be made to assume liability for to obtain the consent of borrowers keen interest in Malaysia’s membership of inaccurate reporting that results in loss before acquiring information from the ICC. to any party. The Data Protection Bill companies that supply credit which protects private information and information. This is a positive step We are hopeful that the Government will which was discussed some years ago must towards establishing a regulatory be looked at again. Without a regulatory expeditiously sign and ratify the Rome framework that will safeguard the framework, there is a pervasive risk of Statute. As ever, the Malaysian Bar is ready interests of consumers. abuse. As can be seen from the numerous to assist the Government in any way we can in this regard.

JULY / DECEMBER _2007 PRAXIS 65 Press Statements

Malaysia a secular State 18 July 2007

he statement made by the Deputy Islam. The observance of this Secular law governs contracts, commerce, TPrime Minister in this 50th year of principle shall not impose any international relations and trade and every Merdeka that Malaysia has never been a disability on non-Muslim nationals aspect of the lives of a citizen. Islamic law secular state is startling as it ignores the professing and practising their own governs specific matters set out in the undisputed constitutional history of the religion, and shall not imply that Federal Constitution in relation to persons country as well as the social contract by the State is not a secular State.” professing Islam. which the multi-racial and multi-religious (Emphasis added) people of this nation came together. In the context of our history and the Subsequent to the issuance of the Reid Constitution itself that proclaims its The Federal Constitution was a carefully Report, further reviews were carried out supremacy, it is the Bar Council’s view that thought out, carefully negotiated by a Working Party that again consisted of there is no doubt whatsoever that Malaysia document that evolved after much debate representatives from the Malay rulers, the is a secular state and not an Islamic state. It and discussion. Some historical context is Alliance party and the British is noteworthy that the Prime Minister in necessary. In 1956, Tunku Abdul Rahman Government. The Alliance party set up his speech delivered at the conference had headed a Merdeka Mission to London its own sub-committee chaired by its then yesterday and in his propagating Islam to negotiate for independence. The deputy president, Datuk Abdul Razak. Hadhari has never referred to Malaysia as negotiations were conducted by 4 Again the Alliance maintained its position an Islamic State. representatives of the Malay Rulers, 4 that they had no intention of creating a representatives of the then Alliance Muslim theocracy and that Malaya would It is time that the proposition that Malaysia Government and representatives of the be a secular State. A white paper is not secular, (which is a rewriting of the British Government. The Reid subsequently issued by the British Constitution), be put to rest once and for Commission was then appointed to draft Government in June 1957 confirmed this all and that there is due recognition and a constitution for independent Malaya. by stating “This will in no way affect the reaffirmation of the clear legal and The Reid Commission held 118 meetings present position of the Federation as a secular constitutional position that Malaysia is, in Malaya. It met a wide cross-section of State”. and has always been, a secular State. people and organisations and received 131 memoranda. Since then Tunku himself, respected Academics, and our own Supreme Court One of the striking features of the Reid in 1988 have reiterated in one way or Coming together is a Commission report and the Federal another that we are a secular State and not Constitution is the inter-communal an Islamic State. Thus for more than 40 beginning, staying compromises. These compromises were years (until 2001), no-one had suggested “ together is progress, essentially the result of proposals set out that Malaysia is an Islamic State. in a memorandum by the then Alliance and working together is party which had in turn been vigorously One has to only look at the Articles in the success. debated over many months by a core Federal Constitution, our system of group from UMNO, MCA, and MIC government and the administration of under Tunku’s chairmanship. The Alliance justice to know that we are not an Islamic Henry Ford Memorandum referred to the issue of State. The Civil Courts set up under the ” religion as follows: Constitution dispense secular justice on a “The religion of Malaya shall be daily basis to all the citizens of this country.

