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PRAXIS CHRONICLE OF THE MALAYSIAN BAR MALAYSIA

M A JL IS IL PE NC GU OU JANUARY / JUNE 2008 AM BAR C

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CycloneCyclone NargisNargis - MyanmarMyanmar Editorial PRAXIS CHRONICLE OF THE MALAYSIAN BAR News 2 Conference on developing a comprehensive policy framework for migrant labour 3 Official launch of the Executive Diploma in Islamic BAR COUNCIL OF MALAYSIA Law BAR COUNCIL 5 Roger Tan barred from entering Fiji Nos 13, 15 & 17 6 LAWASIA’s letter to the Attorney General of Fiji Leboh Pasar Besar 50050 Kuala Lumpur 7 IRB Ruling - Recognition of Income Subject to Tax: Malaysia Update Telephone (03) 2031 3003 Fax (03) 2026 1313, 2034 2825, 2072 5818 8 Nepal - Constituent Assembly Elections on 10/4/08 e-mail: [email protected] - Nepal Election Observation Committee Website: www.malaysianbar.org.my 8 Re : Tibetan Protest BAR COUNCIL 2007/2008 9 LAWASIA Statement on the Detention of Hindraf President Ambiga Sreenevasan Vice President Ragunath Kesavan Leaders Under Isa in Malaysia Secretary Lim Chee Wee 10 Book Review - Nose Dive – The Crippling of Justice Treasurer George Varughese Yeo Yang Poh, Datuk Haji Kuthubul Zaman Bukhari, Hendon Mohamed, Hj Vazeer Alam Mydin State Bar News Meera, Dato’ Muhammad Shafee bin Md Abdullah, 13 Little change to 4 State line-ups Edmund Bon, Cecil Rajendra, Low Beng Choo, Christopher Leong, Roger Tan Kor Mee, K Mohan 13 Pahang Bar passes ISA motion a/l K Kumaran, Loh Wann Yuan, G Balakrishnan, R Subramaniam, Dato’ Hj Sukri bin Haji Mohamed, 14 Changes at Perak Bar leadership, Malacca Bar Hj Aziz Bin Haniff, Ravindra Kumar, Steven leadership unchanged Thiruneelakandan, Ng Kong Peng, R R Chelvarajah, Tee Kim Chan, Pretam Singh, Syed 15 Poh Teik elected as Johor Bar’s Rep Azimal Amir bin Syed Abu Bakar, Hj Mohamed 15 Selangor Bar gets a new Chair Sazali Abd Aziz, Lalitha Menon, Dato’ V Sithambaram, Ngan Siong Hing, Shan Theivanthiran, R V Lingam, Anuwar bin Mohd, Comment Hj Asmadi bin Awang, Yasmeen Hj Muhamad Shariff 16 An Open Letter - Appeal for a better Parliament Publications Committee 17 Fulfilling the nomination process R Subramaniam (Chairman), K Shanmuga (Deputy Chairman), Cecil Rajendra, Colin Andrew Pereira, 18 Judicial Commission Edmund Bon, S Gunasegaran, Sanjeev Kumar 19 Why I was arrested Rasiah, Tan Ban Cheng , PK Yang, Nicole Tan Lee Koon, Jahaberdeen Mohamed Yunoos, Avtaran 21 The Internal Security Act 1960: A throwback to the Singh, Anita Shukla, Dymphna Lanjuran, Megalai V era of tyranny Raman 22 Court Jesters Secretariat Chief Executive Officer: Corrinne Wong Directors: Cindy Chan and Rajen Devaraj Committee Publication Executive 23 Penang Bar votes against having Young Lawyers Salina Lim Abdullah Tel: +603 2031 3003 extn 189 Committee Fax: + 603 2032 2043 [email protected] Human Writes Advertisement Executive Chandrika Bhaskaran 25 POST MORTEM on Festival of Rights themed “As I Tel: +603 2031 3003 extn 192 DL: + 603 2031 3180 Believe: Freedom of Expression through Art, Music, Fax: + 603 2026 1313 Culture and Conscience” – Sunday 9th December [email protected] 2006 Design & Layout: Khairul Anuar / Norazaliza Azlin Article Praxis is the chronicle of the Malaysian Bar, 28 Amendments to the Criminal Procedure Code: published bi-monthly by the Bar Council of Malaysia. Radical or Piecemeal Legislation? Contribution: The Bar Council welcomes letters, 37 A self-insured fund - Our next step? articles, views and news (including photographs) for possible inclusion in the publication. However, the Bar Council reserves the right not to publish them or to edit those published as regards content, Speeches clarity, style and space considerations. 40 Ethics Course Luncheon Speech by Articles from individuals that are published here Ms. Sitpah Selvaratnam contain the personal views of the writers concerned and are not necessarily the views of the Bar 42 Ethics Course Luncheon Speech by Mr Lim Kian Council. Contributions and enquiries should be directed to [email protected] Leong

Disciplinary Oders 45 Disciplinary Matters – Updates Certificate No: 22470 MAY / JUNE_2007 PRAXIS 1 News

Conference on developing a comprehensive policy framework for migrant labour by M. Moganambal

one and a half day Conference international phenomenon and that in the migrant workers was founded on the Aentitled “Developing a Comprehensive region, Malaysia had the highest ratio of principle of equality before the law as Policy Framework for Migrant Labour” was migrants in its workforce. He added that provided for in Article 8 of the Federal jointly organised by the Malaysian Bar migrants and their families today Constitution. The Bar Council’s Legal Aid Council and the International Labour constituted the third largest community Committee had always worked together Organisation (ILO). in Malaysia. He noted that despite the with various stakeholders i.e. Tenaganita, huge presence of migrant labour in the AWAM, WAO and other NGOs, in Representatives from the judiciary, country, the Malaysian government did providing legal assistance to migrant government ministries and departments, not have in place a comprehensive policy workers. foreign missions and civil society including framework to deal with migrant labour. representative from trade unions and The purpose of the Conference was to He pointed out that Malaysia did not have employers’ organisations attend the address the absence of proper regulatory a good track record in dealing with Conference which took place on 18 and mechanisms in the whole process of migrants, though he said that some of this 19 February 2008. recruitment, placement and employment might have more to do with problems of of migrant workers as well as to deal with implementation than policy. Some of the Dato’ Ramachelvam, the Chairman of the the gaps in existing policy with a view to problems faced by the migrants included Ad Hoc Committee on the Immigration developing a comprehensive policy profiling, stereotyping, and the absence Act, began the Conference by thanking framework for migrant labour. of a policy to prevent migrant workers from all the speakers and participants for taking being exploited. He urged the participants the time to attend the Conference. Ragunath Kesavan, the Vice President of of the Conference to discuss ways to resolve the Malaysian Bar, in his welcome speech He said that migration was an said that the Bar Council’s policy on continued on page 4

PRAXIS 2 JANUARY / JUNE_2008 News

Official launch of the Executive Diploma in Islamic Law by Linda Tey (Executive Officer)

The Official launch of the Executive Diploma in Islamic Law (Islamic Banking And Finance) - A Collaboration between the International Islamic University Malaysia and the Bar Council

he International Islamic University will continue to expand parallel with Professor Dato’ Dr. Sano further said that Tand the Bar Council launched the conventional banking. By 2010, the in the 2007 budget, the government has Executive Diploma in Islamic Law (Islamic Islamic banking industry is expected to once again emphasised the development Banking and Finance) programme on 15 constitute 20% of the overall banking and of Islamic banking in Malaysia. This was February 2007. The launch was attended insurance market. under the Accelerating the Development by Mr. Steven Thiru, Puan Hendon of Islamic Finance initiative. This shows Mohamed and En. Rashid Ismail of the Professor Dato’ Dr. Sano also said that the that Malaysia has progressed significantly Professional Standards and Development government intends to develop Malaysia in the development of Islamic financial Committee of the Bar Council and as a Global Islamic Financial Hub which services, especially in terms of the size of Professor Dato’ Dr. Sano Koutoub will serve as a platform for the origination, investments, efficiency in services, Moustapha, Assoc. Professor Dr. Haji Azmi issuance and trading of Islamic capital diversity of products, well-developed Bin Haji Harun and Professor Dato’ Dr. market and treasury instruments, for fund infrastructure and an increase in the Zaleha Kamarudin of IIUM. and wealth management, offshore Islamic number of institutions. According to him, financial services market as well as takaful Malaysia is the country that issued the first Professor Dato’ Dr. Sano, the Deputy and retafakul business. This will be global sukuk in 2002 which attracted Rector of IIUM said that under the 9th complemented by the formation of centers investors especially from West Asia and we Malaysian Plan the government has of excellence for education, training, are also the first to issue the ringgit- emphasised the importance of Islamic consultancy and research in Islamic denominated Islamic bonds, namely the banking in Malaysia. The government banking and finance. International Finance Corporation. hopes that the Islamic banking industry

JANUARY / JUNE_2008 PRAXIS 3 News

Mr. Steven Thiru, the Chairman of the Negara Malaysia. The Bar Council is also enhance student’s knowledge on PSDC, said that in line with the nevertheless determined to equip Islamic commercial legal principles government’s plan as mentioned by members of the Bar, through professional especially on Banking and Takaful. Mr. Professor Dato’ Dr. Sano, Bank Negara development programmes to face this Thiru further said that the programme is Malaysia intends to launch the Malaysian challenge. The Executive Diploma also the first step in the Bar Council’s plans International Islamic Financial Centre programme is one of the steps undertaken to collaborate with universities and (MIFC) initiative. In this regard, Bank by the Bar Council and about 30 members professional bodies to offer a buffet of Negara Malaysia is concerned that the local of the Bar have already registered for the professional development events for legal profession lacks the necessary legal programme. members. This will enable members to expertise in particular areas of Islamic broaden their scope of knowledge in Banking and Finance Law and it intends Mr. Steven Thiru said that the course will different areas of the law. to allow for the admission of foreign begin on 23 February 2008. He stressed lawyers to practice in these areas. The Bar that it is a highly recommended For those who are interested in registering Council has expressed its reservations over programme which will immensely benefit for the programme, you may contact Ms. the proposed initiative and has also students, both in the face of the Bank Linda Tey at 603-2032 4498 or email objected to the admission of foreign Negara Malaysia’s MIFC initiative as well [email protected]. lawyers in the manner suggested by Bank as in their practice. This programme will

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administration of justice, the protection 1969, and the Occupational Safety and these issues as no one could deny that the of human rights and the maintenance of Health Act 1994, the rights of illegal country needed migrant labour especially the rule of law. The rapid expansion of migrant workers were not. He said that it for its construction, plantation and service international labour migration in the was imperative therefore that the sectors. He said that migrant workers had 1980s had seen the emergence of a new Malaysian government develops a contributed to the economy of Malaysia set of problems in Malaysia and its comprehensive in-depth all embracing and therefore it is only right that these neighbors. It could not be denied that policy framework that would effectively workers be afforded the protection and there was a need for a good regulatory deal with the myriad of issues relating to security of the law. He suggested that the system to protect all stakeholders, both the foreign workers and the problems arising way forward was to consider the sending and receiving countries and their from the point of recruitment to return. possibilities of having a more open and economies as well as safeguard the welfare free flow of migrant labour along the lines of migrant workers. The keynote address was followed by of the model used in the European Union. paper presentations on the following areas Government agencies must work together Migrant workers in Malaysia could be – Right to Livelihood, Arrest and and dialogue with all relevant stakeholders divided into 2 categories, legal or Detention and Social Challenges. in the formulation of a long-term documented (workers with valid work consistent policy to regulate migrant labour permits and proper travel documents) or In the final session, on Day 2, Lotte Kejser in Malaysia. illegal or undocumented (workers who do from ILO Jakarta presented a paper ILO’s not possess any valid documents). While Multilateral Framework on Labour Mah Weng Kwai, the President of Lawasia the rights of the legal migrant workers were Migration and Dato’ Ramachelvam then delivered his keynote address. He protected by law – the Workmen’s presented a 20 point plan of action which agreed that the Conference was timely and Compensation Act, 1952, the needed to be taken into account in necessary. Lawasia ‘s primary aims and Employment Act 1955, the Trade Unions developing a comprehensive policy on obligations were to promote the Act 1959, the Industrial Relations Act migrant labour.

PRAXIS 4 JANUARY / JUNE_2008 News

Roger Tan barred from entering Fiji by Rajen Devaraj (Director)

alaysian Bar totally unnecessary and this Society have backed the planned visit. MCouncillor, Roger had only painted a negative Tan has been barred from image of Fiji. The Fiji Law Society which invited the entering Fiji after the IBA to Fiji said the decision to ask the IBA interim government there When contacted, the to send a team of eminent jurists followed issued a stop arrival order to Malaysian Bar President, the IBA Conference in Singapore last border officials at the Nadi Ambiga Sreenevasan said October. International Airport last this is a missed opportunity Friday prohibiting him for Fiji government to show “It is critical that we draw on the wisdom from entering the country. that its judicial process is of our international friends to come in and above board and that they have nothing make objective assessments of our situation Tan, who was supposed to board the flight to hide. and assist us by making helpful from here to Sydney en route to Fiji suggestions to solve our problems and yesterday evening, was part of an “I am confident that the IBA will be very move forward,” said Graham Leung, a International Bar Association (IBA) professional and neutral in its observations former president of the Fiji Law Society. delegation scheduled to arrive in Fiji today as they are highly experienced in to examine the independence of judiciary undertaking missions of this sort”, said The Human Rights Institute of IBA or and the state of the rule of law in the Ambiga. better known as IBAHRI was established country. in 1995 under the honorary presidency On January 30 last month, the interim of Nelson Mandela as a leading voice in The order, effective from February 18 to Attorney General of Fiji, Aiyaz Sayed- the promotion of the rule of law 22, also prohibits other members of the Khaiyum said the IBA Human Rights worldwide. delegation – including Justice Roslyn Insitute is not welcome to visit Fiji now Atkinson of the Supreme Court of because their presence will undermine the Justice Roslyn Atkinson is a Judge of the Queensland, Australia and Felicia independence of judges hearing high- Supreme Court of Queensland. Johnston, from the IBA’s Human Rights profile cases. Institute. Tan is the Chair of the Conveyancing When asked when was a good time for Practice Committee of the Malaysian Bar However, Felicia who arrived in Fiji at the IBA to visit Fiji, Sayed-Khaiyum said Council. He holds a Bachelor of Laws with 5.30am yesterday morning from Los it should be when all the high-profile Honours from Queen Mary College of the Angeles unaware of the order was denied constitutional cases currently before the University of London, and a Master of entry. She left for Brisbane, Australia seven courts and the tribunal settings were Laws from the National University of hours later. completed. Singapore. He is also a barrister-at-law of Gray’s Inn, London and an advocate and Fiji Law Society President, Isireli Fa said However, various non-governmental solicitor of the Supreme Court of the action taken by the government was organisations including the Fiji Law Singapore.

JANUARY / JUNE_2008 PRAXIS 5 News

Fiji which achieved independence in 1970 In addition, the legality of subsequent this year despite being 77 years of age has been affected by several military coups; appointments to the judiciary made by when under the Constitution, a judge’s the most recent being the December 2006 the Judicial Services Commission under appointment expires when they reach 65 coup engineered by the army’s the chairmanship of the Acting Chief years of age for the High Court or 70 years commander, Frank Bainimarama. Justice has been called into question. of age for the Court of Appeal. Examples of recent appointments include Since then, members of the Fijian legal two Malaysian lawyers, Dato’ Cyrus Das The Fiji Law Society is also contemplating fraternity are deeply concerned by and Dato’ Cecil Abraham who were of challenging the legality of the appointments to the judiciary in Fiji. It appointed to the Court of Appeal on appointments of puisne and appeal judges started on January 3, 2007 when Chief September 5, 2007 despite having no of the Fiji Court of Appeal since the events Justice Daniel Fatiaki was ordered to take apparent judicial experience. (It is of December 2006. leave from his office. On January 16, 2007, understood the duo subsequently declined Justice Anthony Gates was sworn in as to accept the appointments.) On The IBA has over 30,000 members the Acting Chief Justice. Two days later, September 20, 2007, Justice Pathik’s consisting of over 195 bar associations and Chief Justice Fatiaki was formally contract was extended until April 2008 law societies from all over the world. suspended.

