www.malaysianbar.org.my INFOLINE PP 5575/1/2006THE OFFICIAL NEWSLETTER OF THE MALAYSIAN B AR MARCH / APRIL 2005

Editorial Quorum at AGMs: (2)(b) or NOT (2)(b)?

he AGM of the Malaysian Bar was held at the Sulaiman Abdullah confessed, that, he too had Hotel Nikko on 19th March 2005. At the subscribed to that view before, but now having looked Tappointed time for the meeting, some 688 into the various provisions of the LPA, saw the wisdom members of the Bar were present and the Chairman of the other point of view, and declared that he was Tuan Hj Khutubul Zaman Bukhari called the meeting wrong in having taken that position before, and was to order. The customary minute’s silence was observed moved to support the present stand taken by the Bar for the members of the Bar who had departed the Council, that a quorum was not required for the AGM. previous year. Thereafter, the meeting took an The Chair after allowing a lengthy discourse made a unexpected turn. The customary announcement by the ruling that the AGM of the Bar shall proceed. Many Chair that the quorum had been met was not there, were surprised by the move and not all of them were which led to some members questioning whether happy about it. quorum had been reached for the meeting to proceed. When the general body of the Bar (such as was The Chairman informed the meeting that the Bar present that day) decided to carry on with the Council in its May 2004 meeting had unanimously proceedings despite the protestation of some, Datuk decided that the quorum requirement under s 67 of Param and (to quote The Star) ‘several other prominent the LPA applied only to EGMs and did not apply to members’ stuck to their guns and walked out. ‘I felt it AGMs. The first order of the proceedings then was a was not proper, so I left the meeting,’ said Datuk Param debate on a question of interpretation. Views from both to The Star. However, it must be noted that a large sides of the divide were aired, in the usual eloquent majority of members stayed on to partake in the style befitting the occasion. deliberations of the meeting.

The former Bar President Datuk Param The papers, of course had a field day. ‘Bar AGM Cumaraswamy, pointed out that the Bar Council had, marred by controversy over quorum’ the Star cried in for some 27 years, interpreted the s 67 of the LPA to their Sunday 20 March issue. ‘Validity of Bar AGM mean that a quorum was required before an AGM could unresolved’ chorused the NST the next day. be conducted. While another former Bar President Haji continued on page 3

8 Your Secretariat 12 News 24 Admit it, Legal Practice is a Business 20 Secretariat 28 Are Bureaucrats above the Law?? 24 Your Opinion 33 Scrapping Legal Aid? Centrefold ... 28 Comment 37 Reforming the Corporate Insolvency Regime 36 Articles 41 A Quick Peep Into the Child Act 1 An Open Letter to SUHAKAM 56 Notices 2001 (Act 611) 58 Press Statements 44 The God-Provision 60 D B Order Human Writes 47 Hukuman Ke Atas Pesalah Bagi (An Infoline Pull-Out) 62 Diary Perlakuan Jenayah Terhadap Wanita Issue 14 March / April 2005 64 Lawyers Update Masih Terlalu Ringan 67ContentsLibraryContents Update

MARCH / APRIL_2005 INFOLINE 1 Office Bearers for 2005/6

BAR COUNCIL OF MALAYSIA

BAR COUNCIL Nos 13, 15 & 17 Leboh Pasar Besar 50050 Kuala Lumpur Malaysia Telephone (03) 2031 3003 Fax (03) 2026 1313, 2034 2825, 2072 5818 e-mail: [email protected] Website: www.malaysianbar.org.my Chairman BAR COUNCIL OFFICE BEARERS Yeo Yang Poh AND COUNCIL MEMBERS 2005/2006 Vice Chairman OFFICE BEARERS Ambiga Sreenevasan

Chairman Yeo Yang Poh Vice Chairman Ambiga Sreenevasan Secretary Ragunath Kesavan Treasurer Vazeer Alam Mydin Meera

COUNCIL MEMBERS

Hendon Mohamed Low Beng Choo Hj Sulaiman Abdullah Cecil Rajendra Dato’ Mohd Sofian Abd Razak Secretary Yasmeen Hj Muhamad Shariff Ragunath Kesavan Mah Weng Kwai Hj Hamid Sultan Abu Backer Christopher Leong Treasurer Charles Hector Vazeer Alam Mydin Meera Lim Chee Wee (Kuala Lumpur) Oommen Koshy (Kuala Lumpur) George Varughese (Selangor) S Ravichandran (Selangor) Krishna Dallumah (Negeri Sembilan) Tony Woon Yeow Thong (Negeri Sembilan) Aloysius Ng (Melaka) Call for Contributors R R Chelvarajah (Melaka) Dato' Abdul Rahman Abdullah (Johor) IN ORDER THAT Infoline may better serve you, we would like to Roger Tan Kor Mee (Johor) Salamon Ali Rizal b Abdul Rahman(Pahang) publish what you consider to be relevant to us as lawyers. These Ong Siew Wan (Pahang) could be in the form of letters to the editor, your views and Hj Asmadi Awang (Terengganu) Lee Leng Guan (Terengganu) comments on issues affecting the legal profession, news items Aziz Haniff (Kelantan) relating to the legal profession, articles of suitable length, poems Indran Rajalingam (Kelantan) G Balakrishnan (Kedah/Perlis) or jokes that may be of interest to the legal profession and legal Fredrick Indran Nicholas (Perak) updates including a summary of cases of interest. Ngan Siong Hing (Perak) V Sithambaram (Penang) Petra Oon (Penang) We also welcome news and articles relating to Human Rights for the ‘Human Writes’ pull out, so that we may be able to update

Infoline is the official newsletter of the Malaysian the legal profession in this area of law. Bar, published monthly by the Bar Council of Malaysia. We would prefer these to be submitted by email to the Editor, The Bar Council welcomes letters, articles, views Infoline, [email protected]. and news (including photographs) for possible inclusion in the newsletter. However, the Bar Council reserves the right not to publish them or to Alternatively, they can be sent to the edit those published as regards content, clarity, style and space considerations. Editor, Infoline, Nos 13, 15 & 17, Leboh Pasar Besar Articles from individuals that are published contain the personal views of 50050 Kuala Lumpur the writers concerned and are not Fax: 03-2026 1313. necessarily the views of the Bar Council. Contributions may be declined or edited for reasons of space and clarity.

INFOLINE 2 MARCH / APRIL_2005 Editorial (Cont'd)

Malik Imtiaz Sarwar (a member of the Bar Council lines among ten other decisions. Moreover that when the decision was taken) in a letter to the ‘Malaysian statement was addressed to Chairs of State Bar Lawyers’ newsgroup sought to explain the Bar Council’s Committees. Not to members of the Bar. decision thus: .... At last year’s AGM, Mr Suppiah inquired as Did the Chair and the then office bearers to whether there was any need to have quorum including yourself, the Secretary and the Treasurer at all. He advanced a view that suggested that who flanked the Chair at the AGM check the quorum was not required. While his whether the State Bar Committees did notify suggestion was not taken up for the purposes of their respective members of this decision? I that AGM, [the bar] council felt that the understand that the KL Bar Committee did underlying argument was sufficiently grounded transmit the entire Statement to its members and to merit further and more detailed consideration. that too by email to whoever had such addresses. …. The decision was indeed a major decision with Opinion was therefore taken and views were serious implications, inter alia, departing from given to the effect that on the plain language of an interpretation followed by the Malaysian Bar the provisions that the quorum requirement was for nearly 27 years. Yet the Council appears to only applicable to EGM’s. …. Senior members have down played it without expressly drawing will recall that at the time, EGMs were being the members’ attention to seek their views. Since called with regularity to criticise governmental May last year there were no less than two issues action. The amendment appears to have been each of Infoline and INSAF yet not a word about aimed to curb the Bar’s freedom to call for the this decision appeared in any of them. The notice EGM. convening the AGM too made no mention of this decision. …. in all there were 5 opinions. 3 were in favour of the interpretation that the quorum was not …. Downplaying the dissemination of the May required. 2 were against. The council accordingly decision for ten months was bad enough. What took the decision. This decision was is startling is that the 36 member Council did communicated to members in May 2004 by way not seem to have directed its mind to seek a of the General Statement of Decisions. No views declaration from the Court on the Council’s new were received by the council from members prior interpretation which was the most prudent and to the AGM last Saturday. responsible course of action to take in the circumstances. It could have done so in those ten Datuk Param took umbrage to the suggestion that the months. It is not certain whether the five senior decision had been communicated to the members. He lawyers whose advice was sought advised such a wrote to the incoming Bar Council Chairman and [in course of action. a letter subsequently displayed in the same newsgroup] declared: At the AGM when discussing the quorum issue the Chair said that the decision taken unanimously by the Bar Council on May 8 2004 that no quorum was required in AGMs was ‘circulated to all members of the Bar but none responded’ or something to that effect. The impression given was that all members of the Bar were notified of the decision by circular. It now appears what was circulated was the Monthly Statement Relating to Decisions taken by the Council that month in which the decision on the quorum appeared in three

MARCH / APRIL_2005 INFOLINE 3 Editorial (Cont'd)

If an application is made to the Court now and read wrongly. The council would never if the Court sets aside the AGM of March 19 participate in a scheme of ‘circumvention’. To how is another AGM to be convened ‘before the suggest otherwise is unfair. first day of April’ this year as provided in S.64(1) of the LPA? It is similarly incorrect to say that the move was calculated to prompt a challenge so that the The incoming President of the Malaysian Bar matter could be decided in court. The council responded to Datuk Param and [in a reply posted on took a view of the law based on advice. the newsgroup] stated: The circular was directed to State Bar The issue of the quorum is really a matter Chairpersons for them to disseminate to all the internal to the Bar. I would think that members members in their respective states. This was the would be grateful for having been shown a way agreed mode of dissemination of Council by which we can move ahead unimpeded. While decisions, and has been in place for a number of I appreciate that challenges may be taken by years without any difficulty. We have no doubt members, I wonder at the need. Legal that all State Bar Chairpersons do disseminate interpretation favours a view that quorum is not the information to all their members. needed (though, I recognise that there is a contrary view). And we already face so many On the issue that Council could have applied challenges from outside the Bar. for a declaration from the court before implementing its decision, I did not find that an You will thus notice that missing is the acrimony that appropriate course of action to take. Speaking usually follows a falling out between two factions. for myself, I have always understood the law to There is not, thankfully, any suggestion that one party be that the court is not an advisory bureau, and seeks to gain the upper hand over the other. Our actions that it is not the court’s function to advise litigants have been questioned, but not our motives. as to the policies they should adopt in managing their affairs. The court will not make a declaration Louis Van Buerle has now filed an action in the just because the party seeking it fears that his High Court for declarations inter alia that the quorum position may be challenged, or because he desires requirement as stipulated in section 67 of the LPA to escape from a position of uncertainty. My applies to AGMs and has prayed for consequential understanding is that the court does not make a orders including one for the reconvening of the AGM. declaration merely to give comfort to a party that Affidavits are being filed and exchanged and the matter a course of action he proposes to take is in its is now fixed for hearing on 6th May 2005. view the correct one. In the other, parallel, development, the Malay Mail Added to the above reasons, there were for me at of 14 April reports that the Member of Parliament for least two other factors weighing heavily against the suggestion of seeking a declaration. One was the issue of an appropriate, real and genuine respondent or disputant, and the other was that a declaratory order in any event would not take effect in rem.

In the middle of all this discussion, one must not lose sight of certain self-evident truths; these truths are addressed in the letter by Malik Imtiaz Sarwar: It is incorrect to say that the [Bar Council’s] decision was a clever way to circumvent the quorum requirement. It was prompted by a reconsideration of the law in light of the suggestion by a member that the law had been

INFOLINE 4 MARCH / APRIL_2005 Editorial (Cont'd)

Ipoh Barat, himself a lawyer, had raised the issue in Orders clearly explain that the Orders were drawn up Parliament. He had urged the abolition of the quorum and brought into effect by a body known as the requirement for AGMs (sic) and suggested it be replaced Solicitors Costs Committee. with a clause requiring only one-half of the committee members to be present. The Solicitors Costs Committee is formed under the provisions of s 113 of the LPA and, as is evident In winding up the debate one Minister in the from the declaration made at the end of the respective Prime Minister’s Department, told the House that the Orders, is comprised of the Chief Judge of Malaya (or suggestions were timely and he would take it up with a Judge of the High Court nominated by the Chief his colleague, also a Minister in the Prime Minister’s Judge of Malaya), the Attorney General (or a member Department, albeit the one in charge of law. of the Attorney General’s Chambers nominated by the Attorney General), the Chief Registrar of the High He is reported to have said that the Government Court (or a Senior Assistant Registrar nominated by agrees in principle to an amendment to the quorum the Chief Registrar) and four Advocates & Solicitors requirements for Malaysian Bar general meetings. The nominated by the Bar Council. logistics or mechanism to replace the current provision still needs to be discussed although the suggestion for It may also be relevant to note that the SRO 1980, the ‘presence of half of all committee members be while directing what the scale of fees ‘shall be’, accepted to form the necessary quorum’ was the one permitted, in the 1st Schedule, a discount of 25% in put forth. The Honorable Minister also said that it is ‘special circumstances’, albeit without quite defining for the Bar Council to follow up and make the the term. The SRO 1991 went on to emphasise that necessary representations to assist the Government in there ought not to be any discount on the scale fees drafting the bill to be proposed for the necessary actions unless specifically provided for in the respective to be taken to amend the law. The Government would schedule. also need to consult the AG on this. To then suggest that the scale of fees in general, Rest assured the Bar Council will follow up on all and the no discount rule in particular, was something these developments and continue to act in the best cooked up by the Bar (or, worse, the Bar Council itself) interests of the public and the profession. All we ask is at the behest of litigation lawyers, who do no that the members give us your unstinting support and conveyancing work, is mischievous, if not downright stand united behind the Bar in our best efforts to serve misleading. For the uninitiated, the Conveyancing you. Practice Committee of the Bar Council collates the relevant information and feedback and makes recommendations to the Bar Council. These SRO: More For Less? recommendations, if endorsed by the Bar Council, are The Bar Council has received several complaints (the then tabled at the next AGM for the approval of the two letters each published in this and the last issues of members by resolution. If so resolved, the Infoline are but examples), decrying the Bar Council’s recommendations are then forwarded by memorandum ‘sudden’ ‘decision’ to ‘strictly enforce’ the Solicitors to the SCC for their deliberation. The SCC or any Remuneration Order. Nay, the very raison d’etre of the four of them (the Chief Judge or his nominee being SRO has been brought into question, seeing as how a one) then may make general orders prescribing and ‘vast majority’ of the conveyancing fraternity – if not regulating in any manner as they think fair and the actual Bar itself – is actually in favour of scrapping reasonable the remuneration of advocates and solicitors the whole notion of scale fees, thereby permitting in respect of non-contentious business. The scale of ‘market forces’ to decide the level of fees that may be fees having then been brought into effect, it behoves charged in conveyancing transactions. the Bar to ensure that its members act in strict accord therewith. The Bar Council would, respectfully, like to draw your kind attention to the Solicitors Remuneration That then was a brief re-cap of the events leading Orders of 1980 and 1991. The preamble to these up to the formulation and imposition of the scale of

MARCH / APRIL_2005 INFOLINE 5 Editorial (Cont'd) costs for non-contentious matters imposed, effectively, these to the attention of the Bar Council. These many on conveyancing lawyers in Malaya. Now, to address of the members have done. the present grievances. Clement Lopez (Infoline, Oct/Nov/Dec 2004 p There had been a clamour for the ‘re-imposition’ 33) in the SRO 1991 and the SR(E)R 2004 points out of the no discount rule, as if the rule had been revoked. that “the prescribed scale [of fees] is 14 years old. It is As far back as the AGM in 2000, the members decried out-dated resulting in the fees being low … not the ‘undercutting’ practised by members of the Bar and commensurate with the level of insurance presently called for a re-evaluation of the scale of fees to be being levied. He eloquently argues against the imposed and for the bar against discounts (already a enforcement of the SR(E)R, at least until the Bar part of the SRO 1991) to be strictly enforced. A Council seeks (and, necessarily, obtains) the express resolution to this effect was tabled and passed. mandate of the general body of the members.

Not wishing to force the issue on an unwilling With all due respect, we fail to see how, if the fees membership, the Bar Council promptly sent out a are already excruciatingly low, the giving of discounts referendum requesting feedback from its members as will alleviate the suffering of our members. The to the viability and advisability of proceeding to enforce members must be aware that a new scale of fees has a ‘no discount’ policy. The relevant forms were sent to been submitted for the consideration and approval of each and every member then on the list, all 10,000+ of the SCC. We shall keep the members informed of them! The feedback received was a dismal 678 replies. developments in this field. As for getting the mandate of the members in general meeting, only some 688 The calls for enforcement of the no-discount rule members had signed up when the need for a quorum did not abate and, in 2003, the Bar Council issued was debated at the AGM 2005. The Bar Council feedback forms to all its members, again requesting obtained the mandate of those present by a majority. their input as to the effect and manner of the proposed enforcement, if any, of the no discount rule. This time, In the matter of his question, who polices the seeing the writing on the wall, the members, or at least policemen?, it is a matter of record that, although the some 2,633 of them, did respond. general body of members were attended to in strict alphabetical order, the members of the Bar Council The Bar Council has, as recently as the March 2005/2006 were, additionally, among the first batch 2004 issue of Infoline, in its front page Editorial entitled of members to be issued feedback forms under the Without fear or fervour?, lamented the apathy evident enforcement rules. It should thus be obvious that these among its members. It was noted that the 2004 AGM policemen are in fact also being policed. which had cost the Bar some RM130,000 and which had discussed ‘matters which affect the interests of over Leong Cheok Keng (Infoline, Oct/Nov/Dec 2004 12,000 members were being debated and decided by p 35), while voicing some support for ‘this well- some 599 members”! intentioned scheme’, does raise other issues to be considered and addressed by the Bar Council, not the The Bar Council is all for round table discussions least of these being the payment of ‘kick-backs’ to, not and the venting of pent up frustrations at kopi tiams to put too fine a line on it, touts. Would that the others and teh-tarik stalls. However the members must realise of our noble profession had the motivation of our Mr that the outcome of these dialogues must be followed Leong, the loving memory of his late wife, taken from through, the suggestions and recommendations that this life in her prime and within a stone’s throw of the they engender must be introduced, discussed, debated Bar’s own premises, to urge us to resist the temptations and resolved at the AGMs. Ultimately, the members of the quick buck. The Bar Council does not suggest must be there, to stand up and be counted, when that the enforcement of the no discount rule alone is motions are discussed, debated and resolved at AGMs. the balm to the profession’s suffering. But the journey of a thousand miles begins with the first step. Members who feel strongly about the manner in which things are done are entirely at liberty to bring Louis Van Buerle ingenuously argues ‘an overwhelming majority’ of those responded to the

INFOLINE 6 MARCH / APRIL_2005 Editorial (Cont'd) referendum in 2001 ‘favoured allowing solicitors to Bar Council certainly ought not to be taken to task give discounts’ while the ‘scale fees [are] maintained as every time someone who purports to speak for the a ceiling’. Having said that he concedes that only 678 ‘silent majority’ proposes some other form of lawyers responded to the referendum (without intervention. We however do agree with Ms Tan that specifying how many of them were in the ‘if everyone adheres to the No Discounts rule’, in the ‘overwhelming majority’) and, more importantly, that long run things will, as she suggests the conveyancers ‘[t]he motion was discussed with only about 200 hope, improve. Practices being used to circumvent the lawyers (a majority of whom were litigators) present No Discount rule are, even now, being addressed, and was not carried’. This must be true, for were it not despite the admitted difficulty in getting evidence. so, we are certain Louis Van Buerle would have told Malaysians are indeed ingenious when it comes to us. avoidance mechanisms. The comforting thought, is that, everywhere in the world the enforcers are always Be that as it may, we must thus ask ourselves then trying to keep up with the law breakers. what became of the overwhelming majority of the All this is not, however, to suggest that we are not conveyancers, whose strident cry for the power to give prepared to enter into a dialogue with members of the discounts across the board has been heard by all but profession who have concrete suggestions to make and the Bar Council. (Entirely as an aside, we must ask would like to have their specific queries answered. The Louis Van Buerle how he identified the majority of total abolishment of the scale fee is not the answer. the 200 lawyers present as litigators and not Just as legalisation of marijuana is not the answer to conveyancers. Ours is a fused profession, we are licensed the drug abuse problem. to practise as Advocates and Solicitors. The mere fact that one of our own chooses not to engage in a certain Presently, we are studying the fee collection type of practise does not debar him/her from speaking method adopted by the Board of Surveyors Malaysia, up in relation to the matter, any less than one who has where the fees charged by its members are paid to the never been detained under this country’s draconian Board, as per scale, sans discount, and the same is then ‘preventive detention’ laws can speak up against such transmitted to the members concerned after a small arbitrary and unjust policies.) deduction to cover administrative costs.

Nicole Tan is right to point out that the vices in We are here to serve. Just don’t come to us with our profession are not limited the giving of discounts, platitudes and emotional arguments of ‘Woe, woe to citing practices such as the giving of ‘off-the-record all who enter here!’ The Bar Council will enforce the deductions’. She argues that conveyancers ought to be rules, these and all the others, and will do its utmost to free to negotiate fees, just like litigators. She wonders ensure this noble profession remains unsullied by those aloud if the whole ‘No Discount rule is not a conspiracy who cannot resist the temptation to cut corners and to by litigators to put us (sic) conveyancers in a fix’. She take advantage of the fellow professionals. The heat is laments ‘litigators are happily charging clients problem- now on and those who cannot stand the heat should free and scale-free’ all this while and nobody ever get out of the kitchen. brought this issue up.’ We could not agree with her assessment of the situation more, at least, that part about having to look into how much litigators are allowed Look at the chart and say the COLOUR not the word to charge. In terms of contingency fees, which is where many of the complaints against litigators arise, the Bar Council has in fact forwarded to the Attorney General a memorandum and draft rules for the regulating of contingency fees across the board. Thus it is not true that the Bar Council is targeting only conveyancers.

It is primarily to overcome the possibility of bias in feedback that the Referendum was sent out to all, and conveyancers, like everyone else, had their chance Left - Right Conflict to have their say. If Ms Tan’s assessment is correct, that Your right brain tries to say the colour but your left brain insists some conveyancers have a ‘look-and see’ attitude, the on reading the word

MARCH / APRIL_2005 INFOLINE 7 YOUR SECRETARIAT

he main function of the Bar Council is to manage the affairs of Finance, Administration, and Human Resource, Membership, Tthe Malaysian Bar and the proper performance of the functions Membership Welfare, Complaints, Communications, and of the Bar. Information Technology. Within the Practice Areas, there are 5 executive officers who are managing a number of areas each. The Secretariat is established as the administrative center of the Bar Council, a coordinating center for all Bar Council activities. It ensures The Secretariat also organizes and coordinates seminars, lectures that decisions and policies of the Council are enforced. and talks for members of the Bar and pupils-in-chambers, sports, and social events between members of the Malaysian Bar and The Secretariat is headed by and Executive Director and the Deputy neighboring Bars, convening Extraordinary General Meetings or Executive Director. They are assisted by legally qualified executive Annual General Meetings of the Bar and fund raising activities. officers and is divided into several departments, which includes the

Secretariat Executive Director: Catherine Eu ext 102 / D/L: 03-2072 6818 [email protected] Deputy Executive Director: Kenneth Goh ext 147 / D/L: 03-2070 6631 Catherine heads the Secretariat, which [email protected] has a staff force of 57. She oversees the functions of the various departments Kenneth is a Barrister-at-Law who and attends to Council matters, such graduated from the University of as Bar Council, Exco, Office Bearers Canterbury, Christchuch, New Zealand. and Finance Committee Meetings. Catherine also He was admitted to the Bar on 27 March assists the Office Bearers in their duties and is 1992 and practised in the area of civil responsible for the co-ordination and execution and criminal litigation before joining the Bar of the Bar Council’s policies. Council. Apart from assisting the Executive Director, his portfolio includes assisting the GATS, Alternative Dispute Resolution (ADR), and Legal Profession Committees.

Finance, Administration & Human Resource

Financial Controller: Senior Accounts Executive: Chang Chooi Yoke ext 137 Lily Aw Kim Lee ext 118 D/L: 03-2078 6708 D/L: 03-2026 9818 [email protected] [email protected] Eliz’s job scope of responsibilities Lily has been with the Secretariat since includes overseeing day-to-day work in 1983. Her duties include maintaining full relation to financial matters to ensure sets of accounts involving records of proper internal control and compliance daily transactions and generating the of rules and regulations, office administration month-end-closing accounts. Her duties also and human resource development. She also include effective monitoring and upkeep of office assists the Finance Committee. equipment, the office premises and other office administration. She is also responsible for payroll administration.

Membership

Executive Officer: Vinodhini Benjamin Executive Officer: Teena Mathew Samuel Madamakkal ext 149 / D/L: 03-2032 4184 / ext 116 [email protected] [email protected] Vino joined the Bar Council in January Teena graduated from the University 2003 and assists in the following Maharaja’s Government Law College, Committees under the Practice Areas Ernakulam, Kerala, S.India, and has Department: National Legal Aid, been practising and teaching in India Conveyancing Practice, Shipping and for six years before joining the Bar Council. Admiralty, and Corporate & Commercial Law. Teena’s portfolio includes handling various areas She also handles the Compensation Fund relating to membership of the Bar, matters Claims and matters pertaining to deceased relating to the processing and issuing of the Sijil solicitors under the Membership Department. Annual/Practising Certificate, conduct With effect from 14 June 2004 she will be taking researches as well as other ad hoc matters. charge at the Membership Department together with Rohani

INFOLINEINFOLINE 88 MARCHMARCH / /APRIL_2005 APRIL_2005 YOUR SECRETARIAT

Membership Welfare Complaints Executive Officer: Lynette Tan Executive Officer: Cindy Chan Oy Yim ext 142 / D/L: 03-2031 4857 ext 108 / D/L: 03-2032 5618 [email protected] [email protected] Lynette is legally qualified and was in Cindy is legally qualified and was in practice before she joined the Bar practice before joining the Secretariat in Council in October 2003. Her current July 1997. Her portfolio includes reviewing duties include assisting in the complaints received from the public, Professional Development Committee, National members of the Bar and the Disciplinary Board Young Lawyers Committee, Sports, Charity and and drafting complaints and applications for Welfare Committee and handling Special Events suspension. She works closely with the (organising seminars/workshops/talks, Annual Disciplinary Board on cases filed and attends General Meetings, Annual Dinner and Dance). hearings before the Disciplinary Tribunals and the Disciplinary Board. She also oversees suits filed against the Bar Council and intervention matters Professional Indemnity with the assistance of other legal officers. Insurance Risk Manager: Corrinne Wong ext 190 / DL: 03 - 2072 1614 Intervention Matters [email protected] Legal Officer: Ahmad Muttaqin Rabbani Corrinne is legally qualified and joined ext 171 the Bar Council in January 2005. Her Ahmad is legally qualified and joined the Bar duties include the setting up of a Council in May 2004. He attends to intervention comprehensive and efficient Risk Management matters, where he assists in the preparation of programme for the Professional Indemnity the documents necessary for appointment of Insurance (PII) scheme for the Malaysian Bar. intervener solicitors and liaises with them on the She will also be involved in monitoring the action to be taken. He supervises the seizing of operation of the PII scheme and propose files, removal, inventory, storage, liaising with suitable measures for its overall improvement - clients and solicitors to facilitate the return of i.e. improvement in claims experience leading files. He also handles queries from public and to lower premiums, excesses and better from member of the Bar on related matters. coverage.

Information Technology Librarian IT Executive: Soon Per Lang Librarian: Dr Pathmavathy Satyamoorthy ext 135 ext 156 / D/L: 03-2031 5082 / [email protected] [email protected] Soon attends to all Information Dr. Pathmavathy heads a team of six Technology related matters such as staff members in the Library. Her scope maintaining daily network operations, of responsibilities includes the troubleshooting computer systems, maintenance of the Library, cataloging providing technical support, and and updating of all books. She also updating the websites. Besides that, he also assist the Library committee. assists in the Information Technology and Cyberlaws Committee by attending meetings and preparing minutes.

Press & Publication Executive Officer: Siva Kumaran ext 143 / DL: 03 - 2032 4498 [email protected] Siva is legally qualified and joined the Bar Council in October 2004. His responsibilities include preparing Insaf, Infoline and other publications of the Council, conducting research work, preparing press statements and generally assisting and carrying out assignments under the direction and supervision of the Executive Director.