PRAXIS 66 JULY / DECEMBER_2007 Press Statements

The elevation to the Court of Appeal of eight High Court Judges 19 July 2007

he Bar Council is pleased to see that future, and the Bar as well as the public to their integrity, independence, ability Ta number of senior Judges of the puzzled as to the process. Such uncertainty and performance. High Court have been elevated to the does little to strengthen one of the most Court of Appeal. In some cases their important institutions in the country. It One other matter that has remained elevation ought to have occurred sooner. does little for the morale of judicial officers unresolved for more than 6 months is that The Bar Council congratulates all the who have made a commitment to a career of the position of Chief Judge of Malaya. Judges elevated yesterday. on the Bench. It also does little to dispel A position such as this ought not to have unnecessary and unhealthy speculation remained vacant for any length of time. However we are saddened to note that, about promotions, which are again unfair In other jurisdictions, they are not left once again, a number of respected and to those promoted. vacant even for a day. In the interim, the senior High Court Judges have been by- Courts of Judicature Act 1964 appears to passed in the promotion exercise, again The Chief Justice has been reported to envisage that the vacant post of Chief for no discernible reason. This is neither have mentioned a “committee of senior Judge of Malaya ought to be held by a right in principle, nor helpful in terms of Judges of the Federal Court and Court of Federal Court Judge (rather than any of morale. Appeal” who decide on promotions. It is the office holders) designated for this interesting to note that seniority is given purpose by the Chief Justice until an The Bar Council has consistently weight here. In the interest of transparency, appointment is made. maintained that, in the absence of a more the Bar Council calls upon the Chief objective and transparent mechanism such Justice to publicly disclose the names of The issues that the Bar has raised for a as a Judicial Appointment Commission, the senior Judges on this committee, the long time in relation to the Judiciary should seniority (which equates to experience as a criteria for selection onto the committee, not continue to be left unaddressed. The judge) should be the first criterion in any as well as the list of criteria employed in positions that the Bar takes accord with promotion exercise. There may be determining promotions. regional and international norms. Our occasions when other factors justify a former Chief Justice was in fact a signatory departure from seniority but these must It is important that we remind ourselves to one such consensus document in 1995 have basis, and in the absence of a fair and of the special position that Judges hold in namely The Beijing Statement of improved system to determine these other society. They are His Majesty The Yang Principles of the Independence of the factors, such a departure from seniority DiPertuan Agung’s Judges, trusted to do Judiciary in the Lawasia Region which was ought to be rare. The Chief Justice has justice in accordance with their Oath of signed by the Chief Justices in the region. made mention of there being no Office. Their duties are onerous. They are It was agreed by the signatories that this promotion for Judges who have a backlog duty bound to uphold the Constitution document (which, apart from other in writing grounds of judgment. We do without fear or favour and are accountable guidelines, stipulates a transparent not see this being applied uniformly; nor to the people of Malaysia. In these appointments and promotions process) do we believe that this factor may be circumstances, it is unacceptable that the represented the minimum standards properly considered in isolation. system of appointment and promotion of necessary to be observed in order to Judges remains shrouded in secrecy. maintain the independence and effective Unfortunately, in the last few years Judges cannot be made to feel that they functioning of the Judiciary. It is pointless ignoring seniority has become the norm, “owe” their promotion or confirmation to for a head of the Judiciary to have signed leaving many Judges uncertain about their any one or more persons, but rather, only such a document if scant regard is subsequently had to any of its contents.

JULY / DECEMBER _2007 PRAXIS 67 Press Statements

Comment on Federal Court decision in Latifah Bte Mat Zin 26 July 2007

n the recent past, the nation has been Federal Constitution, its history and There is however one possible area of Iconfronted with a series of issues that previously decided cases, before coming concern. The Federal Court judgment straddle the civil/syariah jurisdictional to the conclusions stated. The Bar Council envisages a situation where there may be divide. would commend the Federal Court in matters that are outside the jurisdiction of handing down this timely judgment that both the Civil and the Syariah Courts. In This problem affected both Muslims and gives emphasis to the importance of acting other words there could be situations non-Muslims, and was faced by ordinary in conformity with the Federal where there is no available remedy in either citizens in situations that often involved Constitution. court. This is an issue of access to justice. family matters, including those relating to children. While the Courts grappled with The Judgment has dealt with the effect of It is resolved in certain situations which the jurisdictional issues, ordinary people the relevant constitutional provisions and are covered in previous decisions of the faced traumatic situations, with children the position of the Civil Courts and Court, for example in Tan Sung Mooi often being the worst victims. Syariah Courts under the Constitution, [1994] a decision of the then Supreme and has also satisfactorily resolved the Court which held that the Civil Courts In the light of these recent trends, the question as to whether implied power can would have jurisdiction where one of the landmark Federal Court decision in be a source of jurisdiction in this context. parties was a non-Muslim. However it may Latifah Bte Mat Zin handed down not be resolved in other situations. This yesterday is welcome relief. This decision This decision also brings about some therefore has to be comprehensively clarifies the law for both Muslims and non- certainty (and with that less anxiety and addressed either by the Courts or by Muslims, and clarifies what matters may anguish to Muslims and non-Muslims) as Parliament as suggested in the Judgment. be properly dealt with by the respective to where parties may go to pursue their Courts. It has meticulously examined the legal remedies.

All Members Malaysian Bar

Re : Bar Council Rulings 2007

e wish to inform you that the new compilation of the Bar Council Rulings 2007 has been duly Wadopted and approved by the Bar Council at its recent meeting. Apart from the above Rulings, the compilation also contains the Solicitors’ Remuneration (Enforcement) Rules 2004. A set of the abovementioned Rulings and Rulings can be downloaded from the Malaysian Bar’s website.

Members are urged to strictly comply with the said Rules and Rulings contained therein. The Bar Council Rulings shall come into force on 1st January 2008.

Dated this: 23rd November 2007.

Thank you.

Lim Chee Wee Secretary Bar Council Malaysia

PRAXIS 68 JULY / DECEMBER_2007

BMW