LAWASIA’s letter to the Attorney General of Fiji by Mah Weng Kwai

The Hon Mr Aiyaz Sayed-Khaiyum

Dear Attorney General

AWASIA has been made aware that the members of an The result, in our view, was the ability to form a balanced view Lintended mission to be made by the International Bar of a very complex situation and we hope that our report Association to Fiji may be subject to orders that would prevent indicated that. their entry into the country. We believe that the IBA is a fully independent body and that, We were surprised to learn of this, especially given our own with its long experience of undertaking missions of this sort, it experience when we undertook a mission in March 2007. is well-placed to deliver an informed, unbiased and well- considered report. LAWASIA was at that time impressed by the fact that, although feelings in Fiji ran very high, its mission was not only Yours sincerely welcomed into the country, but was also entirely free to meet Mah Weng Kwai with many who held vastly differing views. PRESIDENT February 20, 2008

PRAXIS 6 JANUARY / JUNE_2008 News

IRB Ruling - Recognition of Income Subject to Tax: Update by Lim Chee Wee Secretary, Malaysian Bar

Circular No: 40/2008 Date: 15 February 2008

Dear Members, representations were made by the Bar to d. where there is a dispute on the fees s members would be aware, we have the IRB. in respect of contentious matters, the Abeen having an ongoing dialogue income will be taken to accrue when with the Inland Revenue Board (“IRB”) The IRB and the Director General of the taxed costs are determined by regarding the basis of recognising the Inland Revenue (DGIR) have maintained court i.e. upon the issuance of the income of legal practitioners for tax that Section 24 of the Income Tax Act registrar’s certificate; purposes. 1967 (“ITA”) provides that gross income e. as such, even if the payment of fees derived from a business should be is staggered (or agreed to be made Under Malaysian law, the self-assessment recognised on an accruals basis. For tax by way of instalments), the income system of taxation has been applicable to purposes, legal firms are required to report of the firm therefrom is to be legal practitioners from the Year of their income as business income, as recognised as being accrued upon Assessment (“Y/A”) 2004. “business” has been given an extensive taxation. As such, the DGIR views meaning under the ITA to include, fee instalments as merely a “payment Many members have been submitting amongst others, any “profession, vocation arrangement” between a legal firm their tax returns on the “cash” or “receipts” and trade ...”. and its clients; basis of income recognition. The IRB has taken the position that the income of legal On 28 January 2008, TAXAND received The above applies for the Y/A 2008 and practitioners should be recognised and a letter dated 22 January 2008 from the subsequent Y/As. Please note that the IRB subject to tax on the basis of accruals. DGIR in response to the submissions has taken the position that they still reserve made by the Bar. The DGIR’s position is their right to audit legal firms and adjust The Bar Council had received information as follows: the basis of income recognition for Y/As from some members that they were being a. recognition of both income and prior to Y/A 2008. In such situations, audited by the IRB for previous Y/As and expenses for ‘contentious’ and ‘non- whilst the DGIR has said that the “cash” were told that they would be subjected to contentious’ matters will be on an or “receipts” basis will be substituted for penalties. The audit process forms part of accrual basis; the accruals basis, no penalties will be the self-assessment system which came into b. where ‘non-contentious’ matters are imposed by the IRB. force from Y/A 2004. subject to the Solicitors Remuneration Order 2005, the date Whilst the Bar Council has not agreed to The Bar Council set up an Ad-Hoc of income accruing to the firm will any position taken by the IRB, some committee comprising of tax lawyers and be the date of the invoice issued by aspects of the DGIR’s letter require chaired by Ragunath Kesavan, Vice- the firm; clarification. Accordingly, the Bar Council President of the Bar. The Bar Council also c. where there is no dispute on the fees and TAXAND are still in an ongoing appointed a tax consultant, Taxand for contentious matters, the income dialogue with the DGIR on this matter Malaysia Sdn Bhd (“TAXAND”) to act will be taken to accrue on the date and will update members as soon as there for the Bar. Thereafter, comprehensive the invoice is issued; are further developments.

JANUARY / JUNE_2008 PRAXIS 7 News

Press Statement Date : 2/4/08 Nepal - Constituent Assembly Elections on 10/4/08 - Nepal Election Observation Committee

epalese go to the polls on 10/4/08 Asia regions, with about 12 observers from Kathmandu to the districts. NEOC has Nto elect members of the Nepal’s Europe and North America. divided Nepal into 6 regions for the Constituent Assembly (Parliament). This election observation particularly in the will be a historic election for Nepal as the The observers represent groups or rigging-prone and sensitive areas in the Maoist (People’s Liberation Army) will be organizations involved in human rights, Southern plains, along the Indo-Nepal taking part as well. peace building, rule of law, social justice, border and the hilly constituencies. On minority rights and trade unions. their return to Kathmandu on 11/4/08, The elections will be observed and the observers will be required to submit monitored by the National Election LAWASIA, the Law Association for Asia their preliminary report to NEOC. Observation Committee (NEOC) which and the Pacific is happy to announce that will look into the various problems related its President, Mr Mah Weng Kwai of Kuala Mr Mah Weng Kwai, a past President of to the administration of the elections, Lumpur, has been selected as a member of the Malaysian Bar, has accepted the selection of candidates, political financing, the international election observer mission invitation as a personal challenge and behaviour of political parties and ways to organized by NEOC, which works closely opportunity in the enormous endeavor to ensure that voters are sufficiently well with the United Nations in Nepal and help ensure that the election process in informed in the entire electoral process. the Office of the High Commissioner for Nepal will be conducted fairly and also in To carry out its work, NEOC has invited Human Rights. recognition of the strong human rights international observers, of whom 50 (at position taken by LAWASIA. least 1/3 of them women) have confirmed Mr Mah will leave for Kathmandu, Nepal their participation. Most of the observers on 7/4/08 for a week. International Mah Weng Kwai will come from South Asia and South East observers will be required to travel out of President, LAWASIA

Re : Tibetan Protest

AWASIA, the Law Association for stressing the importance of a peaceful to allow immediate independent LAsia and the Pacific, in noting resolution to the situation. international access to the region. international concern at recent violent unrest in the Tibet Autonomous Region, Furthermore, it emphasizes the Additionally LAWASIA calls upon the adds its voice to those who are encouraging importance of observing universally- Nepalese government to ensure that police the avoidance of unnecessary force by accepted standards of human and legal do not resort to the unnecessary use of authorities to maintain order. While rights in dealing with those who have been violence, including beatings of LAWASIA condemns the use of violence detained as a result of the current unrest. demonstrators, when dispersing street or force by demonstrators, it urges the In particular, LAWASIA calls on authorities protesters in Nepal. Recent television Chinese authorities to respect the right to ensure that detainees are not subject to footage has shown that Tibetan monks of the people of Tibet to freedom of ill-treatment and are afforded access to legal and other Demonstrators have been expression and of assembly consistent with representation and to a fair and prompt severely beaten with sticks by Nepalese internationally recognised human rights trial. police when breaking up the peaceful standards and principles. demonstrations. Whilst recent news that some press and LAWASIA endorses the views of the UN diplomatic access to Tibet has been granted Mah Weng Kwai Secretary-General, Mr Ban Ki-Moon, in is encouraging, LAWASIA reiterates calls President, LAWASIA

PRAXIS 8 JANUARY / JUNE_2008 News

LAWASIA Statement on the Detention of Hindraf Leaders Under Isa in Malaysia

AWASIA, the Law Association for Moreover, LAWASIA notes that It strongly endorses the Bar Council’s LAsia and the Pacific, has noted the individuals suspected of involvement in stance that a balance must be struck continued detention without trial of violent acts including acts of terrorism can between legitimate concerns for national Hindraf leaders under the Malaysian be charged and brought to trial under security and universally accepted principles Internal Security Act (ISA). Malaysia’s criminal laws and that this access of the protection of the fundamental right to due process is consistent with rule of of an individual. LAWASIA notes that this Following the lead of its member law. view is commonly held by the legal organisation, the Malaysian Bar Council, community of the region, which considers LAWASIA voices its concern at the use of LAWASIA, as an association primarily that preventative detention laws should the ISA in this context. It questions how comprised of the representative bodies for be applied only with extreme caution, these detainees can be, considered a threat lawyers in 24 countries of the Asia Pacific given that the unnecessary or to national security, especially when one region, stands in support of the Malaysian inappropriate use of such laws is wholly of their number, Mr Manohoran, has since Bar Council’s prolonged opposition to the inconsistent with the rule of law. become the democratically elected member Internal Security Act and its continued call for the Kota Alam Shah state seat in to the Malaysian authorities to repeal this Selangor. law.

JANUARY / JUNE_2008 PRAXIS 9 Book Review Nose DiveNews – The Crippling of Justice

EFORE 1988, our courts were held in Justice Eusoff Chin and P S Bhigh regard throughout the Gill, Federal Court Judge, Commonwealth. Their independence both judges of the highest was often likened to that of the courts court in the country, fly in the of India. Singapore judges, highly paid face of the weighty and but presiding over deferential courts unanimous opinion of lawyers kow-towing to totalitarian intolerance, who are more eminent than were heard to whisper envious them? In their conceit they understatements, such as, “Your did not even bother to judgments are better than ours.” Tunku consider the opinion of these Abdul Rahman could justly point with jurists. I am not saying that they pride to the case where his minister of could not do so. Of course, education, Abdul Rahman Talib, sued the they could disagree, but in opposition’s D R Seenevasagam MP for doing so they must say why libel and lost. they disagree ... Instead they chose the path of Humpty When the Dr Mahathir regime contrived Dumpty. In effect what they the ousting of Tun Salleh Abbas, the Lord are saying is that the words President of the final court of appeal, the reputation in sub-section (3) of section 340 of the National Land of our courts took a severe hammering. What Code mean what they choose them to mean and graphically illuminated the fall were three cases: the not what the words really mean.” Anwar Ibrahim trials, the Boonsom cheating case, the Ayer Molek share transfers, and the jailing of the lawyer The Ayer Molek case was about the registration of Zainur Zakaria for contempt. “Judging the Judges” shares. The applicant in an ex parte (without the other by former court of appeal judge, Dato N H Chan, has side) application asked the court to order the done a public service by putting these court scandals company to register his shares in it although he had no on record. transfer form to support his application. Despite the Companies Act laying it down that.” a company shall The Boonsom case is denounced by Dato N H Chan not register a transfer of shares or debentures unless as “the most outrageous injustice.” A crook forged a proper instrument of transfer in the prescribed form the signature of a Thai woman on the land transfer has been delivered to the company” a transfer was form and had her land in Penang transferred to a ordered, The other side then applied to set aside the developer. The owner sued but the Federal Court held order but the judge postponed the hearing to a date that the transaction was good despite the forgery. which was after the date he had given the company While the decision could be charitably described as to comply with his order for registration. He refused an “a lack of understanding of plain English,” what was application to stay his order. Mr Justice N H Chan who startling was that the carefully worded judgment of was a member of the court of appeal hearing the the court of appeal, that a forged document gave appeal said that the judge had effectively deprived no title, was ignored. Worse still, the court failed to the other side of their right to set aside the ex parte mention even one single precedent on the same order. The Court of Appeal decided that “This misuse section of the National Land Code. This curious of the court’s procedure ... is manifestly unfair to a absence of reasoning is unprecedented. Even the party to litigation before it..This court, therefore has a Chinese emperors of old beheaded entire families duty to exercise its inherent power to prevent misuse based on reports of reliable ministers, even if the of its procedure.” The court ordered that pending the reports were made up. outcome of the appeal the party who was now the registered owner of the shares should not exercise Dato. N H Chan is scathing. “How then could Chief

PRAXIS 10 JANUARY / JUNE_2008 News any rights relating to them. This application was most certainly not a contempt of court, which is defined as any act done or writing The Court of Appeal also criticised a a brazen published,calculated to bring a court or a judge of irregularity, that the case being commercial case the court into contempt or to lower his authority. The should have been tried in the Commercial Division of lawyer was refused time to prepare his defence and the High Court at Kuala Lumpur. The registration call witnesses and was speedily sent to jail, even bail number, R3-25-3-1995, however was issued by the pending an appeal was denied. The rogue behaviour Appellate and Special Powers Division indicating that of the judge fed the popular perception that the the applicants had filed their writ in that Division and judge was hell bent on punishing Mr Zainur Zakaria for not in the Commercial Division as should have been defending Anwar Ibrahim, once the political darling the case. of the prime minister but now a spurned pariah. The maxim that justice must not only be done but must The Court added, “The fact that the proceedings manifestly be seen to be done.clearly had no were filed in the wrong Division does not render the relevance in this sort of court. proceedings to be in any way invalid but may, coupled with other considerations in the present case, give Then there is the silly case of Mr Tommy Thomas which the impression to right-thinking people that litigants can again exposes the oppressive conduct of some judges choose the judge before whom they wish to appear during this slide into shame. Mr Thomas, a defendant for their case to be adjudicated upon. This, we in a case, had agreed to a statement read out in consider, may lead to very unhealthy negative thinking court that a settlement had been reached. Mr Thomas and since justice must not only be done but must also later issued a claim that the deal had been done by be seen to be done, it is incumbent on the trial Judge, the insurers despite his objections. Incredibly, he was upon perusal of the pleadings, to have taken the charged with contempt. Despite an apology, he was initiative of transferring the proceedings to the right sentenced to six months imprisonment. Division so as to dispel any notion that he is partial to any party. This is yet another added reason that Dato N H Chan’s book has recorded some judicial strengthened our conviction that it is right and proper scandals. These landmarks of abuse marked the that we exercise our inherent power to prevent an period after the battering of justice in 1988 with the injustice being done by the issue of an interim injunction Tun Salleh Abbas “trial” and the subsequent nose dive restraining the respondents from enjoying the fruits of to a bullying abjectness choreographed by some the registration of the infamous shares into their judges anxious to be storm troopers of the new era. names” These observations are made so that people The Anwar Ibrahim trials were accompanied by a series will not say, “Something is rotten in the state of of attacks by a judge against Mr. Anwar’s defense Denmark.” Memorable words from the joint opinion lawyers which so alarmed the Lawyers Committee for of Dato Chan who sat with Datos Siti Norma Yaacon Human Rights that they issued a condemnatory and K C Vohrah, judges who have since retired with statement. Not to be forgotten is the barefaced unsullied reputations. moving of a judge from the Appellate and Special Powers Division of the court to the Criminal Division, Incredibly, the Federal Court expunged that part of and the removal of Mr Justice K C Vohrah, the Criminal the judgment that it found annoying and told off the Division’s senior judge, to the Appellate and Special court of appeal. It was the chief justice Mr Eusoff Chin, Powers Division. Lawyers understandably suspected the same Eusof Chin who sat in the Boonsom case, this was because Mr Justice K C Vohrah was seen to who did the “expunging,” something unheard of. be too proud a man to bow to the wishes of powerful politicians, however high. The third case is the case of Mr Zainur Zakaria. He was charged with contempt for asking the court to prohibit It was particularly during the Anwar Ibrahim trials that the prosecuting lawyers in one of the Anwar Ibrahim we witnessed how low the nose dive had taken our cases from prosecuting on the ground that they had courts; it is easy to understand the anger that emerges fabricated evidence against Anwar. from the pages of this book. . During the course of the second trial, Mr. Karpal Singh, one of the defence

JANUARY / JUNE_2008 PRAXIS 11 News team, referred in open court to a medical report which the courts had disposed of the case. The Court which showed that the levels of arsenic in Mr. Anwar’s of Appeal agreed that the writer had “scandalized body were alarmingly high and that he was losing the court.” The case, the first in which a journalist has weight and hair. He asked for an inquiry to be held. been sentenced to jail for contempt in the ordinary Even though both the trial judge and the Attorney course of his duties only confirmed that there is no General expressed their concern about the report freedom of the press in this country and caused and agreed that there should be an investigation, Mr. considerable doubt of judicial impartiality. Karpal Singh was charged with sedition for having said that: “it could well be that someone out there wants Dato N H Chan was not a party to any of the scandals to get rid of him..... even to the extent of murder...I I have mentioned. He was an honest judge. He suspect people in high places are responsible for this displayed this quality when the judges called for the situation.” It was only a month later that the Attorney removal of shorthand machines from the court rooms. General decided to prosecute Mr. Karpal Singh for The machines had been brought in by that great Lord sedition. The Lawyers Committee for Human Rights President Tun Azmi in an endeavour to speed up cases noted that “this is the first case anywhere in the world by doing away with the snail paced note taking by in which a lawyer has been accused of sedition for judges. The judges did not like this innovation one bit, words spoken in the defence of his client. We believe that is, those who were in the habit of leaving out large that such a prosecution strikes at the heart not only of chunks of evidence they did not like, or altering bits the immunities of lawyers in respect of the conduct of here and there on a rethink. The main argument of their professional duties but even more importantly at the opposition was that the short hand writers were the right of an individual to fair trial. Our concern is so just not good enough; Tun Azmi gave in but left it to great that we have taken the unusual course of those judges who liked the machines to retain them. publishing an opinion setting out our views..” That Mr Justice N H Chan was one of the few who retained their shorthand writers and continued to Another victim of the sedition laws is Mr Lim Guan Eng, supply lawyers with pristine notes. of the Democratic Action Party, convicted on charges under the Sedition and Printing Presses and NH Chan was a good judge, quick on the uptake, sure Publications Acts. He had questioned, in a speech and of his law, always courteous and humble enough to in a pamphlet, the justice of detaining for three years admit, as he does at page 42, that he was wrong to a 15-year-old victim of statutory rape while allowing threaten contempt when the Ipoh Municipal chief in her rapists, including, allegedly, the former chief 1980 criticised a decision of his. He was humble enough minister of Malacca, to go free. The alleged rape to step down when counsel in an appeal against victim later retracted her charges against the chief sentence told him that the request was made because minister, stating that she was coerced into fabricating he had a reputation for hard sentences. He was one them. The woman’s grandmother, who had of those who adorned the bench. The author has put accompanied the woman when she made the on record some of the bad cases which shocked charges, questioned the woman’s motives for lawyers and laymen alike. He has done a public recanting and continued to assert that the man had service.# been guilty of statutory rape. Lim Kean Chye Then there is the disgraceful case of Far Eastern Book Reviewed: Economic Review correspondent Mr Murray Hiebert Judging the Judges who was convicted of contempt for writing an article, by N H Chan DPCM reporting a civil suit brought by the wife of a judge, Gopal Sri Ram, against the International School of Kuala Alpha Sigma 2007 Lumpur, the judge’s wife claiming that the school had discriminated unlawfully against her son by dropping him from a school debating team after charges that the son had acted improperly. Mr Hiebert’s article noted, among other things, the unusual speed with

PRAXIS 12 JANUARY / JUNE_2008 State Bar News

Little change to 4 State line-ups by Web Reporter

our State Bars - Kedah/Perlis, Kuala V. Raman, Sulaiman Bin Abu Bakar, Ernie Steven Thiru was re-elected as the KL Bar’s FLumpur, Penang and Terengganu - Suffiani Binti Salim, Zul Azri Bin Abd representative to the Bar Council for a third held their annual general meetings on 21 Khalil and Nazira Binti Abd Rahim. term after defeating Brendan. February 2008. In Kuala Lumpur, the incumbent In Penang, Mureli Navaratnam and Lalitha In the Kedah/Perlis Bar’s AGM held in Chairman of the KL Bar, R. Ravindra Menon were elected as the Chair and Bar Alor Star, incumbent G . Balakrishnan Kumar was returned unopposed for a Representative of the Penang Bar managed to retain his position as its second term. respectively. There was no contest for these Chairman after defeating the contender, two positions. Jegadeeson by garnering the majority votes 14 members stood for the election to the of 34 against 12. Kuala Lumpur Bar Committee and the In Kuala Terengganu, Anuwar B Mohd 10 elected were Brendan Navin Siva, was returned unopposed as the Chairman R S Maniam was returned unopposed as Anand Ponnudurai, N. Sivananthan, Lee of Terengganu Bar for the second term. its Bar Representative. The new Shih, H.R. Dipendra, Dahlia Lee, Sanjeev Lee Leng Guan was elected without committee members are Burhanudeen Bin Kumar Rasiah, Lai Chee Hoe, Richard Wee contest as its Bar Representative after the Abdul Waheed, Surinarayanan S/O and Abdul Rashid Ismail. current Bar Representative, Asmadi Awang Jaganathan, Lim Yang Yang, Megalai A/P decided not to seek re-election.