MARCHMARCH // APRIL_2005APRIL_2005 INFOLINEINFOLINE 99 YOUR SECRETARIAT

Practice Areas Deputy Executive Director: Kenneth Goh ext 147 / D/L: 03-2070 6631 [email protected] Solicitors Remuneration 1. Legal Profession Enforcement 2. GATS Executive Officer: Emily Lee Lai Ming ext 189 3. Alternative Dispute Resolution emily. [email protected] Emily Lee joined the Secretariat on ( See previous page) 16.2.2005. Her duties and responsibilities include attending to all queries pertaining to the Solicitors’ Human Rights Remuneration (Enforcement) Rules 2004, Executive Officer: Dominic Chan coordinating and attending meetings of the ext 148 / DL: 03 - 2031 3762 Solicitors Remuneration Enforcement [email protected] Committee, attending to follow-ups on Dominic’s job scope covers matters instructions of the Committee, assisting in the pertaining to human rights, orang asli enforcement procedure to ensure compliance cases, conducting researches, liaising thereof and such assignments as shall be with NGOs, as well as conducting human directed by the said Committee. She is also in rights-related campaigns. Apart from human rights charge of the Corporate and Commercial Law matters, his portfolio includes assisting the Criminal Committee. Law Committee. Prior to joining the Bar Council, Dominic served in the Singapore government in Ministry of Home Affairs and the Ministry of Community, Development and Sports. Dominic has Legal Officer: Hafsyam Othman ext 127 also brought in experiences in logistics and human Hafsyam joined the Bar Council on 2003 resources in various companies in Malaysia. as a Legal Officer. Presently, his scope of responsibilities cover the following practice areas: Syariah Laws Committee and Bahasa Melayu Committee and to Executive Officers: assist two Executive Officers namely Ms Rohani Adnan ext 116 / Harsharan Kaur and Ms Vinodhini. His job function [email protected] includes attending committee meetings, and Rohani joined the Secretariat in 1996 attending to follow-up and queries. He also as a Translator and handled various coordinates activities conducted by the Committee, including the committees as well as doing research in relation Conveyancing Practice Committee. to a particular area of practice or law. She has recently been assigned to assist in the Membership Department and her duties include attending to numerous daily mail received by the Membership Department pertaining to approval of firm names, setting up of branches, dissolution of partnerships, cessation of practice and others, as well as enquiries from members of the Bar, the public, Government bodies, and Banks pertaining to the Department and Bar Council/Conveyancing Practice Rulings. Also supervision of staff in the Membership Department in relation to processing of applications for the Sijil Annual/ Practising Certificate. She also attends to Committees, such as the Professional Indemnity Insurance Committee, the Sijil Annual Committee, the Law Reform and Special Areas Committee and the Civil Procedure Rules Committee.

INFOLINEINFOLINE 1010 MARCHMARCH / /APRIL_2005 APRIL_2005 NEWS SARA YIK on why lawyers make great management consultants

An important part of McKinsey someone who places a high I contribute to internal research & Company’s guiding mission premium on variety, and on organization and leadership. is to help our clients make real McKinsey & Company has We codify this internal research and sustainable improvements given me an ideal opportunity and use it to constantly develop in their performance. To do this, to widen my experiences and our knowledge and refine we provide our clients with an become a better business person proprietary tools and independent perspective, and without having to take a frameworks that underpin the serve as counselors to the CEO backward step in my career. problem solving we do for our and leadership team. We work There is no doubt that I have clients. Did you know that Marvin in small teams and liaise closely become a more rounded leader Bower, one of the key with clients to improve their and better coach, with much So, do lawyers make good founders of McKinsey & strategies, organizations and broader industry and functional management consultants? Company, was a lawyer by operations. And our clients could expertise. profession? be the leading companies When I first thought about around the world or While the expertise I developed management consulting, I Management Consultants aren’t governments, institutions and as a lawyer has been a great wondered if a lawyer could fit all about MBAs. Indeed top firms nonprofit organizations. benefit to me in this profession, into a different environment. But are now casting their recruiting I have also had the chance to when I was reading up on net further than the traditional Was it an easy transition for develop a whole new range of McKinsey & Company, I was MBA pool. Given the overlaps you—to move from one skills through the numerous encouraged to learn that Marvin in skills, coupled with years of profession to another? projects in which I have been Bower, who is widely regarded on-the-job training, it’s not involved and the variety of as the founder of the firm, was surprising that lawyers in My skills as a lawyer provided a people I have worked with. also a lawyer and that he built particular have the kind of great starting point—analytical up the firm on many of the same pedigree that is attractive to fact-based approach to problem- And that’s part of McKinsey & principles as the law firm from management consulting firms. solving, working with a team, Company’s success: the people. which he came. Some of those strong writing skills and the Regardless of professional principles are ‘we are a In 2000, Sara Yik made the move ability to speak confidently in background, nationality or profession not a business’, ‘we from in-house legal counsel for front of senior partners and education, we all unite around have clients and not customers’, Singapore’s largest industrial clients. a set of common values, which ‘we develop solutions; we do estate developer to management we really do live daily. The firm’s not sell products’. consultant with the prestigious Even so the transition process mission is in two parts—the first, firm McKinsey & Company. Her from law to consulting was still to help our clients make lasting Any last words? goal? To round out her an eye opener! I had to pick up improvements in their management skills and work new ways of working and performance; the second, is to Just this: any lawyers who are with inspirational leaders to additional skills. For example, attract, develop, and retain thinking about seeking new become a better business leader within my first year, I had to exceptional people. And that’s challenges and broadening their herself. The last four and a half learn to build a financial model how it is! This is a very exciting horizons, should definitely years have made Sara realize in Excel and get used to doing place to work and the people consider management that this goal would only be part quick and rough calculations in are amazing. consulting. It has been a very of her journey . . . the middle of meetings as rewarding experience for me. needed. I have also had to What are you working on First, what is it that become comfortable with now? management consultants ambiguity. Often, while you are Sara Yik is an Engagement actually do? I am currently working with a in the process of gathering Manager with McKinsey & information, you do not have all company that is on a journey of Management consulting is like transformation—to move from Company’s Southeast Asia office. the relevant facts or data on She earned a Bachelor of Laws law in the sense that it covers a hand and pieces of work can a regional success to become a broad variety of work. Just as global champion. The work I (Honors) degree from King’s change direction daily because College London, UK. barristers, tax specialists and of that. But from the moment am doing covers a range of corporate lawyers all operate in you arrive, there is an amazing areas: business strategy, If you would like to find out more different areas of law, so do system of support in all areas of capability development, about Sara’s experience, management consultants. But, skills development. organizational change and the management consulting or whatever the area, successful supporting ‘mindsets’ and McKinsey & Company, you management consulting always What have you gained from behaviors, and leadership can e-mail: requires a structured and fact- the move? development and coaching. based approach to problem [email protected] solving. A job here is a continual, and I am also a core member of the enjoyable, education. I am firm’s organization practice, so

MARCH / APRIL_2005 INFOLINE 11 NEWS

59th Annual Dinner & Dance 2005

his year’s Malaysian Bar Annual Dinner and Dance Twas held on 19 March 2004 at the Hotel Nikko, Kuala Lumpur. As the Annual General Meeting had concluded earlier in the day and the new office bearers subsequently elected, the outgoing President Tuan Haji Kuthubul Zaman Bukhari, in his welcome speech introduced the new office bearers, namely, Yeo Yang Poh (President), Ambiga Sreenevasan (Vice President), Ragunath Kesavan (Secretary) and Vazeer Alam (Treasurer). The Three Presidents – Yeo Yang Poh, Haji Kuthubul The formalities over, the emcees, Sanjeev and Zaman and Haji Sulaiman Abdullah Adriani, took over and entertained the crowd, and each other, with their usual wit. Dinner was accompanied with music from the Happy People Quartet Band whilst Dato’ Abdul Rahman did a couple of Elvis numbers. A belly dancer called Paola ensured that all the male guests spent twenty minutes or so staring intensely at their food whilst Mahdi Hamed from Iran entertained the crowd with his dazzling magical show to end what truly was ‘A Magical Night’. Office Bearers 2005/06, Vazeer Alam (Treasurer), Ambiga Sreenevasan (Vice President), Yeo Yang Poh (President) and Ragunath Kesavan (Secretary)

The emcees for the night, Adriani and Sanjeev Justice Dato’ Kang Hwee Gee with the Chairman of the Kuala Lumpur Committee, Mr Lim Chee Wee

Nothing like some bondage ‘You’ve been served!’ ‘Come on guys. Don’t look away’

INFOLINE 12 MARCH / APRIL_2005 NEWS

LawCare – Caring for our Own

n the afternoon of 11 March 2005, two members of Ithe LAWCARE Fund Management Committee paid a visit to Mdm Ranjit Kaur, widow of the late Pertaf Singh s/o Hajara Singh. Pertaf was called to the Bar on 26 January 1989 and practised law until illness prevented him from doing so in 2003. He was diagnosed with lung cancer in October 2003 and passed away a year later on 16 October 2004. Pertaf left behind his widow and two children: Elishajit, 11 years old and Bhaalhesh who is 5. Elishajit was born prematurely after her mother suffered an S Ravichandran and Yasmeen Shariff presented her with eclampic fit. She is totally disabled, suffering illnesses a cheque from LAWCARE to help her but the LAWCARE and conditions including Spastic Quadriplegia, Committee is aware that the sum contributed will not Epilepsy, Global Retardation and Asthma. She is on go far, considering the pressing needs of this family left long-term medication and requires regular hospital visits behind in such tragic circumstances. for physio- and occupational therapy. Elishajit is totally dependent on others for all her needs and the doctors Members who would like to help ease the family’s do not expect her condition to improve significantly hardship are requested to contact Yasmeen Shariff at over time. (603) 26933276 or Lynette Tan at (603) 20314857. Ranjit has asked for a wheelchair so that Elishajit, who Ranjit is unable to take on a job as there is no one is paralysed from the neck down, can be moved around to care for her daughter besides her and her helper, who with less difficulty. Please help if you can. No matter has stayed on to help despite being owed many months’ how big or small, your contribution will definitely wages. Ranjit is facing grave financial difficulties and provide some comfort and ease for this helpless child. applied for some assistance from LAWCARE.

RECENT EVENTS Talk - Beyond Registration: Commercialisation of Intellectual Property

n 19 April 2005, Willy Manfroy presented a talk speaker gave participants some insight into how Oentitled Beyond Registration: Commercialisation of intellectual property can be crucial for turning Intellectual Property at the Bar Council Auditorium. innovative ideas and inventions into competitive About 65 members attended this talk, which was jointly products that significantly increase profit margins. organized by the Bar Council and the Licensing Executives Society Malaysia. Willy Manfroy is Principal Those interested in becoming LES Malaysia of Bornival LLC, an international consulting firm members are requested to call Anniza Jamaluddin at involved in intellectual assets management and litigation 03-2166 6655. support, President of the Licensing Executives Society International (LESI) and Past President of Licensing Executives Society (LES) (USA & Canada). LES is a global business association for licensing, whose members, as individuals, are actively involved in business activities concerned with transfer of technology and intellectual property rights.

For most businesses, marketing products or services is a major challenge. Although innovative and creative ideas are at the heart of most successful businesses, ideas by themselves have little value. The

MARCH / APRIL_2005 INFOLINE 13 NEWS

14TH COMMONWEALTH LAW CONFERENCE ‘Developing Law & Justice’ 11 - 15 September 2005, London, UK

“A CONFERENCE NOT TO BE MISSED” by Roy Rajasingham Regional Representative - Malaysia, Singapore, Brunei & Hong Kong, Commonwealth Lawyers Association

The Commonwealth Law Conference (CLC) is probably the most well known activity of the CLA. The Conferences began in 1955. They were organised by an informal body called the Commonwealth Legal Bureau which included a member of the Commonwealth Secretariat and a number of prominent Commonwealth lawyers. Later, the Commonwealth Secretariat ceased to play a part and delegated organisation of the Conferences to the Law Associations of the host countries.

During the Conference there is a meeting of the Presidents, Officers and Executive Secretaries of Commonwealth Bar Associations and Law Societies. There are also meetings of Commonwealth Chief Justices, Commonwealth Attorneys General and specialist Commonwealth legal groups, such as the Parliamentary Draftsmen, Military Lawyers and Public Sector Lawyers.

! CLA MEMBERSHIP The above Conference for the first time in the history of the Commonwealth Lawyers’ Association (CLA) is to be jointly organised ! GROUP BOOKINGS with the Law Society of England and Wales from 11 - 15 September 2005. ! CONFERENCE PACKAGE The Conference is to be held at the Queen Elizabeth II Conference Centre (QEII) and Central Hall located in the heart of Westminster ! RECEPTIONS opposite the Houses of Parliament, London, United Kingdom to coincide with the Golden Jubilee (50th year) celebrations of the ! ACCOMPANYING GUEST Commonwealth Law Conference. PROGRAMME The first Commonwealth and Empire Law Conference (as it was then ! CONFERENCE known) was held on London in 1955. PROGRAMME The theme for this year’s Conference is “Developing Law & Justice”.

! ACCOMMODATION Several prominent legal luminaries have been appointed to chair and be speakers at the various sessions and they hail from various jurisdictions of ! WHY YOU SHOULD the Commonwealth. ATTEND Law Lords, Chief Justices, Judges of the superior courts, senior practising lawyers, attorney-generals, members of the judicial and legal service and others associated with law, namely, professors and academicians would attend this Conference.

INFOLINE 14 MARCH / APRIL_2005 NEWS

! CLA MEMBERSHIP CLA MEMBERSHIP New Members For those who are not a CLA member as yet this is the opportunity to so. If the application to become a member is made before end of April 2005, as hitherto advertised, the registration fee is 40 pounds sterling.

Existing Member Existing CLA members, as hitherto advertised, shall enjoy an early bird discount of 200 pounds sterling off the full conference registration fee.

! GROUP BOOKINGS GROUP BOOKINGS Group bookings of 5 or more as hitherto advertised, would entitle delegates to a 10% discount off the full conference registration fee.

! CONFERENCE PACKAGE CONFERENCE PACKAGE Package Bookings Before Full Rate Bookings 30.4.2005 (Payment in (Payment in Pounds Sterling) Pounds Sterling) Full Delegate (4 days) 775 + VAT (910.62) 975 + VAT (1,145.62) 2 Day 475 + VAT (513.47) 546 + VA T (642.55) 1 Day 299 + VAT (351.32) 299 + VAT (351.32)

RECEPTIONS ! RECEPTIONS Gala Dinner - Tuesday, 13 September 2005 at Intercontinental Hotel, Hyde Corner (7.30 p.m. - 1.00 a.m) Price - 120 pounds sterling + VAT per head

The Gala Dinner is a formal affair.

Conference Party- Wednesday, 14 September 2005 at The Brewery, City of London (8.00 p.m. - 12 midnight) Price - 80 pounds sterling + VAT per head

The evening would include a drinks reception followed by dinner with entertainment and a disco.

! ACCOMPANYING GUEST ACCOMPANYING GUEST PROGRAMME There is a Accompanying Guest Programme for guests of delegates who PROGRAMME register for the whole 4-day conference only.

The Guest Programme fee is 150 pounds sterling + VAT per head.

This includes the following: " Access to Opening and Closing Ceremony

MARCH / APRIL_2005 INFOLINE 15 NEWS

" Welcome Reception on Sunday, 11 September 2005 " Access to Guest lounge at QEII and Blue Badge Guide " Guest Programme pack including name badge " Access to the exhibition " Access to preferential Guest Programme tours

! CONFERENCE CONFERENCE PROGRAMME PROGRAMME The Programme includes several keynote addresses and workshop streams covering: " Human Rights " Corporate & Commercial Law " Criminal Law & Practice (including Constitutional Law) " Family Law and The Child " The Judicial Officer " Legal Profession & the Future " The Law & Small States " And Others

! ACCOMMODATION ACCOMMODATION Several hotels have been listed by the Organisers offering special rates for the Conference Details can be obtained via the website at www.commonwealthlaw2005.com.

WHY YOU SHOULD ATTEND ! WHY YOU SHOULD " This would be the 50th Anniversary. Be part of the history. ATTEND " You would be able to meet delegates from many Commonwealth countries who have common interest in law and the practice of law. " There would be several prominent keynote speakers and equally prominent speaker who would present papers on varied topics at the Conference. There are 60 working sessions. " The Social Programme gives you an opportunity to meet and mingle with all delegates and to renew, if not, to make new friends. " You can update yourself with laws of your interest and choice. " The Commonwealth Law Conference is a prestigious event that calls for your attendance.

The last (13th) Commonwealth Law Conference (www.lawcouncil.asn.au) was held in Melbourne, Australia from 13th – 17th April 2003. Over 1500 lawyers from throughout the Commonwealth attended to discuss topics as wide ranging as HIV/AIDS, human rights and the rule of law, the legal profession and its future and litigation in the new millennium. The theme of the conference was Common Law Common Good Common Wealth. It is anticipated that a selection of papers presented at this conference will be published and available to purchase soon.

INFOLINE 16 MARCH / APRIL_2005 Circulars NEWS

List of Bar Council Circulars Issued as at 4 May 2005

No. Subject 1/2005 Hotline for queries relating to the Solicitors’ Remuneration (Enforcement) Rules 2004 2/2005 Special Notice by the Bar Council Pertaining to Conveyancing Fees and the “No-Discount Rule” 3/2005 Tsunami Relief Fund 4/2005 Tsunami Relief Fund 5/2005 Project Ku Sayang 6/2005 Malaysian Bar Golf Calendar 2005 7/2005 Tsunami Relief Fund 8/2005 Perception Audit by Companies Commission of Malaysia 9/2005 International Mediation Conference (24th - 25th February 2005)Theme: Mediation on the MoveVenue: Equatorial Hotel, Kuala Lumpur 10/2005 59th Annual General Meeting of the Malaysian Bar 11/2005 Mediation Conference (24th - 25th February 2005)Theme: Mediation on the MoveVenue: Equatorial Hotel, Kuala Lumpur 11/2005 Waiver of Library Registration Charge and Use of Library Membership Cards 12/2005 Walkathon, Family Day & Jumble Sale to be held on 6.3.2005 at Pusat Rekreasi Air, Taman Wetland Putrajaya, Putrajaya 13/2005 Extension of Library Opening Hours 14/2005 A Dialogue Session with Datuk Seri Mohd Nazri Abdul Aziz 15/2005 2005 Bar Council Subscriptions 16/2005 Bar Council 5-Year Plan 17/2005 1. Annual Dialogue Between Malaysian Bar and Bank Negara Malaysia 2. Bursa Malaysia Berhad Annual Dialogue with Industry Participants 18/2005 Service Tax Refund for Bad Debts 19/2005 Lawyers Negotiating Settlement with Opposing Parties Held on Remand 20/2005 Tsunami Relief Fund 21/2005 Malaysia / Singapore Bench & Bar Games 2005Singapore - 20 May to 22 May 2005 22/2005 Suhakam Forum on the Right to an Expeditious and Fair Trial 23/2005 Training Program on Competition/Antitrust Law 24/2005 Malaysia / Singapore Bench & Bar Games 2005Singapore - 20 May to 22 May 2005 25/2005 Due Diligence Guidelines 26/2005 Invitation to Serve the Bar 27/2005 Project Ku Sayang 28/2005 Kuala Lumpur High Court O.S. No. R1-17-5-05(Bahagian Rayuan & Kuasa-Kuasa Khas)Louis Edward Van Buerle v Bar Council Malaysia 29/2005 Appeal for Donation - THOO MAY LENG 31/2005 Assigned Counsel

If you have not received any of the above circulars, you may download them from the Bar Council’s website at: http://www.malaysianbar.org.my/notices/bar_council.asp

MARCH / APRIL_2005 INFOLINE 17 NEWS

Walkathon, Family Day & Jumble Sale Report

he Bar Council held its Walkathon, Family Day agreed to flag of T& Jumble Sale on Sunday, 6th March 2004, at the approximately 30 Lake Recreational Centre, Taman Wetland in Putrajaya. walkers who took off at The event was officiated by The Right Honourable a brisk pace into the Dato’ Siti Norma Binti Yaakob, the Chief Judge of wetlands. The walker Malaya and it proved to be a tremendous success. emerged at around Approximately 500 people patronized this event and 8.45am and made their all proceeds raised throughout the day went to Law way to the finish line Care. with William Thomas winning the Mens From around 7.30am onwards, members of the Senior category, S. Bar were seen setting up their stalls. Stalls consisted of Ravichandran winning an assortment of food as well as various jumble sale the family category, Mah items. There was a great sense of solidarity on the day Weng Kwai winning the as the earlier call by the organizing committee for Mens category, Saraswaty winning the Ladies category members to set up stalls and support the event was not and Niroshah winning the childrens category. All the only answered by local law firms but it was also walkers had a great time and there were certainly no answered by a number of State Bars namely, Kedah, losers on the day. Perlis, Penang Perak, Negeri Sembilan and Selangor who also operated stalls. The legal firms who operated At around 9.00am, the President of the Malaysian stalls were Messrs. Richard Tee & Co., Melissa Ram & Bar, Hj Kuthubul Zaman Bukhari delivered his Associates, Wan Nadhri Tan, SBS Maniam & welcome address and invited Justice Siti Norma to Associates, Ranjit Ooi & Robert Low, A.I. Nathan & officially declare the Walkathon, Family Day & Jumble Isa Aziz Ibrahim, Selva Kumar Mookiah & Associates, Sale open. Her ladyship did this by attempting to Kiru & Yong, M. Jagesh & Co. submerge a volunteer who was sitting on a dunking machine. It was terrific fun. A steady crowd of walkers were also seen registering for the walkathon which was scheduled to With the Family Day now open, people starting to begin at 8.00am. The Chief Judge of Malaya, The Right mill around the stalls. Preparation in most of the food Honourable Dato’ Siti Norma Binti Yaakob, kindly accepted our invitation to attend the Walkathon, Family Day & Jumble Sale as guest of honour and graciously

INFOLINE 18 MARCH / APRIL_2005 NEWS stalls were well underway and people were enjoying a Approximately 2000 people participated in the variety of treats for breakfast. Food being offered Family Day which could not have been a success included burgers, mamak mee, thosai, roti canai, kuih, without the magnificent effort put in by members of meehoon, cendol, nasi lemak etc. the Bar who volunteered their services throughout the day in operating stalls. Bar Council staff must also not Clowns were seen throughout the day entertaining be forgotten. They were on hand throughout the day children with balloon art and members of the Bar assisting at the committee tent. The organizing together with their families could be found rummaging chairman, Robert Low, and his team from the Sports, through stalls looking for bargains. Charity and Welfare Committee were pleased with the outcome. By late morning the Putrajaya lake looked like there was a regatta being held as a flotilla of boats could The proceeds from the Walkathon, Family Day be seen peppered throughout the lake. Some of the & Jumble Sale went towards Law Care and also towards more popular boating activities were the paddle boats, 2 children’s charities. Many thanks to all sponsors who kayaking and the motorized joy rides. In addition to contributed to this event and to all members of the water sports, a number of games stalls were set up which Bar and their families who gave their support. were very popular with the children. See you all again next year. Adriani was our MC and DJ for the day. Murad Ali also kept the crowd entertained and often had them in stitches.

The Chairman of the Sports, Charity and Welfare Committee, S Ravichandran, after some persuasion, volunteered to clamber onto the dunking machine for a special charity dunk to raise funds for Law Care. Senior members of the Bar including Ambiga Sreenevasan, Gerald Gomez, Ringo Low, Danabalasingham and even the President and Vice President of the Bar could not resist trying their luck to dunk him. Each participant was charged RM50 for 3 throws. The charity dunk raised RM1,100.00 before Ravi was finally dunked by Mark Talalla. A second charity dunk was organized later in the afternoon when another sporting member of the Bar, Melissa Kaur, agreed to take the dunking seat. Melissa’s exercise was RM10 for 3 throws and it raised another RM520 for Law Care.

MARCH / APRIL_2005 INFOLINE 19 S ECRETARIAT

Malaysian Bar Council

No. 12, 15 & 17, Leboh Pasar Besar, 50050 Kuala Lumpur, Malaysia Peti Surat 12478, Kuala Lumpur, Malaysia Tel: 03-2031 3003 (Hunting Line) Fax: 03- 2034 2825, 2026 1313, 2072 5818 E-mail: [email protected] Website: http://www.malaysianbar.org.my

MEMORANDUM

To : All Members of the Bar

From : Catherine Eu

Date : 10th May 2005

SUBJECT : GENERAL INFORMATION ON DECISIONS MADE AT THE 2ND MEETING OF THE BAR COUNCIL HELD ON 9TH APRIL 2005

Dear Members of the Bar,

Enclosed please find a copy of the abovementioned General Information for your attention.

Thank you.

Your faithfully,

Catherine Eu

General Information on Decisions made at the 2nd Meeting of the Bar Council held on 9th April 2005

1. REVISING THE PUBLICITY RULES 2. INDUSTRIAL COURT – WHETHER The Council will review the existing Legal PENINSULAR MALAYSIAN LAWYERS CAN Profession (Publicity) Rules 2001, with the view APPEAR IN SABAH AND SARAWAK AS OF to further liberalizing the same. Members are RIGHT invited to forward their views and comments on The Bar Council will be making representations this subject. to the relevant authorities that Peninsular Malaysian lawyers have the right to appear in the Industrial Court in Sabah and Sarawak.

INFOLINE 20 MARCH / APRIL_2005 S ECRETARIAT 3. ENFORCEMENT OF THE SRO 9. PROPOSED RULES ON ADMISSION OF A joint meeting between the PII Committee, the FOREIGN LAWYERS SRO Enforcement Committee and the A working committee has been formed comprising Conveyancing Practice Committee will be held representatives from the AG’s chambers and to look into whether insurance coverage should representatives from the Bar Council, to discuss be denied in a case where the solicitor has given a the proposals and to find as much common discount in breach of the rules.The SRO approach and common ground as possible, with Enforcement Committee will collate information the view to presenting the same to the relevant on the enforcement steps taken so far, and publicise authorities. the same. The Committee will also draw up frequently asked questions (and their answers) for 10. RULES ON WEBSITE OF LAW FIRMS publication, to assist members. The Bar Council has adopted some amendments to the Website Rules, as proposed by the Legal 4. MEETING YOUNG LAWYERS Profession Committee and the IT & Cyberlaws The Bar Council will schedule a suitable date to Committee. The revised rules will be published. meet young lawyers and representatives from the They may also be viewed on our website at http:/ Young Lawyers Committee. /www.malaysianbar.org.my

5. DIALOGUES WITH BANK NEGARA 11. VERBATIM COURT REPORTING MALAYSIA & BURSA MALAYSIA The Bar Council will further pursue with the The Corporate & Commercial Law Committee relevant authorities the implementation of the intends to hold dialogues with both Bank Negara verbatim reporting system in the High Courts. and Bursa Malaysia. Members are encouraged to respond to our circular inviting views and 12. MALAYSIAN LAW CONFERENCE comments on the issues that can be raised at such The biennial Malaysian Law Conference will be dialogues. held in the last quarter of this year.

6. CIVIL PROCEDURE RULES 13. PROFESSIONAL INDEMNITY The Bar Council intends to propose a set of INSURANCE POLICY FOR THE YEAR Combined Rules for both the High Courts and 2005 – ACKNOWLEDGEMENT OF LEGAL the Subordinate Courts. An Ad-Hoc Rules REPRESENTATION Committee has been formed to draw up the same. For the 2005 PII policy, the insurers have introduced a disclaimer notice that is required to 7. BAR COUNCIL’S 5 YEAR PLAN be signed by a purchaser waiving his right to With the kind assistance of Loh Siew Cheang, independent legal representation and agreeing that Chong Wei Lung and Nahendran Navaratnam, his solicitor (in the purchase) may act for the we have commenced the process towards system financier in respect of the loan documentation. compliance by taking the initial steps to put in For further enquiries, members may contact place the necessary systems and procedures. Jardine Lloyd Thompson (Tel. No: 03-2723 3388). 8. SUIT BY VAN BUERLE AGAINST THE MALAYSIAN BAR 14. GENERAL STATEMENT CONCERNING The Bar will be represented by Cecil Abraham, DECISIONS AT COUNCIL MEETINGS Sulaiman Abdullah, Tommy Thomas and Robert It is decided that henceforth such General Lazar. The suit concerns the construction of the Statements will be emailed to members, and also provisions in the Legal Profession Act in relation published in the Infoline. This will reduce the cost to the question of quorum for an AGM of the of distribution. (Note : we have also renamed it Bar. “General Information” instead of “General Statement”.)

MARCH / APRIL_2005 INFOLINE 21 S ECRETARIAT 15. INVITATION TO MEMBERS TO SERVE IN COMMITTEES OF THE BAR COUNCIL Members of the Bar have been invited to serve in the Committees as listed in our Circular No. 26/2005 dated 13.4.2005.

16. CALENDER OF EVENTS

NO. DATES EVENTS CONTACTS 1 20th May 2005 Internet for the Legal Professionals : Mr Soon (1-Day Hands-on Training) at MCSB Systems (M) Bhd, Wisma Mirama, KL 2 20th May 2005 – 22nd 2005 Malaysia/Singapore Bench & Bar Ms Lynette Tan/ May Leng May 2005 Games in Singapore 3 2nd July 2005 (Saturday) The Malaysia, Singapore, Sabah & Ms Lynette Tan/May Leng Sarawak Quadrangular Golf Tournament for Tan Sri Steve Shim Trophy – at Damai Golf & Country Club, Kuching 4 Circa September 2005 Malaysian Bar Interstate Golf Tournament Ms Lynette Tan/May Leng for the P Suppiah Challenge Trophy at Tiara Melaka Golf & Country Club, Melaka 5 Circa October 2005 Malaysian Bar vs Royal Malaysian Police Ms Lynette Tan/May Leng Golf Tournament at Klang Valley 6 9-11 December 2005 World Legal Aid Conference Mr Dominic Chan/Sue

We welcome any comments/ suggestions in relation to the matters listed above.