Pahang Bar passes ISA motion by Web Reporter

n its annual general meeting held on ! for the repeal of the ISA and all laws Julita Ilhani Bt Abd Jabbar, Maslina Bt I23 February 2008, the Pahang Bar that allow for Detention Without Trial. Arshad, Mohd Tasyrif Bin Sabaruddin and passed a motion by an overwhelming Sarengapani s/o K. Rajoo. majority calling: The motion was proposed by Charles ! for the immediate and unconditional Hector. release of M Manoharan, P Uthayakumar, R Kenghadharan and The meeting also returned unopposed V Ganabatirau, fellow lawyers, 4 of 5 Syed Azimal Amir Syed Abu Bakar as its Human Rights Defenders who were Chairman for a second term whilst Datuk arrested and detained under the M. Ramachelvam won without any Internal Security Act (ISA) on contest as the Pahang Bar Representative December 13 last year; to the Bar Council 2008/9. ! for the immediate and unconditional

release of all persons detained under Among those elected as Committee Syed Azimal returned the ISA and other Detention Without members are Mohamed Sazali Abd Aziz, unopposed as Pahang Trial laws; and Hon Kai Ping, Jasmadi Bin Mohd Yunus, Bar Chair

JANUARY / JUNE_2008 PRAXIS 13 State Bar News

Changes at Perak Bar leadership, Malacca Bar leadership unchanged by Web Reporter

he current Bar Representative of the Committee also had its Annual General annual reports were adopted without TPerak Bar, Shan Theivanthiran Meeting today at the Straits Hotel. They much hassle and it was pretty obvious today defeated its incumbent Chair, Ngan have filed the following report: everyone wanted to get on with the Siong Hing to become the new Perak Bar We were hoping that last year’s good election of office bearers. Chairman after polling 84 votes against response to a “Friday evening AGM” Ngan’s 68 votes. would repeat this year and we obtained Ng was returned as Malacca Bar’s quorum by 4:15 pm to start our meeting. Chairman for the third year in a row and Asbir Kaur Sangha was however elected There was good turn out of young and as fast as his name was nominated, unopposed as the new Bar Representative senior lawyers alike filling in the meeting nominations were closed by consensus of the Perak Bar. room. without any challenge. R.R. Chelvarajah continues to serve the Malacca Bar as the The Committee members are Choy Kam Before the meeting commenced, a representative to the Bar Council. Lee, Dara Waheda Binti Mohd Rufin, representative from Echelon Risk Thiru Mangai a/p Krishnani, Domnic Consulting Asia, the Company appointed There was no contest for the election of Selvam a/l Ganapragasam, Surinder singh, by the Bar Council as Self Insured Fund Committee members, and the eight names Gavin Tang Cheng Loong, Kenny Lai (SIF)Project Transition Consultant, gave proposed were accepted by the members. Choe Ken, Mohamad Nizam Bin a brief talk on SIF. Clarifications were The new members namely Anthony Chua Mohamed Salleh, Rashpal Singh a/l Kajan sought and due explanations were given. Yong Giap, Ng Aik Beng and Goh Chuan Singh and Hajah Shamsuriah Binti Chean will be serving alongside the familiar Sulaiman. Our incumbent Chairman Ng Kong Peng faces of Sekar Palaniandy, Jaspal Singh Gill, proceeded with the relevant items on the Fiona Tan, Nizam Bashir and Desmond Meanwhile Goh Chuan Chean and agenda for the day. The minutes of last Ho. Desmond Ho report that the Malacca Bar year’s AGM, financial statements and

Malacca Bar Committee 2008/2009

PRAXIS 14 JANUARY / JUNE_2008 State Bar News

Poh Teik elected as Johor Bar’s Rep by Web Reporter

isyam Teh Poh Teik was today elected the Johor State Bar HRepresentative to the Bar Council after defeating senior lawyer, P. Suppiah. Teh polled 98 votes whilst Suppiah obtained 35 votes.

The incumbent Chairman of Johor Bar, K. Mohan and all the current Committee members were returned unopposed for the 2008/2009 term in its adjourned annual general meeting held here at the JOTIC building.

The motion proposed by Mohan and seconded by Nor Aisah Binti Dato’ Abdul Rahman to increase the subscription for 2008/2009 was however defeated with 79 members voting against it as opposed to 37 members voting for it.

The House also passed the following motion by an overwhelming majority: ! recording its utmost regret and vehement condemnation of the arrests of 9 persons including 6 lawyers on the International Human Rights Day on December 9 last year and detaining 5 persons including 4 lawyers on December 13 last year under the

Internal Security Act as being unnecessary, deplorable, Selangor Bar gets a new unconstitutional and an affront to the rule of law; and Chair ! supporting the stand of the Bar by Web Reporter Council that the draconian Internal Security Act ought to be repealed immediately as the Act violates the ajpal Singh a/l Mukhtiar Singh has become the new Chairman of the basic fundamental right that a person RSelangor Bar Committee after defeating the incumbent, RV Lingam. is innocent until proven guilty in Rajpal obtained 143 votes whilst Lingam polled 81 votes in the annual general accordance with the due process of law. meeting held on 27 February 2008. The motion was proposed by Matthews In the same meeting, the incumbent Bar Representative George Varughese George and seconded by Kuna Nadasen. (pic) was also re-elected after defeating Zalina Abidin by 60 votes. Today’s adjourned meeting was well The new Committee members are Syamsuriatina Ishak, Suraj Singh, Noor attended even though half way through Suhaila Saad, Sumathi Murugiah, Alvin Neo, Ashokvijay J Sanghrajka, Zalina it, many members whose offices located Ibrahim, Kunamony Kandiah, Salim Bashir and Suzana bt Jaffar. in high rise buildings in the city received calls that there were tremors felt shortly after an earthquake measuring 7.2 Richer scale hit the west coast of Sumatra.

JANUARY / JUNE_2008 PRAXIS 15 Comment

An Open Letter - Appeal for a better Parliament

Dear Fellow Malaysians, Can things be allowed to go on this way? It is meaningless for us to complain about Can we afford to do so? Should our future our Parliamentarians and the Government, t is true that there are things that we generations suffer the consequences of our if we do not first discharge a simple but IMalaysians should be proud of, and permissiveness? sacrosanct duty of choice. be thankful for. It is equally true that many things are not well in our country. They It is quite obvious that we need a better Let us all take the time to look into the have not been well for some time now. Government and a better Parliament. beautiful but expectant eyes of our Matters of safety and security, price hikes, children, and of the children of many education, issues of equal opportunities But that will not happen if we, the citizens others for whom we care. The future of and equal treatment, constriction of of Malaysia, do little more than blaming our nation is meant for them. But millions various forms of freedom, marginalisation the Government and criticizing our of them cannot vote. They put their fate of several segments of society, the failing Members of Parliament. It is we who put in our hands. They rely on us not just for justice system, corruption in the public our MPs in the Parliament. It is we who their present living and support. They rely sector, the rising denial syndromes, the must take the ultimate responsibility. The on us, too, to vote for a better future for arrogance of wrongdoers nourished by buck stops at each and every one of us. them. their repeated ability to get off scot-free, and the numbness of the public reaction My earnest appeal to everyone is therefore And after discharging our duty to vote, towards misdeeds and the lack of as follows: we must continue to be vigilant, and accountability, just to describe a few. (i) discuss the need for a better ensure that our elected representatives Parliament and a better account for their actions, and make good Many of the ills that we complain about Government, with your family their promises. in our society are the symptoms of the members, colleagues, friends and underlying causes. Some of the major root persons close to you; I humbly suggest to you that change and causes are: (a) epidemic corruption in a (ii) make it a point to go and vote in the betterment are not empty dreams, if all of system that does little to prohibit or redress next election, and to vote for change us play our respective parts. I invite you, it, (b) lack of a system of transparency and and for betterment; and I urge you, to answer my appeal as set accountability, (c) the suppression of (iii) discard the notion or excuse that out above. various freedoms so as to turn a silent your single vote will not matter; Thank you. majority into a silenced majority, (d) a (iv) discard the notion or excuse that Government that is more interested in politics is dirty and all politicians are Yours sincerely, commanding than serving, (e) a Parliament the same, and therefore that there is Yeo Yang Poh whose overwhelming majority cares more no point in voting; Advocate & Solicitor, about power-consolidation than nation- (v) influence and encourage as many of & a concerned Malaysian building, and (f) a weak “last bastion” in your family members, colleagues, the form of a failing justice system. friends and persons close to you as possible, to come out and vote for change and for betterment in the coming election.

PRAXIS 16 JANUARY / JUNE_2008 Comment

Fulfilling the nomination process by Roger Tan

OMORROW is nomination day for the fine mentioned was imposed on must submit Form 4 (nomination Tthe 2008 general election. such person; or form) and Form 5 (statutory Hundreds of candidates will vie for the (f) he has voluntarily acquired declaration) while Forms 4A and 5A 191 parliamentary seats and 505 state seats citizenship of or exercised rights of are for the use of a candidate contesting in Peninsular Malaysia and Sabah, and 31 citizenship in a foreign country or a state seat. parliamentary seats in Sarawak. he has made a declaration of ! The nomination form must be signed allegiance to any other country; or by the candidate, his proposer and However, one hopes no candidate will (g) he has resigned from the Dewan seconder and the witness who make any mistake on his nomination Rakyat less than five years ago. witnesses the signature of the papers. candidate. The proposer and seconder Article 49 of the Constitution also prohibits must be registered voters of the Under Article 47 of the Constitution, a a member of the senate to stand for election constituency for which the candidate nominated candidate must be a citizen of unless he has first resigned from the senate. seeks election. This requirement does 21 years old who is a resident here. not apply to the witness. In addition, if the candidate is standing Article 48 then provides that he is for a state seat, the state constitution also Regulation 4(6) states that the failure to disqualified if: requires him to be a resident of that state. comply with the above shall render the (a) he is of unsound mind; or In Abdul Fattah Mogawan & Anor v nomination paper to be rejected. (b) he is an undischarged bank-rupt; or MMC Power Sdn Bhd & Anor 1997, the (c) he holds an office of profit; or word “resident” was judicially considered The 1981 regulations also require a (d) he has failed to lodge any return of to denote a person’s home. candidate to deposit the sum of election expenses unless this RM10,000 and RM5,000 when disqualification is removed by the Article 160 defines the phrase “office of submitting nomination papers for the Yang di-Pertuan Agong or five years profit” as any full-time office in any of the parliamentary and state seats respectively. have passed from the date on which public services. The phrase “public The deposit will be forfeited if the the return was required to be lodged; services” is defined in Article 132. candidate fails to secure one-eighth of the or total number of votes polled (not inclusive (e) he has been convicted of an offence In Lee Hie Kui @ Eric Lee v Song Swee of rejected votes); otherwise the deposit by a court of law and sentenced to Guan & Anor 1998, it was held that the can only be claimed one year later. imprisonment for a term of not less office of a mayor is not an “office of profit”. than one year or to a fine of not less Then, the nomination papers (including than RM2,000 and has not received One piece of legislation which a candidate the original copy of the statutory a free pardon unless this must know is the Elections (Conduct of declaration in Form 5 or 5A, as the case disqualification is removed by the Elections) Regulations, 1981. may be), must be submitted in triplicate Yang di-Pertuan Agong or five years to the returning officer at the place of have passed from the date on which The regulations contain important nomination between 9am and 10am. the person convicted was released provisions such as the following: from custody or the date on which ! A candidate for a parliamentary seat However, the candidate and his proposer

JANUARY / JUNE_2008 PRAXIS 17 Comment or seconder can still make any corrections penalty before admitting the document nomination paper on any of the above- on the nomination papers before 10am. in court. mentioned grounds only.

As regards the Election Commission’s Further, it can also be argued that a The objection must be in writing and announcement two days ago that the statutory declaration in this case is a signed by the objector. statutory declaration has to be stamped “declaration in writing” made pursuant to with RM10 duty, I think the decision is a statute and is therefore exempted from It must be submitted to the returning unnecessary for the following reasons: stamp duty under the 1949 Stamp Act. officer between 10am and 11am. The - the law allows any unstamped document For these reasons, it will be wrong if any returning officer shall decide on the to be stamped 30 days after execution (s. nomination is rejected on the ground that validity of every objection and he may seek 47, Stamp Act 1949); the statutory declaration is not stamped. the advice of the Attorney-General’s ! if not stamped within 30 days, it can Chambers. still be stamped later by paying a Thereafter between 10am and 11am, the penalty up to RM100 (s. 47A, Stamp returning officer will display the The decision of the returning officer shall Act 1949; and nomination papers in a conspicuous be final and shall not be called into ! an unstamped document will only be position outside the nomination place for question in any court. However, any rendered inadmissible as evidence in examination by the candidates, their person aggrieved by the returning officer’s court but its validity will not be proposers, seconders and one other person, decision may still challenge it by presenting affected (s. 52, Stamp Act 1949). if any, appointed by each candidate. an election petition under the Election Offences Act 1954. Hence, if any If the matter goes to court, the candidate Any registered voter in that constituency candidate still does not get it right, then can always pay up the stamp duty and or candidate may then object to any maybe he is not fit to be elected.

Judicial Commission

Judicial Commission sounds good and a viable preposition providing Athat it’s properly constituted: its success hinges on who are appointed to the Commission. The mechanism is subject to abuse and defeats the purpose for which it’s intended if it succumbs to corruption, cronyism, patronage, nepotism etc.

This is a heterogeneous, pluralistic, polytheistic secular society; race, colour or creed is immaterial or irrelevant. The criteria should only be competency, incorruptibility and independence which should similarly apply to all public appointments.

Robert Y C Chiu Judge Emeritus

PRAXIS 18 JANUARY / JUNE_2008 Comment

Why I was arrested by Jonson Chong Kok Wei

was arrested at 4:30p.m. on Saturday, name of Woon who was standing nearby he has no say in the matter and that I I26 January 2008, at a foodcourt in whether he was sure that the proper orders should take it up with ACP Khoo Chin the vicinity of Jalan Yap Kwan Seng, Kuala have been given to arrest me, he brushed Wah, who would be down in a short while. Lumpur. I was released unconditionally aside my query and did not dare to say After waiting awhile, I decided to call ACP from Pudu Jail (now known as Balai Polis anything. Moreover, the location where Khoo and told him about my Jalan Hang Tuah) at approximately we were arrested was beyond the one circumstances. Alas, he simply said that 10:30p.m. on Sunday, 27 January 2008, kilometre boundaries illustrated in the he could see that I was at the scene after a magistrate rejected a remand preventive court order obtained by the (presumably from SB video clips or application by the police to further detain police. photos); thus, implying my arrest was me (and nine other people, including Tian justified. Chua and Dr. Hatta). The three of us was brought to the Kuala Lumpur Police Headquarters (IPK, KL), I was amazed by how lightly these senior Obviously, I was annoyed that I was where we joined others that were arrested police officers dealt with the constitutional arrested whilst I was trying to ask the police before us at various locations near KLCC. liberty of a citizen, not to mention a lawyer, why they wanted to arrest Tian Chua and There, after greeting friends and other who is otherwise also known as an “officer Dr. Hatta, especially when they were friendly faces, I saw ASP Anand (one of of the court”. I should highlight here also merely having drinks and talking to the investigation officers for the case against that I was not informed of the grounds of journalists at that time. I knew that the the lawyers who marched for freedom of my arrest at any point of time, whether over-zealous SB (special branch police assembly on 9 December 2007). during my arrest, detention and officer) simply decided to arrest me subsequent “investigation”. because I questioned their actions. I immediately took the opportunity to inform him of the circumstances in which Not satisfied with the lackadaisical attitude Indeed, when I asked an officer by the I was arrested. Unfortunately, he said that of the two previous officers, I decided to

JANUARY / JUNE_2008 PRAXIS 19 Comment approach a third officer (a DSP Rortzain, that I was wrongfully arrested and I Luckily, sense, or maybe conscience, I believe) whom I recognised from the arrest considered my detention to be false prevailed over the magistrate who heard of the lawyers in December. Again, after I imprisonment. I am not sure he the remand application against the ten of told him of my circumstances, he just told appreciated the gravity of the matter us who had the same I.O. To the me to wait. though. amazement of everyone, including the lawyers who defended all of us, the And wait I did. I sat around and paced Later on, when Redzaime appeared again, magistrate said that she was releasing us the dining area of the IPK’s cafeteria from I repeated the circumstances of my arrest (unconditionally) because she did not find about 5:00p.m. until 11:30p.m. to him. Unsurprisingly, he did nothing any evidence to show that the ten of us wondering when anyone is going to take except say that he will check with ACP were linked to the “illegal assembly”. my statement. Some young officer by the Khoo. I do not know whether he actually name of Rastam came to take my I.C. did call his boss, but at the end of the long By the time we walked out of Pudu Jail, I during that time but he also did not say day and night, I was still moved to the was deprived of 30 precious hours of why I was arrested. However, when I asked lock-up together with everyone else. freedom. Why? All because I acted to him who is the investigation officer of my question the arbitrary arrest of two case, he said it was either Woon or Ishak. Actually, I found out much later that my I.O. is ASP Redzaime and Ishak was the officer who lodged the complaint against Tian, Hatta and me. (Obviously, the rookie Rastam doesn’t know the difference between an arresting officer and an I.O.)