Ragunath Kesavan Secretary Bar Council

see page 62

INFOLINE 22 MARCH / APRIL_2005 S ECRETARIAT

MARCH / APRIL_2005 INFOLINE 23 Your Opinion Admit it, legal practice is a business Nicole Tan Lee Koon

t was a dark, dark day, and I believe that 2005 is ! Firstly, the reality has been that discounts are Igoing to be the annus horribilis for conveyancing rampant. Shakespeare wrote ‘The whole world is a lawyers, when we were outvoted at the recent AGM stage and the men and women merely players’ but on the call for the abolition of the No Discount rule. we ought not kid ourselves and pretend that we Many conveyancing lawyers are not happy about the adhere to the No Discount rule when we resort to No Discount rule, yet they fail to turn up at the AGM practices like off the record deductions e.g. delete to abolish it. The Solicitors’ Remuneration an item or two from the disbursements, requesting (Enforcement) Rules 2004 is a farce and I propose that the clients to pay the fees in full first and then all you conveyancing lawyers out there who are affected reimburse them later etc. How can we go on with by this anachronistic No Discount rule go to the next this charade and still maintain a straight face and say AGM to abolish it. ‘No, I don’t give discounts’ or even swear in a statutory declaration that we don’t give discounts or proclaim in public in the most self-righteous Legal Practice a Business manner that we don’t give discounts but yet giving I am sure most lawyers agree with me that the practice discounts in private? I say, ‘Come out and admit of law is a business. In the business world it!’ there’s competitiveness, e.g. individuals like Andrew Carnegie; Sam Walton of Wal Mart; Ingvar Kamprad ! Secondly, conveyancers should be free to negotiate of IKEA etc strive on competition. In fact, their success fees like litigators. The problem with a fused was and/or is based on quality products for the best profession like ours is that the former are governed price. In the legal world, it should be quality services by scale fees whilst the latter are not. I hope that for the best fees. Nowadays, who wouldn’t ask for a this No-Discount rule is not a conspiracy by litigators discount? Even we as professionals for that matter. It is to put us conveyancers in a fix (being aided by daft entirely up to us how much to charge in order that our conveyancers with personal political agenda who do firm’s overheads are covered. not care two hoots on its negative effects on the profession). Litigators have been happily charging I feel that this is a free world and a free market. If clients problem-free and scale-free all this while and the No Discount rule is maintained, I will not only nobody ever brought this issue up. Why is there no lose clients but also friends and relatives. Why should need for such a monopoly for the litigators? we stop ourselves from giving discounts to family and friends? We can’t be giving free services to all of them. ! Thirdly, conveyancers simply cannot charge fees too I am aware of Circular No. 62/2004 i.e the Bar Council low due to the cost factor. Some of you will say Guidelines on Waiver of Fees in Conveyancing Matters that this is the reason lawyers abscond with clients’ ‘personal relationship’ includes immediate family money. Please check your facts before you make members etc. It is simply an affront to my civil liberties such statements. Most of the time, lawyers abscond and common sense that I should be made accountable due to their own bad habits like gambling, over- to the Bar Council for any waivers given by me. It’s indulgence in material things or failed business my firm and I do not want to have to ask the Bar ventures etc. I propose that the Bar Council hold a Council’s permission for a waiver. It is just as simple as referendum on the No Discount rule restricted to that. conveyancers only as I feel that the litigators were the ones controlling the floor during the AGM. This On this premise, I would like to highlight 3 points was quite obvious when they spoke that they are for the argument for the abolition of the archaic No litigators and not conveyancers, another awkward Discount rule:- situation caused by a fused profession. Some

INFOLINE 24 MARCH / APRIL_2005 Your Opinion conveyancers have this ‘look and see’ attitude, work to be done to fill up the forms and what not) in hoping that in the long run things may improve policing ourselves in matters like charging fees which and we can do less work for same fees. This lofty should be left entirely at our discretion? I humbly opine ideal is fantastic if everyone were to adhere to the that the time and effort should be channeled into other No Discount rule but not when the abovementioned pressing issues like tackling the delays caused by practices are still being used to circumvent the No bureaucratic red tape. The Bar Council should take the Discount rule. It is very difficult to get evidence of necessary and positive steps as soon as possible to solve such practices especially when the clients are the only the backlog of cases in the courts and the relevant local witnesses. authorities. Merely holding dialogues, without getting any results, is next to achieving nothing. For e.g. to extract Letters of Administration or probate takes Change of Focus months; to obtain consent to transfer takes months; My other worry is the enforcement machinery. The there are Land Offices that refuse to follow the SRO Enforcement Procedure Committee should not National Land Code 1965 (NLC) or have the own consist of active practising conveyancers. There is always interpretation of the NLC; extracting certified true the possibility of them handling the same projects or copies of documents, which could be done in a day doing the same kind of work or being business but in reality takes months; missing documents and competitors of the lawyers complained against (the files at the Land Offices and courts etc. All these opposite party). The committee members can argue contribute to the delay of the transactions which in that the accounts and documents shall be scrutinised turn affects our economy. by independent auditors and not them and that they are not free to do the checking. The point is that, Quoting the Chinese Premier, Wen Jia Bao at regardless of the integrity of the committee members China’s Annual Press Conference ‘I am neither nervous or whether they have the time to check or not or nor afraid because I speak from the heart!’ whether they are doing the checking or not, the fact that such conflict exists is again an affront to justice as I hope that this mail can be read with an open justice must be seen to be done. heart and in a constructive manner as this is a tiny voice representing a huge group who are either too apathetic Why are we wasting time and resources (the extra or too scared to speak out.

Humour

The following questions and answers were supposedly collected from a test given to 16 year old students! Q: How can you delay milk turning sour? Q: Name the four seasons. A: Keep it in the cow. A: Salt, pepper, mustard and vinegar. Q: What is the Fibula Q: Explain one of the processes by which water can A: A small lie. be made safe to drink. A: Flirtation makes water safe to drink because it Q: What does “varicose” mean? removes large pollutants like grit, sand, dead A: Nearby. sheep and canoeists. Q: What is a seizure? Q: How is dew formed? A: A famous dead Roman emperor. A: The sun shines down on the leaves and makes them perspire. Q: What is a terminal illness? A: When you are sick at the airport. Q: What happens to your body as you age? A: When you get old, so do your bowels and you get Q: What does the word “benign” mean? intercontinental. A: Benign is what you will be after you be eight.

Q; Name a major disease associated with cigarettes. Q: What is a turbine? A: Premature death. A: Something an Arab wears on his head.

MARCH / APRIL_2005 INFOLINE 25 Your Opinion The No Discount Rule Louis E Van Buerle

had proposed at the AGM in Year 2004 that scale Conveyancing is a multi million dollar industry. Ifees be maintained as a ceiling but Solicitors be It is estimated that an average Bank incurs between $30 allowed discretion give discount or waiver on their fees. to $60 million in conveyancing fees, if its products are This was in response to the Bar Council’s referendum marketed on a zero costs basis. Banks, developers, in 2001 in which an overwhelming majority of those consumers etc are not going to stand by and allow who responded (678 lawyers) favored allowing solicitors lawyers to increase the costs of a transaction just because to give discounts. The motion was discussed with only lawyers enjoy a monopoly. Consider this (and there about 200 lawyers (a majority of whom were litigators) are other possibilities): present and was not carried. Banks and Housing Developers, who provide at least 70% - 80% of the Conveyancing work, are I note that enforcement has brought forth voices likely to look for ways to dispense with the from conveyancers. It is important that this issue be services of lawyers. Banks can expand their legal revisited and be determined by a substantial majority department and attend to execution of their of our members ideally in excess of our statutory security documents (which are standardized and quorum. Time is not with us as third parties would printed by the bank anyway). They arrange for soon respond to the enforcement of the No Discount their borrowers to sign before lawyers or rule. Commissioner for Oaths. Attestation fees are paid to those who attest those documents. They Members should be reminded that our monopoly can then outsource the presentation work to in the Conveyancing Industry is at the sufferance of Companies/Individual (lawyer’s presentation st Parliament. We are now in the 21 Century where clerks) to attend to the registration of their Globalization and Competition are keywords. Scale fees documents. You will have big and well funded have been abolished in England, Australia, New companies doing this work on a large scale Zealand, Singapore and Hong Kong. There is no reason (advised and managed by lawyers who leave the why the Government should or would protect our profession?). Banks can then truly tell their monopoly if we are unable to give competitive rates borrowers that it is zero cost and market their for our services. Bear in mind that the Government products without lawyers. Don’t forget that no could open Conveyancing to other professionals like legal firm has the financial resources that the Banks in Australia where non legal professionals (conveyancing have. So they can invest in technology and agents) can do Conveyancing work. In Canada, a sale maximize the use of human resources to obtain transaction including a loan would normally be optimum efficiency. completed within 2 weeks, that is efficiency and costs are reduced. No doubt, we would require land and other The above scenario is real and short sighted relevant authorities to be efficient as well. thinking could lead to a catastrophe for Conveyancing lawyers. It is not only lawyers who are going to lose Competition means a free market determined by their jobs but also the staff employed by them. supply and demand. If your playing field has few players, Conveyancing is a sunset industry unless we re-engineer you command good fees. (Medical specialists, top ourselves! As for the rest of us, we have to find a new criminal lawyers?) If you are a conveyancer, you know playing field. We are talking of thousands of lawyers the deal! Young lawyers should ask themselves this ‘If a and staff who would be affected. I would urge every client has to pay the same fees would he engage me or Conveyancing lawyer to re-appraise the No Discount the large established firms or lawyers?’ Rule and to attend the next AGM so that they can determine their own future.

INFOLINE 26 MARCH / APRIL_2005 Your Opinion

MARCH / APRIL_2005 INFOLINE 27 Comment Are Bureaucrats above the Law?? Seah Choon Chye*

he law pertaining to the use of land alienated ‘Provided that this condition - Tbefore the commencement of the National Land (i) shall not prevent - Code (i.e. prior to 1.1.66) continues to be (a) the use of any part of the land for any purpose misunderstood and misapplied by our bureaucrats at for which it could (under Section 115) be the land office and the local authority. lawfully used if it were subject instead to the category ‘agriculture’, or According to the land office if the title of a proprietor of such land is endorsed with a ‘nil’ (b) the continued use of any part thereof for any condition, it is necessary to make an application under industrial purpose for which it was lawfully Section 124 of the Code for imposition of an express used immediately before the commencement condition (‘conversion’) otherwise it may amount to of this Act; and a breach of condition for which action may be taken by the State Authority pursuant to Section 128. (ii) shall not apply to any part of the land which is occupied by or in conjunction with - Likewise, the local authority would also insist (a) any building lawfully erected before that on the same requirement otherwise it would not commencement, or approve any licence to operate any business to be carried out on such land by the proprietor, his lessee or tenant. (b) any building erected after the commencement, the erection of which would With due respect, both authorities have erred as (under section 115) be lawful if the land were they do not appear to understand the relevant provisions subject instead to the category ‘agriculture’. ‘ governing the use of such land as set out under Section 53 of the Code. While this proviso would confer no noticeable benefit on a proprietor of country land (or town and village It should be noted from the outset that land land held under Land Office title) who continues to classified under Section 53 is not subject to any category use same for agricultural purposes, it would substantially of land use (or any express condition) applicable to land benefit a proprietor who has prior to 1.1.66 used the alienated after the commencement of the Code (see land for industrial purpose as he is permitted to continue Section 52) but to implied conditions regulating its doing so to by virtue of proviso (i)(b) above and is use as specified under Section 53(2) and Section 53(3) therefore not obliged to apply for conversion under respectively. Section 1 24.

Section 53(2) Section 53(3) This applies to (a) country land or (b) town or village This is applicable to all other land (i.e. town or village land held under Land Office title which shall with land under Registry title but not country land or town effect from 1.1.66 become subject to an implied or village land held under Land Office title) which condition that it shall be used for aaricultural purposes shall w.e.f. 1.1.66 be ‘subject to an implied condition only, subject to the following proviso which reads as that it shall be used neither for agricultural nor for follows:-

* Advocate & Solicitor, High Court of Malaya.

INFOLINE 28 MARCH / APRIL_2005 Comment

industrial purpose’ subject to the proviso (substantially By virtue of the said provisions, it is further similar to the proviso to Section 53(2) aforesaid), submitted that if the State Authority has not acted following viz., under Section 54 it would be premature and improper on the part of the land office or the local authority to ‘Provided that this condition - compel any proprietor of such land to apply for (i) shall not prevent the continued use of any part conversion under Section 124, in the light of the said of the land for any agricultural or industrial Privy Council ruling. purpose for which it was lawfully used immediately before the commencement of this Act; and CONCLUSION Bureaucrats at the land office and the local authority (ii) shall not apply to any part of the land which is appear to be unable to understand the provisions of occupied by or in conjunction with - Section 53 concerning land alienated prior to the (a) any building lawfully erected before that commencement of the Code without express commencement, or conditions.

(b) any building erected after that They tend to adopt a rather simplistic view of commencement, the erection of which would the issue i.e. if a title to such land does not have an (under section 116) be lawful if the land were express condition the proprietor is under a duty to apply subject instead to the category ‘building’. ‘ for conversion under Section 1 24 to have an express condition endorsed, and completely ignore the provisos In Garden City Development Bhd v Collector of Land to Sections 53(2) and 53(3) which authorise the Revenue, Federal Territory [1982] 2 MLJ 98, the Privy continued use of the land after commencement of the Council (in setting aside the Federal Court judgment) Code for such purposes e.g. industrial or building, for ruled that a proprietor of town land under Section which it had been lawfully used prior to 1.1.66. 53(3) with ‘nil’ condition is entitled to erect a commercial complex thereon without being required If they are in doubt, they should take note of the to apply for conversion under Section 124 of the Code. Federal Court’s admonition in Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1MLJ 155 and It is hereby submitted that the Privy Council seek the learned advice of their State Legal Adviser before decision on town land under Section 53(3) is also flexing their bureaucratic muscles by issuing notices to applicable to country land under Section 53(2) because proprietors of such land threatening forfeiture both Sections carried similar provisos allowing a proceedings without legal basis. proprietor (who used the land for say, industrial purpose before 1.1.66) to continue using same after the It is therefore hoped the said authorities would commencement of the Code for industrial purpose not continue to defy the Privy Council ruling on this until the State Authority has taken action under Section issue otherwise it would give rise to a disturbing 54 to subject the land to a category of land use and perception that our bureaucrats have no respect for the other express conditions by notification in the Gazette. law as enunciated by the highest tier of the judiciary and may disregard same with impunity because they The special status and statutory protection consider themselves to be above the law. conferred on proprietors of land alienated prior to the commencement of the Code are further recognised by Section 54(4) which states that no declaration forfeiting such land (for breach of condition imposed under Section 54) shall be effective ‘except upon payment of such compensation as may be agreed or determined under Section 434’.

see page 63

MARCH / APRIL_2005 INFOLINE 29 Comment Women in the Lead P Dev Anand Pillai

t was recently reported that soon by 2013, women they don’t need to get down to the ground to get the Iin Malaysia will the biggest spenders and, more work going. Their social adaptability gives them the importantly, according to the report, they will be advantage when it comes to public relations and heading households by this time. What beleaguers me personal bonding with the potential clientele. It is only most is aren’t women already leading households in hoped that the Education Ministry looks into the Malaysia now? Many are choosing to be single because problem and addresses it as a national problem which it doesn’t come with the hazards of women’s liberation will cause the country to loose its pride if not properly i.e. that of having a husband and children. Companies tackled. One hopes that the parliamentarians who have like BMW, Mercedes Benz & Volvo seem to cater to just got their long awaited pay raise will put this matter women because they are the ones that have the spending for debate in Parliament and the educators will see some power. form of directive of how to address and tackle the issue of low morale and the lack of self esteem in most school There will be more single women and more boys in Malaysia. Be it Malay, Chinese or Indian, we dependency on foreign labour as the nation’s birth rate have crossed the racial barrier in this problem, it seems drops drastically. As there are more single women, there that generally the girls are miles ahead. will also be more older women who will become a challenge to the health care system that the nation is If it is not addressed, the issue of inferior quality now practising. The likelihood of seeing a woman Prime male students is going to lead to Malaysia’s inability to Minister in Malaysia is not to far away as the girls are provide a highly skilled and able work force to foreign the ones who seem to do the country proud in every investors. Its good that the women have made it but arena. will it complement them if they are surrounded by intellectually inferior men? One is sure that the women The women in Malaysia have proven themselves would want a serious challenge to their ability from well and it is the men who are far behind on everything. equally intellectual and ably qualified men! It is indeed a sad state of affairs but as usual our leaders just talk without doing much at the end of the day. Boys in schools are not doing well and the teachers prefer to concentrate on girls because they learn faster and are easier to control. Almost the entire teaching force in Malaysia is comprised of women, therefore it is not surprising that most boys can’t cope in school.

This is not only a worrying trend but it has to become a problem which the government must tackle if we don’t want a male population that is very intellectually inferior.

Earning capabilities today is in the terms of the Find the images of 7 horses in this picture. new K-economy which suits the women better because This and other teasers like it can be found at ngakak.net

see page 63

INFOLINE 30 MARCH / APRIL_2005 Comment MPs and Human Rights in Malaysia : A Snapshot1 Edmund Bon*

tate actors constitute the principal violators of meeting on 2 March 2005, Datuk Azmi Khalid, the Shuman rights around the world. The irony is that Minister of Home Affairs, said that ‘bona fide refugees, human rights protection cannot subsist without State as well as those who had applied for refugee status, participation. It is then obvious that lawmakers play a would not be targeted during the current Ops Tegas vital role in protecting and promoting human rights against illegal immigrants.’3 This decision was through legislation and democratic practices. welcomed as it represented an open acknowledgement of the principle of non-refoulment which forms the It is unfortunate that the Members in Parliament core content of the Convention Relating to the Status (MPs) in Malaysia do not do enough for the human of Refugees, 19514. rights cause. This state of affairs is discouraging. The next day however, the Deputy Prime Minister, Since its inception, the Human Rights Datuk Seri Najib Razak, reversed the Government’s Commission (SUHAKAM) has actively carried out its position and said: ‘We will take action against anyone mandate culminating in no less than 15 reports. All of who is here illegally. There is no exemption on this its annual reports have been submitted to Parliament including those who are carrying letters, genuine or but have neither been tabled nor debated. The otherwise, from the UNHCR.’5 It is high time for Government appears reluctant to discuss the matters SUHAKAM to start conducting human rights training contained in the reports. No formal reason has been programmes for MPs. given why time has not been allocated for consideration of these reports2. This points to the Government’s lack On the international level, Malaysia has repeatedly of the respect for SUHAKAM. It also impairs been defensive of its human rights record and SUHAKAM’s right to defend human rights and continually deflects genuine attempts to improve the represents an abdication of responsibility by the human rights monitoring mechanisms promoted by Government. the United Nations. Recently, Malaysia resisted the recommendation of the United Nations to prepare an There is a dire lack of awareness of basic human annual report on the situation of human rights rights principles on the part of MPs, and any genuine worldwide in view ‘of the varying human rights desire to uphold human rights norms is usually clouded perspectives and different political, historical, social, by political motivations. After attending the Cabinet religious, cultural and developmental characteristics’6.

1 Panelist note delivered at the Education and Research Association for Consumers, Malaysia (ERA Consumer)’s workshop The Vital Role of Malaysian Parliamentarians in Strengthening Human Rights and Democracy in Malaysia held on 20 March 2005 at Petaling Jaya, Selangor. * Advocate & Solicitor, High Court in Malaya. 2 At a dialogue hosted by the Bar Council on 17 February 2005 between Datuk Seri Mohd Nazri Abdul Aziz and members of the Malaysian Bar, the Honourable Minister was asked why none of SUHAKAM’s reports have been debated in Parliament and whether he would pledge to make efforts to have the reports debated. His answer was that there are not many MPs who are lawyers in Parliament. As such, they would not be able to understand the legal points in the reports and debate them. He also said that it would be pointless to debate the reports as the Barisan Nasional forms the majority and any vote would be in its favour. Further, he said, it is not mandatory to follow SUHAKAM’s recommendations. Datuk Seri currently heads the Parliamentary Human Rights Caucus and is the Minister in the Prime Minister’s Department, whose portfolio includes overseeing Parliamentary affairs. 3 Sa’odah Elias and Royce Cheah, “Home Ministry upset with UNHCR”, The Star, 3 March 2005. 4 Malaysia has not ratified the Convention. 5 “Illegal immigrants: None will be spared from Ops Tegas”, The Star, 4 March 2005. 6 Statement by Dato’ Seri Syed Hamid Albar, the Minister of Foreign Affairs to the 61st Session of the United Nations Commission on Human Rights on 14 March 2005 at Geneva. 7 Ibid.

MARCH / APRIL_2005 INFOLINE 31 Comment Yet, in the same breath, Malaysia maintained that not enough is being done to address poverty, The focus must now be to re-educate and re- underdevelopment, marginalization and instability as democratise our country. There must be a concerted ‘the universality and indivisibility of all human rights agenda for MPs to pursue in terms of human rights have been accepted as far back as 1993, at the Vienna protection and promotion8. It must be on the political World Conference on Human Rights.’7 plate at every election to be canvassed by the candidates, along with other issues. Almost every issue in an election The problem is endemic. Contradictory public can some way or other be articulated in the language of statements such as the ones quoted above are not human rights. The promotion of human rights issues isolated incidents. They display a genuine deficiency must then be shaped in different forms to reach out to on the part of MPs in understanding what the human different sectors of the electorate – the poor, the rights struggle really means. It renders other useful disabled, the middle-class, the rich, the educated et al. statements on the commitment to human rights mere lip-service. As long as the Opposition continues to be fragmented and disorganised, there can be no effective But to criticize MPs is not enough. We must make challenge to the ruling Government. Exercises in excess an attempt to understand them and where they are of power will continue. The baggage which PAS coming from. It is not difficult for NGOs and human brought to the Opposition was probably the major rights activists to take altruistic human rights positions, factor in the overwhelming majority voting for the BN. as they must. MPs however, whilst purportedly Despite PAS’s stated commitment to human rights, representing the voice of the people, are constrained by its basic idealogy and raison d’etre does not sit well with the political realities of the day. MPs are elected and international rights norms. The way PAS has ruled sustained by the power of numbers. It is these numbers certain States bears testimony to that fact. they must sustain to hold onto power. Human rights transcend the power and numbers game. Hence, the There must be a concerted human rights agenda dilemma. How does one incorporate the human rights based on clear policies (at the macro and micro level) struggle as part of the game without compromising its of a shadow or alternative government for the electorate core values. to choose from. The human rights cause cannot be fought on a piecemeal basis. It must be advanced as a There is no easy answer. Battles have been won, whole in every aspect of the administration and and the statement of Datuk Azmi Khalid on 2 March management of the country. 2005 is one of them. It was a battle fought and won by a combination of unrelenting and tireless NGOs, human rights activists and the office of the United Nations High Commissioner for Refugees.

Yet, as the struggle continues, the feeling on the ground is that MPs cannot be counted on with regards to human rights issues. Human rights is a concept based on certain norms but yet is fluid enough to be applied across borders to people and nations very different from each other. The perception is that MPs tout human rights causes to suit their needs, and have a hidden agenda. Be that as it may, in reality, MPs are indispensable to the process of furthering the cause effectively.

8 For a start, a “shopping list” of what needs to be done should be drawn up. The immediate aims, (though by no means the only ones), should be the ratification of international human rights treaties, the withdrawal of reservations lodged in respect of the Convention on the Elimination of All Forms of Discrimination Against Women, 1981 and the Convention on the Rights of the Child, 1990, and the full and effective implementation of the said conventions through domestic law as well as the establishment of the ASEAN human rights mechanism.

INFOLINE 32 MARCH / APRIL_2005 Comment Scrapping Legal Aid? Cecil Rajendra

u Tiang Joo’s commentary Legal Aid – Smart It is wishful thinking to assume that a government- SPartnership (Infoline Jan/Feb 2005) that calls for funded and -run body would be willing to institute the scrapping of the Bar’s legal aid centres - let’s not action against one of its limbs for wrongful doing. mince words, ‘dismantle’ is merely a euphemism for ‘scrap’ - raises several interesting points but is riddled Admittedly, the Bar’s legal aid scheme is far from with misconceptions and fallacies. However, as it brings perfect and could do with a major overhaul in terms of to the open an opinion held by a fair sector of the Bar, organisation and effectiveness. However, critics of the but seldom articulated, a response of sorts is called for. scheme and advocates for dismantling our centres, should be reminded that it is perhaps the single most First, Mr. Su’s argument that the Bar’s limited noble venture of the Malaysian Bar since its founding. monetary resources could be better husbanded and that Both regionally and internationally the Malaysian Bar’s millions could be saved by closing our legal aid offices legal aid scheme has been recommended time and again is a scarlet red herring. The RM100/- subscription that as the model for other Bars to emulate. It is the only members of the Bar have been contributing towards legal aid programme in the world that is totally funded, legal aid since 1983 is earmarked totally and exclusively managed and manned by members of the Bar with no for legal aid. The said RM100/- legal aid contribution outside funding or interference whatsoever. In other goes directly into a special Bar legal aid account and words, it is the only legal aid scheme anywhere that cannot be channelled into any other Fund, benevolent can claim to be truly independent. or otherwise. In other words, if the Malaysian Bar is so ill-advised as to adopt Mr. Su’s suggestion to shut down When the International Bar Association (IBA) first our legal aid centres and sack our legal aid staff set up its legal aid desk in 1996, the Malaysian Bar was tomorrow, the Bar will not be one sen the richer as the given the singular honour to address and advise the IBA contribution falls with the scheme! on how fellow members could go about initiating and implementing legal aid programmes in their countries. Second, Mr. Su’s suggestion, that the setting up In the 1999 Commonwealth Law Conference, Bar administration and running of legal aid centres should Associations in the Caribbean and Africa were urged to be left to the Government and that we confine adopt the Malaysian legal aid model. And, at a recent ourselves to providing ‘the service of advocates and South East Asian legal aid conference in Cambodia in solicitors through these bureaus’ is nothing new. This 2003, the Malaysian Bar was specially invited to inspire, was the situation that obtained before the Bar’s legal initiate and help implement legal aid programmes in aid initiative and was precisely the argument advanced Cambodia, Laos and Vietnam. by those opposing the Bar’s 1983 resolution to set up its own legal aid programme. While our legal aid centres It is all very well to sanctimoniously propose that have worked closely with the Biro Bantuan Guaman ‘the government of the day should provide (legal) aid on several projects for well over decade, the to its citizens’ and that ‘it be legislated that everyone be independence of our legal aid scheme cannot be over- entitled to have (meaningful) access to the courts’. But emphasised. this is so much pie in the sky!

It is precisely because our legal aid scheme is both The Malaysian Bar would be better served if its financially and ideologically independent that our legal members fulfill their minimal obligation to take up aid lawyers through our legal aid centres have been able one legal aid case a year (less than 5% do so though it is to take up cudgels on behalf of the orang asli (land hardly an ‘unreasonable burden’) and pledge greater rights), ISA victims (habeas corpus), abused prisoners support to our legal aid programme rather than propose (unjust treatment), peaceful demonstrators (freedom illusions and chase chimeras. of assembly) etc. etc. For while we cannot be sure that dismantling our As a matter of fact, the earliest legal aid cases taken legal aid centres tomorrow will enrich the Bar’s coffers up by our centres were cases rejected by the by a single dollar, we can be indubitably certain that Government-run legal aid bureaux (the Biro Bantuan scrapping them will immeasurably impoverish the spirit Guaman) as they were against the Government or a and moral standing of the Malaysian Bar. quasi-government bodies i.e. the City Council (for unlawful dismissal), the Police (for assault of a detainee) It is not very SMART! and the Land Office (for eviction of alleged ‘squatters’).

MARCH / APRIL_2005 INFOLINE 33 Comment Burgers, fries & legal advice Kenneth Goh Secretariat Bar Council

ir David Clementi (photo), the former Deputy investors, appears to militate against the fundamental SGovernor of the Bank of England and the precepts of the legal profession, in particular the President of Prudential, was commissioned by the independence of the profession and the avoidance of United Kingdom conflict of interests. Secretary of State for Constitutional Affairs to Clementi considered the risks and drawbacks make recommendations involved in this new business structure, including the on regulatory options for likely conflict between the commercial interests of the legal profession and owners who are non-lawyers and the ethical duties of new business structures, the LDP. He proposed certain safeguards to ensure that including Legal the fundamental attributes of the legal profession will Disciplinary Practices not be compromised. In examining the situation as a (LDPs). Clementi whole, Clementi concluded that outside ownership can published a consultation in fact lead to better business practices and improved paper in March 2004 customer service and accessibility. anda final report in December 2004. The Law Society of England & Wales, which In his report, Clementi recommended that represents solicitors, supports Clementi’ s call for LDPs. barristers, solicitors and lawyers from different Janet Paraskeva, Chief Executive of the Law Society, disciplines be allowed to practice together in LDPs. The said: proposal is not limited to allowing partnerships between We’ve long been in favour of allowing solicitors solicitors and barristers but it will also allow solicitors to form partnerships with other professionals to and barristers to form partnerships with non-lawyers. provide legal services.

Non-lawyers could be appointed as managers of As regards outside ownership of LDPS, she said: an LDP, but their work would be to support the LDP’s In the future LDPs may also be owned by external activities in providing solely legal services. Proper office investors. We’ll have to make sure the right administration, effective management systems and safeguards are in place, but we welcome this new consummate client care are crucial components of a freedom. successful legal practice and non-lawyers, such as accountants, HR specialists and IT experts have a The proponents of this new business structure see it as crucial role to play in these areas. Clementi surmises a practical and exciting prospect, where the injection that there is a demand from the provider of legal services of funds and fresh ideas from an external source that for the services that these non-lawyers can provide and incorporates best practices can be translated into for which they ought to be rewarded with partnerships. effective and consumer-friendly services for the public.