Anyway, after much waiting (all this time, apart from sitting or pacing idly, I was giving free legal advice and watching friends give statements to blur-looking police officers), my turn finally came. An Inspector Zakaria introduced himself – quite politely I must say – and told me that he was instructed to take my Despite my many attempts to inform the Malaysian citizens who happened to be statement. As he led me down the dining various police officers, all the time leaders in their respective political parties. hall, ASP Redzaime approached us and highlighting the implications of my Politics aside, it is high time all Malaysians introduced himself. He then proceeded wrongful arrest and false imprisonment, I take a good look at what is happening to to say that Zakaria was going to take my was ignored. Not only that, they had the our country. Do we want to let this go on? 112 statement. gall (or perhaps stupidity) to apply for When are we going to make a stand and remand against me, giving the lame reason say “no more”? As I recall, neither Zakaria nor Redzaime that they needed to make further informed me of my rights under Section investigations. And here I am trying to Note: I represented the 35 who were charged 28A of the Criminal Procedure Code. mitigate the serious damage they are in court the next day. I was not charged Frankly, I just co-operated with Zakaria as doing. although various news sources have reported best I could, answering questions carefully that the ten who were released will be charged so that I do not implicate myself or anyone at a later date. else in anything that may be construed as wrongdoing by the authorities. Nevertheless, I made it very clear to him

PRAXIS 20 JANUARY / JUNE_2008 Comment

The Internal Security Act 1960: A throwback to the era of tyranny by Sunil Lopez a/l Ceasar Lopez

ettling disputes among individuals It therefore seems inconceivable to me that Sand ascertaining the guilt of a even in these ‘enlightened times’, there member of society who is charged with exists a patch of the past, a throwback, if committing an offence by a tribunal of you will, to the bygone era of tyrannical development of a just and equitable law has been the hallmark of a civilised monarchs where the word of one is society. and democratic society for some time now. sufficient to affix guilt to a human being. Inconceivable it may be but the continued Tunku Abdul Rahman, when faced with In feudal times and before, the power to existence of legislation like the Internal criticism for the enactment of the I.S.A. decide on a dispute and to mete out Security Act 1960 (I.S.A.) is such a ‘patch’ said that it will “be used solely against the punishment lay absolutely in the hands and an unjust one at that. communists...My Cabinet colleagues and of one person or with a privileged few. It I gave a solemn promise to Parliament and was a power that was used, often I suspect, The I.S.A. conveys into the hands of one the nation that the immense powers given without question and arbitrarily. person, the power to detain without trial to the government under the I.S.A would and also it appears, without question. The never be used to stifle legitimate The majority of legal systems which exist existence of such power would perhaps opposition and silence lawful dissent.” in this day and age are not without flaws be excusable if that one person had the but as the essential feature of most of these biblical qualities of Nabi Sulaiman or King Even at its inception, it was recognised systems are public trials presided over by Solomon as he is otherwise known, but that the I.S.A. could be abused and that it persons charged with upholding the rule alas we don’t run into many kings of that is a powerful tool in the hands of the of law and dispensation of justice, it must, nature these days. government of the day. in my view, be accepted that anything else would be a poor substitute. Some may reason that preventive Today, the spectre of the unchallenged use detention is a necessary evil, especially in of the I.S.A continues to haunt the citizens John Emerich Edward Dalberg Acton, these dark times of terrorism but the of this nation. otherwise known as Lord Acton, once upshot is that the liberty of individuals wrote in a letter to Bishop Mandell takes a backseat, the years of legal evolution The time is long overdue for the Creighton in 1887 that “Power tends to grind to a halt and the trek towards abolishment of this draconian and archaic corrupt, and absolute power corrupts authoritarianism begins anew. legislation. absolutely.” The I.S.A. is a common dirty word [sic] It is with that in mind that a motion calling The validity of that statement is beyond among Malaysians who even consider for the abolishment of the I.S.A. has been reproach and I would think that no right voicing their dissent against government submitted for consideration at the Kuala thinking member of society would dare policies and decisions. It is an abbreviation Lumpur Bar’s 16th Annual General disagree, at least not in broad daylight. which strikes fear and stifles the Meeting on February 21, 2008.

JANUARY / JUNE_2008 PRAXIS 21 Comment

Court Jesters by Nik Elin Zurina Bt Nik Abdul Rashid

hanks to the advent of hidden video Commission of Inquiry where an ex-head was in power in the Judiciary, and with Tcameras, the skeleton(s) in many of the Executive, 3 ex-heads of the the blessings of another man in power in closets have now been open to full Judiciary, one Minister, and one bragging the Executive, there was no way that this scrutiny. One Minister was literally caught and bullshitting lawyer have been called could ever have been allowed to happen. with his pants down. as witnesses? I wouldn’t say, they were there to “testify” or “give evidence” as that would But thanks to some cunning Chinese with The video camera, as such, is now mightier mean that they told “the truth, the whole a “tool”, one bragging and bullshitting than any sword, pen or any other truth and nothing but the truth” so help Indian, one once powerful Malay, it’s been invention. If only it could solve crimes too. them God. a “right riot” this time for Malaysia.

It would as such be almost impossible for But what particularly hit me was how And thank God for the creation of the any literate person in Malaysia not to be stupid do these witnesses think we are? hidden video camera, the judicial aware of the precarious standing of the Are they thinking that we would be so corruption is now out in the open. Judiciary in Malaysia at this present time gullible to accept their evidence? They due to the “expose” of the Lingamgate must think we are drunk. Actually we knew it all along. We were tape. made aware since the Lingam-Eusoff Unfortunately, for the Malaysian photographs, I mean, fishing, arms on Daily headlines of all major newspapers, Judiciary, (or rather, fortunately for us) the shoulders, holidaying together (oops, in Malaysia and around the world, carry new year heralded more than a loud bang. tagged along), not just by one the story, and even on Sunday, there is a It brought colour to an otherwise boring documentary evidence, but by many weekly digest of the inquiry. Even my 4 inquiry. Every morning we would wake photos, all after a successful judgment. year old son talks about Lingam and what up to read the newspapers and that would astounds me is that my young child’s be enough dosage of entertainment for us And I am glad that Lingam never asked favourite line is “Correct correct ah ah” to last a lifetime. for a copy of the original picture form his instead of a simple “Yes” to any of our UK experts to verify the authenticity of conversations. My handphone ringing I never thought I would be seeing the day the videos. tone has been charged with the sound of the topmost senior Judge at one time in Lingam’s loud irritable voice. Malaysia, whom we would reasonably The judicial corruption scandal is expect to be able to dispense justice has outrageous but soon enough all will be Lingam is indeed a famous star now and now been put on a “trial’ of sorts. “He forgotten and the rot will be allowed to how OUR lives have been changed by lies”, says his predecessor, “ That’s why I proceed. him. Everyday we get famous lines to use dislike him”. on a daily basis. “It was just coincidence Yes, remember there is a fresh face in the that he was in bed with me” would be my This I guess, was what they meant by the Judicial line-up. Not that there weren’t defence if I ever get caught in a term “COURT JESTERS” and real enough “Good enough” judges to be in compromising position. “I was not Comedy Court. He must have thought the line. extremely close to him”; “I had too much that this day would never EVER come. drink”. And yes, if anyone handed in But yes, in the Court from which he once It should put all those in position now, evidence to show my misdeeds, I will just ruled, the bag of worms is now open to not to abuse their position as everything state, “It looks like me and it sounds like scrutiny and now he is screwed. could be secretly recorded now and 7 or me”. even 14 years from now it may bring you By the way, can any one, anyone, swallow shame. So who hasn’t heard about the Royal his so called “testimony”? When the man

PRAXIS 22 JANUARY / JUNE_2008 Press Statements Committee Penang Bar votes against having Young Lawyers Committee by Angeline Cheah Yin Leng

here was a familiar ambience in the Nominations were called for from the explain to the members how the YLC came Tair as distinguished-looking ladies floor and the first and only nomination to be and since the repeal of Section 42A and gentlemen, mostly dressed in black received was for Mr Mureli Navaratnam. of the Legal Profession Act, the Penang and white, arrived at the ballroom of the There being no other nominations, Mr Bar felt that it was no longer necessary to Bayview Hotel, Penang. Mureli Navaratnam was duly elected the have a YLC in Penang since seven out of Chairman of the Penang Bar Committee, 10 members of the Penang Bar Committee They slowly trickled in, mingling amongst amidst loud applause. were in fact young lawyers. themselves with cups of coffee and tea, helping themselves to the delicious fried Next came the elections for the Committee Dato’ Sitham also said that there should noodles prepared outside the ballroom. Members. Eleven names were proposed, be no discrimination between senior The occasion was none other than our namely Ms Jo-Anne Leslie De Vries, Mr lawyers and young lawyers and all lawyers Penang Bar Annual General Meeting. Nicholas Tan, Ms Pravin Kaur, Mr Rajdev could in fact serve the Bar, irrespective of Singh, Ms Yuslinov Ahmad, Mr their age or years in practice. The floor was After making small talk and catching up Parthiban, Mr Thanges, Ms Saw Hoay then opened for members to share their with colleagues and friends, the lawyers Hoon, Mr Clement Cheng, and Ms views. It can be said that not many made their way inside the ballroom where Angeline Cheah. Ms Yuslinov declined the members chose to state their opinions, the the AGM was ready to begin. nomination and as such, the ten remaining reasons of which could be many. But for nominations were duly elected into the some brave ones they chose to defend the The Chairman of the Penang Bar Penang Bar Committee. Bar Council’s decision, making certain Committee, Ms Lalitha Menon called the suggestions such as maybe changing the meeting to order at approximately 2.45 There were also no other nominations for definition to that of 7 years of practice p.m. She announced that the quorum was the Penang Bar Representative to the Bar and below and under the age of 30 (not sufficient to begin the meeting and she Council, so Ms Lalitha Menon was duly 40). In the end when it came to vote, 104 commended the Penang Bar for turning elected the same. voted against having a YLC and only 13 up in large numbers despite the quorum voted in support of it. now being reduced to only 52 members. After the elections, the Chairman then addressed the issue of the Young Lawyers Having closed the issue, the Chairman As in the years before, the Chairman Committee (YLC) and whether or not it went on to the next item on the agenda proposed that the election of the Penang should be re-started in Penang as per the which was to adopt the minutes of last Bar Committee Chairman and decision made by Bar Council. She year’s AGM. There being no amendments, Committee Members be first on the suggested that it should be open to the the minutes were duly adopted. agenda, in order to save time as the rest of floor to hear the views of the members the agenda could be discussed while the and then to take a vote to decide on the She then went on to discuss the various votes were being counted. First up on the outcome. Before it was open to the floor, reports of the sub-committees, as well as list was the election of the Penang Bar however, Mr Mureli Navaratnam and the Chairman’s Report and the Treasurer’s Commitee Chairman. Dato’ Sithambaram took the mike to Report. There were a number of questions

JANUARY / JUNE _2008 PRAXIS 23 Committee raised by the floor in respect to the parking at the new court complex. There procure the old Bar Room and would keep Chairman’s Report and the Treasurer’s was also the issue of the Bar Room at the members informed of any updates. Report, both of which were responded to new court complex. respectively by the Chairman and the There being no other matters to discuss, Treasurer, Mr Nicholas Tan. Currently the Bar Room at the new court the Chairman then passed the mike to the complex has been described as a “fish new Chairman for him to say a few words. The floor was then open again for the bowl”. Many of the members would like members to air their views about issues in the old Bar Room to be retained, a room The meeting ended at 4.30 p.m and the general affecting the Penang Bar. Some of currently known as “The Gallery”. As members then adjourned downstairs for the issues raised were regarding the increase such, the Chairman has assured that they Happy Hour courtesy of our new in Bar subscriptions, lack of volunteer have written to the Head Judge to try to Chairman. lawyers for the Legal Aid Centre, as well as

PRAXIS 24 JANUARY / JUNE_2008 Human Writes

POST MORTEM on Festival of Rights themed “As I Believe: Freedom of Expression through Art, Music, Culture and Conscience” – Sunday 9th December 2006 by Dara Waheda, Syamsuriatina Ishak, Usha Kulasegaran, Kenny Lai and Lai Chee Hoe

uman Rights (“HR”) Day is celebrated Despite the heavy police presence and subsequent Hworldwide on the 10th December every year. untoward incidents that led to the arrest of Edmund The Bar Council has celebrated HR Day with Bon, Chairman of the Bar Council Human Rights festivities organized by its HR Committee for the Committee, the Festival of Rights did proceed on public for the last 8 years. Work began since April Sunday 9 December 2007 and below is the post- of that year to plan 2007’s HR Day celebration. mortem report (divided into two segments based on the two venues):- With a Festival of Rights themed “As I Believe: Freedom of Expression through Art, Music, Culture Segment 1: Festival of Rights - Performances (held and Conscience”, the Organising Committee in Bar Council Auditorium) initially planned to have 2 segments: first, a At 7.00am, we started off with rehearsal for the peaceful “Peoples’ Freedom Walk” from Sogo stage performers, arrangement of chairs and floor against traffic along Jalan Raja Laut towards the mats, and setting up of TV live airing equipment Bar Council Secretariat, to celebrate the freedom downstairs. Everything went on smoothly. of assembly and expression (which would have been in its 3rd year); and secondly, a fair consisting Around 8.15am, a crowd of approximately 200 of an exhibition, family oriented games and people of various races and ages, comprising lawyers, colouring contests, a forum as well as stage their family, members of the public, NGOs and the performances to be held at the Central Market open Orang Asli group started to arrive and settled air stage/parking area. comfortably in the Auditorium.

Due to growing uneasiness arising from untoward The opening ceremony of the event was slightly incidences suffered during the recent gatherings delayed due to commotion between the police and by the Bersih and Hindraf, which had been a group consists of individuals and NGOs who deemed illegal by the authorities, the Bar Council arrived at the Bar Council after completing their convened a Council meeting resulting in a majority human rights day walk from Sogo Shopping decision to hold only the second part of the Complex. Due to this, response to attempts by Festivities. Subsequently, Central Market members of the Bar to draw the crowd into the management declined their involvement and it was Auditorium was lukewarm. Meanwhile, some decided that the performances would be held in individuals informed us that they refused to enter the Auditorium of the Bar Council secretariat while Bar Council as sign of protest towards the Bar the fair would held in Booths set up at the private Council for canceling the Peoples’ Freedom Walk. car-park adjoining the Bar Council Secretariat, rented specifically for this purpose. At 9.15am, Masters of Ceremony, lawyers Nik Elin

JANUARY / JUNE_2008 PRAXIS 25 Nik Zurina Dato’ Nik Abdul Rashid piece called “Melayu” before the rendition of “Colours of the Wind” and Kenny Lai (presenting in English forum or ‘Conversation’ entitled in celebration of indigenous Article and Malay respectively, as a protest “When Faith Meets Law” took place. community rights. against stereotyping) began the event by inviting Ambiga Sreenevasan, The Conversation heralding the start At this point, the event’s fluidity was President of the Malaysian Bar to of our many initiatives to develop shattered when we came become deliver her Opening Address. mutual tolerance and respect among aware of commotion downstairs and the different religious groups was led subsequently of Edmund Bon’s arrest Ambiga began by informing the by six prominent speakers namely in his attempt to rationalize with audience that eight people including Professor Shad Saleem Faruqi from DBKL against the removal of HR four members of the Bar, participating UITM, Bishop Paul Tan from banners which graced the private in an impromptu 200 person walk to Christian Federation Malaysia, Datuk property of the Bar Council celebrate HR Day without Bar A. Vaithilingam from Hindu Sangam, Secretariat. Council’s participation, had been Hargopal Gill Singh, representative of arrested earlier that morning. Ambiga the Sikh community, Ng Chek from On transit to the police station, explained that the Bar Council had Federation of Taoist Associations Edmund Bon communicated through decided despite tremendous pressure Malaysia and Dr Mohamed Azam SMS with Dara Waheda, the done everything possible to ensure Mohamed Adil, a member of Bar Organising Committee Chairperson, that the Festival of Rights 2007 in its Council’s HR and Syariah reassuring all that he was alright and present form would go on as planned. Committee. Several individuals later with instructions to proceed with the After declaring the Festival open, she voiced their satisfaction on witnessing event through to the end as planned. left the Auditorium with few other such a mature dialogue. However, while the next performer Dr Bar Office Bearers heading to IPK Wan Zawawi began his performance, Kuala Lumpur to deal with the arrests. The event then proceed with a skit by members of the audience started to group comprising of Instant Theatre leave the Auditorium, on the premise At 10.00am, a childrens’ drawing performer Jo Kulkatas with lawyers that they heard that the Authority session commenced on the 3rd floor Nell Ng and Dipendra Harshad Rai. threatened to raid the building and of the Secretariat. This was followed by the Orang Asli that they feared for their safety. cultural dance and musical Despite our reassurances that the The festivities kicked off with a silent performance, which was enjoyed by lawyers present would not allow this recitation of the UN Charter called all. to happen, the Auditorium continued “Speechless” symbolising the to empty until eventually only lawyers voiceless struggle of people denied A stage performance by some bands and their family members, the Orang human rights. This was followed by and performers had been scheduled Asli and performers remained in the prize-giving ceremony for an essay but most performers were nowhere to Auditorium. competition (in Bahasa Malaysia and be seen (we were informed later that English) for secondary school children they faced difficulties reaching the In view of Edmund’s arrest and how which had been held throughout the Secretariat due to the numerous main the event was rudely interrupted and previous year. Prizes were also road blockages around KL). Therefore, disrupted, Nik Elin announced to the presented to participants of the events proceeded with the remaining remaining attendees that the Children’s drawing session. performers Fahri Azzat followed by Organising Committee would not Syamsuriatina Ishak who took the stage close the Festival and shall instead Noreen Ahmad Ariff was the next to and impressed the audience with their declare it open until Edmund’s entertain the audience with her high- singing. They were also joined by release. spirited poetry reading of her own Kuyana, Nik Elin’s daughter, for a final