Clementi has also recommended ownership of Although, in England & Wales, outside legal practices by non-lawyers. In economic terms, it is ownership is already permitted in respect of legal accepted that external capital would generally increase practices which provide licensed conveyancing services, capacity and reduce prices. On the face of it, the concept the prospect of this overarching ‘new freedom’ in the of this new business structure, owned by external form of LDPs is not absolved from mutterings of

INFOLINE 34 MARCH / APRIL_2005 Comment discontent and anxiety. Some quarters remain own law firm. Among the unconvinced and feel that ownership by external proposals is for discounted investors will sound the death knell for the traditional legal advice to be given to principles of the legal profession. customers who order a meal before 11am. A source at The debate is very much alive and it has spilt over McDonalds was quoted as into the political arena where the Conservatives have saying: taken the position that they will not allow non-lawyers We’re sure Sir David Clementi would approve to own law firms, if they are elected (in the upcoming since we are trying to provide a consumer-focused elections in Britain). Dominic Grieve MP told leading service that combines practical legal advice with lawyers at a pre-election debate: great-tasting food. I do not see how either I or my colleagues would ever accept the notion of outsiders being able to Recently, the Lord Chancellor and Secretary of State own law firms. for Constitutional Affairs issued a statement supportive of the Clementi report and the British government is Among the issues that cloud this proposal are the expected to publish a White Paper soon. If legislation manner of determining who would be ‘fit to own’ an is introduced to allow LDPs , it would be interesting LDP as there will be the risk of inappropriate owners. to observe whether one of these days, legal advice will This ‘fit to own’ test will most certainly be put to the be included on the menu at McDonalds alongside its test if the recent proposal by McDonalds is to be burgers and fries. One must surely question whether considered. the core values of the legal profession can be preserved if legal advice comes with a Happy Meal. It was reported in the Law Society’s Gazette (April 2005 issue) that McDonalds have plans to set up its

Bar Council Subscriptions 2005

Members of the Bar are reminded that subscriptions Your attention is drawn to Section 46(5) and (6) to the following Funds for the year 2005 are now due of the Legal Profession Act 1976, which reads as and payable: follows: ‘(5) Liability to pay any annual subscription to the 1 Bar Council Subscription RM350 Malaysian Bar shall arise when the subscription 2 Bar Council Building Fund RM100 has been fixed by the Bar Council. All annual 3 Bar Council Legal Aid Centre RM100 subscription to the Malaysian Bar shall be paid 4. Bar Council Sports Fund RM10 by the 30TH DAY OF JUNE OF EACH YEAR.

You are kindly requested to remit the abovesaid (6) An advocate and solicitor shall, if he pays payments in ONE single cheque for RM560 made his annual subscription after the date mentioned in payable to ‘BAR COUNCIL’ without having to subsection (5), pay to the Bar Council, in addition indicate the respective Funds by AR Registered Post to the subscription date, AN AMOUNT as soon as possible. Please add the necessary Bank EQUIVALENT to the subscription so due.’ Commission for outstation cheque. Kindly also ensure that your name and Sijil Annual numbers are clearly Please note that the deadline for payment of annual written on the reverse side of the cheque. The receipt subscripion on June 30 will be stricly applied and for the sum of RM560 will acknowledge same as ‘Bar no application for waver of penalty will be Council Subscriptions’ to facilitate tax exemptions. entertained

MARCH / APRIL_2005 INFOLINE 35 ARTICLES 1 Mediation – Is it ultra vires? Hamid Sultan Abu Backer

rder 34 rule 4 of the Rules of the High Court It is not clear whether the reference to a mediator under 1980 2 has been amended to include sub- the rule means reference to mediation or conciliation. Oparagraph (q) which reads as follows:- Order the parties to refer the dispute to a It is said that mediation and conciliation are mediator appointed by the Court within such interchangeable terms. Though mediation and time frame as deemed appropriate and as to who conciliation appear to be similar and interchangeable shall bear the mediator’s fees and any incurring terms, there are subtle differences between the two. As costs 3 a general rule, the mediator plays an active role by working out compromise solution after hearing both Under sub-para (q), the court has powers to refer the parties. However, the role of the conciliator is to bring dispute between parties to a mediator appointed by the parties together in a frame of mind to resolve their the Court. However, the rules do not provide any differences and prepare them for a compromise by guidelines for the role and the scope of the mediator’s adopting a mid-way approach. Thus the role of the function and the effect of his findings or decisions. It conciliator is more active and he is required to bridge will be appropriate for the court to issue practice the gap between the parties and suggest a solution, directions to furnish guidelines for the mediator’s which is acceptable to both the parties. function, before it is gazetted and/or implemented by the court. In the past, the mechanism of submitting to ADR was voluntary and on a without prejudice basis. However, Unlike an arbitrator, the role of a mediator is not clear. the new amendment appears to make it mandatory at The above rule attempts to make provisions for the option of the court. Further, the mediator’s fees Alternative Dispute Resolution, commonly referred to and the incurring costs are not capped under the rules. as ADR. ADR differs from arbitration and litigation. This is likely to cause great hardship to the litigants, in the event the court fails to address its mind as to the ADR is a means of resolving disputes by using the issue of reasonable fees and costs at the time of making service of an independent third party. This independent an order for the dispute to be referred to the mediator. third party is expected to help the parties to the dispute to reach their own solution. The independent third The issues as to fees and costs need to be reviewed party cannot impose a solution. If the parties to the urgently by the ‘Rules Committee’, headed by the Chief dispute are not in favour of each other’s proposed Justice, before the above rule is implemented, to avert solution, they have no obligation to accept it. inter alia exorbitant order as to fees and costs to the prejudice of the litigants. There are a number of advantages in ADR. The ADR is praised for its relative costs, speed and flexibility as Under the new rules, the court has the power to refer compared to dispute resolutions dealt through the court the matter to the mediator. It is not clear whether there process. However, this statement can only be true if will be any form of undue pressure from the court for the matter is resolved through the ADR process. If the the parties to settle the matter through the mediator. matter is not resolved, the litigant will have to spend Further, whether the reference to a mediator by a rule additional costs, time and delay in obtaining justice. of court is constitutional needs to be considered, on the grounds that there is no clear provision to abdicate Despite its merits, the greatest disadvantage of ADR is the function of the court in the guise of a mediator that parties cannot be forced to accept a settlement. under the Courts of Judicature Act 1964. Such an The whole process of ADR functions on a voluntary argument can be fortified by reference to Section 24A basis and any party may withdraw at any stage before a of the Courts of Judicature Act 1964 which deals with solution has been reached. reference to, under order of court to ‘special referee’ or ‘arbitrator’ and not a mediator. In consequence, it can Mediation and conciliation are types of ADR process. be argued that sub-para (q) is ultra vires the Federal Constitution and/or the Courts of Judicature Act 1964.

1 Hamid Sultan Bin Abu Backer, JANAB’s Series To ‘Law, Practice and Legal Remedies’, Kuala Lumpur, Janab (M) Sdn. Bhd., 2005. (Volume 1 and 2). 2 deals with case management 3 At the time of writing this article the sub-para (q) had not been gazetted

INFOLINE 36 MARCH / APRIL_2005 Reforming the Corporate Insolvency Regime by the Secretariat to the Corporate Law Reform Committee (CLRC) Companies Commission of Malaysia

Introduction Some of the general objectives of corporate n our first article ‘An insight to Corporate Law insolvency law are1: Reform in Malaysia’ we mentioned that the ! The facilitation of the recovery of companies which ICorporate Law Reform Committee, (CLRC) are in financial difficulties; established by the Companies Commission of Malaysia ! The suspension of legal actions by individual (CCM) for the purpose of reviewing the Companies creditors through the creation of a moratorium; Act 1965 (Act), has divided its review work into four ! The removal of powers of management of the separate Working Groups. Working Group D is company by its directors, even if directors retain reviewing the current law and practice relevant to their position as directors; corporate securities and insolvency. ! The avoidance of transfer and transactions which unfairly prejudice the general body of creditors; In conducting its review of this core area of ! Ensuring that there is an orderly distribution of company law, Working Group D is guided by the company’s assets; objectives that its review and recommendations, if any, ! The provision of a fair system for the ranking of must amongst other things, reduce the cost of claims against the company; compliance, increase efficiency and protect the interests ! Making provisions for the investigation of the of stakeholders. These objectives are in tandem with company’ failures and the imposition of liability the overall objectives of the CLRC as set out in its of those responsible for the failure; consultative document titled ‘Strategic Framework for ! The protection of the public from directors who Corporate Law Reform Programme’. might in future engage in improper trading; ! Maintaining the ethical standards and competence of insolvency practitioners; Reviewing the current corporate insolvency ! The dissolution of a company at the end of the regime liquidation process. There is a discernable international trend in various jurisdictions to move towards corporate rescue In most jurisdictions, an effective corporate insolvency mechanism as part and parcel of the corporate regime is seen to be one that should be able to provide insolvency regime. In these jurisdictions, liquidation a system to enable the winding up of companies where or winding up is no longer considered as the main there is no future prospect of the business becoming outcome of an insolvent company. It is noted that the profitable and viable with the least possible cost and corporate insolvency framework in other jurisdictions delay. At the same time, an effective corporate covers matters pertaining to pre-insolvency procedures, insolvency regime should be able to provide for liquidation process, consolidation of corporate and mechanisms to rehabilitate companies and rescue personal insolvency laws and corporate rescue companies from being wound up. The Harmer Report mechanisms. of Australia2 for example, whilst acknowledging the

1 See RM Goode, Principles of Corporate Insolvency Law (1990) Sweet & Maxwell, London pp 5-10; RW Harmer, general Insolvency Inquiry, Report No 45, AGPS (1988) Canberra; IF Fletcher, The Law of Insolvency (2nd Ed. 1996) Sweet & Maxwell London. 2 RW Harmer, general Insolvency Inquiry, Report No 45, AGPS (1988) Canberra.

MARCH / APRIL_2005 INFOLINE 37 ARTICLES general principles of corporate insolvency law, stated Where the failure of a company’s business is that there should be an effective release of the insolvent attributed to mismanagement by persons in control of company from financial obligations and liabilities. the affairs of a company, one of the concerns is making those responsible for such mismanagement accountable Whilst most of the general principles of corporate for their actions. Further, there is also the need to prevent insolvency law stated above are found in company’s such persons in the future from setting up new liquidation provisions within the Companies Act 1965, companies with the view of doing the same with those the present framework is very much focussed on the new companies. Enhancing the accountability of those liquidation or winding up of a company. Liquidation involved in the company’s management and liquidation has also often been seen as the only viable option for process are one of the major issues that must be companies which are insolvent. The corporate considered when reviewing the corporate insolvency insolvency law in Malaysia, under the Companies Act regime. 1965, envisages the following methods for dealing with company insolvency. The first is a receivership process In some instances, where a company’s failure is where creditors may appoint a receiver and manager. not contributed by mismanagement but due to Most often, the company will be wound up and the temporary financial difficulties or external economic company’s assets are hived off and sold separately. The factors, a rescue mechanism may enable the company second is where an application for winding up may be to be rehabilitated and preserve its business as a going made to the court (through a members’ voluntary concern. A corporate rescue mechanism may also enable winding up, creditors’ voluntary winding up or winding better returns for creditors and shareholders as up by the court). It is also possible to use a scheme of fragmented sale of a company’s business in most cases arrangement for the reconstruction of companies. may not be in the best interest of the company’s However, the present framework is inadequate as there creditors and shareholders. has been a lack of focus on rescue mechanisms or attempts to rehabilitate companies. Is there a need for a single Omnibus By combining a corporate insolvency regime that Insolvency Act? deals with company liquidation as well as corporate One issue that has often been raised in respect to rescue mechanism, there will be rules which are more corporate insolvency in Malaysia is whether there is a commercially realistic in terms of addressing the needs need to legislate a single Omnibus Insolvency Act. of companies and investors. Companies are primarily There are two approaches being adopted as far as the used as a vehicle to conduct business. It is a fact that corporate insolvency regime is concerned. just as there are businesses that prosper, there are also ! The first is the creation of an Omnibus Insolvency just as many businesses that fail. A company that is Act which consolidates both the corporate and used as a vehicle to conduct business should be allowed individual insolvency and operates as a free-standing to wind up its business where there is no viable prospect legislation from company legislation. of the business becoming profitable. In such an The United Kingdom through its Insolvency Act instance, the corporate insolvency regime must be (UK IA) has, since 1986, consolidated personal and facilitative in that it should provide for the efficient corporate insolvency laws into a single insolvency winding up process of that company. The corporate regulatory framework although extensive cross- insolvency regime should also be protective of the rights reference is made in the companies legislation to of creditors and members especially in cases where the the insolvency legislation. Singapore’s Report on company is wound up on the grounds that it is the Company Legislation and Regulatory insolvent. Framework Committee (CLRFC) issued in October 2002 has proposed the introduction of an Many factors can contribute to the failure of a Omnibus Insolvency Act and subsidiary legislation business. In some instances, business failure may be that are applicable to both companies and attributed to mismanagement. Yet, in some cases, a individuals to harmonise and consolidate any business may fail not because of mismanagement but uncertainty in areas specifically relating to undue because of external economic factors which are beyond preference transactions, avoidance of dispositions the company’s control. of company’s property and floating charges.

INFOLINE 38 MARCH / APRIL_2005 ! The second approach is to maintain two separate Refining the provisions in respect to regulatory regimes between the corporate and corporate liquidation personal insolvency where the corporate insolvency There are several improvements in terms of substantive framework is integrated into company legislation. and procedural changes that may and should be made Australia and New Zealand maintain separate to the current company liquidation framework in insolvency regulatory frameworks for individual Malaysia. This is in line with the objective of the CLRC and corporate insolvency. In Australia, for example, to facilitate and provide simplified yet effective the Corporations Act contains provisions relevant procedures in every aspect of company administration to corporate liquidation, receivership process and including the procedures for the proper closure of a rescue mechanism. New Zealand has a similar company that may not be able to continue its business. regime although the receivership procedures are found in a separate Receiverships Act. Some of the issues that have been considered in relation to liquidation in other jurisdictions relate to Essentially, in Malaysia, support for a single Omnibus the following: Insolvency Act for Malaysia is fuelled by the argument ! the commencement and termination of winding that the current corporate liquidation or winding up up framework is confusing due to the fact that extensive Currently, in Malaysia in the case of compulsory cross-reference needs to be made to the various winding up of a registered company, the bankruptcy principles and rules provided for in the commencement of winding up is not on the date Bankruptcy Act 1967. One conspicuous example is the the order is made but is instead deemed to have application of section 53 of the Bankruptcy Act 1967 occurred from the date the petition for winding up under section 293 of the Companies Act 1965 for is presented to the court. undue preference transactions. This has caused confusion and in some instances, fails to facilitate easy Several jurisdictions have actually departed from this understanding of the corporate insolvency regulatory approach and have provided, that the framework. commencement of winding up in the case of compulsory winding up, occurs either from: However, the more important concern in relation (i) the date the order for winding up is made, as ii to reviewing and reforming the corporate insolvency the case in Australia; or regime for Malaysia is creating a corporate insolvency (ii) the date the liquidator is appointed, as is the regime that is both facilitative to the winding up process case in New Zealand. and protective of the rights of creditors and stakeholders of the company by providing a mechanism to enforce Another area of concern relates to the persons who these rights without undue delay and difficulty. For have the authority to apply to terminate the winding example, this over-dependency on the bankruptcy laws up process. Currently, there is no provision may be resolved by incorporating into the company empowering the courts to discharge a winding up legislation provisions on corporate winding up and order that has been made. However, the Companies removing any cross references to the provisions of the Act 1965 does empower the court to order a stay Bankruptcy Act 1967 that are incompatible with of winding up. Case law has held that a stay order corporate insolvency. can also be of permanent effect.

It should be pointed out that with or without an Australia and New Zealand have actually provided, Omnibus Insolvency Act, further improvements can by way of legislation, that its court can make an and should be made to reduce any confusion that may order terminating the winding up of a company. exist in respect to our existing corporate insolvency regime. This can be done by refining and streamlining ! the powers and duties of liquidator and an interim existing provisions in respect of corporate insolvency liquidator as is currently provided for in the Companies Act 1965. Some jurisdictions such as Australia and United Kingdom have codified the duties and powers of liquidators and interim liquidators.

MARCH / APRIL_2005 INFOLINE 39 ARTICLES ! the appointment and qualification of liquidator Conclusion Several jurisdictions have revised the necessary As the liquidation process remains an integral part of qualifications for liquidators specifically and the corporate insolvency law, there should also be a corporate insolvency practitioners in general. move towards enacting a comprehensive framework on the rescue mechanisms to help rehabilitate ailing ! the rights of secured creditors and the rights of companies that have the potential to be revived and to creditors to mutual credits and set-off make profits. The CLRC will constantly monitor the Currently in Malaysia, this issue is dealt with by progress in other jurisdictions to ensure that its the development of case. However, several recommendations, if any, will be on par with and in jurisdictions such as New Zealand and Australia have conformity to the international standards, without codified the rights of secured creditors and the rights compromising the values and needs of companies and of creditors to mutual credits and set-off. investors locally. In this respect, the review of the existing corporate insolvency regime is a gargantuan task as it ! setting aside void and voidable transaction. requires the balancing of numerous interests which, at As noted earlier, one of the general objectives of times, may be in conflict with each other. corporate insolvency is the avoidance of transfers and transactions which unfairly prejudice the general The Bar Council gratefully acknowledges the body of creditors. It is important that adequate role played by ALIRAN in permitting us to run the series of articles Crisis in the Judiciary by powers are given statutorily to recover assets of a Datuk George Seah which first appeared in company transferred in dubious circumstances. their publication. We neglected to so state in Several provisions of the Companies Act 1965 need the second instalment, published in Infoline to be considered for example sections 223, 224 and Oct/Nov/Dec 2004. We sincerely apologise to 293 of the Companies Act 1965. ALIRAN and its readers for the oversight.

INFOLINE 40 MARCH / APRIL_2005 A Quick Peep Into The Child Act 2001 (Act 611) Puspanathan Sellam

he turn of the century witnessed the repeal of who has attained the age of criminal responsibility 3 major Acts and the advent of a new one in as prescribed in s 82 of the Penal Code Tso far as legislation pertaining to child protection is concerned. The need and requirement for special provisions for children arose as a result of Article 40 of the Convention The repealed Acts are: on the Rights of the Child (‘CRC’) pertaining to the ! Juvenile Courts Act 1947 administration of juvenile justice. ! Women And Girls Protection Act, 1973 ! Child Protection Act, 1991 Article 40(1) of the CRC reads as follows: 1. States Parties recognize the right of every child Nonetheless, the spirit sentiment and salient alleged as, accused of, or recognized as having components of the said Acts have been crystallized into infringed the penal law to be treated in a the brand new Act called the Child Act 2001, (‘the manner consistent with the promotion of the Act’). child’s sense of dignity and worth, which reinforces the child’s respect for the human The Act was pioneered and championed by rights and fundamental freedoms of others paragons of justice for the protection of the rights and and which takes into account the child’s age liberties of the child as being of paramount importance. and the desirability of promoting the child’s reintegration and the child’s assuming a The Act came into operation with effect from 1 constructive role in society. August 2001. By and far, the hallmark and pride of the Act, is the setting up of a Court For Children. As such, the state or the respective government is entrusted with the responsibility of doing all it can to implement the rights as enshrined in the convention The Court For Children. adopted by the United Nations. Mention must be made The Court For Children is constituted under s 11 of here that Malaysia adopted the Articles of the the Act and consists of: Convention subject to exceptions and modifications, ! a Magistrate (1st Class) who is assisted by which I do not intend to dwell upon here. ! two (2) Advisers, one of whom shall be a woman Coming back to the Act, for the proper and Function of Advisers efficient functioning of the Court For Children there The function of the advisers are: shall be established or appointed the following: ! to inform and advise the Court For Children with ! a co-ordinating Council for the Protection of respect to any consideration affecting the order made Children upon a finding of guilt or other related treatment ! a Child Protection Team of any child brought before it and ! Protectors ! if necessary to advise the parent or guardian of the ! Registrar General/Registrar child ! Probation Officers ! Advisers Definition of Child Under the Act, a child is defined as: Jurisdiction (s 11) ! a person under the age of eighteen (18) and A Court For Children shall have jurisdiction to try all ! in relation to criminal proceedings, means a person offences except offences punishable with death. The CPC shall apply to Courts For Children except as

MARCH / APRIL_2005 INFOLINE 41 ARTICLES modified or extended by the Act. Reference is made to Family Duty s 84 (3) (a) and s 97 of the Act. Any member of the family of the child who reasonably believes that a child of the family is subjected to physical or emotional injury is duty bound to inform a Place of Sitting (s 12) Protector. In failing to do so, he commits an offence A Court For Children shall, if practicable, sit either: and shall on conviction be liable to a fine not exceeding ! in a different building or room from that in which RM5,000.00 or to imprisonment not exceeding 2 years sittings of Courts other than Courts For Children or to both. are held or ! on different days from those on which sittings of Offences Against the Child those other Courts are held Offences against the child is dealt with in Chapter 3 Part V of the Act which includes all forms of ill- If a Court For Children sits in the same building as treatment, neglect, abandonment, exposure, sexual other Courts, the Court For Children shall have a abuse, used for begging, deprivation of shelter, food, different entrance and exit from those of the other clothing, medical treatment and education. Courts (in the interests of privacy). Chapter 2 of the Act especially ss 43, 48 & 49 Attendance covers other and further offences such as trafficking, No person shall be present in a Court For Children abduction, importation, removal from place of safety except: or refuge and harboring. Reference is also made to s 57 ! the child / children concerned of the Act. ! the parents / guardian / advocates, witnesses of the child Presumption ! members and officers of the Court Section 43 shall be presumed until the contrary is ! such other responsible persons as determined by the proved Court

Sentence Orders Ironically, in view of the Convention on the Rights of The Orders of the Court shall not extend beyond the the Child, the introduction of a new Act for the date the Child attains the age of 18 years, subject to s protection of the child with the interest of the child 14 of the Act which has the effect of extending the being of paramount importance, the sentence for period of such detention, supervision or probation offences against the child, (in my opinion) does not beyond the date on which the child attains the age 18 commensurate with the purpose and spirit of the Act. years. Offences against the child are only punishable with Publicity The mass-media shall not reveal the name, address, educational institution or identification pictures of the child. Contravention of the relevant s 15 (1) and (2) of the Act is punishable with a fine not exceeding RM10,000.00 or imprisonment not exceeding 5 years or both.

Production before the Court Every child taken into temporary custody under s 18 (subject to s 20) shall be brought before the Court within 24 hours.

INFOLINE 42 MARCH / APRIL_2005 a fine not exceeding RM10,000.00 or imprisonment Courts And Custody not exceeding 5 years or both ONLY, which in my A child shall be separated from adults in police custody opinion is far too lenient. and in courts (s 85)

Urgent Need of Protection Arrest A child in urgent need of protection may on his own The parent or guardian of a child must be immediately make an application under s 41, to the Protector, to be informed of his arrest. received into a place of refuge subject to sub-s (2). Penalties and Sentences Place of Detention. Punishment for offences committed by a child is mainly A child found guilty under the Act may be placed in: covered by ss 91 to 104 and are in the nature of: ! a Probation Hostel ! detention ! an Approved School ! supervision ! a Rehabilitation Centre or ! probation ! the Henry Gurney School ! bond for good behaviour ! recovery A child under 10 years of age shall not be sent to ! compensation Approved Schools. ! costs A child under 14 years of age shall not be sent to Henry ! fines Gurney School. ! admonition & discharge A child above 21 years of age shall not be detained in ! whipping (not more than 10 strokes) Henry Gurney School or a Rehabilitation Centre for ! imprisonment. children. It is hoped that this brief peep into the Act has achieved Detention in Approved Schools or Henry Gurney the aim of giving an insight into the new-born Child School may me substituted with a term of Act 2001 which still leaves much to be desired in respect imprisonment under s 79. of its implementation and administration in seeking to achieve the desired justice for children for which the Jointly Charged Act was designed. A charge made jointly against a child and a person who has attained the age of 18 shall not be heard in a Court For Children. Malaysian Bar Souvenirs for Charged After 18 Sale ! Where an offence was committed while the offender was still a child but he is charged after he attains the age of 18 years shall not be tried in a Court For Children (s 83 (3)) ! No prouncement of death may be made against a person convicted of an offence where, at the time of the offence, he was a child (s 97)

Prisons A child below 14 years of age shall not be imprisoned subject to sub-s (2) and (3) of s 96.

A child below 14 years of age, if imprisoned, shall not be allowed to associate with adult prisoners. Silk Woven Tie Available in red, black or blue RM70.00

MARCH / APRIL_2005 INFOLINE 43 ARTICLES The God-provision Nik Nazmi Nik Ahmad*, Fahri Azzat**, Amer Hamzah** and Edmund Bon**

n January 2004, a 5-member panel of the Federal The Court of Appeal had held that section 72 Court in Danaharta Urus Sdn Bhd v Kekatong Sdn was unconstitutional because it infringed article 8(1) IBhd [2004] 2 MLJ 257 struck down one of the of the Federal Constitution, that all persons are equal most revolutionary decisions to come out from the before the law and entitled to the equal protection of Judiciary for a long time. the law. The provision elevated Danaharta above the law, and hence was unconstitutional. In the words of The well-written judgment of Gopal Sri Ram JCA Gopal Sri Ram JCA: in the same case at the Court of Appeal level, reported ‘We would sum up our views on this part of the in [2003] 3 MLJ 1, was thought to have established a case as follows: (i) the expression ‘law’ in art 8(1) norm-setting precedent on the issue of access to justice refers to a system of law that incorporates the in Malaysia. It however turned out to be a short-lived fundamental principles of natural justice of the joy as the Federal Court overturned the judgment. The common law: Ong Ah Chuan v Public Prosecutor; Federal Court, speaking through the sole written (ii) the doctrine of the rule of law which forms judgment of Augustine Paul JCA (a Court of Appeal part of the common law demands minimum judge who sat on the panel pursuant to article 122(2) standards of substantive and procedural fairness: Federal Constitution) in one fell swoop castrated judicial Pierson v Secretary of State for the Home power in deference to parliamentary supremacy. Department; (iii) access to justice is part and parcel of the common law: R v Secretary of State The Court of Appeal had declared section 72 of for the Home Department, ex parte Leech; (iv) the Pengurusan Danaharta Nasional Berhad Act 1998 the expression ‘law’ in art 8(1), by definition (‘the Danaharta Act’) unconstitutional. This particular (contained in art 160(2)) includes the common section provides that the courts cannot give an order law. Therefore, access to justice is an integral part preventing, compelling, stopping or restraining the of art 8(1). powers or any action taken by Danaharta or any committee or officer of Danaharta. Even if the courts Before leaving this part of the case, it is, we think, were to make such an order, it ‘shall be void and appropriate to say a word or two about uneforceable and shall not be the subject of any process of constitutional interpretation. This is because the execution whether for the purpose of compelling obedience constitutional provision that is being relied upon of the order or otherwise’. to support the right of access to justice is one of those fundamental liberties guaranteed under In effect, this ‘God provision’ allows Danaharta Part II of the Federal Constitution. In our to do anything it likes, no matter how illegal, unfair or judgment, the fundamental liberties guaranteed malicious it is. The Judiciary, which is there to protect by Part II, including art 8(1) should receive a the rights of citizens, can do absolutely nothing. This broad, liberal and purposive construction.’ has further weakened the ideal of the separation of powers in our country. The learned judge continued: ‘Section 72 by its terms prohibits a court from, inter alia, granting an injunction against the

INFOLINE 44 MARCH / APRIL_2005 second defendant. But it does not prevent the affairs, the immigration authorities served him a notice issuing of an injunction in the second defendant’s of cancellation of his employment pass under the favour. The section therefore seeks to immunise Immigration Regulations, 1963 on 26 September the second defendant which is a private limited 1986. The Plaintiff then sought leave from the High company from being restrained in any manner Court to apply for an order of certiorari and prohibition whatsoever, however illegal its acts may be. In but was refused. On appeal to the Supreme Court, other words, the second defendant enjoys blanket Eusoffe Abdoolcader SCJ held that the Plaintiff immunity from injunctive relief. acquired a legitimate expectation to be entitled to remain in Malaysia, at least until the expiry of the prescribed In our judgment, adopting the principle stated duration. The Court further concluded that the by Lord Steyn in Pierson v Secretary of State for Plaintiff had not been given the opportunity to make the Home Department, s 72 is contrary to the representations regarding the cancellation of his rule of law housed within art 8(1) of the Federal employment pass, and that the requirements of natural Constitution in that it fails to meet the justice had not been satisfied. minimum standards of fairness both substantive and procedural by denying to an adversely affected In an interview with Time magazine on 24 litigant the right to obtain injunctive relief against November 1986, our then Prime Minister said this: the second defendant under any circumstances, ‘The judiciary says [to us], ‘Although you passed including circumstances in which the Act may a law with a certain thing in mind, we think that not apply.’ your mind is wrong, and we want to give our interpretation’. If we disagree, the courts will say, This Court of Appeal decision is probably the first ‘We will interpret your disagreement’. If we go judicial reading of article 8(1) which properly enlarged along, we are going to lose our power of the same within its proper context. The broad reading legislation. We know exactly what we want to of article 8(1) is consistent with international rights do, but once we do it, it is interpreted in a diferent norms which stipulate that not only should there be way, and we have no means to interpret it our ready access to the courts but also that effective remedies way. If we find out that a court always throws us must be available as a means to securing justice. out on its own interpretation, if it interprets contrary to why we made the law, then we will An affirmation of the Court of Appeal decision have to find a way of producing a law that will was a good opportunity of our times to display a real have to be interpreted according to our wish.’ revival of the Judiciary. Unfortunately, this opportunity was not taken. By affirming the constitutionality of Interpret that statement any way you like. section 72 of the Danaharta Act, the Judiciary also affirmed its impotence. In Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311, the Deputy Public Prosecutor tendered a We do not understand why else one would seek certificate pursuant to section 418A of the Criminal to exclude the Judiciary’s participation in ensuring the Procedure Code requiring a lower court to transmit a fairness and propriety of Danaharta’s actions. case before it to the High Court. When the case was Nevertheless, history shows that the Judiciary has on transferred to the High Court, an objection was raised various occasions been undermined by the powerful that section 418A was unconstitutional on the ground Executive to the detriment of the people and dilution that it infringed, inter alia, article 121(1) of the Federal of democratic principles. Constitution. The then Article 121(1) provided that ‘the judical power of the Federation shall be vested in In JP Berthelsen v Director General of Immigration, two High Courts of co-ordinate jurisdiction and status...’. Malaysia & Ors (1987) 1 MLJ 134, the Plaintiff, an At the High Court, Zakaria Yatim J held that section American journalist, had been granted a 2 year 418A did encroach upon the judical power of the employment pass which was valid until 2 November Federation, which was vested in the High Courts. The 1986. However, after writing and publishing an article certificate was therefore invalid. in The Asian Wall Street Journal on cronyism in Malaysian banking and mismanagment in economic The Supreme Court by a majority agreed with

MARCH / APRIL_2005 INFOLINE 45 ARTICLES the decision of the High Court. Eusoffe Abdoolcader may be held invalid on any constitutional ground SCJ held that section 418A was both a legislative and available to a litigant. So, a bald statement to the executive intromission into the judical power of the effect that what statute gives, statute may take Federation. The learned judge said: away is an oversimplification of the true ‘I cannot but conclude in the circumstances that constitutional position.’ there is in fact by the exercise of the power conferred by section 418A on the Public The Court of Appeal decision in Kekatong was brave Prosecutor an incursion into the judicial power and noble. Brave because the decision was a concerted of the Federation and that any other view would effort to unshackle the pusillanimity that has pervaded ex necessitate rei result in relegating the provisions the Judiciary and push the envelope of our legal of article 121(1) vesting the judicial power of jurisprudence to progressive heights on par with other the Federation in the curial entities specified to nations. Noble because here was the Judiciary living no more than a teasing illusion, like a munificent up to its duty to protect the people from the excesses bequest in a pauper’s will.’ of the Executive and the Legislature, and pouring justice to the people who would drink at its fountain. In response, the Federal Constitution was amended by Parliament. Article 121(1) was amended to excise the The Federal Court however consented to the vesting of the judical power of the country in the courts. continuous process of judicial castration. Rather Therefore, the High Courts now only ‘shall have such interestingly, it was the Federal Court which had earlier jurisdiction and powers as may be conferred by or under overruled the Court of Appeal decision in Sugumar federal law’. The result of this grotesque and obnoxious Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor amendment is highlighted by the Federal Court [1998] 3 MLJ 289 where in an illuminating and decisions in Pihak Berkuasa Negeri Sabah v Sugumar progressive judgment by Gopal Sri Ram JCA, a broad Balakrishnan [2002] 3 MLJ 72 and in Kekatong. rights-based approach was taken to interpret ouster clauses in the context of personal liberty. Whilst it is open to argue that the amendment to article 121(1) destroyed the basic structure of the It is sad. Sad because up to the events of 1988, we Federal Constitution and is hence unconstitutional, had a Judiciary that stood shoulder to shoulder with Gopal Sri Ram JCA in Kekatong took a different but some of the leading judiciaries in the Commonwealth equally sustainable route by saying: – fair and fearless. ‘Thirdly, in so far as the power of Parliament to grant, limit or remove the jurisdiction of a High The crux is whether the Judiciary is willing to strike Court is concerned, we would draw attention to down hideous and offensive pieces of legislation and art 121 which provides, inter alia, that the High uphold the fundamental rights enshrined in the Federal Court ‘shall have such jurisdiction and powers as Constitution. What is at stake here is nothing less than may be conferred by or under Federal law’. It is the future of the Judiciary for generations to come. We axiomatic that the ‘Federal law’ in that article do not dramatize this for effect. We are worried because refers to a valid Federal law. Take an extreme after this decision, we are not sure whether the Judiciary example. Let us say that a Federal law is enacted can castrate itself any further. conferring advisory jurisdiction on the High Court. Prima facie, it is a Federal law that confers Now that the Judiciary has in Kekatong and a particular jurisdiction. But, it is plain and Sugumar demonstrated that it is not willing to protect obvious that such a law will be invalid because it the people, the question is, who is left to save us? would contravene art 130 of the Federal Constitution. Indeed, it is on this very basis that an Act of Congress purporting to confer original jurisdiction on the Supreme Court of the United States was held unconstitutional in the leading case of Marbury v Madison [1803] 1 Cranch 137. Thus, the Federal law to which art 121 refers Friday & Saturday, 27 - 28 May 2005, Singapore see page 54

INFOLINE 46 MARCH / APRIL_2005 Hukuman Ke Atas Pesalah Bagi Perlakuan Jenayah Terhadap Wanita Masih Terlalu Ringan Shamsuddin bin Suhor Johan Pertandingan Menulis Makalah Undang-Undang 2003

Pengenalan Penulis membuat andaian awal bahawa hukuman lebih ekilas pandang mungkin tajuk di atas terungkap berat mempunyai pengaruh terhadap persekitaran bagi tujuan untuk mengenakan hukuman yang jenayah jenayah itu sendiri. Slebih berat kepada mana-mana orang yang melakukan kesalahan jenayah terhadap wanita dengan harapan untuk mencegah kejadian seumpama itu Jenayah Dan Wanita berulang di samping mengenakan balasan yang setimpal. Ramai penulis1 cuba memberikan takrifan dan Penelitian yang lebih khusus terhadap ungkapan penjelasan mengenai perkataan ‘jenayah’ serta hal tersebut akan membawa kepada tafsiran bahawa semua keadaan yang dikatakan sebagai perbuatan-perbuatan perlakuan jenayah terhadap wanita mesti dikenakan jenayah. Walau apapun pendekatan dan tafsiran yang hukuman yang berat kerana hukuman yang ada pada digunakan, secara mudahnya jenayah merupakan suatu hari ini bagi kesalahan-kesalahan yang berkenaan perbuatan atau perlakuan yang tidak baik oleh seseorang dirasakan masih terlalu ringan. Dalam memperkatakan yang lazimnya dilakukan di luar batasan nilai-nilai murni tajuk ini, dua perkara yang harus diberikan kemanusiaan atau yang tidak menepati kesesuaian pertimbangan; pertama, jenis atau kategori perlakuan budaya setempat yang mendatangkan kemudaratan jenayah khusus terhadap wanita, dan kedua, melihat sama ada terhadap dirinya sendiri atau mana-mana orang sejauh mana hukuman yang sedia ada itu setimpal atau lain. Jenayah adalah suatu kejahatan dan undang-undang tidak dengan kesalahan berkenaan. menetapkan sesuatu itu jenayah atau tidak. Perbuatan jahat yang dilakukan perlu disulam dengan niat Pegangan umum ialah setiap pesalah mesti jahatnya. Kejahatannya itu pasti akan memakan dihukum dan setiap ahli masyarakat mungkin mangsa. Mana-mana orang yang menjadi mangsa bersependapat mengatakan bahawa hanya hukuman sesuatu kejahatan tentunya akan mengalami sedikit yang berat sahaja yang dapat menghindar sesuatu sebanyak penderitaan sama ada terhadap tubuh perbuatan jahat itu daripada berlaku berterusan. badannya, kegusaran perasaannya atau ancaman Hukuman berat akan memberikan kesedaran dan terhadap nyawa dan harta bendanya. Sehubungan pengajaran kepada pesalah atau mana-mana orang yang dengan itu masyarakat mempercayai bahawa setiap berkemungkinan melakukannya. Seterusnya diharapkan perlakuan sama ada kebaikan atau kejahatan mesti ada jenayah yang dikenakan hukuman setimpal dapat balasan. Balasan kepada kejahatan adalah hukuman dan menghalang kemungkinan berulangnya kejadian serupa hukuman mestilah setimpal dengan kesalahannya. atau kesalahan yang sama. Mereka yang berpegangan sebegini mungkin lega jika hukuman ke atas pesalah Dalam pada itu, mangsa jenayah tidak mengenal bagi perlakuan jenayah terhadap wanita ditambah jantina lelaki atau perempuan, tidak mengenal usia tua, dengan siksaan yang lebih berat. Artikel ini melalui muda, kanak-kanak atau orang dewasa, tidak mengenal tajuk di atas akan membuat kupasan ringkas mengenai kedudukan dalam masyarakat berpangkat atau orang hukuman dan seterusnya membuat carian berhubung biasa, kaya atau miskin, dan yang paling jelas ia tidak kepercayaan bahawa hukuman berat dapat memainkan pernah mengenal keharmonian, keamanan dan erti nilai peranan dalam menangani jenayah terhadap wanita. kemanusiaan sejagat. Penjenayah akan bertindak mengikut niat, pemilihan mangsa dan peluang manakala

1 Smith & Hogan. 1996. Criminal Law. 8th Ed. London: Butterworths.; Card, Cross And Jones. 1995. Criminal Law. 13th Ed. London: Butterworths; Clarkson & Keating. 1994. Criminal Law: Text And Materials. 3rd Ed. London: Sweet & Maxwell.

MARCH / APRIL_2005 INFOLINE 47 ARTICLES mangsa pula terdedah kepada perbuatan jenayah disamping mengingatkan masyarakat tentang tertakluk kepada keadaan diri dan persekitarannya. kekejaman dan tanggungjawab sosial. Pihak polis pula dalam isu yang sama mula merujuk kepada data-data Niat untuk melakukan sesuatu kejahatan serta perincian perkadaran kejadian jenayah yang berlaku didorong oleh banyak faktor yang kemudiannya dalam negara. Di pihak Kementerian, Menteri akan disusuli pula dengan usaha membuat perancangan bagi membuat kenyataan peripentingnya perlindungan menyempurnakan niat tersebut. Niat tidak dapat dilihat diberikan terhadap orang ramai manakala badan dan dengan mata kasar dan ianya hanya disedari setelah pertubuhan bukan kerajaan akan memperkatakan berlakunya sesuatu kejadian. Apabila niat terbentuk, hukuman yang dikenakan oleh mahkamah terhadap perancangannya telah disusun dan mangsa telah pesalah serta keberkesanan undang-undang dalam dikenalpasti, jenayah akan berlaku apabila wujud menangani jenayah berkenaan. Semua pihak seia sekata peluang. Suatu kesalahan jenayah akan dianggap tetapi jenayah masih berleluasa. Semua berusaha lengkap setelah kedapatan mangsa hasil perancangan mencari di mana silap, di mana punca bagi mencari terlaksana melalui gabungan niat (mens rea) dan penyelesaian segera. perbuatan (actus reus). Penjenayah akan berjaya dalam misinya jika perkiraannya tepat manakala mangsa pula akan menerima padahnya jika berada di tempat yang Jenayah Dan Hukuman: Cukup Atau Masih salah, pada masa yang salah dan di persekitaran yang Ringan salah. Secara umum penjenayah dan mangsa jenayah Kesalahan yang melibatkan tubuh badan wanita banyak bergantung kepada keadaan dan ada ketikanya sepertimana yang diperuntukkan Kanun Kesiksaan disebut sebagai nasib. negara ini jika dilihat menurut susunan seksyen bermula dengan menyebabkan keguguran, menjual budak bagi Apabila memperkatakan jenayah dan wanita, maksud persundalan dan rogol5. Hukuman yang pertamanya ia menyentuh perbincangan mengenai dikenakan bagi kesalahan berkaitan dengan sengaja jenayah yang melibatkan mangsa kejadian yang terdiri menyebabkan seorang perempuan yang hamil gugur daripada kaum wanita dan keduanya, jenayah khusus boleh disiksa dengan penjara maksimum tiga tahun atau terhadap wanita sahaja. Dalam situasi yang kedua ini sekiranya perempuan itu mengandung anak yang telah perlakuan jenayah terhadap wanita secara khusus seperti bersifat, penjara maksimum boleh sampai tujuh tahun mana yang terdapat dalam statut yang berunsur dan atau denda6. Dalam pada itu juga jika keguguran kesiksaan termasuklah kesalahan terhadap tubuh itu berlaku tanpa kerelaan perempuan sama ada badan2, kesalahan berkenaan dengan perkahwinan3 perempuan itu mengandung anak yang telah bersifat kesopanan dan nama baik4. Dalam jenayah seumpama atau tidak, hukuman penjara maksimum yang ini semua mangsa adalah perempuan manakala pesalah dikenakan boleh sampai dua puluh tahun. atau penjenayah mungkin terdiri daripada kalangan lelaki atau perempuan. Manakala bagi kesalahan mengurusniagakan mana-mana orang (perempuan) yang berumur kurang Jenayah terhadap wanita kini mula mendapat daripada dua puluh satu tahun bagi maksud perhatian umum. Berita kesalahan seksual, kekejaman persundalan, persetubuhan atau kelucahan, jika sabit dan keganasan terhadap wanita disalurkan dari semasa boleh dipenjara sampai sepuluh tahun7 dan denda. ke semasa kepada khalayak melalui perantara media Sementara itu bagi kesalahan rogol pula, jika sabit, dengan kaedah persembahan yang bercampur baur penjenayah hendaklah disiksa dengan penjara selama antara menyeronokan dan menakutkan. Ulasan demi tempoh tidak kurang dari lima tahun dan tidak lebih ulasan dibuat oleh pelbagai pihak menyentuh tentang dari dua puluh tahun, dan bolehlah juga dikenakan perkara yang sama dari sudut yang berbeza. Mahkamah sebat8. dalam keputusannya akan mengenakan hukuman

2 Sila lihat Kanun Kesiksaan (N.M.B.Bab 45), seksyen-seksyen 312, 313, 314, 372 dan 375. 3 Sila lihat Kanun Kesiksaan (N.M.B.Bab 45), seksyen-seksyen 366, 493, 494, 495, 496 dan 498. 4 Sila lihat Kanun Kesiksaan (N.M.B.Bab 45), seksyen 509. 5 Rogol termasuklah segala perbuatan yang sama erti dengan zina, persetubuhan haram dan sumbang mahram. 6 Kanun Kesiksaan (N.M.B. Bab 45), s 312. Menyebabkan keguguran. 7 Kanun Kesiksaan (N.M.B. Bab 45), s 372. Menjual budak bagi maksud persundalan, dsb. 8 Kanun Kesiksaan (N.M.B. Bab 45), s 376. Siksaan bagi rogol.

INFOLINE 48 MARCH / APRIL_2005 Kanun Kesiksaan juga memperuntukkan dengan perempuan dan mendatangkan kegusaran dan jelas mengenai kesalahan-kesalahan berkenaan kegelisahan kepada mana-mana perempuan adalah perkahwinan seperti memperdayakan seorang merupakan suatu jenayah. perempuan supaya percaya bahawa mereka telah berkahwin agar membolehkan lelaki itu Selain daripada Kanun Kesiksaan, terdapat juga bersekedudukan dengan perempuan tersebut secara tak Akta Keganasan Rumahtangga 1994 (Akta 521), Akta sah9. Kesalahan ini boleh membawa kepada hukuman Perlindungan Kanak-Kanak 1991 (Akta 468) dan Akta penjara sehingga suatu tempoh yang boleh sampai Perlindungan Wanita Dan Gadis 1973 (Akta 106)12 sepuluh tahun. Sementara bagi kesalahan memikat, yang memperuntukan perlakuan jenayah terhadap melarikan atau menahan mana-mana isteri orang wanita. Semua statut ini dan kebanyakan dengan niat jahat untuk melakukan peresetubuhan peruntukannya bertujuan untuk memberi perlindungan dengan perempuan tersebut boleh dikenakan hukuman yang sewajarnya kepada wanita. penjara sehingga suatu tempoh yang boleh sampai dua tahun atau denda atau kedua-duanya sekali10. Kuasa menjatuhkan hukuman terletak pada hakim bicara dengan menggunakan kuasa budi Perbuatan yang tidak melibatkan kecederaan bicaranya berdasarkan kepada prinsip-prinsip fizikal atau kekerasan terhadap tubuh badan seorang kehakiman13 semasa. Perkara berhubung prinsip serta perempuan tidak terkecuali daripada perlindungan kaedah hukuman ini telah banyak ditulis14 dan sering undang-undang. Kanun Kesiksaan memperuntukkan diperbahaskan di mahkamah. Prinsip yang digariskan bahawa barang siapa mengaibkan kehormatan seseorang kepada mahkamah dalam membuat dan menentukan menyebutkan apa-apa perkataan, membuat apa-apa kadar hukuman yang dikenakan sama ada setimpal atau bunyi atau isyarat, atau menunjukkan apa-apa benda, tidak dapat dilihat melalui keputusan seperti dalam kes- dengan maksud mengganggu kesantunan seseorang itu, kes Rex v Kenneth John Ball15 dan Mohamed Abdullah hendaklah disiksa dengan penjara selama tempoh yang Ang Swee Kang v pp16. Dalam membuat perkiraan boleh sampai lima tahun, atau dengan denda atau kesesuaian hukuman yang dikenakan terhadap dengan kedua-duanya11. penjenayah, pertimbangan yang digunakan oleh mahkamah akan berkisar kepada perkara-perkara di Peruntukan ini ditujukan kepada perbuatan yang antaranya termasuklah jenis dan beratnya kesalahan yang dilakukan bagi mengaibkan kehormatan seseorang dilakukan (dalam hal ini jenayah terhadap wanita),

9 Kanun Kesiksaan (N.M.B. Bab 45), s 493. Bersekedudukan disebabkan oleh seorang lelaki mendorong dengan perdayaan seorang perempuan supaya percaya yang mereka tekah berkahwin dengan sah di sisi undang-undang. 10 Kanun Kesiksaan (N.M.B. Bab 45), s 498. Memikat atau membawa pergi atau menahan seseorang perempuan yang bersuarni dengan niat jahat. 11 Kanun Kesiksaan (N.M.B. Bab 45), s 509 Perkataan atau isyarat yang dimaksud mengaibkan kehormatan seseorang perempuan. 12 Seksyen 16, Akta Perlindungan Wanita Dan Gadis 1973 (Akta 106) menyenaraikan kesalahan-kesalahan di bawah Akta ini yang khusus melibatkan perempuan. 13 Re Chong Cheng Hoe & Ors [1966]2 MU 252; PP v Jafa bin Daud [1981]1 MU 315; Philip Lau Chee Heng v PP [1988]3 MLJ 107. 14 sila lihat C.Kevin Boyle, Michael Allen. 1985. Sentencing Law And Practice, Sweet And Maxwell, London; Andrew Ashworth 1995. Sentencing And Criminal Justice, Butterworths, London,; Clarkson And Morgan (Ed), The Politics of Sentencing Reform, Clarendon, Oxford, 1995; Nigel Walker And Nicola Padfield. 1996. Sentencing, Theory, Law and Practice, (2nd. Ed), Butterworths, London; Cross. 1981 The English Sentencing System, (3rd Ed), Butterworths, London. 15 Rex. v Kenneth John Ball 35 Cr.App.R 164, ‘In deciding the appropriate sentence a Court should be guided by a certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crimes as seeming to offer easy money on the supposition that, if the offender is caught and brought to justice, the punishment will be neligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fixed a sentence for a particular crime, but fixes a maximum sentence and leaves it to the Court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the Court has the right and the duty to decide whether to be lenient or severe’ Dipetik daripada kes Zaidon Shariff v Public Prosecutor [1996] 4 CLJ 441 di hal.445. 16 [1987] 2 CLJ 405.

MARCH / APRIL_2005 INFOLINE 49 ARTICLES keperluan memberikan perhatian tahap penerimaan dan convicted on the charge of rape. The minimum tentangan oleh khalayak, melihat hukuman sebagai termn of imprisonment shall be not less than five suatu peringatan kepada orang ramai, keperluan years and that is clear from the peremptory language mengenakan siksaan terhadap penjenayah, keperluan used in s 376. menjamin keselamatan orang ramai dan seterusnya yang terpenting adalah melindungi kepentingan awam17. Berhubung dengan pemenjaraan penjenayah, tempoh masa minimum dan maksimum jelas diperuntukkan Melihat kepada hukuman yang dikenakan ke oleh s 376 tetapi mahkamah menghadapi kesukaran atas pesalah bagi perlakuan jenayah terhadap wanita dan menjatuhkan hukuman yang setimpal dengan kesalahan membuat penilaian dengan mengaitkan peningkatan tersebut kerana banyak perkiraan perlu dilakukan. kadar jenayah yang berlaku, adakah ini bermakna ia Dalam kes Hairani bin Sulong v Public Prosecuto21 berpunca daripada hukuman yang ringan seperti mana mahkamah telah memetik ungkapan kata-kata YA yang telah diputuskan? Jawapannya mungkin benar jika Ketua Hakim Lord Lane dalam kes R v Billiam22 hukuman itu dilihat sebagai suatu kaedah bahawa: mengurangkan jenayah. Umumnya hukuman lazim The variable factors in cases of rape are so numerous yang dijatuhi mahkamah adalah penjara untuk sesuatu that it is difficult to lay down guidelines as to the tempoh tertentu, sebatan dan denda dan atau gabungan proper length of sentence in tenns of years... There di antaranya menurut kesesuaian18. Sebagai contohnya, are, however, many reported decisions of the Court bagi kesalahan terhadap tubuh badan seperti rogol, kes which give an indication of what current practice R v Roberts19 memberikan sedikit gambaran tentang ought to be and it may be useful to summarise penghukuman dan YA Ketua Hakim Lord Lane, secara their general effect. ringkasnya, dipetik sebagai berkata bahawa rogol merupakan suatu jenayah berat dan pesalah perlu For rape committed by an adult without any dikenakan tahanan atau penjara atas beberapa sebab aggravating or mitigating features, a figure of five antaranya beratnya kesalahan tersebut, years would be taken as the starting point in a ketidakbolehterimaan masyarakat terhadap perbuatan contested case. Where a rape is committed by two tersebut, pengajaran kepada semua dan siksaan kepada or more men acting together, or by a man who has pesalah serta perlindungan terhadap wanita. Tempoh broken into or otherwise gained access to a place masa dipenjarakan bergantung kepada keadaan. where the victim is living, or by a person who is in a position of responsibility towards the victim, or Penjara merupakan hukuman mandatori yang by a person who abducts the victim and hold her tidak dapat dielakkan bagi kesalahan rogol dan ini captive, the starting point should be eight years. bertepatan dengan kehendak Parlimen yang menetapkan tempoh minimum dan maksimumnya. At the top of the scale comes the defendant who lni telah diputuskan dalam kes Public Prosecutor v has carried out what might be described as a Nordin bin Yusmadi20 dipetik dari kata-kata YA Hakim campaign of rape, committing the crime on a K.C.Vorah seperti berikut : number of different women or girls. He represents In the present case there can be no doubt that a a more than ordinary danger and a sentence of 15 tenn of imprisonment had to be imposed by the years or more may be appropriate. Judge on the respondent who was found guilty and

17 C.Kevin Boyle, Michael Allen. 1985. Sentencing Law And Practice. London: Sweet And Maxwell; Andrew Ashworth. 1995. Sentencing And Criminal Justice. London: Butterworths. 18 Sila lihat Jadual 1. 19 [1982]1 All ER 609 di hal. 610. ‘Rape is always a serious crime. Other than in wholly exceptional circumstances. It calls for a immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Second to emphasise public disapproval. Third, to serve as warning to others. Fourth, to punish the offender, and last, but by no means least, to protect the women. The length of the sentence will depend on all the circumstances. That is a trite observation, but these in cases of rape vary widely from case to case’. 20 [1996]2 CU 90 di hal.94. 21 [1993]2 CU 79. 22 [1986] 1 All ER 985 di hal. 897.

INFOLINE 50 MARCH / APRIL_2005 Where the defendant’s behaviour has manifested Jika hukuman penjara dan sebatan adalah pilihan perverted or psychopathic tendencies or gross yang terbaik sehingga kini dan tidak bersependapat personality disorder and where he is likely, if at dengan hukuman mati maka tempoh masa large, to remain a danger to women for an indefinite pemenjaraan dan jumlah sebatan seharusnya diberikan time, a life sentence will not be inappropriate. perhatian. Mengasingkan penjenayah untuk sesuatu tempoh tertentu perlu jika ia menimbulkan bahaya yang Jelas bahawa setiap kesalahan jenayah telah ditetapkan berterusan kepada masyarakat. Mungkin tempoh dua balasannya oleh undang-undang dan hukuman yang puluh tahun tidak mencukupi maka suatu tempoh dikenakan adalah sebagaimana yang ditetapkan oleh yang lebih panjang perlu diperuntukkan sehingga undang-undang. Perbincangan selanjutnya cuba melihat pesalah sudah tidak lagi mendatangkan bahawa kepada sama ada tempoh penjara itu sesuai atau tidak atau sama masyarakat khususnya wanita. ada denda yang dikenakan terlalu rendah atau tidak berpatutan dan seterusnya memperkatakan sama ada Sebatan sebagai hukuman dilihat bertujuan hukuman bagi kesalahan-kesalahan jenayah terhadap memalukan serta mengaibkan pesalah dengan wanita masih terlalu ringan atau sudah memadai. mengenakan kesakitan terhadap tubuhnya pada kadar yang munasabah harus dilaksanakan mengikuti jumlah Jika dibuat perbandingan hukuman jenayah yang sebatan yang lebih tinggi yang dilakukan dengan kaedah ditetapkan oleh Kanun Kesiksaan berhubung perlakuan dan garispanduan yang ditentukan jenayah terhadap wanita melalui Jadual 1 dengan peruntukan perundangan Islam melalui hukum hudud bagi kesalahan terhadap tubuh badan wanita seperti zina, Kesimpulan ternyata jurang yang luas tergambar di antara keduanya. Jenayah terhadap wanita seperti di Jadual 1 bukanlah Ketetapan hukum hudud, jika sabit kesalahan, perkara baru. Punca jenayah sedemikian berlaku ada hukuman memang berat tetapi selagi manusia masih kaitannya dengan peruntukan hukuman yang terlalu mempunyai sifat takut dalam diri terhadap siksaan yang ringan selain gabungan faktor hal keadaan persekitaran. pedih maka hukuman berat sahaja yang dapat Hukuman yang berat perlu dilaksanakan menangani jenayah seumpama ini. Perlaksanaan hukum memandangkan kepada keruncingan jenayah hudud yang melibatkan hukuman rejam sampai mati seumpama ini sejak akhir-akhir ini. Kelihatan juga atau sebatan antara 80 hingga 100 kali berdasarkan adanya perbezaan hukuman yang dikenakan terhadap kepada kes-kes kategori zina, maka tiada pilihan bagi kesalahan terjadi disebabkan oleh falsafah-falsafah pesalah dan tiada pilihan juga bagi mahkamah jika sabit disebalik dasar hukuman, prinsip penghukuman dan kesalahan atas keterangan yang jelas. pertimbangan yang dibuat oleh mahkamah berdasarkan kepada amalan kehakiman. Andaiannya, jika mana-mana lelaki yang telah berkahwin dan didapati bersalah melakukan zina, pada Pertimbangan ini masih perlu tetapi anjakan asasnya lelaki tersebut pasti menemui kematiannya. pendekatan perlu dilakukan kerana ia tidak bersesuaian Adalah dicadangkan hukuman mati bagi pesalah rogol bagi kesalahan yang melibatkan wanita secara langsung adalah wajar. Hukuman itu berat tetapi hukuman itu terutamanya bagi kesalahan seksual. Maksudnya di sini, setimpal dengan kekejaman yang dilakukannya terhadap pendekatan kekejaman dibalas kekejaman yang setimpal mangsa dan keluarganya, terhadap keluarga dan diri harus dilaksanakan dan tiada pertimbangan yang lebih pesalah itu sendiri serta perlakuan buruk yang dilakukan wajar selain mengenakan hukuman mandatori sama ada terhadap manusia sejagat. Tambahan pula kematian mati atau disebat23. Bagi perlakuan jenayah yang tiada seorang penjenayah sedemikian tidak merugikan negara keraguan munasabah dan dengan bukti jelas, nyata dan sebaliknya menyelamatkan masyarakat dalam jangka kukuh maka hukuman seperti yang dicadangkan ini masa panjang. Kerugian sebenarnya adalah terhadap sangat wajar. Semua pihak tiada pilihan untuk mangsa dan perkiraan berhubung bayaran pampasan mengenakan hukuman yang lebih berat jika terhadap mangsa perlu difikirkan sebagai suatu kepentingan awam dijadikan landasan berhujah24. hukuman terhadap pesalah. Sebagai contoh, Akta Dadah Berbahaya 1952 (Akta

23 Petikan kata-kata YA Hakim Lawton dalam kes Reg. v Sargeant (1974) 60 Cr.App. R. 74 perlu dinilai semula berhubungan dengan konsep balasan dalam prinsip hukuman. 24 Sila lihat kes-kes Pendakwa Raya v Ng Wah Lup [2000] MLJU 124; Sahrin b Karim v Pendakwa Raya [2000] MLJU 130.