PRAXIS 26 JANUARY / JUNE_2008 Article

Dara with the help of Tijah, the drive for their torch relay, a When the DBKL team arrived at spokesperson for the Orang Asli, continuous session approximately 12 noon, the Falun asked her group to remain calm while demonstrating the spiritual Gong group and Amir Muhammed lawyers Brendan Navin Siva and Lai exercises practiced by the promptly packed up their belongings Chee Hoe then went to speak to the movement, a memoriam in on their own accord. The LAC team police requesting for their peaceful remembrance of their deceased also packed the remainder of the red departure. After some discussion and members and a display of their LAC T- Shirts. Brendan’s details taken, the police ‘mock organ-harvesting’ session. agreed to escort the bus right up to As expected, the activity After the commotion, the Booths were the council premises. After saying a generated a lot of interest. then utilised for serving a simple group prayer for their safety, the lunch to members of the public and Orang Asli left the secretariat. b) Amir Muhammed was organizers who were still present from personally present to autograph 12.30 noon until about 2.00pm. The Organising Committee members his latest book and to sell his were saddened by the entire affair but DVD. This went very well. On the whole, activity and movement also relieved that the premise was not at the Booth was very well raided. However, despite everything, c) The Legal Aid Centre (“LAC”) had coordinated and went smoothly. it was believed that participants 2 sets of T-shirts for sale:- enjoyed themselves. i) Their own edition (Red) ii) The Bar ‘Walk for Justice’ ORGANISING COMMITTEE Segment 2: Festival of Rights - Fair (Black) Festival of Rights 2007 (on rented private parking space Sale was very brisk and all the Human Rights Committee adjacent to Bar Council Secretariat) black T-shirts were all sold out Bar Council of Malaysia Canopies were set up around 8.15am by 11.30am. Brochures under the supervision of Usha and concerning the Legal Aid were Sonia at the private car-park adjacent also snapped up by the public. to the Bar Council Secretariat building. By 8.30am, participants (the Legal Aid Centre, Falun Gong and Amir Muhammed) had decorated The Conversation heralding the start of our many their respective areas while a Nescafe initiatives to develop mutual tolerance and respect Mobile service van took its place at “among the different religious groups was led by six the sidewalk to make available free samples of Nescafe drinks to all prominent speakers namely Professor Shad Saleem participants. Faruqi from UITM, Bishop Paul Tan from Christian

The booths, a hive of bustling activity Federation Malaysia, Datuk A. Vaithilingam from Hindu drawing a huge amount of interest Sangam, Hargopal Gill Singh, representative of the Sikh from the public, were open from 8.00am to 12.00 noon and.comprised community, Ng Chek from Federation of Taoist of the following:- Associations Malaysia and Dr Mohamed Azam a) Falun Gong movement with their crew of approximately Mohamed Adil, a member of Bar Council’s HR and 30 members occupied one-third Syariah Committee. of the canopy area. Among their activities was a signature petition

”JANUARY / JUNE_2008 PRAXIS 27 Articles

Amendments to the Criminal Procedure Code: Radical or Piecemeal Legislation? By Baljit Singh Sidhu Advocate & Solicitor High Court of Malaya

Introduction The Amendments (10) The rights of the accused after the he 7th of September 2007 marked Basically the amendments relate to the end of prosecution before defence is Tan important milestone in criminal following areas: called - section 173 of CPC. jurisprudence in Malaysia when the main (1) Rights of the arrested person - (11) Liability for offences committed out provisions of the Criminal Procedure Code sections 28, 28A of CPC and of Malaysia – additional provision (Amendment) Act 20061 came into force.2 remand provision - section 117 of to section 127A of CPC. A similar date was appointed for the the Criminal Procedure Code.5 (12) Evidence through live video or live amendments to the Penal Code (2) Police investigation powers - sections television links - new section 272B (Amendment) Act 2006.3 112 and 113 of CPC. of CPC. (3) The lodging of a police report (13) Whipping for male offender of the It must be acknowledged that the pursuant - section 107 of CPC. age of 50 and above – the list of new amendments were the result of detailed (4) Failure to report certain offences - exception in section 289 (c) of CPC. deliberations and consultations with section 13 of CPC. (14) Community service – section 293 various parties including NGOs, (5) Procedure on search of a person - of CPC. government bodies and professional bodies new section 20A of CPC and (15) Rehabilitation and counseling – new undertaken by the Parliamentary Select insertion of a new schedule. section 295A Committee which culminated in a Report (6) Report on status of investigation - to Parliament.4 The question that lingers new sections 107A and 120 of CPC. The significance of these amendments is whether the amendments constitute an (7) Procedure in relation to cases will now be highlighted. attempt to overhaul the process and involving violence- new sections procedures to further preserve the right of 106A, 106B and 106C of CPC. Amendment to the rights of arrested citizenry or merely piecemeal amendments (8) Pre-trial discovery – new section 51A persons. for stopgap measures. This article would of CPC. Section 28(1) and 28 (3) of the CPC are survey the amendments and would (9) Meaning of prima facie in relation amended where the word “court” is attempt to point out the impact of the to sections 173 and section 180 of deleted.6 This means therefore the arrested amendments. CPC. person is only brought before the

1 Act A1274 2 See P.U. (B) 322/2007. The sections amended which came into force are Section 2-8; Section 10-19, Section 21-32; paragraph 33(a); paragraph 33 (c); paragraph 33(d); paragraph 33 (e); paragraph 33 (i); paragraph 33(j); paragraph 33 (l) to 33 (u) and section 34 of the Act 1274. Prior to this other provisions that deal in the main, with terrorism offences came in to force earlier – see P.U. (B) 68/2007 relating to section 9, section 20 and paragraph 33(b), (f), (g) and (h) which came into force on 6th March 2007. See also P.U.(B) 243/2007 which appoints 2nd July 2007 as the date of coming into force of paragraph 33(k) and (v) of the Act. Subsequently the Act (A1274) was further amended by virtue of Criminal Procedure Code (Amendment) (Amendment) Act 2007- Act A1304 to corrent many glaring errors. The Amendment Amendment Act came into force also on 7th September 2007. 3 Act 1273. For a discussion on the potential impact of the amendments see the authors view in Potential Impact of the Changes in the Malaysian Penal Code [2007] 2 MLJ xcvii. 4 See “Laporan Jawatankuasa pilihan Khas Dewan Rakyat Untuk Mengkaji Rang Undang-undang Kanun Kesiksaan (Pindaan) 2004 dan Rang Undang-undang Kanun Tatacara Jenayah (Pindaan) 2004 DR 1 Tahun 2006. 5 Criminal Procedure Code (Revised 1999) Act 593. Hereafter referred to as CPC. 6 The new provision reads:-

PRAXIS 28 JANUARY / JUNE_2008 Articles

Magistrate and not the Magistrate’s Court. This amendment clears all the uncertainty The insertion of section 28A8 in the CPC This amendment is in line with Article 5 as to how to compute the time of 24 hours is also significant as the heading itself gives (4) of the Federal Constitution.7 Before as stipulated in the Federal Constitution us a clear intention of Parliament to the amendment the section 28 (1) reads within which the accused must be safeguarding the rights of arrested person. “before a Magistrate’s Court”. This means brought before a Magistrate. Thus, today This amendment again is made to be that the person arrested must be brought even though it is weekly or public holiday consistent with the Article 5(3) of the into the Court whether in open court or the remand accused could always be Federal Constitution9 namely to inform in chambers. With the deletion of the word brought before the Magistrate before the the grounds of arrest and rights to legal “courts” the accused could always be expiry of 24 hours. Previously it was representation. brought before a Magistrate and the venue common practice for the police to make that the Magistrate sits is of no importance. an arrest on weekends or public holiday The new section 28A is an attempt made This also means that the accused may be since the accused person may be detained by the parliament to entrench the right of brought before the Magistrate either in for a longer period as the holidays are an arrested person. The section 28A Court or at the Magistrate’s residence or discounted in computing the period of namely provides: any other place and will not be hindered 24 hours. ! To inform the grounds of arrest by restriction on office hours. ! To inform a relative or friend on the arrest

(1) A police officer making an arrest without a warrant shall without unnecessary delay and subject to the provisions herein as to bail or previous release take or send the person arrested before a Magistrate. 7 The relevant provisions of Article 5(4) of the Federal Constitution reads:- (4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority: 8 The new section reads (1)A person arrested without a warrant shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest. (2)A police officer shall, before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may— (a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts; and (b) communicate or attempt to communicate and consult with a legal practitioner of his choice. (3) Where the person arrested wishes to communicate or attempt to communicate with the persons referred to in paragraphs (2)(a) and (b), the police officer shall, as soon as may be, allow the arrested person to do so. (4) Where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time— (a) for the legal practitioner to be present to meet the person arrested at his place of detention; and (b) for the consultation to take place. (5) The consultation under subsection (4) shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be overheard; (6) The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication under paragraph 2(b) or the consultation under subsection (4), has been made; (7) The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilities provided shall be free of charge. (8) The requirements under subsections (2), (3), (4), (5), (6) and (7) shall not apply where the police officer reasonably believes that— (a) compliance with any of the requirements is likely to result in— (i) an accomplice of the person arrested taking steps to avoid apprehension; or (ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or (b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed. (9) Subsection (8) shall only apply upon authorization by a police officer not below the rank of Deputy Superintendent of Police. (10) The police officer giving the authorization under subsection (9) shall record the grounds of belief of the police officer that the conditions specified under subsection (8) will arise and such record shall be made as soon as practicable. (11) The investigating officer shall comply with the requirements under subsections (2), (3), (4), (5), (6) and (7) as soon as possible after the conditions specified under subsection (8) have ceased to apply where the person arrested is still under detention under this section or under section 117. 9 The provision reads (3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

JANUARY / JUNE_2008 PRAXIS 29 Articles

! Consultation with legal practitioner In this regard for the consultation to take amendment is a step forward in enhancing place the police shall provide for such the rights of arrested person. Grounds of arrest facilities. It will be interesting to observe Section 28A (1) clearly states that a person that the police station now, as a result of Amendment to section 117 arrested without warrant shall be informed the amendment, must comply with This amendment is another significant as soon as may be of the grounds of his section 28A (5). amendment. It is related to the arrest by the police officer making the amendments in sections 28 and 28A of arrest. Section 28A (6) is also important in that CPC. Prior to the amendment section 117 the police may neither question nor record of CPC, which allows for a detention, what The words “as soon as may be” must be any statement from the arrested person is commonly known as remand construed strictly to mean “forthwith”. until the arrested person has had a proceedings, was often the subject of communication with the legal practitioner much criticism as it opened door for abuse. Further a police officer before of his choice. However this positive The public often argued, one or more of commencing any form of questioning or requirement seems to be diluted with the the following:- recording on the arrested person must insertion of the words “reasonable time” ! Tendency of the Magistrate to issue inform the arrested person that he may which suggests that the questioning and remand order has requested by police. communicate or attempt to communicate recording of statement if the legal ! Tendency of the police for not with a relative or a friend to inform of his practitioner takes “an unreasonable time” completing or conducting the whereabouts. to see the arrested person. Then again there investigation the past 24 hours. is no yardstick to determine “reasonable ! Remand period requested by police is It is disappointing however when the time”. unreasonable. words “attempt to communicate” are employed. This may lead to abuse when Section 28A (8) has also placed a The amendment would appear to address the police would only make one call and is qualification wherein police officer does these grievances. With the amendment the unable to contact and the question arises not have to comply the requirement to detention allowable for the purpose of whether that would be regarded as inform the relative or a friend and the investigation is now categorised into two sufficient. right to legal counsel if the police officer categories based on the maximum reasonably believes that it will result in an punishment for offences being For the purpose of legal representation accomplice absconding or the investigated:-*(see the chart on the next section 28A (4) (b) provides that where concealment, fabrication or destruction of page) the arrested person has requested for the evidence or intimidating witness. consultation with a lawyer the police officer Thus it is clear that for offences being shall allow reasonable time for the person In order to avoid any abuse of section 28A investigated falling under category (a) arrested to meet his legal practitioner for (8) there is a safeguard placed in section above the maximum period of detention consultation to take place. This is an 28A (9) where section 28A (8) can only is only 7 days (excluding the first 24 interesting development in the Malaysian be invoked upon authorisation by a police hours). This demarcation is laudable as legal history as it was always difficult for a officer not below the rank of Deputy there is a tendency in the past to straight legal counsel to have such consultation. Superintendent of Police. jacket all offences and to obtain maximum In addition to that the consultation shall period of detention by the police. be within the sight of a police officer and With the insertion the police force has to the conversation will not be heard- section get ready with the necessary recourses The amendment also inserted new sub 28A (5). namely personnel and finances for section sections (3), (4), (5) and (6) with a purpose 28A to effectively work. Nonetheless the of compliance with decided cases such as Polis Diraja Malaysia v. Audrey Keong Mei

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Category Duration of Detention the Parliament such as section 37A of a. For offences which is punishable with The detention shall not be more than 4 days Dangerous Drug Act 1952, section 45 of imprisonment of less than 14 years on the first application and shall not be more Anti Corruption Act 1997, section 16 of than 3 days on the second application Kidnapping Act 1961 and Regulation 21 b. For offences which is punishable with the detention shall not be more than 7 days of the Emergency (Security Cases) death or imprisonment of fourteen on the first application the detention shall Regulation 1975. years or more not be more that 7 days on the second application. Amendment to section 107 of CPC. The amendment to section 107 is made Cheng,10 Leonard Teoh Hooi Leong11and tabulated as follows:- by inserting after subsection (2), the new Sivarasah R & Others12 A. Statement made by the accused section 3 (a), (b), (c) and section 4. person Police investigation powers to pursuant ! Police can request a statement The reason of said amendment is as to sections 112 and 113 of the CPC under section 112. reflected in many incidences reported in Section 112 and 113 of the CPC ! No caution is required the newspaper of refusals by the police to underwent a major overhaul. This is not take reports for simple reason that the surprising as these sections were the subject B. Admissibility of the statement by the incident occurred not within the locality of disputes in many reported cases. With accused person of the police district therefore the reports the amendments it can be argued that the ! The statement cannot be used must only be made to a particular police power of the police to record a cautioned by the Prosecution at all not even station only. statement and to rely on the same as for the purpose of impeachment evidence is now abolished. The new ! But the accused can use the Thus with the new insertion of section section 112 can now be used to record statement in support of his 107 (3), the police report could be lodge statement of witnesses including the defense. at any police station or “pondok polis” or statement of the accused person. The to any police officer on beat duty or recording of section 113 has been C. Exception to non admissibility patrolling. It is pertinent to note that to abolished due to the fact of frequent ! Statement made in the course of show importance of the reports, section abuses by the police in recording the an identification parade; 107(4) makes it mandatory for the police statement at many occasions. The Court ! Statement falling under section officer to receive any information in relation has held the statements recorded under 27 of the Evidence Act 1950; to any offence. the old section 113 to be invalid due to ! If the accused person is charged lack of voluntariness and or given as a result with a separate charge of in At first blush, this amendment would of oppression. Previously there was also relation to make or the content seem to be a positive step. But on further the tendency of the police to just act based of any statement that statement reflection the fact that a report is able to on the statement recorded under section may be used during prosecution be lodged does not equal to prompt action. 113 to conclude their investigation. case. The investigation will invariably be ! Under paragraph 32 (1) (a), (i) conducted based on established This amendment restored the section to and (j) of Evidence Act jurisdiction of the police district and that the position prior to 1976 with minor the complainant may still be required to amendments. It is noted that with this amendment, there attend that police district which may be is possibility that other Acts have to be far from the place where the report was The net result of the amendments may be amended to include the same intention of lodged.

10 [1994] 3 MLJ 296 HC; [1997] 3 MLJ 477 CA. 11 [1998] 1 MLJ 757. 12 [1996] 3 MLJ 611.

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Amendment to section 13 of CPC Human Rights and also Syariah Principle and procedure is reflected in This amendment is in relation to the especially on the adherence to the principle paragraphs 11 and 12 of the obligation to report certain offences. The of decency. The module of search is an Schedule; amendment includes new offences to amalgamation on the procedures adopted include sections “372, 372A, 372B, 376, in other jurisdictions such as in Singapore, (d) Intrusive search- this method of 376B 377C, 377 CA, 377E which are New Zealand, Canada and Australia, the search means a search involving the sexual offences. bulk of which having close resemblance examination to determine the to that of Australia. existence of any object, evidence, The law of search weapon or contraband inside the The current procedural law of search on In brief, the four types of search may be body or body orifices of the person person can be found in sections 17,19, explained as follows: and including the removal of it. This 20, 21 and 22 of the CPC. In general, the (a) pat down search is a search that is search is only conducted by a law of search in Malaysia is inadequate and based on patting the outer clothing government medical officer or there is a heavy reliance on the common of the person arrested. The medical officer or by any hospital law position. It is interesting to see that authorization and the procedure of assistant or registered nurses acting the lacuna is sought to be filled with the the search is reflected on paragraphs under the government medical introduction of section 20A and the 4, 5 and 6 of the Schedule; officer or the medical officer‘s inclusion of Fourth 13 Schedule of this direction. The authorisation and Code. (b) Strip search- means the search procedure can be reflected in involving the removal of the entire paragraph 14 and 15 of the It is clear that this section was introduced person arrested clothing. This may Schedule; as a result of highly contentious incident be done part by part for example by famously known as the “ear squat” incident allowing him to dress his upper body Report on status of investigation namely where a Royal Commission was set up and before removing items of clothing sections 107A and 120 of CPC. in the process the procedure on search of a from his lower body. The The amendment insertion of section person took center stage.14 authorization and the procedure of 107A on report on status of investigation it are governed by paragraphs 8 and must be welcomed. It provides for The Royal Commission came up with a 9 of the Schedule; accountability and good governance of the recommendation on the procedure for police officer and the same time provides carrying out a body search. This is now (c) Intimate search- this method of the citizen the right of information on the reflected in the Third (sic) Schedule of search consists of the physical status of investigation by the informant. the CPC. The insertion of a new schedule examination of the arrested person’s has created four types of body search: body or orifices other than the As a result of the amendment the police is (a) pat down search; mouth, nose and ears. For the required to provide the status of (b) strip search; purpose of intimate search it requires investigation:- (c) intimate search; and prior approval of a police officer not (a) If the offence is a seizable offence; (d) intrusive search. below the rank of Assistant (b) The period of four weeks has lapsed Superintendent of police or for other from the date the information has This amendment is very positive in the enforcement agency with the been reported; and light of the Universal Declaration of equivalent ranks. The authorization (c) Providing the status of investigation

13 The schedule was initially read as Third Schedule but as there was already an existing Third Schedule which relates to the applicability of the CPC to the Sabah and Sarawak. This was subsequently rectified by the Criminal Procedure Code (Amendment) (Amendment) Act 2007- Act A1304 which came into force on 7th September 2007. 14 As a result of the incident also the victim has now filed a civil suit against the relevant party and the writer is the counsel having conduct of the case and related criminal matter in Petaling Jaya Magistrate’s Court.