MARCH / APRIL_2005 INFOLINE 51 ARTICLES 234) boleh melalui proses pindaan sehingga kepada Sementara itu bagi perlakuan yang tidak mengenakan hukuman mati mandatori atas kepentingan melibatkan tubuh badan seperti yang dimaksudkan di awam memandangkan kepada bahayanya kepada atas, hukuman seperti mana yang ada sekarang boleh masyarakat maka tiada salahnya Kanun Kesiksaan dipinda ke suatu tahap perkadaran yang lebih berat di dipinda bagi mengenakan hukuman mati ke atas samping memperkemaskan program dalam tempoh pesalah bagi perlakuan jenayah terhadap wanita25. pemenjaraan. Melaksanakan pindaan terhadap Begitu juga jika kepentingan awam dan kebimbangan hukuman yang sedia ada dan seterusnya beranjak umum perlu diutamakan maka kes Lim Hang Seoh v kepada pendekatan yang lebih tegas, keras dan adil Public Prosecutor26 boleh dijadikan ikutan. kepada semua akan dapat memastikan masyarakat agar lebih berhati-hati, perihatin, selamat dan tidak gusar.

Jadual 1: Senarai Perlakuan Jenayah Terhadap Wanita Dan Hukuman Yang Diperuntukkan Sehingga Kini Bil Statut Seksyen Kesalahan Hukuman/Denda 1 Kanun Kesiksaan s.312 Menyebabkan keguguran. 3 tahun @ 7 tahun dan (N.M.B.Bab 45) denda. s.313 Menyebabkan keguguran dengan tiada 20 tahun dan denda. kerelaan perempuan. s.314 Kematian disebabkan oleh perbuatan yang Penjara 20 tahun. dilakukan dengan niat hendak menyebabkan keguguran, jika perbuatan dilakukan dengan tiada kerelaan perempuan. s.366 Mencolek atau melarikan perempuan bagi Penjara 10 tahun dan memaksa ia berkahwin, dsb. denda. s.372 Menjual budak bagi maksud persundalan, dsb. Penjara 10 tahun dan denda. s.375 & Rogol & Seksaan bagi rogol. Penjara antara 5-20 s.376 tahun, denda dan sebat. s.493 Bersekedudukan disebabkan oleh seorang lelaki Penjara 10 tahun dan mendorong dengan perdayaan seorang denda. perempuan supaya percaya yang mereka telah berkahwin dengan sah di sisi undang-undang. s.498 Memikat atau membawa pergi atau menahan Penjara 2 tahun dan seseorang perempuan yang bersuami dengan atau denda atau kedua- niat jenayah. duanya. s.509 Perkataan atau isyarat yang dimaksud Penjara 5 tahun dan mengaibkan kehormatan seseorang denda. perempuan. 2 Akta Perlindungan s.16 Berurusniagakan perempuan bagi tujuan Penjara 5 tahun dan Wanita Dan Gadis pelacuran atau yang tidak bermoral. denda. 1973 (Akta 106) 3 Akta Keganasan s.2 Kesalahan bagi keganasan rumahtangga dibaca Hukuman seperti Rumahtangga 1994 bersama peruntukan Kanun Kesiksaan. diperuntukkan di bawah (Akta 521) Kanun Kesiksaan.

25 Lihat Public Prosecutor v Loo Choon Fatt (1976) 2 MLJ 256 YA Hakim Hashim Yeop A. Sani dipetik sebagai berkata ‘It is common sense to say that behind these legislative exercise was the government’s realization albeit gradual, of the problem of drug abuse in this country, the degenerating effect of the misuse of dangerous drugs and the attendant dangers it has posed to society itself. The amendments passed by Parliament therefore reflect the public policy. It must be presumed that behind the public policy is the consideration of public interest. The change in the attitude of the legislature itself during the last three years reflects the seriousness of the problem’, di hal 257. 26 (1978) 1 MLJ 68.

INFOLINE 52 MARCH / APRIL_2005 The Right To Seek Alternative Employment – A Constitutional Safeguard Puthan Perumal*

n 1981, the Federal Court in K C Matthews v however does not make mention the position of an Kumpulan Guthrie Sdn Bhd (1981) 2 MLJ 320 employee whose work is satisfactory but who is neither agreed to and adopted an earlier 1964 Supreme confirmed or shown the door. There was no necessity I to do so. Court judgment of Das Gupta J in Express Newspaper Ltd v Labour Court & Anor AIR 1964 SC 806 which stated:- A year later, the Federal Court in V Subramaniam ‘There can, in our opinion, be no doubt about & Ors v Craigielea Estate (1982)1 MLJ 317 again relied the position in law that an employee appointed on the judgment in Express Newspaper Ltd and decided on probation for six months continues as a that an employee who is on probation but had not probationer even after the period of six months been confirmed or had their employment terminated if at the end of the period his services had either at the end of their probationary period continues to be not been terminated or he is confirmed. At the a probationer. Here, the court was dealing with end of the six months period, the employer can employees who allegedly absented themselves without either confirm him or terminate his services, just cause or reason for a period of 9 days. Again, the because his service is found unsatisfactory.. If no judgment of the Federal Court does not make mention action is taken by the employer either by way of on the position of an employee whose work is confirmation or by way of termination, the satisfactory but is neither confirmed or shown the door. employer continues to be in service as a probationer.’ Twelve years down the road, a clerk in a legal firm faced the very same problem that the Federal Court The Federal Court in K.C Matthews was dealing with thought did not warrant an answer. An experienced, the issue where the appellant (KC Matthews) had been diligent and hardworking clerk’s probationary period appointed as a clerk on probation. As his work was not had expired but he was neither confirmed or shown satisfactory, the probationary period was extended. the door. He continued to work for a period of about Subsequently, a notice was given to the Appellant that nine months after his period of probation expired. The he would not be confirmed and he was given one employer did not pay the employee the increment month’s notice of termination. Again, the issue of which he felt he was justly entitled to have despite his unsatisfactory work performance is highlighted. The having made several demands to the employer. The judgment of the Federal Court would only make sense employee commenced an action for breach of contract. if it was dealing with an employee whose performance was not up to mark and his probationary period was Gopal Sri Ram JCA delivering the judgment of extended. This was exactly what happened in KC the Court of Appeal in Abdul Majid bin Haji Nazardin Matthews where the appellant was given an extended & 2 Or v Paari Perumal (2002)2 AMR 2449 had this probationary period because his work was not to say:- satisfactory. It is obvious that an employer cannot be ‘…At the end of the probationary period, the forced to confirm an employee who has not met the plaintiff continued working and the defendants company’s criteria for long term employment when continued to pay him his salary. Additionally, the probationary period has expired. The judgment they granted him annual leave on six occasions

* Advocate & Solicitor, High Court of Malaya

MARCH / APRIL_2005 INFOLINE 53 ARTICLES after the expiry of the probation period. As may the facts of Paari itself. Having to take care of six younger be seen from the terms of his letter of siblings, it took him up to 9 months to leave his place appointment, the plaintiff would be entitled to of employment albeit he knew at all material times such leave if he were a confirmed that his manpower was being exploited. employee………By acting towards the Plaintiff as if he were a confirmed employee, e.g. by giving The decision of Paari did not deal with this issue. him leave to which we referred to earlier the defendants were taking a position or must be The right of an employee to earn a living has been deemed to have taken the position that the placed on a constitutional footing and this has been plaintiff was confirmed. That is an inference a settled by the Court of Appeal in Tan Tek Seng @ Tan reasonable tribunal will draw from the facts. It Chee Meng v Suruhanjaya Perkhidmatan Pendidikan follows that the authorities strenuously advanced (1996) 2 AMR 1617 where Gopal Sri Ram JCA stated before us namely K C Matthews v Kumpulan that deriving from Article 5(1) of the Federal Guthrie Sdn. Bhd (1981) 2 MLJ 320 and V Constitution, a person’s right to life includes the right Subramaniam & Ors v Craigielea Estate (1982)1 to livelihood. This decision was supported by two MLJ 317 do not apply to the facts and Indian Supreme Court decisions which were in fact circumstances of the present instance. In those used as the basis to this concept in Tan Tek Seng. cases, there was not the kind of conduct that is to be found here. They are therefore readily In Olga Tellis v Bombay Municipal Corporation AIR distinguishable…’ 1986 SC 180, Chandrachud CJ held:- ‘If the right to livelihood is not treated as a part Based on Paari, an employee who is neither confirmed of the constitutional right to life, the easiest way expressly nor shown the door but who have been given of depriving a person of his right to lie would be annual leave after their probationary period has expired to deprive him of his means of livelihood to the is deemed to be a confirmed employee. It can be point of abrogation.’ inferred that any other benefits given by the employer, apart from giving annual leave, which only a confirmed In Delhi Transport Corporation v DTC Mazdoor Congress employee is entitled to, gives rise to the implication & Ors (1991) Supp SCC 600, Satwant J held:- that that employee is deemed confirmed. ‘The right to life includes right to livelihood.’

What then is the position of an employee whose So, should there be a constitutional safeguard against work is satisfactory, whose probationary period has the deprivation of the right of an employee to seek expired and the employer remains silent and, quite alternative employment in situations where the distinct from the facts of Paari, does not take any step employer is silent,.i..e. they neither confirm nor to enable one to arrive at a conclusion that the employer terminate the services of the well deserving employee has taken the position or deemed to have taken the but leave him ‘hanging in mid-air’? position that the employee is confirmed? If the employee’s probationary period ends and This issue must be looked into while taking into notice is given by the employer to terminate the account and keeping in mind of the fact that employees employee’s services, then it can be said that the employer are almost always at the mercy of the employer as their has not deprived the employee of the opportunity to livelihood depends, sometimes solely, on them. seek alternative employment. Contrary arguments to this issue would be that the employee is always at liberty to leave the existing On the other hand, if an employer does not company in which he or she is currently employed. confirm nor terminate the services of a ‘good’ employee However, it is not as simple as it sounds. This is a at the end of the probationary period and does not situation where the employer exploits the manpower give notice and the employee remains in the same of the employee by intentionally remaining silent and employment for a period of time, then it can be said it can take up to months or even years before the that the employer has deprived the employee of the employee realises that he is being taken for a ride and opportunity to seek alternative employment. In for him to finally react by leaving. A good example is situations like this, it is only fair and reasonable to say

INFOLINE 54 MARCH / APRIL_2005 that the employer has, by clear implication, undertaken not limited to increment for that period of time and, to further provide for the employee’s livelihood based in such circumstances, has infringed the employee’s on terms of employment which include increment for fundamental right to livelihood, consequently the period he stays on. There is no automatic contravening Article 5 (1) of the Federal Constitution. comfirmation. It must also be noted that employees in these times are hesitant to change places of This approach would do away with the necessity employment without sound reasons, especially those of the employee of having to show that the employer who have families to provide for. has taken steps to confirm him/her, like in Paari, simply because situations like this only occur when the If A stays in the employment of B under the employer does not in fact take any step for a tribunal circumstances stated above and he was earning RM1000 to infer that the employee was confirmed. during his probation period and was to receive an increment of RM300 should he be confirmed, B by When efforts are made to enforce such a remaining silent after the expiration of A’s probationary constitutional right, the employer, due to his period has deprived A the opportunity to seek indecisiveness (intentionally or otherwise) should be alternative employment elsewhere where A could be liable to compensate the employee with the difference earning RM1300. Therefore B should account for this between the amount of wages while he was on loss of RM300 due to his indecisiveness and his attempt probation and the amount of wages that he could have to exploit the manpower of A, for so long as A stays in obtained had he not been deprived of the opportunity his employment. There is no automatic confirmation to seek alternative employment after the expiration of here. the probationary period.

In Delhi Transport mentioned above, Satwant J With this constitutional footing approach, one can went on further to hold:- hope that it will create awareness among employers and ‘The right to livelihood therefore cannot hang it would cure the disease of indecisiveness and on the fancies of individuals in authority. The exploitation among employers as they would then have employment is not a bounty from them nor can to decide on the standing of the employee in their its survival be at their mercy. Income is the employment and the employee would also obtain a foundation of many fundamental rights and clearer picture of his position and role in the when work is the sole source of income, the right employment sector. to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.’

To summarise this can be said.

If an employer does not confirm or terminate the services of an employee at the expiration of the probationary period by giving notice and the employee continues to remain in the same employment for a period of time, the employer has deprived the employee Harinder Veriah Trust Award of the opportunity to seek alternative employment based on terms of employment which include but are Reminder: closing date for applications - 24 May 2005

MARCH / APRIL_2005 INFOLINE 55 NOTICES To All Members of the Malaysian Bar MALKIT SINGH A/L INDUR SINGH Please be advised that members are requested to adhere to the DECEASED prescribed forms for family matters as requested by the Kuala (NRIC NO: 320308-71-5153) Lumpur Family Court. Kindly take note that these forms are only applicable to the Kuala Lumpur Family Court. We act for Kartar Kaur, wife of the abovenamed nd The forms are available at the Bar Council Secretariat (2 Floor) at deceased who passed away on 6th November RM5.00 each (photocopy charges) or members can download the forms from the Malaysian Bar website at the following address: 2004 in Kuala Lumpur. http://www.malaysianbar.org.my/notices/pdf/circulars/2003/ FamilyLaw_pemfailan_dokumen.pdf. We are instructed to enquire if any firm of solicitors or anyone has knowledge of or is in RULES MADE IN 2005 UNDER S 57(a) OF THE LPA possession of a Will executed by the deceased in Malaysia. Parties with any information are BCR01/2005 - Use of Titles in Court kindly advised to contact:- An advocate and solicitor need not, in court, address or refer to another advocate and solicitor by title conferred upon the latter. MESSRS NOOR NILAM, P Y YAP & Correspondingly, an advocate and solicitor who has been conferred a title should not request, require, expect or insist that ASSOCIATES he be addressed or referred to, in court, by his title. Advocate & Solicitors

Explanatory Notes: No.63A, Jalan Medan Midah A. Headings of Rules are for convenience of reference only, and shall not Taman Midah, Cheras affect their interpretation. B. Any Rule or Ruling previously made by the Bar Council which is 56000 Kuala Lumpur inconsistent with any of the above Rule (s) shall be treated as having Tel: 03-91309098, Fax: 03-91303098 been superseded or replaced by the above Rule(s) to the extent of such inconsistency, as from the latter’s stipulated effective date(s).

No Ruj: SC/ECU/Policy Tarikh: 6 January 2005

Yang Berbahagia Tan Sri/Dato’/Tuan CADANGAN KORPORAT BAGI TERBITAN HAK Dl BAWAH GARIS PANDUAN MENGENAI PEROLEHAN KEPENTINGAN, PENGGABUNGAN DAN PENGAMBlLALlHAN OLEH KEPENTINGAN TEMPATAN DAN ASING (GARIS PANDUAN FOREIGN INVESTMENT COMMITEE - FIC) Kami merujuk kepada perkara di atas. 2. Seperti yang Tan Sri/Dato’/Tuan sedia maklum, di bawah surat pekeliling FIC yang bertarikh 7 April 4. Diharapkan Yang Berbahagia Tan Sri/Dato’/Tuan 1990, cadangan korporat bagi terbitan hak memerlukan dapat memaklumkan kepada ahli-ahli pertubuhan kelulusan FIC dalam keadaan di mana jumlah Yang Berbahagia Tan Sri/Dato’/Tuan untuk makluman kepentingan baru yang dilanggan oleh kepentingan mereka. tempatan dan asing melebihi 50% atau 15% masing- masing, hak mengundi syarikat tersebut atau RM10 Sekian, terima kasih. juta, yang mana lebih rendah. Sehubungan dengan ini, cadangan korporat bagi terbitan hak tersebut telah Yang benar dikemukakan bagi pertimbangan Suruhanjaya Sekuriti SURUHANJAYA SEKURITI (SC) untuk tujuan pematuhan kepada Garis Panduan FIC. MD NOOR ABD RAHIM Bahagian Terbitan Sekuriti dan Pelaburan 3. Dimaklumkan bahawa cadangan tersebut tidak b/p Pengerusi lagi memerlukan pertimbangan SC bagi pematuhan kepada Garis Panduan FIC.

INFOLINE 56 MARCH / APRIL_2005 NOTICES

MARCH / APRIL_2005 INFOLINE 57 PRESS STATEMENTS All statements were issued by Yeo Yang Poh, Chairman, Bar Council 2005/2006 unless stated otherwise

Unending Plight of Migrant Workers 25 March 2005

n many developing and developed countries, migrant Declaration on Irregular Migration in April 1999) to Iworkers play a significant role in the economy, ensure that all migrant workers are granted embracing low-paid menial jobs that the more affluent “humanitarian treatment, including appropriate health locals shun. Tragically, they are often compelled to also and other services”. “embrace” discrimination and prejudice. The plight of migrant workers is a current and Those migrant workers who commit crimes in our continuing affair. The Bar Council urges the country must obviously be dealt with, in the same way Government to ensure that its assurances of humane that the locals would be. However, for the vast majority treatment are in fact translated into actual practice on of them who are criminalized, their offence goes no the ground; and to immediately direct all Immigration further than being illegal in that they do not possess Officers to fully cooperate with lawyers (including the proper documents allowing them to stay and work allowing free and adequate access to detainees) so that in Malaysia. basic human rights are accorded to all, and due process can take place in a manner that is meaningful in The on-going Ops Tegas targets these illegal workers, substance. resulting in thousands being rounded up. It is of course not wrong for the Government to want to regulate the migrant workforce. However, in so doing, there is a duty to ensure humane treatment. If nothing else, in Treatment of Refugees & treating them we should remember to weigh the nature Illegal Migrants of their immigration offence (i.e. to what extent has 10 April 2005 their staying and working here become in itself a menace to our society) against their pittance-paid toil the fruits of which we have collectively enjoyed. inister of Home Affairs Datuk Azmi Khalid has Recognising these detainees’ need for legal assistance, Mannounced that Rohingyas will, in addition to the Bar Council’s Legal Aid Centre has set up an Urgent having been recognised as refugees since late last year, Arrest Team to provide free legal representation. be permitted to work in Malaysia and be given job- Unfortunately, it has come to the attention of the Bar related training for that purpose. He also said that the Council that there has been less than adequate Rohingya children would be provided with education. cooperation from some officers of the Immigration Department in providing full and timely information The Government should be commended for on the proffering of charges against migrant workers, taking these steps forward. They are among the or in granting volunteer lawyers free and useful access measures the implementation of which the Bar Council to the detainees. This has resulted in the lack of has urged in the past. They accord with international adequate representation in many cases. humanitarian principles, as well as the Convention on the Rights of the Child. Illegal migrant workers already face dire, and sometimes disproportionately harsh, prospects. Denying them full It now remains for the Government to and adequate legal representation adds insult to injury; expeditiously implement these measures, and put an and is a serious infringement of their basic rights. This end to the daily suffering of the Rohingyas as early as runs counter to the Government’s open pledge of possible. In the interim, the Government must ensure humane treatment of illegal workers, as well as its that these Rohingyas (while waiting for their international commitment (under the Bangkok identification documents to be issued) are not harassed,

INFOLINE 58 MARCH / APRIL_2005 PRESS STATEMENTS

arrested or detained by the police or the Immigration of the modern world, there is no justification Department on the ground of their “illegal” presence whatsoever for Malaysia to administer such a merciless in our country. punishment on any human being, let alone on the ones who have worked and toiled in our country (thus The Bar Council calls upon the Government to contributing to its economy) and whose only offence likewise make progress in other areas connected with is the absence of proper status. the treatment of illegal migrant workers. One of the most urgent measures required is for the Government Even though our laws deny them legal status, let to immediately revoke the imposition of whipping on us not take away their human dignity. Let their dignity illegal migrant workers, a punishment (we are given to not be violently torn apart, as it is when their naked understand) that has already been inflicted upon skin splits open in indescribable agony. Let us not reduce thousands of these ill-fated persons. these human beings to a chorus of uncontrollable screams that echo only within the confines of their four Whipping is widely regarded as a cruel and barbaric walls, unheard and unheeded by the rest of us who go form of punishment, which has been shown to produce about our daily lives believing that we are all part of a long-term and harmful psychological effects. It has been compassionate society. discarded by most of the countries in the world. For a nation that subscribes to humanitarian principles and The whipping must stop. Not next week, not aspires to be in the top (rather than bottom) quadrant tomorrow, but today.

Freedom of the Press 21 April 2005

he Bar Council is perturbed that an article in the No doubt, in a free environment, sometimes TNew Straits Times on 20 April 2005 by columnist things are said or written that may embarrass or hurt a Zainul Arifin has received a chorus of condemnation person or a body of persons. At times the comments led by the Leader of the Opposition and joined by a or criticisms may be overboard or unjustified. However, few BN Members of Parliament. A proposal was even even if so (and we are speaking here generally and made to refer En Zainul to the Committee of Privileges, certainly not with reference to Zainul’s article), the right for having allegedly humiliated Members of Parliament. way to deal with such situations is never to curb or bludgeon the freedom by going after the speaker or This would be taking many steps backward, in writer; but rather to provide ample and equal the arduous but crucial journey that Malaysian society opportunities for the airing of a response or rebuttal to has embarked upon to protect, promote and enhance the criticism. the freedom of speech and freedom of the Press. These are retrogressive steps that we must not take. It must always be remembered that, in a free society, a proper response is one that uses the force of Freedom of the Press encompasses the freedom argument, and not the argument of force. This of speech as well as the freedom of information. particularly applies to those wielding power or holding Freedom of speech is the heart of any democratic public office, who are expected to be much more open society. It is the bedrock upon which a truly free and to criticisms. progressive society is founded. This freedom must be constantly nurtured, protected and rejuvenated. Malaysia must move forward on the road to greater freedom, and not backward.

MARCH / APRIL_2005 INFOLINE 59 DISCIPLINARY ORDERS

Suspended 9. Ahmad Badri bin Othman, M/s J J Singh & Assoc Order under s 94(4)(c) Legal Profession Act 1976 - 31 March 2005 (RM1,000) 1. Mohamad Ridhuwan bin Rasol, M/s Yacob & 10. Suhani bt Mat Daud, M/s Suhani & Co - 31 Rakan-Rakan (immediate effect from 19 March 2005 (RM1,000) February 2005, until further notice) 11. Khoo Soo Eng, M/s Khoo Soo Eng - 31 March 2. Kushairi bin Abdul Karim, M/s Kushairi & Co 2005 (RM1,000) (immediate effect from 19 February 2005, until 12. Kamarulzaman bin Mohamad Buhari, M/s further notice) Buhari Kamarul & Associates - 31 March 2005 3. Yaacob bin Othman, M/s Ismayatim Yaacob & (RM1,000) Associates (immediate effect from 12 March 13. Jag-Jit Singh a/l Peritam Singh, M/s J J Singh & 2005, until further notice) Assoc - 31 March 2005 (RM1,000) 4. Maideen bin Mohamad, M/s Ravi Nair Maideen 14. Syed Ali Akbar bin Syed Husain, M/s Ali Akbar & Assoc (immediate effect from 12 March 2005, & Co - 31 March 2005 (RM1,000) until further notice) 15. Salasia bt Abdullah, M/s Chris Lee & Partners - 5. Yusmira bt Yusoff, M/s Yusmira & Co 31 March 2005 (RM500) (immediate effect from 12 March 2005, until 16. Agus bin Rosman, M/s Nordin Hamid & Co - further notice) 31 March 2005 (RM1,000) 6. Dato' Khairul Anuar bin Abdul Latif, M/s Khairul 17. S Ravi Chandran Nair a/l R Shreedharan, Latif & Assoc (immediate effect from 12 March M/s Ravi Nair & Assoc - 31 March 2005 2005, until further notice) (RM1,000) 7. Datin Salina bt Mahmud, M/s Khairul Latif & 18. Mohd Azhar bin Yeop Ismail, M/s Mohd Azhar Assoc (immediate effect from 12 March 2005, & Co - 31 March 2005 (RM1,000) until further notice) 19. Han Seng Kwang, M/s Han & Co - 31 March 8. Cheong Kei Choong, M/s Cheong & Chong 2005 (RM1,000) (immediate effect from 12 March 2005, until 20. Amir Anuar bin Ghani, M/s Abdul Rahman & further notice) Assoc - 31 March 2005 (RM1,000) 9. Badrul Hisham bin Haji Mohammad, M/s 21. Nizam bin Yahya, M/s Azizi, Nizam & Anwar - Badrul Hisham & Assoc (immediate effect from 31 March 2005 (RM1,000) 2 April 2005, until further notice) 22. A Razak bin A Rahim, M/s A Razak & Associates 10. Sazali bin Abdul Wahab, M/s Sazali Wahab & - 31 March 2005 (RM1,000) Co (immediate effect from 2 April 2005, until 23. Yap Peter, M/s Chor Pee Anwarul & Co - 31 further notice) March 2005 (RM1,000) 24. Rozita bt Abdul Rahman, M/s Rashid & Co - 31 Order under s 103D Legal Profession Act 1976 March 2005 (RM1,000) 1. Yacob bin Haji Atan, M/s Yacob Atan & Assoc 25. Mohamad Khoirun bin Salamat, M/s Affendy & (two years with effect from 19 February 2005) Khoirun - 31 March 2005 (RM1,000) 2. Mohinder Kaur d/o Balbir Singh Deol, M/s Nora 26. Sufian bin Jusoh, M/s Sufian Jusoh & Co - 31 Hayati Deol & Partners (three years with effect March 2005 (RM1,000) from 5 March 2005) 27. Cheong Kei Choong, M/s Cheong & Chong - 31 March 2005 (RM1,000) Penalty 28. Hood Bin Osman, M/s Osman & Associates - Order under s 103 Legal Profession Act 1976 31 March 2005 (RM1,000) 1. Cheong Kei Choong, M/s Cheong & Chong - 8 29. Syed Nongchik bin Syed Hussain, M/s Bahari March 2005 (RM1,000) Choy & Nongchik - 31 March 2005 (RM1,000) 2. Doraisamy s/o Govindasamy, M/s G Doraisamy 30. Suraiya bt Haji Hanafi, M/s Suraiya & Co - 31 Siva & Co - 8 March 2005 (RM1,000) March 2005 (RM1,000) 3. Krishnamurthy s/o Karthikesu, K Krishnamurthy 31. Dato' Daud bin Daros, M/s Hamzah Daud & Assoc - 31 March 2005 (RM1,000) Daros & Siti Nor - 31 March 2005 (RM1,000) 4. Zakaria bin Md Saad, M/s Zakaria & Co - 31 32. Asmahan bt Haji Sulaiman, M/s Asmahan March 2005 (RM1,000) Sulaiman & Assoc - 31 March 2005 (RM1,000) 5. Eg Kaa Chee, M/s Rajah Lau & Assoc - 31 33. Gurpreet Singh a/l Jugh Singh, M/s Gurpreet March 2005 (RM2,000) Singh Sidhu - 31 March 2005 (RM1,000) 6. Hatijah bt Mohamed Salleh, M/s Awi & Co - 31 34. Wan Mohd Nizar bin Wan Fauzi, M/s Wan Nizar March 2005 (RM1,000) Rais - 31 March 2005 (RM1,000) 7. Abdul Malik bin Mat Judi, M/s Kas Abdul Malik 35. Ting Shiew Yii, M/s Hazam Tan - 31 March 2005 - 31 March 2005 (RM1,000) (RM1,000) 8. Asmuni bin Awi, M/s Awi & Co - 31 March 36. Cheong Bee Lee, M/s Nazli Ghazali & Cheong - 2005 (RM1,000) 31 March 2005 (RM1,000)