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will not undermine the investigation Procedure in relation to cases involving suspect”. or presentation. violence – sections 106A, 106B and 106C These amendments are in relation to the But in general the inclusion of these Where a request is made for the status of ancillary investigation powers in relation provisions is necessary to combat terrorism police investigation the informant may to terrorism offences. Section 106A which has proven to be a menace to global then write to the Public Prosecutor who provides the essential definitions in relation peace. Further, such powers are also found shall that direct the officer in charge of the to these new provisions including phrase in the Kidnapping Act 1961, Anti Police District to furnish him with the “terrorism offence” which means the Corruption Act 1997 and Dangerous detailed status report on the investigation. terrorist act or terrorism financing offence. Drug Act 1952. Section 106B empowers any police officer At the stage of the Bill it was included to arrest without warrant any person who Pre-trial Discovery- the insertion of that it would be offence if the police officer has committed or is committing or whom section 51A of CPC were to fail to give status but this appears he has reasonable grounds for suspecting Section 51A is an interesting development not to have been passed by Parliament. to have committed or to be committing a of law by including some kind of discovery Thus there is no repercussion for failure terrorism offence. This power is wide in process which is the cornerstone of the to adhere to this new provision. So the nature. civil process but otherwise alien to criminal worst case scenario the police officer will proceedings. only commit a “disciplinary action” or at Further, section 106C provides the powers the very serious committing an offence to the Public Prosecutor to authorise any With the amendment the Prosecution is under section 175 of the Penal Code.15 police officer to intercept communication required to deliver to the accused the if the Public Prosecutor is of the opinion following documents before the that the communications likely to contain commencement of the trial: Amendment of section 120- Report of information of terrorism offences. (a) a copy of the First Information police officer. Report under section 107 (if any); This amendment is made for the purpose The opposition, political parties and other (b) a copy of any document which to tighten the current procedure. The NGO’s are worried and concerned that would be tendered as part of the police officer conducting the investigation the term “terrorism offence” is given a wide evidence for the prosecution; and is required to produce the report of the meaning. The power of arrest under (c) a written statement of facts favorable investigation together with the section 106B is equally too wide. Perhaps to the defense of the accused signed investigation papers to the Public the power to intercept communication under the hand of Public Prosecutor Prosecutor officer within one week upon should only be allowed on the or any person conducting the the expiry of three months from the date authorisation of a High Court Judge or prosecution. the information is given pursuant to Session Court judge and not by the Public section 107 of CPC.16 In case of Prosecutor. The wordings in section 106C The term in section 51A (1) (c) - “facts immediate urgency the Public Prosecutor (2) “consider that it is likely to contain” is favorable to the defence of the accused” is may at any time regardless of the period of too wide and only incorporate a minimum wide in nature. Given a broad three months direct the police officer to standard. Perhaps the term used should interpretation this would indeed be a boon submit such report.17 have been “has reasonable ground to for the defence.

15 The section reads Whoever, being legally bound to produce or deliver up any document to any public servant, as such, intentionally omits so to produce or deliver up the same, shall be punished with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand ringgit, or with both; or, if the document is to be produced or delivered up to a Court, with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand ringgit, or with both. 16 Section 120(1) of CPC. 17 Section 20(2) of CPC.

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Prior to the amendment copies of paragraph (h) the insertion of paragraph Arulpragasan’s case. That said, it will be documents that prosecution intend to (ha). interesting to wait and see how the court tender is never given to the defence. In is going to interpret “credible evidence”. fact at times the defence will have to make The insertion of section 173 (h) (iii) is various applications under section 51 of made to circumvent the decision of the The right of the accused after the end of CPC to request for copies of important Federal Court case of Arulpragasan a/l prosecution of defence are called- section documents such as cheques, and other Sundaraju v. PP18. The speech by the 173 of CPC documents in the possession of the Minister when tabling the Bill clearly The amendment to section 173 (ha) is prosecution. This would unnecessarily stated that the intention behind the long overdue and it is most welcome. Prior lengthen the trial process. amendment is made to return to the to the amendment, it was the Court’s principle established in the case of Haw practice to inform the three electives to The introduction in section 51A is for the Tua Tauv PP.19 It is also to reaffirm the the accused person namely to give purpose of “fair play” and transparency in decisions of the Court of Appeal in Looi evidence in the manner of sworn, unsworn the interest of justice. Despite the wide Kow Chai v. PP20and the Federal Court in or to remain silent upon the defence being powers in section 51A one must also take Balachandran v PP21. called. The insertion of section 173 (ha) is into account the proviso in section 51A to enact the said practice into law. (2) wherein the prosecution may not Previously there is a lot of uncertainty as supply any facts favorable to the accused to what is required to establish a prima Liability for offence committed out of if its supply would be contrary to public facie case and the standard of proof at the Malaysia- section 127A of CPC. interest. end of the case for the prosecution. The This amendment is made to give a wide new clarification 173 (h) (iii) is made in scope to offences against the country and On a general note it is the respectful view the hope that it would be bring certainty crimes of violence under chapter VI and of this writer that the development of law to the law. VIA of the Penal Code. on this area is much awaited for in particular in the interest of justice and fair Similar amendments made to section 180 Evidence through live video or live play. More so in our adversarial system, of the CPC in relation to High Court Trials. television links- section 272B there should not be a trial on ambush and This development is in line with current the accused be given all reasonable A further scrutiny on the amendment changes of time and to keep in tune with opportunity to defend himself therefore would reveal that the new provision is not the development of law in other countries giving the real meaning to the free from uncertainty for example the and the development of technology. This presumption of innocence. words “credible evidence” are not self section allows a witness (other than the explanatory. The Concise Oxford accused) to give direct evidence through Amendment of section 173 and section Dictionary22 defines credible as “believable video or live evidence, through a live video 180 or worthy or believe”. This is more in line or live television link in any trial or inquiry. Section 173 is in relation to summary trial with a high standard of proof. procedure applicable to the Magistrate The intent behind this section is to allow Court and Sessions Court. There are two Therefore, seeing in this light the witness to give evidence without fear and amendments in section 173 namely the amendment is pointless as the standard of favour and without the fear of security, insertion of paragraph (h) (iii) and after proof remains to that as interpreted in more so when the witness is a child. The

18 [1996] 4 CLJ 567 19 [1981] 2 MLJ 49. 20 [2003] 2 MLJ 65 21 [2005] 1 CLJ 85 22 See also the case of Armah v Government of Ghana & Anor [1968] AC 192 where similar phrase was interpreted by the House of Lords to mean a higher degree.

PRAXIS 34 JANUARY / JUNE_2008 Articles safeguards of this section is clearly reflected (ii) the phrase “community service” obligation on him to work during that in section 272B (2) (a-h) and 272B (3). means any work, service or course of period. instruction for the betterment of the Amendments under section 289 (c) of the public at large and includes, any B. No specific condition. CPC. work performed which involves The section empowers the court to attach The amendment in this section is for payment to the prison or local such conditions as it may specify when whipping to be allowed to be executed authority; and imposing an order for community service. for all male offenders who are beyond the The powers are very wide in nature and age of 50 for offences under section 376, (iii) the community service under this there is a fear that the powers would not 377C, 337 CA or 377E of the Penal paragraph shall be under the be exercised properly by the judicial Code. The above offences are sexual Minister charged with the officers. There is suggestion that a proper offences in nature. The Select Committee responsibility for women, family and guideline is formatted for the success of is of the view that such offences are serious community.” the program. The fact that the in nature and public policy demands that Community Service Order is something heavy sentence is imposed due to the The enforcement of this order is under new in Malaysia, it is suggested that a despicable nature of offences. the care of Minister responsible for proper outline is provided to the women, family and community. Magistrate to exercise such power. Related amendments can also be seen in section 291 of CPC where whipping Issues on Section 293 CPC C. Consequences of violating Community cannot be inflicted in one transaction than A. No minimum period stated. Service Order (CSO). the imprisonment term is now amended Section 293(1)(e)(i) of the CPC stipulates It is clear that the section does not state to twenty four months imprisonment maximum duration for community service the situation if for some good reason the (previously twelve months imprisonment) but does not stipulate the minimum offender is unable to perform community period. There is also a fear that by not service and further the community service Community service – section 293 of the stipulating the minimum period there is order does not provide any form of CPC. no form of guideline to the Magistrate. variation of the condition imposed by the This amendment is made so that an order This position is somewhat similar to court. It is submitted that the of community service could be made to a Singapore. In United Kingdom the consequences of breach of the order youthful offender for the purpose of minimum period to be imposed in 40 should be clearly spelt out. rehabilitation of the offender. This section hours and in Australia it is 24 hours. It is is in line with one of the aims of sentencing apparent from the Parliament that the It may be suggested that when the namely rehabilitation. The community intention of Parliament to legislate such a Magistrate provides for the order of service order was added in the section is for the purpose of namely: community service he must also state the amendments as an alternative punishment ! Rehabilitation – by providing social consequences of breach on such order to for offenders aged 18 to 21 i.e. youthful responsibility and making community provide certainty to the principle of offenders. The amendment in section 293 service a worthwhile experience for the community service and Section 293 in a (e) is as follows: offender. form of punishment. “(i) to make an order requiring the offender to perform community ! Reparation – by providing an avenue D. Committing offence during the period service, not exceeding 240 hours in for the offender to make amends and of community service. aggregate, of such nature and at such providing tangible benefits to the The new amended section does not state time and place and subject to such community. what happen if the offender whilst under conditions as may be specified by community service order commits another the Court ! Punishment – by depriving the offence, and for the new he is punished offender of his free time and place an with imprisonment. What will be the

JANUARY / JUNE_2008 PRAXIS 35 Articles status of the community service order? is working, the working hours. That the Further, the amendment in section 295A Will it be suspended? community service order should not stipulates that the person undergoing burden him to the extent that it is affecting police supervision under section 295 (1A) E. What type of offences to be given the working hours. Thus it can be may upon the order of the court attend Community Service Order (CSO). suggested that CSO should be conducted rehabilitative counseling. It is also unclear on the offences where after the working hours. The courts should CSO would be suitable. It is respectfully also take into account various factor be it Appeal –section 307 submitted that the CSO should only be social and legal and to award a suitable The time limit for fiing the requisite given to the less serious offences. hour as not to burden the offender in a documents in an appeal process such as very inconvenient manner. The courts the Notice of Appeal and Petition of F. General should take into account in general: Appeal has been extended from 10 days It is noted that this intended model of 1. The nature of the offence previously to 14 days. community service is based on the model 2. The circumstances in which the in Singapore. Based on the act the youthful offence was committed Concluding Remarks offender is required to perform 3. The hours suitable based on the The writer has in discussing the community service not exceeding 240 current timetable the offender is amendments highlighted the strength and hours in total and this program is intended having; shortcomings of each of the amendments to prevent the youthful offender to in general. One must observe however that commit the said offence and to allow them Needless to say that the supervision by despite the time taken before the Act was to return to society as soon as possible the agency responsible must be done well passed by Parliament little care was given wherein through the sentence it forbids and the procedure must be checked from to the finer points of drafting, which as a the free time of the youthful offender and time to time. In fact the writer would whole, is very poor. As a result the gives them a responsibility to complete. respectfully suggest that a committee grammatical errors are aplenty and now True rehabilitation gives the young should be formed by the Ministry of sought to be corrected by another offender social responsibility and ensuring Women, Family and Community Service amendment which produces a comical the offender is remorseful and repentant. to prepare a module of community service result of amendments of amendments.23 It also gives room to the offender to reform which is represented by various NGO’s, himself to enable him to return to society. Bar Council and various agencies to ensure On the whole the amendments brought justice is served. about some positive changes especially on It is important that the implementation the aspect of discovery and statements by of this program is co-coordinated in the Amendment to section 295 and 295A of accused persons. These amendments are interest of the offender. The program must the CPC radical changes and is hoped that the have a purpose of check and balance to The amendment of section 295 (1A) is in Courts will give liberal interpretations in ensure the intention of Parliament. It is relation to police supervision orders for favour of protecting the rights of the also hoped that the agency involved will offences under section 376, 377C, accused and at the same time ensuring that have sufficient officers to supervise the said 377(A) or 377E of the Penal Code where crime will not go unpunished. community service order in public Court would be able to impose police interest. supervision for a period of not less than one year and not more than three years It is hoped that the community service commencing immediately after the order does not conflict with the studying sentence passed on him. hours of the offender and if the offender

23 Criminal Procedure Code (Amendment) (Amendment) Act 2007- Act A1304 which came into force on 7th September 2007.

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A self-insured fund - Our next step? by Web Reporter

n 2005, a major revamp of the PII The Web Reporter recently sat down with As a start, the PII Committee and the IScheme was initiated and over the past Ragu to find out more about this exciting Echelon Asia consultants will be three (3) years, significant progress has new project and what it means for the conducting a Roadshow to all the State been made on improving the Scheme. Malaysian Bar. Bars in the run up to the 2008 Bar Council AGM, 15 March 2008 to inform Notable changes to the Scheme include In the past year, you’ve mentioned a Self members of this project, obtain their the removal of the confidentiality clause Insured Fund (SIF) for the Malaysian Bar feedback and answer any queries members which gave the Bar Council (BC) access PII Scheme in most of the Risk may have. to previously unavailable claims Management newsletter editorials and PII information, data and statistics on the Circulars. Can you remind us what SIF A report on the SIF’s viability will Scheme; removal of the punitive and means and update us on the current status presented to members at the March 2008 prohibitive pre-settlement claims loading of this project? AGM; the PII Committee will be seeking structure, removal of work and a positive resolution from the Malaysian responsibility loading, the removal of the Put simply, a SIF is merely a mechanism Bar to push forward with this project. cap on defamation, extending the for the Malaysian Bar to reserve against notification of claims period in 2008, PII claims by setting aside funds in a The SIF Roadshow team is tentatively availability of the option to buy down base segregated account, dedicated specifically scheduled to present at the State Bars on excess (self retention risk), and the for this purpose. the following dates: mitigation of loss rider clause. State Bar Date* These funds are collected from members Johor Bar 2 Feb 2008 Our PII Scheme turns 16 this year, and in the same way as the current insurance Kelantan Bar 3 Feb 2008 the PII Committee is proposing a move to premiums, but rather than being passed Penang Bar 14 Feb 2008 a Self Insured Fund (SIF). Ragunath to a third party (the insurance company), Kuala Lumpur Bar 21 Feb 2008 Kesavan, the PII Committee Chairman they are kept “in-house” and over time, Kedah Bar 21 Feb 2008 has to date been very upbeat and positive the surplus funds not needed to pay claims Melaka Bar 22 Feb 2008 about this move, explaining that (1) It is a can be used for the benefit of the Perak Bar 22 Feb 2008 natural step forward in our Scheme’s MALAYSIAN BAR membership, rather Pahang Bar 23 Feb 2008 evolution; (2) This proposed move to a than the insurance company’s Selangor Bar 27 Feb 2008 SIF is not sudden nor is it radical; it has shareholders! Negeri Sembilan Bar 29 Feb 200 been contemplated and envisaged since Terengganu Bar To be confirmed 1992. Echelon Risk Consulting Asia (Echelon * Subject to change Asia) has been appointed by the BC as This proposal to initiate a SIF Transition SIF Project Transition Consultant. In this Why is Bar Council considering a SIF? Project was first mooted in 2006. Since role, Echelon Asia’s specialist technical The PII Committee views moving to a then, it has became an integral part of the consultants will be assisting the PII SIF as the natural next step in the PII Committee’s 3-year plan in driving the Committee in reviewing the feasibility of evolution of the PII Scheme, which is now Malaysian Bar PII Scheme forward to a SIF arrangement. To date, much progress in its sixteenth year. Whilst this idea was becoming a sustainable, equitable and has already been made and members will first envisaged in 1992 (when the Scheme affordable PII Scheme. be kept informed as we move along.