INFOLINEINFOLINE 6060 MARCH / APRIL_2005 37. Nazli Anim bin Mohd Ghazali, M/s Nazli Ghazali 65. Koo Yoke Fah, M/s Koo & Associates - 14 April & Cheong - 31 March 2005 (RM1,000) 2005 (RM1,000) 38. Wan Mohd Asraf bin Wan Salleh, M/s Shamsuri 66. Vasudevan a/l Appu, M/s Vasudevan A & Co - & Co - 31 March 2005 (RM1,000) 14 April 2005 (RM1,000) 39. Mohamed Lias bin Mohamed Marzuki, M/s Lias 67. Zainal bin Abdul Rahman, M/s Zainal & Partners Ainul & Co - 31 March 2005 (RM1,000) - 14 April 2005 (RM1,000) 40. Mohd Fauzi bin Abd Latif, M/s Fauzi Yurina & 68. Anne a/p Marianathan, M/s Amir, Lim & Co - 31 March 2005 (RM1,000) Partners - 14 April 2005 (RM1,000) 41. Lee Choon Ping, M/s Wong & Partners - 31 69. Abby Saifuzzam bin Abdullah, M/s Abby & March 2005 (RM1,000) Norlia - 14 April 2005 (RM1,000) 42. Ha Wai Yee, M/s Azim, Tunku Farik & Wong - 31 March 2005 (RM1,000) Order under s 103D Legal Profession Act 1976 43. Damian Pheny, M/s Rina Noor & Co - 31 1. Pushpam d/o Subramaniam, M/s Pushpam & March 2005 (RM1,000) Co - 8 March 2005 (RM5,000) 44. Agripa Anak Aman, M/s A B Ng & Associates - 2. Maria Leonard H V Peters, M/s Leonard Peters 31 March 2005 (RM1,000) & Co - 8 March 2005 (RM5,000) 45. Armiy Rais bin Ahmad Sharifuddin, M/s Wan 3. C Jegathesan, M/s C Jegathesan - 17 March 2005 Nizar Rais - 31 March 2005 (RM1,000) (RM1,000) 46. Abdul Khaidir bin Zainal, M/s Zul & Co - 31 4. Tan Kok Kwang, M/s Tan Kok Kwang & Co - 17 March 2005 (RM1,000) March 2005 (RM2,000) 47. Sulaimi bin Sulong, M/s Sulaimi, Sharmini & 5. Datuk M Kayveas, M/s Blanche & Kayveas - 17 Partners - 31 March 2005 (RM1,000) March 2005 (RM5,000) 48. Raja Ismail bin Raja Mohd Ali, M/sRaja Ismail 6. Datin Blanche O'Leary, M/s Blanche & Kayveas &Amril Ghazaly - 31 March 2005 (RM1,000) - 17 March 2005 (RM5,000) 49. Yacob bin Mat Yim, M/s Yacob Mat Yim & 7. Mohammad Rafaei bin Adnan, M/s Rafaei & Rakan-Rakan - 31 March 2005 (RM1,000) Co - 17 March 2005 (RM10,000) 50. Faizal bin Abd Jalil, M/s Faizal Jalil & Co - 31 8. Mohd Hamdi bin Abdul Hamid, M/s Sucha March 2005 (RM1,000) Singh & Partners - 17 March 2005 (RM20,000) 51. Song Teik Kim, M/s Murthy Song & Partners - 9. Pok Yong Chan, M/s Y C Pok & Zurina - 31 31 March 2005 (RM1,000) March 2005 (RM1,500) 52. Marhaen bt Mohamad Nor, M/s Thana Marhaen 10. Johan Nor Zaimi bin Johari, M/s Johan & Co - & Partners - 31 March 2005 (RM1,000) 17 March 2005 (RM5,000) 53. Deborah Celestine Tan Chee, M/s Manjit Singh 11. Deepa Anna Vargis, Zaitoon Othman & Assoc - Sachdev Mohammad Radzi & Partners - 31 17 March 2005 (RM5,000) March 2005 (RM1,000) 12. Tan Sun Cheong, M/s KW Chong & Partners - 54. Chandragesan a/l Suppiah, M/s S C Gesan & 17 March 2005 (RM2,000) Assoc - 31 March 2005 (RM1,000) 13. Ho Kam Phaw, M/s Amara & Ho - 14 April 55. Sivakumar a/l Valla Krishnan, M/s V S Kumar 2005 (RM15,000) & Co - 31 March 2005 (RM1,000) 56. Harcharanjit Singh a/l Gurbax Singh, M/s Struck Off Harcharanjit Singh & Assoc - 31 March 2005 Order under s 103D Legal Profession Act 1976 (RM1,000) 1. Gurmit Singh Hullon, M/s Hullon & Co (w.e.f. 57. Azwani bt Abdul Jalil, M/s Radzi & Abdullah - 21 days from 8 March 2005) 14 April 2005 (RM1,000) 2. Abdul Aziz bin Ahmad, M/s Sajali & Aziz (w.e.f. 58. Mustaffa bin Idris, M/s Mustaffa Idris & Co - 21 days from 16 March 2005) 14 April 2005 (RM1,000) 3. Nur Hafizah bt Haji Mohd Saleh, M/s S 59. Nik Abdul Rahman bin Nik Mat, M/s Rahman Mathavan & Nur Hafizah (w.e.f. 21 days from & Co - 14 April 2005 (RM1,000) 16 March 2005) 60. Yeap Eng Kheng, M/s Yeap Eng Kheng & Co - 4. Ranjit Singh s/o Sharimi Singh, M/s S H Ranjit 14 April 2005 (RM1,000) Singh & Co (w.e.f. 21 days from 16 March 2005) 61. Rusuzaimi bt Ishak, M/s Rusuzaimi & Co - 14 5. Philip Loh Yin Fah, M/s Philip Loh & Assoc April 2005 (RM1,000) (w.e.f. 21 days from 16 March 2005) 62. Rajehgopal a/l Velu, M/s Rajehgopal Velu & 6. Shao Kam San, M/s LH Wong & Shao (w.e.f. 21 Assoc - 14 April 2005 (RM1,000) days from 16 March 2005) 63. Krishnamurthy s/o Karthikesu, M/s K 7. Mohd Mazuar bin Mohd Noor, M/s Noorhelmee Krishnamurthy & Assoc - 14 April 2005 & Mazuar (w.e.f. 21 days from 14 April 2005) (RM1,000) 64. Mohan Singh a/l Booda Singh, M/s Mohan & Assoc - 14 April 2005 (RM1,000)

MARCH / APRIL_2005 INFOLINE 61 Conference Diary Inter-Pacific Bar Association Children & the Law 15th Annual Meeting and Conference 2005 Conference 27 & 28 MAY 2005 BALI, 5 – 7 MAY 2005 SWISSOTEL MERCHANT COURT HOTEL, SINGAPORE

The Inter-Pacific Bar Association (“IPBA”) is an Jointly organised by the Law Society of Singapore and international association of business and commercial LAWASIA, the conference will see an international panel lawyers with a focus on the Asia-Pacific region. of speakers. Featured talks include posthumous sperm Members are either Asia-Pacific residents or have a donation, separate representation for children and the strong interest in this part of the world. The IPBA, impact of the recent tsunami on affected children. At founded at an organising conference in Tokyo in April the plenary session, current issues on custody & access, 1991, has grown to become the pre-eminent the role of experts, child abduction & cross border organisation in the area of Asia law and business with a enforcement, juvenile justice and children with special membership of over 2,000 lawyers from 75 needs will be addressed. jurisdictions around the world. Special discounted rates have been secured by the The IPBA provides an opportunity for business and organizers at some of the leading hotels. The room commercial lawyers to network with lawyers of similar situation is expected to be critical at this time of the interests and fields of practice, and also to stay abreast year so participants are requested to make reservations with latest development in the areas of practice. ASAP. Supported by major Bar Associations, Law Societies and other Organisations, the IPBA plays a significant Queries may be addressed to Ms June Tan, Director of role in fostering ties among members of the professions. Training and CPD at the Law Society at 65300226 or at [email protected] For further inquiries please contact us: IPBA 2005 Bali Secretariat: Pacto Convex Ltd. 14th International Mergers Lagoon Tower Level B1 and Acquisitions Conference Jakarta Hilton International HILTON HOTEL, NEW YORK Jl. Jend. Gatot Subroto 9 – 10 JUNE 2005 Jakarta 10270 Indonesia This prestigious Conference has established itself as the Phone: +62 (021) 570 5800 international mergers and acquisitions event. Fax: +62 (021) 570 5798 Email: [email protected] Over two days, leading practitioners and M&A experts will assess the significant trends and development in M&A practice through a comparative focus on the US, IBA Mid-Year Meeting EU and other major jurisdictions. LISBON, 19 – 21 MAY 2005 The Conference offers an excellent opportunity to meet The launch of the Bar Issues Committee (BIC) marks leading M&A specialists. the creation of a forum whose sole purpose is to support the activities and interests of Member Organisations, Topics will include: creating a platform to discuss issues of common ! A review of the worldwide M&A marketplace interest. Following the highly successful launch of the ! Update on EU Takeover Directive and related BIC at the IBA Conference in Auckland, the IBA looks developments forward to the next gathering of Bar Leaders and other ! A conversation with two Delaware judges Member Organisation representatives in Lisbon, ! Current M&A issues Protugal. ! The view from the SEC ! Current developments in leveraged buy-outs

INFOLINE 62 MARCH / APRIL_2005 SPEECHES

! How to conduct an auction in Xi’an, scheduled from 10th to 13th September 2005, ! Current developments in antitrust policy affecting will cost USD760 per pair. M&A ! Spotlight on Asia Please address enquiries to the World Jurist Association at [email protected] or visit their website at www.worldjurist.org International Legislative Drafting Institute NEW ORLEANS, LOUISIANA USA IBA Annual Conference 13 – 24 JUNE 2005 PRAGUE, 25 – 30 SEPTEMBER 2005

This training, intended for both lawyer and non-lawyer What will Prague 2005 offer? drafters, emphasises pragmatic learning – not theory ! A meeting place for over 3000 lawyers from around but practice. Participants will “learn by doing” through the world drafting exercises, research assignments, and preparation ! Over 100 working sessions covering all areas relevant of a formulary for use in their own drafting offices. to international legal practitioners Afternoon roundtable discussions will enable ! A chance to share in the knowledge and expertise of participants to share ideas and information with each the leading international lawyers from across the other, learning “how we did it” in response to numerous globe common problems of interest to drafters. ! A variety of social functions providing ample opportunities to network Lecture topics include the ethics of drafting, ! Continuing Legal Education accreditation confidentiality, matters of style (gender-neutral ! Integrated guests programme language, grammar, and punctuation), agency ! Convenient location: Prague is situated in the centre rulemaking, constitutional revision, international trade of Europe and is easily accessible from cities agreements, and codification agencies. The training worldwide emphasises the importance of public participation and describes an appropriate role for interest groups and Showcase Sessions individuals in the legislative process. ! Enforcement of EU law and competition law by private parties This Annual Institute will again offer training that ! How far can laws reach? The problem of responds to the worldwide demand on legislative extraterritoriality drafting personnel for new laws to support the ! The European Court of Human Rights – what emergence of free market economies and democratic business lawyers need to know forms of government. ! The lawyer’s role in society

To register for the Conference, you must complete the 22nd Biennial Congress on appropriate registration form and send it, together with the Law of the World your payment, to: 4 – 10 SEPTEMBER 2005 International Bar Association BEIJING, CHINA 10th Floor, 1 Stephen Street London W1T 1AT, United Kingdom In addition to the regular Congress programme, the Tel: +44 (0)20 7691 6868. organizers have also organized an additional, optional Fax: +44 (0)20 7691 6545 programme of tours both before and after the Congress. E-mail: [email protected] for enquiries. A pre-Congress Tour of Beijing including The Great You can also register online at Wall, The Forbidden City and the Summer Palace, http://prague.ibanet.org/registration.html scheduled for the 1st to 4th September 2005, will cost USD490 per pair. A post-Congress Tour of the West Lake in Hangzhou and the Terracotta Warriors display

MARCH / APRIL_2005 INFOLINEINFOLINE 63 63 LAWYERSLAWYERS UPDATE UPDATE Lawyers’ Change Of Address

Abdul Wahad @ Abdul Aziz bin Muhammad: Messrs Abdullah Lee Mun Peng, Rachel: Messrs Ngan Arifah & Chai, Suite 1502, Abd Rahman & Co, 10th Floor, Wisma Yakin, Jalan Masjid India, 15th Flr, Wisma Lim Foo Yong, No. 86, Jalan Raja Chulan, 50200 50100 Kuala Lumpur. Kuala Lumpur. Tel: 03-2148 4501 / 2142 0077 Abun Sui Anyit: Messrs Surjan Singh Shidu & Co, 5th Floor, Wisma Fax: 03-2143 3077 E-Mail: [email protected] Harwant (G S Gill’s) No.106, Jln Tuanku Abdul Rahman, 50100 Malathi a/p Krishnan: Messrs Adha Selvi & Associates, 8A, 8th Kuala Lumpur. Tel: 03-2692 9355 Fax: 03-2693 6355 Floor, Pearl Court, No. 61, Jalan Thamby Abdullah, Brickfields, Ahmad Fadzli bin Abdul Salam: Messrs Mohd Akhir & Partners 50470 Kuala Lumpur. Tel: 03-2693 1698 Fax: 03-2692 3170 Lot 959,Tingkat Bawah & Satu, Banunan Peruda TWJ 1B,Jalan E-mail: [email protected] Sultan Badlishah, 05000 Alor Star, Kedah. Tel: 04-731 2211 / Mazlan bin Mohd Noor: Messrs Ismael Alabas & Hashim, 14B & 731 0344 / 731 2533 Fax: 04-731 6622 15,1st Floor, Bangunan Lembaga Padi, Jalan Tungku Ibrahim E-mail: [email protected] 05000, Alor Setar, Kedah. Tel: 03-733 9050 Fax: 04-730 7050 Andek Noor Hudayah bt Bachok: Messrs J S Pillay & Mohd Muhammad Fadzil bin Hassan: Messrs Yusof Rahmat & Co, Haaziq, Suite 16.01, Level 16, Menara MAA, No. 15, Jalan Dato’ No.136-4, Tingkat 3, Kompleks Munshi Abdullah, Jalan Munshi Abdullah Tahir, 80300, Johor. Tel: 07-334 0999 Abdullah, 75100 Melaka. Tel: 06-2849 106 / 06-2867 141 Fax: 07-332 6999: E-mail: [email protected] Fax: 06-2822 291 E-mail: [email protected] Anita Kaur a/p Sarjit Singh: Messrs Zaid Ibrahim & Co, 51-22-B Muhammad Faisol bin Hashim: Messrs Raja Nor & Su Lynn & C, Menara BHL, Jalan Sultan Ahmad Shah, 10050 Penang. Tel: (Penang branch), 72, Jalan Prai Jaya 2, Bandar Prai Jaya, 13700 04-2270 888 Fax: 04-2286 752 E-mail: [email protected] Prai, Penang. Tel: 04-390 4888 Fax: 04-398 4888 Azrulhisham Mohd Affandi: Messrs Wan Haron Sukri & Noordin, Mohd Alami bin Lazin: Messrs Lim & Chua, No. 383, Jalan Dato PT 1180-1183, 2nd Floor, Jalan Kebun Sultan, 15300 Kota Bharu, Perdana 3, 15000 Kota Bharu, Kelantan. Tel: 09-7449 689 Kelantan. Fax: 09-7484 691 Chen Siew Foon: Messrs Koh & Associates, No. 21-M, Jalan SS Noor Hanani bt Nusa: Messrs Fatimah Zainudin & Associates, 21/1A, Damansara Utama, 47400 Petaling Jaya, Selangor. Unit 307, 3rd Flr, Block B, Pusat Perdagangan Phileo Damansara Tel: 03-7710 0088 Fax: 03-7710 0089 1,No.9, Jln 16/11, Off Jalan Damansara 46350 Petaling Jaya, Choo Kok Soon: Messrs Ngan Arifah & Chai, Suite 1502,15th Selangor. Tel: 03-7955 3121 Fax: 03-7956 2122 Floor, Wisma Lim Foo Yong, 86 Jalan Raja Chulan,50200 Kuala E-mail: [email protected] Lumpur. Tel: 03-2144 0077 Fax: 03-2143 3077 Nor Adilah binti Amat Talib: Messrs Sithra & Partners, B-2-2, 2nd Datin Pang Lik Liam @ Cecilia: Messrs Soo Thien Ming & Nashrah, Floor, Block B, Megan Avenue II, 12 Jalan Yap Kwan Seng, 50450 Wisma Selangor Dredging 10th Floor, South Block, 142-A, Jalan Kuala Lumpur. Tel: 03-2713 1870 Fax: 03-2713 1872 Ampang, 50450 Kuala Lumpur. Tel: 03-2161 2588 Nor Azlin bt Adam: Messrs Adri, Hisham & Rakan-Rakan, A-408, Fax: 03-2161 8997 E-mail: [email protected] Glomac Business Centre, 10,Jalan SS 6/3,Kelana Jaya, 47301 Harikrishnan a/l Kanapathy: Messrs Christina Chia Ng & Partners, Petaling Jaya, Selangor Darul Ehsan. Tel: 03-7803 2434 Suite 4028, 4th Floor, President House (Parkroyal), Jalan Sultan Nordina bt Mohd Tajudin: Messrs Michael Chai & Co Level 5, Ismail, 50200 Kuala Lumpur. Tel: 03-21417711 Wisma Hong Leong, 18, Jalan Perak, 50450 Kuala Lumpur. Fax: 03-2141 1219 Nasrul Hakim bin Mohamad Ali: Messrs Ahmad Fuad & Co, No. Koh Mui Tee: Messrs Koh & Associates, No. 21-M, Jalan SS 21/ C12-1, Jalan Selaman 1, Dataran Palma, 68000 Ampang, Selangor 1A, Damansara Utama, 47400 Petaling Jaya, Selangor. Darul Ehsan. Tel: 03-4270 4838 / 4219 Tel: 03-7710 0088 Fax: 03-7710 0089 Fax: 03-4270 4832 Krishnan Papoo & Associates: Messrs Krishnan Papoo & Associates, Rahimah @ Damisah bt Hassin: Messrs Yu & Ling, No. 43-C, 3rd No. 50-A2, 2nd Flr, Persiaran MPAJ, Jalan Pandan Utama, Pandan Floor, Jalan Kenari 21, Bandar Puchong Jaya, 47100 Puchong, Indah, 55100 Kuala Lumpur. Tel: 03-4295 9055 Selangor. Tel: 03-8076 4043 Fax: 03-8070 9826 Fax: 03-4296 9055 Rathi Nair a/p Narayanan Kutty Nair: Messrs N R Nair & Associates, Leela a/p Velayuthan: Messrs A Rahim & Co, Suite 808 & 809, No. 20B, 2nd Floor, Jalan Market, 30000 Ipoh, Perak Darul 8th Floor, Johor Tower, 15, Jalan Gereja, 80100 Johor Bahru, Johor Ridzuan. Tel: 05-2431 918 Fax: 05-255 6434 Darul Takzim. Tel: 07-2244 922 Fax: 07-2236 939 Sudharshini a/p Maniam: Messrs Azhar & Goh, Unit B-8-11, E-mail: [email protected] / [email protected] Level 8, Block B, Megan Phileo Avenue II, No. 12 Jalan Yap Kwan Lee Mee Kam: Messrs Zain & Co, 6th & 7th Floors, Bangunan Seng, 50450 Kuala Lumpur. Tel: 03-2164 5566 Datu’ Zainal, 23, Jalan Melaka, 50100 Kuala Lumpur. Fax: 03-2164 2822 E-mail: [email protected] Tel: 03-2698 6255 Fax: 03-2698 6969 / 03-2693 6488 E-mail: [email protected]

Branches

Messrs Nordin Yusoff & Co: No. 42-1B, Jalan Raya Barat, 41100 Messrs Suhaili & Song: No. 45a, 1st, Floor, Jalan SS 2/75,47300 Klang, Selangor Darul Ehsan. Tel: 03-3378 2740 Petaling Jaya, Selangor. Fax: 03-3374 4541 Messrs Y P Tan & Ong: No. 2, Jalan 37/154,Taman Dahlia, Messrs Siau Suen Miin & Tan: No. 118A, Jalan PSK 4,Bandar 56000 Cheras, Kuala Lumpur. Baru Simpang Kuala, 05400 Alor Setar, Kedah.

INFOLINE 64 MAC / APR_2005 LAWYERSLAWYERS UPDATE UPDATE

New Firms

Aisha Mubarak & Co: Unit 807, Block A, Level 8, Kelana Businnes Mahendran & Fernandez: 33rd Floor, 33-01, Menara Keck Seng, Centre 97, SS 7/2, Kelana Jaya, 47301, Petaling Jaya, Selangor. 203, Jalan Bukit Bintang, 55100 Kuala Lumpur. Tel: 03-21165953 Tel: 012-3758086 ; Fax: 03-78807745. ; Fax: 03-21165954. Ali & Fariz: No. 8B, Tingkat 2, Wisma Bandaran, Jalan Ibrahim, Masniyati & Associates: No. 9A, Jalan 13/28, Section 3, 40100 08000 Sungai Petani, Kedah. Tel: 04-4223254 ; Fax: 04-4253693. Shah Alam, Selangor. B S Loh & Associates: No. 35-37, 2nd Floor, Perak Chinese Chamber N Suneth: No. 3-2, Jalan Puteri 7/11, Bandar Puteri , 47100 of Commerce and Industry Building, Jalan Tun Sambanthan, 30000 Puchong, Selangor . Perak. Nailah Ramli & Partners: Setiawangsa, Wilayah Persekutuan, Kuala Bashir & Rakan Rakan: No. 6-GF, Jalan 15/1F, Seksyen 15, 43650, Lumpur. Tel: 03-21165699 ; Fax: 03-21165799 Bandar Baru Bangi, Selangor. Tel: 03-89265770 ; Ong Gim Choo & Associates: No. 59 Jalan USJ 2/4R, 47600 Fax: 03-89266620. Subang Jaya, Selangor Darul Ehsan. Tel : 03-56333963. Boestaman Ahmad & Co: No. 227-A Jalan 4D, Subang New Ranjeet Gendeh & Associates: B-3A-14 Megan Phoenix, Phoenix Village, 40000 Shah Alam, Selangor. Tel: 03-78467387. Business Park, Jalan 2/142A Off Jalan Cheras, 56000 Kuala Lumpur. C C Lee & Co: 5th Floor, Tower 1, Wisma MCIS, Jalan Barat, Tel: 03-91016399 ; Fax: 03-91917399 46200 Petaling Jaya, Selangor Darul Ehsan. Robert Lau & Co: No. 6, 2nd Floor, Wisma RKT, Jalan Raja Chai Yong & Co: 26 Up, Jalan Raya Kulai Besar, 81000 Kulai, Abdullah, 50300 Kuala Lumpur. Tel: 019-6194449 ; Johar Fax: 03-26913188. Chris Koh & Chew: Level 19, Menara TA One, 22 Jalan P Ramlee, Rohayati Sidik & Associates: 10C, Tingkat 1, Jalan Tok Lam, 20100 50250 Kuala Lumpur. Tel : 03-27118930 ; Fax : 03-27118931. Kuala Terengganu, Terengganu. Tel: 09-6229242 ; Dzahara & Associates: No. 11A, Jalan 6/7, 55100 Pandan Indah, Fax: 09-6229242. Kuala Lumpur. Tel: 03-42964796 ; Fax: 04-42964796 Rosli Kamaruddin & Co: 1.2, 1st Floor, 85A , Jalan Pulai 7, Taman Fuad Razak & Co: EE-205, Jalan Pinggiran 3/1, Taman Pinggiran Pulai Utama, 81300 Skudai, Johor. Tel: 07-5213200 ; Batu Caves, 68100 Batu Caves, Selangor. Tel: 03-61891934 ; Fax: 07-5211179. Fax: 03-61891934. S V Chelliah & Associates: No.23 Jalan SS3/51, Petaling Jaya, G H Lim & Associates: No. 130, 1st Floor, Jalan Bakek, 82000 473000, Selangor. Tel: 03-78759102. Pontian, Johor. Salbiyah Fazilah & Partners: Unait No. 11-6-1, Jalan 2/50, Diamon Gopal & Co: Pt 4756, Jalan T.S. 1/19 Taman Semarak Nilai, 71800 Square Commercial Center, Off Jalan Gombak, 53000 Kuala Negeri Sembilan. Tel: 06-7990720. Lumpur. Tel: 03-40238834 ; Fax:03-40238834. Hani & Co: 1st Floor, No. 3, Jalan Cempaka 1/1, Bandar Aman Selva Veeriah: No. 65-2, Bangsar Aman Apartment, 59000 Kuala Jaya, 08000 Sungai Petani, Kedah Darul Aman. Lumpur. Tel: 03-22873834 ; Fax: 03-22873832 Hanita & Associates: 1-23, Perdana Avenue, Jalan KP3, Taman Shima Rajadran Domnic & Co: No. 19A, Jalan Bandar Timah, Kajang Perdana, 43000 Kajang, Selangor. Tel: 03-87347596 ; 30000 Ipoh, Perak. Tel: 05-2431044 ; Fax: 05-2417110. Fax: 03-87342482. Sidhu & Associates: No. 51-1A, Jalan 3/93, Taman Miharja, Hoe & Moira: Suite 123-Upper P, 5th Floor, Wisma Lister Garden, 552000, Cheras, Kuala Lumpur. Tel: 03-92821223 ; 10400 Macalister Road, Penang. Tel: 04-2266220 ; Fax: 03-92816113. Fax: 04-2286220. Siti Aishah & Co: No. 12B, 2nd Floor, Jalan Saujana Indah 1, Taman Idris Zain & Co: No 11, Jalan SS 5D/13, 47301 Petaling Jaya, Saujana Indah, Seksyen U2, 40150 Shah Alam, Selangor. Selangor. Tel: 03-78465461 ; Fax: 03-78465461. J S Gill & C. Surendran: No. 5A, Jalan Melaka Raya 13, Taman Siti Rohani & Partners: No. 33-1A, Jalan 3/10, 55100 Pandan Melaka Raya, 75000 Melaka. Tel: 06-2815670; Fax: 06-2813670. Jaya, Kuala Lumpur . Tel: 03-92821225 ; Fax: 03-92851224. Jeremy & Sazlin: No. 6-2B, Jalan PJU 1/3A, SunwayMas Sundra Rajoo: B-13-5, Condo Vista Kiara, 9 (Concorde Tower) Commrcial Centre, 47301, Petaling Jaya, Selangor. Jalan 1/61A, Mount Kiara, 50480 Kuala Lumpur. Tel: 03-78808110 ; Fax: 03-78808115. Tel : 012-3292721. Jeyaratnam & Co: No, Ground Floor, Jalan Tun Sambanthan, Woo kok Wai: No. 199, Jalan Cyber 12, Kawasan Perindustrian 30000 Ipoh, Perak Darul Ridzuan. Tel: 05-2548866 ; Senai 4, Senai, 81400, Johor. Tel: 07-2375497. Fax: 05-2540244. Y A Anwar & Co: A710-L, Kg. Telaga Daing, Off Jalan Teluk Jimmy M P Ng: No. 19, Tingkat Atas, Jalan Masjid, Pusat Ketapang, Seberang Takir, 21300 Kuala Terengganu, Terengganu. Perniagaan Bahau, Negeri Sembilan. Tel: 012-3133153. Yek Lai: No. 96, Jalan Muda 73B, Off Jalan Sungai Putus, Batu K Ranjit Singh & Partners: No. 108(1st Floor), Lebuh Turi, Taman Belah, 41050 Klang, Selangor. Tel: 03-33787507 ; Chi Liung, 41200 Klang, Selangor. Tel: 03-3371463 ; Fax: 03-33442395. Fax: 03-33714669. Zarinah, Tan Lean Tee & Co: No. 51-10-D2 Level 10, Menara Kanda & Associates: Unit LP 12, 13th Floor, Menara TJB, No.9, BHL Bank, Jalan Sultan Ahmad Shah, 10050 Penang. Jalan Syed Mohd Mufti, Johor Bahru, 80000, Johor. Tel: 04-2286699 ; Fax: 04-2286645. Tel: 07-2245667 ; Fax: 07-2234667. Maha & Co: No. 29A, Jalan Mawar, 81750 Masai, Johor. Tel: 07-2554657 ; Fax: 07-2551658.