JANUARY / JUNE_2008 PRAXIS 37 Articles began), it has only truly taken off in the claims procedures, but the biggest impact There are many examples of Law Societies last two years where we have been would be “behind the scenes” and thus from around the world moving away from reviewing alternatives to the current unlikely to have a major impact on a fully insured model and into self- arrangements and are targeting members. Renewals will be dealt with in insurance in one form or another. Some of implementation in 2010. This is of course the same way, although some of the these, such as the Victorian Law Society subject to a positive answer to the feasibility terminology may have to be altered to in Australia have been successfully study and the approval of members at the recognise the self-insurance aspect of the operating for over twenty years, and have 2008 AGM. Scheme. grown into significant and financially stable organisations in their own right. Although there have been many Will the SIF replace the current Scheme; improvements to the PII Scheme, the meaning Bar Council no longer buys PII? The various forms of self-insurance used bottom line is that as long as this Scheme If so, how will members’ interests be by Law Societies in places such as Australia, is insured, the BC and our members are at protected? UK, Canada, Ireland and Hong Kong the mercy of the insurance market, and The SIF will replace the current Scheme, vary, but all operate on basically the same subject to great volatility in pricing caused but not in its entirety, so this does not principle as a SIF - the use of a fund to by events beyond our control. For mean that BC stops buying any insurance. self-insure a primary layer of risk, with the instance, after the 9/11 terrorist attacks in Although this sounds contradictory, under insurance market being used for the USA, rates increased dramatically, even the anticipated structure, SIF and protection against severe claims and a large though our claims record was not affected insurance are actually complementary and number of individual claims in any one by this event. In moving to a self-insured both will form an integral part of the new year. This is a tried and tested model that arrangement, we will insulate ourselves scheme. we are very confident will suit the from such volatility, because we will be in characteristics of our Scheme. control of our funds. Particularly in the earlier years as the fund builds-up, insurance has an important role What are the short and long term benefits Members’ contributions can be based on to play in protecting the SIF against the of moving to a SIF? the experience of the Malaysian Bar PII financial consequences of unexpected By its nature, the SIF is a long-term strategy Scheme and, as mentioned above, over claims and we are actively negotiating with and most benefits to members will become time, any surplus funds not required to a major international company of the apparent over time. As previously be held in reserve for the payment of claims highest financial standing to “partner” mentioned, the major long-term benefit can be used for the benefit of members. with the BC SIF and completely re-design is the ability to control our own destiny Thus, the main benefits that we are our PII programme. and insulate ourselves against insurance expecting from the move to SIF can be market volatility. This will lead to greater summarised as - control, stability and Thus, members’ interests will be protected stability in pricing of PII cover for affordability. through partnership with a financially members and improved budgeting strong organisation, whilst still confidence, knowing that premiums will How will this differ from current maintaining the control and stability of not be subject to dramatic and arrangements and from the members’ the SIF. Our aim must always be to protect unanticipated increases year-on-year. perspective, what would change if Bar members’ interests first and we will try to Council moved to a SIF for the PII achieve this at the lowest possible “cost” in Another benefit of the SIF approach is Scheme? terms of payments made outside the SIF that over time, surplus funds (those not From the members’ perspective there may structure. required to be held in reserve against be some minor changes to the notified claims) can be used for the benefit administration and operation of the What other Schemes have made such a of members, for instance, to fund risk Scheme, in terms of documentation and move? Did they succeed? management and other PII related

PRAXIS 38 JANUARY / JUNE_2008 Articles initiatives that may otherwise be cost- Will the Legal Profession Act 1976 (LPA There will be much to do during the prohibitive. 1976) pose a problem in setting up a SIF? transition to obtain all necessary approvals; We have reviewed the provisions of the finalise the structure and pricing Will the amount that members pay for LPA 1976 and in particular Section 78A, parameters, and develop the operating PII differ under a SIF and how will this which provides powers to the BC to make protocols. The PII Committee and our be calculated? rules on professional indemnity. Our consultant will keep members informed Under a SIF, the amount that needs to be concern was whether the relevant Section throughout this process. paid in “contributions” to the fund is allowed for the setting up of the SIF. related far more closely to the actual claims It is anticipated that if the feasibility study experience of the Scheme than may be We have taken a legal opinion on Section produces a positive result and the SIF the case under an insurance arrangement. 78A and can confirm that it allows for the project is approved at the 2008 AGM, Therefore, the amounts paid by members setting up of a fund subject to the approval then a definitive proposal to move to a will depend very much on claims paid out, of the Attorney General who would be SIF in 2010 will be put to the vote at the as the Fund will need to be sufficient to guided to ensure that the interest of the 2009 AGM. cover these claims. public is protected. Is there a backup plan in the event the Over time, we would expect members to Formal representation on the SIF, its rules SIF does not go through? pay less under a SIF, as the insurer will and the safety features would be made to Presently, the PII Committee is researching always need to load the “risk” element of the Attorney General to satisfy any the feasibility of a SIF and no definitive the premium with a margin to cover its concerns, which he may have in the decision has been made whether or not to profit and expenses. However, it is implementation of the SIF. proceed along this route. In the event that important that members do not equate the SIF does not go ahead, the PII Scheme the move to SIF as being the signal for a What are the key milestones and timelines will continue to be insured and subject to dramatic reduction in premium for the SIF project and when can annual review of potential alternative contributions - the SIF is not profit driven members expect to see a more definitive markets and structures. but does need to be sustainable and able proposal / recommendation from the PII to meet its current and future liabilities, so Committee? The PII Committee is of the firm view there will be an element of prudency and The target date of implementation for the that SIF offers major benefits to the conservatism in the setting of rates in the SIF is 2010. In 2008 and 2009, the PII members, but it is important to note that early years. As previously mentioned, Scheme will continue to run in its current this is not the only option, nor is the benefits are likely to become apparent in form, whilst transition arrangements are insurance market forcing it on us. By the longer term, only if the SIF is being put in place for the move to SIF in reviewing this approach, we are not sufficiently funded in relation to its 2010. “burning our bridges” and always have liabilities. the option to remain in an insured scheme, if this is the wish of the Malaysian Bar. In order to determine the correct levels of funding, the PII Committee and its advisors will obtain actuarial analysis of likely claims and this analysis will form an important part of the feasibility study to be presented at the 2008 AGM.

JANUARY / JUNE_2008 PRAXIS 39 Speeches Ethics Course Luncheon Speech by Ms. Sitpah Selvaratnam*

Good Afternoon Ladies & Gentlemen You are now an integral part of this process To me, this statement beautifully of justice. Together, we have an enormous summarises essential ethics of the Bar - (1) ou have come a long way towards role to play in ensuring that the human intellectual honesty (2) strength to resist Yachieving your dream of being race does not descend to living as animals. temptation (3) serving the client above robed in black and white. You are self and (4) retaining an element of probably expecting me to say – “It is only Yes, be proud of this right that you have impartiality as officers of the Court. I will the beginning”. And so, I will not earned in society. But, be acutely aware add to Pamela Rymer’s list - (5) common disappoint you. A well earned beginning that as with all rights, come responsibility. courtesy between members of the Bar. though; at foothills several thousands of The spectrum of our responsibility is wide feet above sea level. You have every reason and varied. I select, for easy digestion with When I joined the Malaysian Bar in 1990, to be proud of your accomplishment, and your lunch, some that are basic, but obtaining an extension of time from one’s it is of this pride that I address. fundamental. opponent, to file pleadings or an Affidavit, was not difficult. Every lawyer knew that You should rightly be proud of joining an “If young people entering the law are one day he would need to be the party esteemed fraternity of lawyers. We, lawyers honest with themselves, have the ability asking for time, and so naturally are often the brunt of many entertaining to say no, resolving not to serve themselves entertained a similar request. More striking (and not so entertaining) jokes. But, as it more than their clients, and commit is the fact that rarely was such a telephone has been said:- themselves to the oath of the Court, we’ll conversation for extension confirmed in “Justice is the only thing that allowed all be the better for it.” writing. That was the level of trust and the human race to stop living as animals - Pamela Ann Rymer, honour between members of the Bar. and to start living as human beings” Los Angeles Federal Judge Obviously, the Bar is now far bigger, and – Frank W. Wilson, the movement of lawyers in and out of American Judge firms more rampant. It has become

* LLB (Wales), LLM (Cantab), Barrister-at-law (Lincoln’s Inn), Advocate & Solicitor (High Court of Malaya) Delivered at the Luncheon Talk for pupils-in-chambers, engaged in the Ethics And Professional Standards Course of the Bar Council Malaysia, at Kuala Lumpur on 21st February 2008

PRAXIS 40 JANUARY / JUNE_2008 Speeches Speeches necessary to confirm conversations in law. Remember, the law and justice are far man above animal; to therefore protect writing. But, there is still no justification bigger than our clients and certainly, justice from falling into disrepute; to assure for the refusal of simple requests, or to bigger than us. It was there before us, and man that his hurt can lessen through the assume aggression in communications with will remain after us. Let us not make it an legal process of justice. fellow lawyers. We do not have to prove ass, just to satisfy our client or our desire to in every conversation that we are the best win; to get one up over our opponent or This does include subordinating our lawyer there ever was. There is no necessity to see our bank balance grow. interest in earning a living, to our client’s to identify ourselves with our clients 110% interest in legitimately resolving a legal of the time. All letters do not have to carry Winning obviously is good, but someone issue - at least slightly! It does mean battle cries! has to lose in every case. The process of reporting to clients on the progress of their resolving the dispute is just as important, matter. Explaining the niceties of the legal In fact, we achieve far more professionally, if not more. The healing of the wound of process, procedure and law. Taking by developing goodwill amongst our peers grievance, through fairness in the exchange instructions. Engaging them in the and the Bench. You will soon observe in between the parties of their respective process of justice. It is their entitlement. the course of your practice that some positions, is vital. More so, where the Admittedly, in the current pace and style lawyers need only to state a proposition in clients are engaged in a bitter battle that of living, it is sometime difficult to law or fact to have the Bench accept it runs high in emotion, or with negative remember that we are not running a without much formality. That is the sentiment. A lawyer exercising neutralized business with targets to meet, mouths to power of goodwill. That is the respect empathy has much value to add to such a feed (and flash cars to be had). one earns over the years from maintaining dispute. a measured detachment from the cause of But, these are the ideals we all have to live one’s client, and observing the requisite In the words of another American lawyer: up to; and that which you have chosen to impartiality as officer of the Court. “My thesis is that the truly successful live up to. If each of us does our little bit Concede settled law and facts to progress lawyer finds a good heart more useful than at every level, we grow into a formidable the common cause of justice. sharp fangs” source of collective strength as an – Matthew A. Hodel independent Bar that is intellectually It is not all about winning. Clients do honest, steady from external influence, have bad cases, at times. Saying “no” is We are far more than hired guns. We are and mindful of our responsibility to therefore, important. “No, it is unlikely ultimately engaged in a profession, to serve protect and preserve justice. The that you will succeed”. “No, I’m afraid the the public and the nation. Behind the Malaysian Bar has earned a well deserved law is not on your side”. “No, I regret that high drama of Court, and the pub talk reputation for its independence, and for would be a misinterpretation of the law”. that ensues afterwards, is an individual fearlessly fighting for what is right and “No, I will not bribe to guarantee your who has pledged to do justice; to keep lawful. You inherit well. It is your task success”. now to preserve, and enhance well.

It may be that you will lose the client, but you will certainly live to find another.

Not saying “no” can be the thin edge of the ice. Apart from drawing one into outright dishonesty and corruption, it can prompt arguments that distort the law. In the guise of false intellectualism, do not succumb to submissions that mangle the law or procedure. These lead to distorted judgments and distorted precedents in

JANUARY / JUNE_2008 PRAXIS 41 Speeches Ethics Course Luncheon Speech by Mr Lim Kian Leong*

Madam President, Mr Secretary, it was propriety estoppel. Honourable Council members, ladies and gentlemen, fellow lawyers. He said, “Trying to understand this issue is like making love in the bath. Just when Good afternoon. you think you’ve got a grip on things, as it were, in a split second everything just slips have been asked to work for my lunch away and you’re desperately trying just to Iand give a short talk. keep your head above the water, trying not to drown”. The nice lady from the Bar Council who called to invite me to give this talk He went through the whole class making suggested I keep it brief because the real increasingly lurid analogies about soap and reason people would be there was for the foam and lack of friction … fine for a lunch. bunch of over hormoned college students but of course totally unsuitable for this When I accepted the invitation I was told audience of young lawyers, so I’ll move Every problem is fraught with I could talk about anything I wanted to so on. complicated twists and turns. long as it had to do with the practice of law. If possible it should somehow be Anyway, the contract law class concluded It all really depends how far you want to connected with the topic of ethics. It also with the proposition that what appeared look. had to be suitable for Chambering on its face to be a simple contract law matter Students attending a compulsory ethics became more and more complicated the One of the reasons for this, apart from the event … in other words, people who deeper one looked into it until it became intrinsic difficulty of the law, is of course would rather be somewhere else. almost impossible to understand. that legal relationships, such as Contracts, are made and broken by PEOPLE. My immediate problem in deciding what The reason I mention my old tutor is that to talk about was that back in the old days, every time I come across a difficult issue, At the end of the day, many things depend 1983 when I was called, we didn’t have to be it in law or life, his words always come on the facts. undergo a compulsory Ethics Course, so to mind. Whenever I think I understand the fact is, I have no idea what topics you something, the next minute it just slips What did they Sign? have been learning or what to say that away and I realise, well, may be there’s What did they Do? might be relevant. So naturally, of course, more to it than that. What did they Say? … I’ve decided to talk about … SEX. What didn’t they Say? It all depends how far you want to look. When I was a student, I was attending a The mark of a truly great lawyer is in how contracts law class. As you will all soon discover, the practice he or she applies the law to the facts. of law is often like that. What struck me was the way the tutor Notice what I just said … “how he or she introduced the topic, which had to do Nothing is really as it seems. applies the law to the facts”. with a particularly difficult issue, I think

* Delivered at the Luncheon Talk for pupils-in-chambers, engaged in the Ethics And Professional Standards Course of the Bar Council Malaysia, at Kuala Lumpur on 17th April 2008

PRAXIS 42 JANUARY / JUNE_2008 Speeches Speeches That’s really all there is to the practice of save someone else’s life. Its right to spend WHAT IF THE CLIENT WOULD law. Applying the law to the facts. your own money to save someone else’s NEVER KNOW????? life. (Malaysians are famous for responding But what facts? generously to appeals for donations.) Think about it. How do we know the facts? Your Mother needs the operation today. How do we establish the facts? So, should Lawyers spend their own You have the money in your client’s Are the facts the same as the Truth? money to save someone else’s life? Of account. If I know the Truth, do I have to tell? course. You can replace it in time. The client would never know. This, ladies and gentlemen, is a real ethical Should Lawyers spend their client’s money Its not that you would be taking the issue you will come across every day in to save someone else’s life? money to buy a new Mercedes. Its your practice. Obviously not without their client’s mother’s life. consent. Before you can apply the law, you need to Lets say you, the lawyer, decide to go ahead know the facts. IS THAT THE SAME AS Now, lets imagine. and do it. KNOWING THE TRUTH? You take the money. You are a lawyer. You save your mother’s life. Well, that’s what the law of procedure and You work flat out and earn enough to evidence is for. In law, the Truth is Your best friend needs surgery to save his replace it with interest within 3 months something that’s established according to life TODAY. Without the surgery he will and your client gets his money in full. the rules. die. He’s 28 years old. He has a young wife and 3 kids. Everyone’s happy. That’s sometimes a hard lesson to learn. No one got hurt. The cost is RM25,000.00, but you and A life was saved, your Mother’s. As lawyers, never put your trust in the your friend are flat broke. So is your family. Your client got his money. adage “the truth will prevail”. In Court, somebody has got to reveal and prove the All your money and their money were Right or wrong? “Truth” and that task has to be done spent sending you to law school. according to strict Rules and Procedure. I’m not going to give you the answer. But, you do have RM25,000.00 sitting As a lawyer, if you want the truth to prevail, in escrow in your client’s account, only I’ll just tell you my view. you better know your Rules of Evidence due for release in 3 months. and Procedure inside out. You better learn My view is that the lawyer who saved his all the techniques available and ensure that What if you honestly believe that the client mother’s life and paid his client in full you are a master of the art of revealing the would agree to let you use the money but SHOULD BE SEVERELY PUNISHED Truth. And in the process, you had better there’s no time to ask? He’s uncontactable AND EVEN DISBARRED. make sure that you all know the difference overseas. between “right and wrong”. That’s only my view. What if you honestly believe you can take Ultimately a Disciplinary Committee We all know the difference between “right the money out, spend it on the life saving would decide. and wrong”. Correct? surgery, and replace it within the 3 months Its wrong to murder. without the client suffering loss? But hang on a minute. In my little example Its wrong to steal. NO ONE EVER KNEW... Would you use the money? The client never knew. As a lawyer, it is wrong to use money from He got his money. your client’s account without their Having doubts? For a DC to sit, somebody has to consent. complain. NOW, WHAT IF THE PATIENT WHO Who would ever lodge the complaint? Its very clear. No ifs and buts. NEEDED THE LIFE SAVING SURGERY WAS YOUR MOTHER? Looks like the lawyer got away with it … On the other side of the coin, Its right to on the facts.

JANUARY / JUNE_2008 PRAXIS 43 Speeches Because on the facts … there are no facts. our gut feelings and our own version of But coming to grips with honesty, ethics, There’s no case. morality. What our mothers taught us. behaving as a lawyer should, actually that’s No one suffered. not hard at all. No one complained. Was the lawyer right to save his mother? None ever knew. Get out of the bath, towel down and put It’s not our call. on your robes. The lawyer in my example, manipulated It’s the LAW. It’s that simple. and suppressed the facts to get away with It’s the LAW that we have chosen to a crime. uphold. The day each of you gets called to the Bar, when you put on that robe as an Advocate He used his knowledge and his client’s If you cannot live your life like that, do and Solicitor for the first time … It’s a ignorance to his advantage. something else. feeling like no other. Go into politics. Change the law. Some might say he’s a good lawyer. Go into business. Be an Advertising I’m speaking to you as one lawyer to executive. Teach. another. No one else, only we lawyers can But who suffered? All, (of course with the exception of experience that feeling. The Truth suffered. politics) reputable and worthy professions. The Law suffered. You will for a few wonderful precious What I want to impress upon you is that moments, feel the full majestic weight of The lawyer in my example knew that he Lawyers ARE INDEED DIFFERENT. all the traditions of the Bar on your was breaking the law. shoulders. It makes you feel special. It’s a He knew the truth. We ARE A BREED APART. WE ARE huge weight but it uplifts you. It scares He knew what he was doing was illegal. SPECIAL. you. But he also knew he could get away with it. We cannot behave like normal people who At that moment, your heart will be conduct their lives according to their bursting with a pounding passion to be He did it to save his mother’s life. emotions, their whims and their desires, worthy of this wonderful profession that Morally justified? Some may think so. their needs, their own version of right and you have chosen. wrong which they believe must be true. But he is unfit to be a lawyer. Savour that moment. Cherish it. Never When you practice the law, you undertake forget it. Why? a sacred duty to act at all times in the Because that’s the LAW. practice of your profession with honesty, Whenever you have any doubt how to integrity and dedication to the Law. behave as a lawyer, don’t think about the The LAW transcends our personal views bath tub. Remember that moment when on morality. You, that is to say, WE, do not set the you first put on your robe ... Feel the It has a life of its own. standard. That standard has already been passion surge through you again. It is your duty as a lawyer to understand set by others before us. IT IS VERY, VERY Suddenly, everything will become clear the LAW. HIGH. and you WILL know what to do. It is your duty to understand what is right and wrong according to the LAW. We have no right to lower it. Find a way to keep that passion alive, and And to uphold and cherish the LAW. you might just make it as a lawyer. We have no right to COMPROMISE it. We all like to believe we know the With that I wish you all good luck and see difference between right and wrong. Understanding and getting to grips with you in court soon. Well, we do not. difficult legal issues, complex problems of law, applying the law to the real facts … We have to accept that sometimes there yes, sometimes it really is like being in that are higher authorities than our emotions, bath tub covered in soap.

PRAXIS 44 JANUARY / JUNE_2008 Disciplinary Orders Disciplinary Orders

DISCIPLINARY MATTERS – UPDATES 39. Eiza Hezrina binti Othman - 16 November 2007 Penalty (RM1,000) Order under s.100 Legal Profession Act 1976 40. Zakiah bt Hj Ahmad - 16 November 2007 (RM2,000) 1. Suzana bt Radzali - 19 October 2007 (RM1,000) 41. Zamzuri bin Mohamad - 16 November 2007 (RM1,000) 2. Joginder Singh Olikh - 19 October 2007 (RM2,000) 42. Shahrul Nazim bin Baharin - 16 November 2007 3. Fabli bin Yusof - 19 October 2007 (RM1,000) (RM1,500) 4. Teoh Ming - 19 October 2007 (RM500) 43. Pradap Leon a/l Leon Willian Pereira - 16 November 5. Faizal bin Abd Jalil - 19 October 2007 (RM1,500) 2007 (RM1,500) 6. Sathival a/l V Sundram - 19 October 2007 (RM1,000) 44. Mohd Nawi b Ab Hamid - 16 November 2007 7. Nor Azri bin Mohd Arif - 19 October 2007 (RM2,000) (RM1,500) 8. Mahaletchumy a/p Ramakrishnan - 19 October 2007 45. Mohd Zulkifli bin Mohd Rusad - 16 November 2007 (RM1,000) (RM2,500) 9. Ong Sun Juan - 19 October 2007 (RM1,000) 46. Saw Hoe Teik - 16 November 2007 (RM2,500) 10. Nuurul' Azmi bin Zainal Abidin - 19 October 2007 47. Lana Azman bin Eli - 16 November 2007 (RM2,000) (RM1,000) 48. Johari b Baharuddin - 16 November 2007 (RM3,000) 11. Hasniza binti Ahmad Hassan - 19 October 2007 49. Pakhiruddin bin Mat Saad - 16 November 2007 (RM1,000) (RM1,000) 12. Yong Wing Gin - 19 October 2007 (RM1,000) 50. Rafidi b Mohamad - 16 November 2007 (RM1,500) 13. Toh Yoke Hin, Terence - 19 October 2007 (RM1,000) 51. Fadzilah bte Hassan - 16 November 2007 (RM500) 14. Wan Mohd Rashidi b Wan Yahaya - 19 October 2007 52. Mohamad Fisol bin Ismail - 16 November 2007 (RM1,000) (RM1,000) 15. Husna binti Sabri - 19 October 2007 (RM1,000) 53. Mohd Yamin bin Hj Ismail - 16 November 2007 16. Abdul Razak bin Mellon - 19 October 2007 (RM1,000) (RM2,000) 17. Jong Yon Tzan - 19 October 2007 (RM1,000) 54. Azizi bin Che Hamid - 16 November 2007 (RM1,000) 18. Soo Bee Chee - 19 October 2007 (RM1,000) 55. Laura Anne bt Ab Rahman - 16 November 2007 19. Mohd Shafik bin Hassan - 19 October 2007 (RM1,000) (RM1,000) 20. Samry bin Masri - 19 October 2007 (RM1,000) 56. Lim Meng Seng - 16 November 2007 (RM2,000) 21. Nor Azian bt Abdul Wahab - 19 October 2007 57. Kevindran s/o Mahendran - 16 November 2007 (RM1,000) (RM1,000) 22. Rabinder Kaur a/p Ranjit Singh - 19 October 2007 58. Mohd Fadzil bin Mohd Khalil - 16 November 2007 (RM1,500) (RM250) 23. Lim Chin Hart, Stanley - 19 October 2007 (RM1,000) 59. Zainab binti Samsudin - 16 November 2007 (RM500) 24. Tee Sze Ping - 19 October 2007 (RM500) 60. Muhammad Firdaus bin Zakaria - 16 November 2007 25. Ellinee binti Ab Rahman - 19 October 2007 (RM1,000) (RM500) 26. Mohd Aidil bin Tupari - 19 October 2007 (RM1,000) 61. Hermes Media Putra bin Ibrahim - 17 November 2007 27. Habsah binti Othman - 19 October 2007 (RM1,000) (RM1,500) 28. Sunita Shalini Sankey - 19 October 2007 (RM1,000) 62. Jeyendran s/o Ramachandran - 17 November 2007 29. Yusran bin Zain - 19 October 2007 (RM1,000) (RM2,000) 30. Noor Azman bin Abdul Aziz - 19 October 2007 (RM500) 63. Baidura binti Ibrahim - 17 November 2007 (RM500) 31. Kuppusamy a/l Sinnasamy - 19 October 2007 (RM250) 64. Lim Huan Seong - 17 November 2007 (RM2,000) 32. Wong Kok Heng, Louis - 19 October 2007 (RM2,000) 65. Anuwar Hj Yeop Nasir - 17 November 2007 (RM2,000) 33. Shobah Veeraputhran - 19 October 2007 (RM1,000) 66. Jaspita bin Salleh - 16 November 2007 (RM1,000) 34. Kamarulzaman bin Mohamad Buhari - 16 November 67. Raja Badrol Hisham b Raja Mohd Ali - 16 November 2007 (RM2,000) 2007 (RM1,500) 35. Sumiyati binti Zainuri - 16 November 2007 (RM1,500) 68. Lynn Melanie Mohan - 17 November 2007 (RM500) 36. Syed Fakhruzzaman bin Syed Mansor - 16 November 69. Jefrizal bin Mohd Jaafar - 17 November 2007 (RM2,000) 2007 (RM1,500) 70. Nor Hannah binti Meor Abd Ghani - 17 November 37. Kamal Affandi bin Baharuddin - 16 November 2007 2007 (RM1,000) (RM2,000) 71. Norhasmina binti Hassim - 17 November 2007 38. Ahmad Fuad bin Zulkifli - 16 November 2007 (RM1,000) (RM1,000)

JANUARY / JUNE_2008 PRAXIS 45 Disciplinary Orders

72. Teh Hock Kee - 17 November 2007 (RM1,000) 106. Shenton Maniam a/l R Sivamaniam - 13 June 2008 73. Rahatulliza binti Salleh - 17 November 2007 (RM1,000) (RM2,000) 74. Sharifah Jaliha bt Tuanku Abdullah - 17 November 2007 (RM1,000) Order under s.102 Legal Profession Act 1976 75. Adlina Sarlis binti Alias - 17 November 2007 (RM1,000) 1. Mustaffa bin Idris - 20 October 2007 (RM3,000) 76. Ahmad Badri bin Othman - 17 November 2007 2. Mohd Yusmadi bin Mohd Yusoff - 20 October 2007 (RM2,000) (RM1,000) 77. Syed Iskandar Syed Jaafar - 17 November 2007 3. Mohd Azman bin Harun - 20 October 2007 (RM1,500) (RM1,000) 4. Syed Nongchik bin Syed Hussain - 20 October 2007 78. Izharudin bin Jalaludin - 17 November 2007 (RM2,000) (RM1,500) 79. Rosdee b Abdul Razak - 17 November 2007 (RM1,500) 5. Fauzi b Ngah - 20 October 2007 (RM1,500) 80. Ahmad Fuad bin Hj Sungip - 17 November 2007 6. Gurpreet Singh Sidhu - 20 October 2007 (RM3,000) (RM2,000) 7. Johan Nor Zaimi bin Johari - 20 October 2007 81. Haslina binti Mohd Nor - 17 November 2007 (RM1,000) (RM1,500) 8. Azrul Safinas binti Rosli - 20 October 2007 (RM1,000) 82. Raja Raziff bin Raja Shaharuddin - 17 November 2007 9. Albert a/l Antoni Tass - 17 November 2007 (RM1,000) (RM2,000) 10. Parmjit Singh a/l Mahinder Singh - 17 November 2007 83. Rohizah binti Ali - 17 November 2007 (RM1,000) (RM2,000) 84. Halim Ashgar bin Mohd Hilmi - 17 November 2007 11. Albert a/l Antoni Tass - 7 December 2007 (RM3,000) (RM2,000) 12. Satish s/o P S Nair - 7 December 2007 (RM1,000) 85. Roslinda binti Mohd Hisham - 17 November 2007 13. R A Gunaseharan a/l Appoo and Roslinda binti Yahya - 7 (RM1,000) December 2007 (RM1,000) 86. Hazman bin Harun - 17 November 2007 (RM1,500) 14. Ragumaren a/l N Gopal - 7 December 2007 (RM2,000 87. George Chelvaraj Proctor - 17 November 2007 & RM3,000) (RM1,000) 15. Zainal bin Khamis - 15 February 2008 (RM5,000) 88. Amizaizul Izral bin Amran - 17 November 2007 16. Aziana binti Uda Bahari - 16 May 2008 (RM500) (RM1,000) 17. Mohd Razak bin Sharif - 14 June 2008 (RM1,000) 89. Pauline Sagau - 17 November 2007 (RM2,000) 18. Fakrul Nizam bin Isahak - 14 June 2008 (RM1,000) 90. Mohd Azam b Harun - 17 November 2007 (RM2,000) 19. Mathi S Nayagam - 11 July 2008 (RM1,000) 91. Halila Faiza binti Zainal Abidin - 17 November 2007 (RM1,000) Order under s.103D Legal Profession Act 1976 92. Wan Hamidah bt Wan Ismail - 17 November 2007 1. Dato' Daud b Daros - 19 October 2007 (RM8,000) (RM1,000) 2. Paneerselvam Pandian a/l S Seeralan - 19 October 2007 93. Anandzachery b Mohamad - 17 November 2007 (RM10,000) (RM2,500) 3. Norizlan bin Abdullah - 19 October 2007 (RM10,000) 94. Iskandar Putra bin Ishak - 17 November 2007 4. Shaari bin Hj Md Nor - 19 October 2007 (RM3,000) (RM1,500) 5. Hakiman Hafiz bin Husain - 20 October 2007 95. Azian bt Shaharum - 17 November 2007 (RM1,500) (RM2,000) 96. Abdul Rahim b Abdul Rahman - 17 November 2007 6. Shamshuddhuha bin Ishak - 20 October 2007 (RM1,000) (RM5,000) 97. Mohamed Nordin b Hj Mohd Yusoff - 17 November 7. Ravindran a/l Kumaraveloo - 17 November 2007 2007 (RM1,500) (RM10,000) 98. Ramis a/l Subramaniam - 8 December 2007 (RM1,000) 8. Keshvinder Singh a/l Kashmir Singh - 17 November 99. Sasi Kumar a/l Kandasamy - 15 February 2008 2007 (RM10,000) (RM5,000) 9. Phua Jin Key - 17 November 2007 (RM3,000) 100. Salasiah binti Abd Kadir - 15 February 2008 (RM500) 10. Rosli bin Abd Rahman - 17 November 2007 (RM5,000) 101. R Vigneswaran a/l Raju - 15 February 2008 (RM5,000) 11. Mesnor bin Bujang - 7 December 2007 (RM4,000) 102. Shivdev Singh - 16 February 2008 (RM2,000) 12. Sithradevi a/p P Nagalingam - 18 January 2008 103. Yap Keng Siong - 16 February 2008 (RM1,000) (RM3,000) 104. Song Teik Kim - 17 May 2008 (RM3,000) 13. Gurbachan Singh a/l Bagawan Singh - 18 January 2008 105. Zainal bin Khamis - 17 May 2008 (RM1,000) (RM20,000)

PRAXIS 46 JANUARY / JUNE_2008 Disciplinary Orders

14. Hamidon bin Hayon - 14 February 2008 (RM5,000) Struck Off 15. Coomarasooriyar a/l D Subbayah - 16 February 2008 Order under s.100 Legal Profession Act 1976 (RM15,000) 1. Sasi Kumar a/l Kandasamy, M/s Sasi Kumar & Associates 16. Mohamed Fadly bin Zakariya - 14 February 2008 (w.e.f. 21 days from 7 March 2008) (RM2,500) 2. Norizlan bin Abdullah, M/s Norizlan & Co (w.e.f. 21 17. Krishnamurthy s/o Karthikesu - 14 February 2008 days from 16 May 2008) (RM2,500) 3. Salmahani binti Salleh, M/s Salmahani & Co (w.e.f. 21 18. Venu Das a/l Sinniah - 14 February 2008 (RM2,000) days from 17 May 2008) 19. Wong Kian Chung - 16 February 2008 (RM1,000) 20. Syed Fakhruzzaman bin Syed Mansor - 7 March 2008 Order under s.103D Legal Profession Act 1976 (RM4,000) & (RM50,000) 1. Mariam bte Isa, M/s Mariam & Co (w.e.f. 21 days from 21. Leong Mei Hing Richard - 7 March 2008 (RM10,000) 18 January 2008) 22. Tamil Arasu a/l Renganathan - 7 March 2008 (RM5,000) 2. Noor Hadi bin Sallehon, M/s Hadi & Co (w.e.f. 21 days 23. Rajadevan a/l Vamadevan - 7 March 2008 (RM10,000) from 18 January 2008) 24. Kamal Affandi bin Baharuddin - 7 March 2008 3. Pathmesvary a/p Arumugam, M/s Pat & Co (w.e.f. 21 (RM5,000) days from 18 January 2008) 25. Brian Komathi @ S Komali - 25 April 2008 (RM3,000) 4. Lokman bin Mohd Yusof, M/s Lokman & Assoc (w.e.f. 26. Junaidah binti Md Noh - 25 April 2008 (RM5,000) 21 days from 14 February 2008) 27. Zufaidi bin Mohamad - 26 April 2008 (RM2,000) 5. Suwardi bin Yaacob, M/s Suwardi Yaacob & Partners 28. R Vigneswaran a/l Raju - 26 April 2008 (RM5,000) (w.e.f. 21 days from 14 February 2008) 29. Rostam Khan bin Munsab Khan - 26 April 2008 6. Hasmizam bin Mohd Hashim, M/s Izam & Co (w.e.f. 21 (RM10,000) days from 14 February 2008) 30. Rosdee bin Abdul Razak - 15 May 2008 (RM1,000) 7. Loganathan a/l V Ramasamy, M/s Azizah Loga & 31. Mohd Fuad bin Jaapar - 15 May 2008 (RM5,000) Associates (w.e.f. 21 days from 14 February 2008) 32. Mohd Nazri bin Awang - 15 May 2008 (RM2,000) 8. Raja Raziff bin Raja Shaharuddin, M/s Raziff Razlan (w.e.f. 33. Shanmugam N - 16 May 2008 (RM5,000) 21 days from 7 March 2008) 34. Lee Cheng Theng - 16 May 2008 (RM25,000) 9. Rohaizat bin Othman, M/s Saif Ariff & Rohaizat (w.e.f. 35. Ramis a/l Subramaniam - 16 May 2008 (RM5,000) 21 days from 7 March 2008) 36. Domnic Selvam a/l Gnanapragasam - 17 May 2008 10. Syed Ali Akbar bin Syed Husain, M/s Ali Akbar & Co (RM3,000) (w.e.f. 21 days from 7 March 2008) 37. Sivarajah a/l A Palanisamy - 17 May 2008 (RM20,000) 11. Rosli bin Abd Rahman, M/s Rosli Rahman & Co (w.e.f. 38. Mehinder Singh a/l Shohan Singh - 13 June 2008 21 days from 26 April 2008) (RM5,000) 12. Mohamad Khoirun bin Salamat, M/s Affendy & Khoirun 39. Hairul Nizam bin Omar - 14 June 2008 (RM10,000) (w.e.f. 21 days from 15 May 2008) 40. Hamidon bin Hayon - 11 July 2008 (RM3,500) 13. Wan Mohd Nazri bin Wan Hassan, M/s Sulaiman & Saif 41. Choo Meng Kwan - 11 July 2008 (RM3,000 & (w.e.f. 21 days from 15 May 2008) RM2,000) 14. Ahmad Badri bin Othman, M/s Badri & Co (w.e.f. 21 days from 16 May 2008) Suspended 15. Coomarasooriyar a/l D Subbayah, M/s Sooriyar & Co Order under s.103D Legal Profession Act 1976 (w.e.f. 21 days from 15 May 2008) 1. Chan Wai Keong, M/s Tam & Chan (for three (3) months 16. Ravichandran a/l Dorados, M/s D R Chandran (w.e.f. 21 to take effect twenty-one (21) days from 18 January 2008 days from 12 June 2008) and to expire on 8 May 2008) 17. Paneerselvam Pandian a/l S Seeralan, M/s Azian & Co 2. Teh Hock Kee, M/s H K Teh & Assoc (for two (2) years to (w.e.f. 21 days from 13 June 2008) take effect twenty-one (21) days from 14 February 2008 18. Rosdee bin Abdul Razak, M/s Rosdee Razak & Partners and to expire on 6 March 2010) (w.e.f. 21 days from 13 June 2008) 4. Mogana Sunthari a/p Subramaniam, M/s Junaidah Mogana & Partners (for three (3) years to take effect twenty-one (21) days from 25 April 2008 and to expire on 16 May 2011)

JANUARY / JUNE_2008 PRAXIS 47