MAC / APR_2005 INFOLINE 65 LAWYERSLAWYERS UPDATE UPDATE Firms: Change Of Address, Tel, Fax Number Abd. Razak & Co: No. 3023, Taman Nadira, Jalan Dusun Langgar, Par Govind & Co: 3rd Floor, Beacon House, No. 1, Jalan Gereja, Kota Kubang Labu, 16250,Wakaf Bharu, Kelantan P.o.Box No.10159, 50100 Kuala Lumpur. Tel:03-2031 8977 F L Teng & Co: No. 13, (1st Floor), Jalan Abdullah, 84000 Muar, Fax: 03-2031 4977 Johor. Raja Azhar & Husain Safri: KCP 48, Tingkat Satu, Kemaman Hakem Arabi & Associates: No. 15-1 & 15-2, Jalan Seksyen 3/ Business Centre, Jalan Lebai, Saras, 24000 Kemaman,Terengganu 9,Taman Kajang Utama, 43000 Kajang, Selangor Darul Ehsan. Darul Iman. Tel: 09-8591 727 / 8592 037 Fax: 09-8591 729 Tel: 03-8737 0320 Fax: 03-8737 0319 E-mail: [email protected] M Bala Simenchalam & Co: JA 9961 1A, First Floor, Bandar Baru S Callay & Co: L2-10, Times 89 Business Plaza, Jalan Seri Sentosa Jasin III, 77000 Jasin, Melaka. 11,Taman Seri Sentosa, 58000 Kuala Lumpur. Mohd Azmi Tan & Co: 3542-D, Aras 1, Jalan Telipot, 15150 Tel / Fax:03-7770 2449 Kota Bharu, Kelantan. T A Fadzil, Hairul & Associates: No. 6A, Aras 2, Jalan Raja Chulan, 3300 Kuala Kangsar, Perak Darul Ridzuan. Members who have ceased practice

Kuala Lumpur S/918 Edmund Sia Wei Keong 20.3.2005 S/1680 Suraya Khaireen bt Khalis 1.1.2005 A/1223 Azreena bt Che Omar 1.1.2005 T/579 Tan Ai Gaik 31.12.2004 A/1270 Abbas b Nejamdeen 1.2.2005 T/708 Alex Tan Ken Seng 31.1.2004 B/197 Bazlinda bt Bahrin 1.6.2004 U/33 Umi Kalusom bt Ahmad 1.4.2005 C/273 Choo Yem Kuen 31.3.2005 U/35 Ummi Kalsom bt Mohamed 30.4.2003 C/900 Chew Chiew Leong 12.3.2005 Z/276 Zarina bt Barharudin 9.4.2005 C/1030 Choong Wai Ling 1.9.2004 F/83 Fong Phaik Yoong 2.4.2005 Kelantan H/600 Haniza bt Hanafi June 2004 F/320 Fauzana bt Arifin 30.12.2004 I/158 Izreen Fara bt Ismail 14.11.2004 G/365 Gan Peng Kun 1.11.2004 K/533 Kong Su Yin 16.2.2005 N/1187 Nor Asmadi b Ashari 30.5.2004 K/677 Caroline Kong Li Leng 27.12.2004 N/1189 Norsima bt Senawi 16.5.2004 K/759 Kang Siew Lian 9.10.2004 L/937 Liau Y-Ky 31.2.2005 L/1262 Henry Leong Wye Keong 23.2.2005 Melaka L/1377 Lim Tien Sim 1.1.2005 M/1136 Mahendra Kumar Balakrishnan 12.6.2004 L/1526 Lau Le Bin 1.3.2005 S/1513 Siti Azzyati bt Abu Bakar 15.12.2004 L/1562 Liew See Hoong 28.2.2005 H/296 Harlina Mohamad Haron 1.1.2005 Perak I/176 Ida Mariam bt Abdul Rahim 31.7.2004 C/1122 Chiang Kian Hong 9.4.2005 L/1194 Justin Lee 25.2.2005 D/24 Devadason, Juliana Manohari 31.10.2003 M/937 Madzlan b Mohamad Hussain 1.4.2004 D/131 Deepa a/p A Kesavan 28.5.2004 N/943 Nor Aida bt Ahmad Ali 1.12.2004 N/1125 Ng Yueng May 1.3.2005 Penang N/1152 Nurul Bariah bt Md Jamil 26.3.2005 C/1034 Catherine Vasnthy a/p Paul Peter 3.4.2004 N/1153 Ng Jo-Anne 10.11.2004 M/1340 Mohd Sani b Mohd Akier 7.7.2004 O/267 Omar b Mohammad Istino 28.2.2005 O/232 Ong Yin Ee 18.3.2005 R/830 Rosmiati bt Ahmad 31.10.2004 P/183 Pauziah bt Ahmad 1.1.2005 S/1378 Salina Lim bt Abdullah June 2004 L/190 Lim Tatt Keong, Andrew 31.12.2004 S/1443 Sherley Eleza Ramli 30.6.2004 L/1167 Lim Li Yen 1.2.2004 S/1678 Sophia Kasturi Dass 31.12.2004 T/483 Tan Su Syan 24.3.2005 S/1677 Suhaizak bin Ab Wahab 1.1.2005 Y/355 Yoong Chee Min 1.1.2005 Johor Bahru Z/244 Zainal Marshan 17.3.2005 F/204 Foo Jick Liang 7.1.2005 W/492 Wong Tze Wei 20.2.2004 L/1340 Lue Swee Ping 3.3.2005 Selangor M/8 Mahani bt Abdul Hamid 31.1.2004 S/697 Saw Kim Hong 1.1.2005 C/590 Chin Yuet Yoon 31.3.2005 T/194 Tan Kok Hong 30.3.2004 E/148 Edman a/l Anthony 28.2.2005 G/373 Gelnda Pearl Majaway 14.4.2005 Kedah K/469 Kua Siew Kim, Carol 23.3.2004 A/1377 Amiza bt Nasrun 15.2.2005 K/644 Khaw Su Ming 30.3.2004 L/932 Lai Mun Onn 1.3.2003 Terengganu M/897 Mohd Sofian b Abdul Rahman 1.1.2005 R/804 Raja Kamariah bt Raja Abdul Rahman 1.3.2005

INFOLINE 66 MAC / APR_2005 LIBRARYLIBRARY UPDATEUPDATE

INDEX TO SELECTED P.U.(B) SERIES 2005 TITLE P.U.(B) NO. Communications and Multimedia (Amendment) Act 2004 [Act A1220] Appointment of Date of Coming into Operation 112/2005 w.e.f:-1.4.2005 Federal Aricultural Marketing Authority (Amendment) Act 2004 [Act A1235] 108/2005 Appointment of Date of Coming into Operation w.e.f:-31.3.2005 Hire-Purchase (Amendment) Act 2004 [Act A1234] 119/2005 Appointment of Date of Coming into Operation w.e.f:-15.4.2005 Weights and Measures (Amendment) Act 2002 [Act A1180] Appointment of Date of Coming into Operation 113/2005 w.e.f:-4.4.2005

NEW BOOKS 1. Trafficking in Women and Children. 5. Mohd Akram bin Hj Shair Mohamad. Human Right Commission of Malaysia. Law of Confessions. Petaling Jaya: Kuala Lumpur: Suhakam, 2004. Sweet & Maxwell, 2004.

2. Ida Madieha bt Abdul Ghani Azmi.Trade 6. Jaques, Rachel, Gavin A. Xavier, Aravnid Marks Law in Malaysia. Petaling Jaya: Subbiah et al .Istilah Istilah Undang – Sweet & Maxwell, 2004. Undang. 4th ed. Petaling Jaya: Sweet & Maxwell, 2003. 3. Andrew Chew Peng Hui,Dr. Caveat System in Sarawak. 3rd ed. Petaling 7. Norchaya Talib. A Malaysian Jaya: Sweet & Maxwell, 2002. Perspective.Petaling Jaya: Sweet & Maxwell, 2002. 4. Ruth Charlton and Dewdney. Skills and Strategies for Practitioners. 2nd ed. Sydney: Law Books Co, 2004.

Erratum New Law Reports The following continuing series of law reports have been obtained by the Bar Council Library and reported in the Jan/Feb 2005. 1. South Australian State Reports [SASR] 1865 – present 2. Family Law Reports [FLR] 1980 – present

FOR LATEST LEGISLATION UPDATES PLEASE VISIT OUR WEBSITE www.malaysianbar.org.my AND CLICK ON ‘LIBRARY’

JAN / FEB_2005 INFOLINE 67 LIBRARYLIBRARY UPDATEUPDATE

AMENDING ACTS 2002 ACT NO TITLE ACT A1180… Weights and Measures (Amendment) Act 2002 Notes:-Amends ss.2 and 27, Insert new ss.26A, 26B, 26C, 26D, 26E, 26F, 26G and 26H w.e.f:-4.4.2005 [PU(B) 113/2005]

AMENDING ACTS 2004 ACT NO TITLE ACT A1220… Communications and Multimedia (Amendment) Act 2004 Notes:-Amends ss.4, 6, 16, 24, 30, 34, 36, 80, 104, 147, 157, 187, 188, 193, 204, Inserts new ss. 23A, 24A, 26A, 26B, 26C, 26D, 26E w.e.f:-1.4.2005 [PU(B) 112/2005] ACT A1234… Hire-Purchase (Amendment) Act 2004 An Act to amend the Hire-Purchase Act 1967 Notes:-Amends ss.1, 2, 4, 14, 15, 18, 34, 39, Insert new ss.6a, 6b, 6c, 57A w.e.f:-15.4.2005 [PU(B) 119/2005] ACT A1235… Federal Agricultural Marketing Authority (Amendment) Act 2004 An Act to amend the Federal Agricultural Marketing Authority Act 1965 Notes:-Amends long title, ss.1A, 2, 3, 3A, 9, 12, 14, 18, 19,21A,22,24, 25, 27, Deletes ss.6, 6A, 6B, 11A, 12A,23, Insert new ss.6C, 15A and 24A, w.e.f:-31.3.2005 [PU(B) 108/2005]

INDEX TO SELECTED P.U.(A) SERIES 2005 TITLE P.U.(A) NO. Anti-Money Laundering Act 2001 [Act 613] Anti-Money Laundering (Amendment of First Schedule) Order 2005 Issued under s.85, Anti-Money Laundering Act 2001 111/2005 Notes:-Amends Sch 1, Anti-Money Laundering Act 2001 w.e.f:-31.3.2005 Anti-Money Laundering Act 2001 [Act 613] Anti-Money Laundering (Amendment of Second Schedule) order 2005 Issued under s.85, Anti-Money Laundering Act 2001 112/2005 Notes:-Amends Sch 2, Anti-Money Laundering Act 2001 w.e.f:-31.3.2005 Hire-Purchase Act 1967 [Act 212] Hire-Purchase (Amendment of Schedule) Order 2005 Issued under s.57A(1), Hire-Purchase Act 1967 163/2005 Notes:-Amends Sch 2, 4, 5 and 6 , Hire Purchase Act 1967 w.e.f: 15.4.2005

INFOLINE 68 JANInfoline / FEB_2005 is printed by Sri Sedaya, No 31A, Jalan Sahabat, 50200 Kuala Lumpur. Malaysia INFOLINE PULL-OUT

ISSUE 14 MARCH / APRIL 2005

An Open Letter to SUHAKAM by Nik Nazmi Nik Ahmad and Edmund Bon

Dear Human Rights Commission of Malaysia unceremoniously arrested following a commando raid (SUHAKAM) on his house. In his dank and dreary cell, he was viciously assaulted by no other than the nation’s We, one a law student and the other a legal highest ranking police officer, the Inspector-General practitioner, write to you not only in our respective of Police. He was denied medical attention until, capacities as aforementioned, but more importantly, some nine days later, he was produced before a as concerned citizens of Malaysia. court, still bloodied and bruised, and charged with corruption, sparking outrage both locally and around You were established by the Human Rights the world. Commission of Malaysia Act 1999 (HRCMA) and imbued with the mandate, power and responsibility Mass protests and assemblies in support of Anwar to protect and promote human rights in Malaysia. were held and ruthlessly quelled by the authorities. The year 2004 has come and gone and, with the International condemnation mounted, putting dawn of 2005 and your 5th year in existence, we felt pressure on the Government to stop the increasing it appropriate to reflect on, and review, your and on-going abuses of human rights. The achievements thus far. Government eventually saw the need to improve its

Your brief history, as set out in your website, does not do you justice and fails to paint the full picture of how you came to be. The story there does not describe the political environment in which you were formed. Context is always important for comprehension and must Musa Hitam - Claimed not be disregarded. partial credit for setting up of SUHAKAM Commissioners Simon Sipaun and Hamdan Adnan In your case, in late-1998, prior to your formation, the then Malaysian Deputy Prime Minister, Datuk Seri Anwar Ibrahim, was sacked giving birth to the Reformasi movement. Despite, or perhaps of his high profile, he was Abu Talib Othman - Present Chairman Commissioners K C Vohrah and Ramon Navaratnam 1 Human Writes Issue 14 March / April 2005 image internationally and to deflect such criticisms. At the end of the day however, you should realise Hence your conception and birth. An indication, if that not everyone is an optimist, and that in order to not confirmation, of the Government’s motive is the retain your credibility, you must convince ordinary fact that you were placed under the purview and Malaysians that you can fulfil your function and portfolio of the Ministry of Foreign Affairs. The potential, as we are convinced that you can. Government must have felt that you had a role to play in the arena of international relations. Flowing from your reports, media statements, press releases, workshops, lectures, seminars, Democratic societies believe in the importance of consultations, training courses, educational respecting and upholding human rights as the programmes and conferences, you have increased cornerstone of civilisation. Your establishment was the level and quality of discourse and awareness of to us a heartening move as the perceived climate in human rights in Malaysia. For this achievement Malaysia then was (and still may be) seemingly hostile alone, we wish to commend you. to human rights. It would be fair to say that your establishment marked, at that point in time, the We are also encouraged that a good number of success of the struggles of countless courageous events that you have organised were well-attended, human rights advocates throughout the history of not least because you possess a certain degree of the nation. influence with the Government and have ready access to the Government and its various Having articulated your beginnings, may we now departments. You are in a privileged position proceed to review your achievements thus far, to compared to the NGOs and CSGs in Malaysia vis-à- highlight what needs improvement and most vis the Government and this is an advantage. importantly, to give voice to our hope for you in the future. We have learnt that human rights advocates We are further gladdened to see that you have must be perpetual optimists and it is in this spirit managed to reach out to organisations who that we have penned this letter. traditionally, have not understood or practised human rights governance in their affairs. Your work Since your inception, you have actively carried out with the police and the immigration authorities are your mandate to assess and report on the status of the clearest examples. humans rights in Malaysia. This exercise of yours has culminated in no less than 15 reports. All of these The steady trickle down effects of your efforts in reports have been submitted to Parliament but not creating, sustaining and enhancing human rights one has been tabled or debated. The Government awareness is that human rights is now seen as a appears to be reluctant to discuss the matters part of Malaysian society rather than an exception. contained in the reports. No formal reason has been You have managed to steer the discourse on human given as to why the reports have not been rights in Malaysia to the mainstream. The press has addressed. cautiously, but surely, begun to publish human rights issues, stories and concerns. The people speak We are heartened to note that, in general, the about it more freely and do not view ‘human rights’ positions you have taken in your reports are well- as a taboo subject. The fact that many Malaysians founded and accord with international human rights have lodged complaints with you and that you have norms and humanitarian principles. The issues you addressed their concerns is evidence of your slow have covered also deal with a wide-range of human but sure influence. The Government is slowly realising rights concerns. These concerns were, in the past, that human rights articulation and implementation before your establishment, articulated consistently do not necessarily plunge Malaysia into chaos or and vociferously by various non-governmental compel it to disorder. organisations (NGOs) and civil society groups (CSGs). You have confirmed these concerns and in reply to In summary, you have successfully created a new accusations that you were merely formed for show platform for human rights awareness and advocacy and serve no substantive purpose, we offer the in Malaysia. It was not easy but we feel that your alternative and optimistic view that perhaps your achievements so far have been a pleasant surprise reports have been too damning that the Government to many. All these achievements are well and good, has shied away from addressing them. but having proved your critics wrong, can you now exceed the expectations of your supporters? Having

2 Human Writes Issue 14 March / April 2005 set the benchmark, it is now up to you to set the bar which compels us to progress beyond awareness. higher. We should not rest easy at the first tier. Whilst there are signs that we are progressing to the second tier, When you started out, there was no benchmark to such progress is marked by many stops and starts, speak of, the situation then being characterised by and the transition is expected to be an uneven and what we would term the ‘anything-goes’ approach. difficult one. The way to tackle any problem is to In other words, until you came along, Malaysia was firstly identify and acknowledge it. At the moment, deprived of an official body or platform which could we have identified 8 areas besetting your role in command the respect and acceptance by the developing human rights in Malaysia. Government on human rights issues. Then, as you commenced your work, your articulation of various issues connected with the people, the NGOs and the 1. Lobbying of the Government CSGs. This connection allowed you to expand and ! Our immediate hope for the moment is that expound your chosen areas of human rights with the you will intensify your lobbying of the support of various human rights advocates. Any Government to debate and act on your reports. matter looked into or considered by you was Surely the intent of Parliament, when encouraged and applauded. No doubt, due to the designating it your duty, pursuant to section ‘deprivation’ as aforementioned, beggars cannot be 21 of the HRCMA, to submit reports to it, is choosers. for the reports to be digested, discussed, debated and acted upon, and not for them lie But when we say you need to set the bar higher, we abandoned in the august building, collecting mean that you must work with more circumspection, dust. more authority and take more action. Expectations ! You should personally and directly lobby of you have risen. People are more aware and Government Ministers or Members of articulate of their rights. No longer will mere reports, Parliament to answer issues raised in your numerous recommendations or controversial media reports. It is insufficient to just write letters to statements suffice. Despite the inroads you have them and expect a favourable reply. Just as made, you will cease to be effective if you fail to rights do not fall into people’s laps, your right render yourself relevant to the needs of the people for your report to be taken seriously must be whom you serve. You may have won the battle, but claimed by you. NGOs and CSGs can only not the war. Complacency should not be allowed to provide support, you yourself must act on it set in, as there is still much to be done. Optimists first. we may be, but our optimism can only be sustained ! You should progress from merely issuing by a continuous and relentless effort on your part to general statements on human rights to uphold, protect, promote and enforce the basic initiating high-level talks with policy-makers on human rights of our fellow country men and women. what is needed to accomplish your human rights agenda. A viable strategy which you There are three tiers to the human rights agenda in should adopt is to call for and hold regular Malaysia – the first tier: awareness, the second tier: roundtable dialogues and meetings with the advocacy/articulation and the third tier: action – Government and its departments. This is to

Bengkel Hak Asasi Manusia untuk Orang Asli Meeting the Commissioners at the SUHAKAM office. Semenanjung Malaysia, 29-30 Disember 2002

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ensure constant communication and frequent rights policing, but do not ignore them for they access in, and effective monitoring of, the too have valid points and are invaluable to your implementation of human rights in Malaysia. work. You should strive to be more inclusive in We believe the Attorney-General’s Chambers this regard. A permanent network with the Bar has now set up under its International Affairs Council, NGOs and CSGs should be formalised Unit an International Unit III dealing specifically for the benefit of all. Your meetings with the with human rights and international Government should include these partners. A organisations. These dialogues and meetings leading example of this model was when should as much as possible, include various Working Group ‘A’ of the Special Commission interested parties such as the Bar Council, to Enhance the Operation and Management NGOs and CSGs. of the Royal Police Force chaired by Tun Mohd ! We note that in pages 177-327 of your Annual Salleh Abbas held closed-door meetings with Report 2003, you have reproduced the representatives of the Bar Council and senior Government’s responses to your observations police officers on various laws pertaining to and recommendations since your police powers. These were, at times, tense but establishment. Whilst this is a good start, some highly effective discussions and led to a greater of the Government’s responses are understanding of the problems faced by both unsatisfactory. You should not leave the the police and public on the ground. responses as they are but should also follow- ! The aforesaid represents the next step in the up on them, for example, by proposing the human rights struggle and sets the groundwork aforesaid dialogues and meetings. You must for a support system. The resulting dialogue take concrete steps to influence a change in between parties will see a broad range of views Government practices and policies to be in line being represented, and will further provide you with human rights norms and principles. with a credible and useful source of information in your dialogue with the Government.

2. Be more inclusive ! The Bar Council, NGOs and CSGs are strategic 3. Be more visible partners in the development of human rights ! We feel that you should be more visible and in Malaysia. Whilst there has been some pro-active in the people’s and media’s eye. interaction between yourself and some of Human rights litigation has boomed in these bodies, it is not enough. Many times, it Malaysia. Numerous human rights test cases is only due to ‘forced’ or ad hoc situations that have been filed or are being litigated. The range you all meet and work together. of matters litigated include issues of freedom ! You should start regular roundtable dialogues of religion, education rights, child rights, and meetings with the Bar Council, NGOs and women’s rights, preventive detention, death CSGs on the basis, and for the reasons, stated in police custody and native land rights. Why above vis-à-vis the Government. Some have you yet to appear through counsel or organisations or groups may take the made representations by way of written confrontational approach towards human submissions to the courts in those cases? You

Bengkel Hak Asasi Manusia untuk orang asal negeri Bengkel Kebebasan Media, 1 Ogos 2002 Sabah, 12 Oktober 2002

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have not attempted to intervene in human commenced such an inquiry, you would have rights cases or filed an action in court as a been seen to be carrying out your functions plaintiff for human rights violations so far. Why pursuant to your mandate. As it stands, it is that so? appears that you abdicated your duty and had ! You are THE human rights body and THE to rely instead on technicalities to absolve statutory authority on human rights in Malaysia yourself of blame. – entrusted to promote and articulate the cause of human rights. As such, taking up such cases would be a clear endorsement of the 4. Be more transparent and accountable causes you support. Lawyers have on previous ! This brings us to our next point. The people do occasions offered their services to you on a not know how you decide matters before you. pro bono basis for this purpose but you have It is valid to ask why you would commence an not taken them up on their offers. inquiry into a human rights complaint which ! It is common practice in countries such as the appears less serious than the Kampung UK and the US for human rights groups, such Medan incident, but not the said incident. Do as Amnesty International, Human Rights Watch not get us wrong. All human rights complaints and Liberty, to appear in court to submit their must be looked at and considered. But from interventions. This was done, for example, in the perspective of a layperson, some of your the Guantánamo Bay detainees’ hearings and decisions have been puzzling. most recently before the House of Lords in A (FC) and others (FC) v Secretary of State for ! We wish you to consider drawing up guidelines, the Home Department and other appeals policy principles or checklists on how you [2004] UKHL 56 in respect of the detention in decide on matters such as when an inquiry the UK of foreign terror suspects without trial. should be held or when an investigation should ! Some may argue that section 12(2) of the be taken a step further. Time frames for your HRCMA bars you from doing so. We beg to action should be given as a yardstick and guide differ. That provision only prevents you from to assist in managing the expectations of inquiring into a complaint which is already complainants. This will provide an objective before the court, but to either hold a watching basis for Commissioners present and future brief or make submissions or an intervention to act. in respect of the complaint in court is a ! There should be as little secrecy as possible in different matter and certainly does not your decision making. After all, you serve the constitute commencing an inquiry within the people. The people should be able to know who said provision. decided what and why a decision was made ! Sadly, the reverse has happened. When a suit this way or that. Minutes of meetings or at least was brought against you and some of your a summary thereof should be published. We Commissioners for not commencing an inquiry should know who attended the meetings, what into the infamous Kampung Medan incident was said and who was entrusted to carry out vide Subramaniam Vythilingam v The Human the decisions. Rights Commission of Malaysia (SUHAKAM) & ! There have also been questions asked about Ors [2003] 6 CLJ 175, you resisted the suit the allowances for, and allocation of funds to, and raised, among others, a technical your Commissioners. Your silence on this issue objection that the plaintiff had no locus standi. is disquieting. The court accepted your arguments and the suit was struck out. ! Numerous complaints prior to the suit have 5. Be more pro-active been lodged with you regarding the Kampung ! The human rights cause is not about you, the Medan incident. Allegations have been made Commissioners, the lawyers, the politicians or and evidence of human rights abuses were the activists. It is about the people. It can only provided. Without going into the merits of the be effective if driven by the people. You have suit, why did you not commence an inquiry? to be more pro-active with the people. You The plaintiff wanted an inquiry into a serious must present the human face of human rights complaint and you had the power to commence to the people. You should ‘go-down-to-the- such an inquiry but you did not do so. Had you ground’ with the people although we are aware

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that your Commissioners are eminent and ! You should dedicate funds for a SUHAKAM ‘important’ people in society. Always start at human rights page or advertisements in every the grassroots. In this regard, all your major newspaper. Human rights Commissioners should be approachable by the advertisements are frequent in Thailand. The people. advertisement we last saw was in the ‘Bangkok ! You should mobilize the people at planned Post’, November 18, 2004, where a full page events. If a peaceful demonstration or protest was taken out for the remembrance of the 18 is called for, you should lead it. You have Thai conservationists and human rights previously stated in your progressive ‘Freedom defenders who had been killed. It was titled of Assembly’ report that you were of the ‘firm ‘As the World Conservation Congress meets belief that it is definitely possible in present in Bangkok today to work for ‘a just world that day Malaysia to have peaceful assemblies at values and conserves nature’, what has been which participants voice their views about happening in Thailand these past few years?’. issues that are a matter of concern for them’. Pictures of each activist were printed together You have further recommended that peaceful with short summaries of their work below the assemblies are ‘a healthy way for members of pictures. civil society to express dissatisfaction over matters that affect their lives’. Your Commissioners are after all protected from 6. Be committed any action, suit or prosecution by section 18 ! We question the commitment of some of your HRCMA in the course of their duties carried Commissioners who are too engaged with their out in good faith. other responsibilities and neglect their duties ! You should regularly visit and work with the at SUHAKAM. Such neglect raises concern of marginalized groups such as the Orang Asli how seriously you are regarded by your own communities, the estate and plantation Commissioners. Why were there no workers and the disabled; not just visit them Commissioners to receive the urgent when complaints are made to you. complaints from the family members of the ! You should also draw up legal policy papers to Simpang Renggam detention camp hunger critically analyse court decisions in Malaysia strikers? There have been occasions when the from a human rights perspective. These papers Commissioners receiving the complaints were will be a useful advocacy and lobbying tool for not even aware of what the complaints were various NGOs and CSGs. about even after the incident was widely ! Human rights concerns cannot survive if they reported in the media! We humbly suggest that are not published. Your public relations with it is time all Commissioners be appointed on a the media, the people and the international full-time basis. community can be improved. Every human ! If your Commissioners are not committed, they rights concern should be lobbied by you should not continue to be appointed. When we personally with the media in order that it is say committed, we mean committed to the published, and published accurately. Press human rights cause. You do not need statements must be made swiftly and your Commissioners who are there to ride the wave Commissioners must be more media savvy. and use you as a vehicle for personal Frustratingly, we have read on numerous advancement. You do not need Commissioners occasions that your Commissioners made who will take an idea which is not theirs, and certain press statements only to state, on the re-package it for themselves and use it to gain next day, that they had been misquoted. There personal publicity. You do not need should also not be only a handful of Commissioners who do a disservice to the Commissioners who act as the spokespersons human rights movement by whitewashing for you, as is the present trend, but all should human rights abuses by the Government. For speak. NGOs and CSGs to provide ‘report cards’ on ! Information from the ground is necessary to your Commissioners, information is needed ensure urgent responses to any incident. You and that is why we call for more transparency should demand that every governmental in respect of your meetings as stated above. organisation have a liaison officer assigned to ! Your commitment must be beyond doubt. Your deal with you, and that the Attorney-General’s ‘turn-around’ time must be swift in terms of Chambers establish a human-rights desk. processing of and responses to complaints.

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Further, you have been very quiet on the issues people, the NGOs and the CSGs, but also the of religion, constitutionalism and the Islamic Government, a clear picture as to your direction state in Malaysia. Why? Have you attempted and development. to initiate any inter-faith dialogue or even ! The blueprints should include an immediate restate the human rights position on these ‘shopping list’ of what you would like the issues? The Bar Council, along with the NGOs Government to implement in the next 5 years and CSGs have already done so. Your input or less. Whilst all rights are equally important, would be useful in this ongoing debate and your they need to be prioritised in accordance with lack of participation is acutely missed. your resources. A list should be drawn up, setting down the issues which you think are the most imperative and realistically achievable 7. Demand your rights at the moment. It could be freedom of the ! Just as you set out commendably to educate press by abolishing certain restrictive laws, or the people to insist on their rights, you too detainees’ rights such as reducing the number should do the same where necessary. At of days a person may be remanded pending present, you lack wide-ranging investigatory investigations. and enforcement powers. That should be ! Of course, there should be greater emphasis looked into. You should study the HRCMA and on the your educational role in Malaysia. propose changes in line with the above Human rights will only prevail when its suggestion. You also definitely require more beneficiaries (i.e. the people) value and funds and staff. Ask for them. appreciate them. Children are an important target group as they are the future of Malaysia. It is encouraging that you are in the midst of 8. Have a human rights agenda and vision completing the human rights syllabus to be for the future, and articulate it incorporated in the national education ! We are of the view that only with a structured curricula. We propose that you seek the agenda and vision will you be effective in you assistance of the NGOs and the CSGs who work. The ‘anything-goes’ period is over. You have immense experience in training human cannot forever be ‘fire-fighting’ which is short- rights defenders. term and ad hoc in effect. You need to draw ! Further, there should be greater articulation up two blueprints for the future, mapping out of your position on the argument that human your agenda and goals for the future. One rights is a Western, rather than Asian concept. blueprint will cover your work for the next 5 The negative connotations of human rights as years and the other for the next 10. These being anti-establishment, or even anti-Asian blueprints should bind successive should be tackled; as it is anything but. The Commissioners and will give, not only the preservation of human rights is in accordance

Forum on the Convention on the Elimination of all Bengkel Konvensyen Hak Kanak-Kanak ‘Training of Forms of Disrimination Against Women (CEDAW), 30 Trainers’ 24-26 Mei 2004 March 2004 Kuching, Sarawak

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with the vision of Malaysia’s founding fathers, scale have not helped. The struggle for human and its spirit is encapsulated in the Federal rights is never-ending. You must not waver in Constitution, the bedrock of the country’s the face of adversity. We hold strong to the system of government. The idea of human belief that, just like us, as an institution rights is not unique to the West, but is a created to protect human rights, you too share universal concept and exists in Confucian and our optimism. Muslim traditions inasmuch as in Judeo- Christian tradition. The fundamental ideas are We trust we were able to offer you some useful universal and cannot be monopolised by any thoughts for your attention. We believe your success one culture or tradition. Malaysians have the is integral to the nation’s efforts to become a truly right to freedom of speech, just as Americans democratic nation by 2020. We fervently hope that, do, because we are all sentient beings, each just as we are today proud of our nation, we can with our own thoughts and ideas. one day be equally proud of our nation’s ! More education is needed on this as the achievements in the area of human rights. The recent Statement by Dato’ Seri Syed Hamid nation’s stability, harmony, development and progress Albar, the Minister of Foreign Affairs to the 61st go hand in glove with the development of human Session of the United Nations Commission on rights of all Malaysians. Though a measure of basic Human Rights on 14 March 2005 at Geneva goals such as creating awareness and heightening revealed. On behalf of Malaysia, the discourse has been achieved, much more awaits Honourable Minister resisted the completion. recommendation of the United Nations to prepare an annual report on the situation of We remain incorrigible optimists and thank you for human rights worldwide in view ‘of the varying taking the time to read our letter. human rights perspectives and different political, historical, social, religious, cultural and We very much look forward to hearing from you. developmental characteristics’. Yet, in the same breath, he maintained that not enough is being done to address poverty, underdevelopment, marginalization and instability as ‘the universality and indivisibility of all human rights have been accepted as far back as 1993, at the Vienna World Conference on Human Rights’. This statement is a contradiction in terms. ! Once formulated, the blueprints should be published as an indication of your commitment to staying relevant in the development of human rights in Malaysia. We recognise that the challenges and obstacles facing you are enormous. The September 11 attacks leading to increased human rights violations on a global

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