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Editorial Editorial PRAXIS 2 The Ethic of Reciprocity CHRONICLE OF THE MALAYSIAN BAR News 6 Malaysian Bar 61st AGM 9 Bar Council Secretariat achieves ISO 9001:2000 Certification 10 National Maritime Conference BAR COUNCIL OF MALAYSIA 12 Nallini and Hamid Sultan made Judicial Commissioners 13 State Bar Chairmen & Representatives 2007/2008 BAR COUNCIL 14 Report by three Scrutineers to Complete the Tasks In Nos 13, 15 & 17 Relation to the Bar Council Elections 2007/2008 Leboh Pasar Besar 50050 Kuala Lumpur 15 Who’s Who in the Bar Council 2007 Malaysia 16 Malaysian Bar ready to host the premier event of the year - Telephone (03) 2031 3003 the 14th Malaysian Law Conference Fax (03) 2026 1313, 2034 2825, 2072 5818 e-mail: [email protected] 17 Interview with Yeo Yang Poh, Website: www.malaysianbar.org.my Immediate Past President of the Malaysian Bar 23 It’s not over yet, lawyer wants Bar Council Elections 2007- BAR COUNCIL 2007/2008 2008 nullified President Ambiga Sreenevasan 24 Tun Dzaiddin Trophy Vice President Ragunath Kesavan Secretary Lim Chee Wee 25 BAR COUNCIL Diary of upcoming Events Treasurer George Varughese 25 Recent Events Yeo Yang Poh, Datuk Haji Kuthubul Zaman 26 Book Review - The Arbitration Act 2005 Bukhari, Hendon Mohamed, Hj Vazeer Alam Mydin State Bar News Meera, Dato’ Muhammad Shafee bin Md Abdullah, 30 Malacca Bar Committee to work together with the police Edmund Bon, Cecil Rajendra, Low Beng Choo, Christopher Leong, Roger Tan Kor Mee, K Mohan 31 Growing in Compassion, Courage and Understanding a/l K Kumaran, Loh Wann Yuan, G Balakrishnan, 31 Veteran Penang lawyer slips away R Subramaniam, Dato’ Hj Sukri bin Haji Mohamed, Comment Hj Aziz Bin Haniff, Ravindra Kumar, Steven Thiruneelakandan, Ng Kong Peng, R R 32 The Indomitable Spirit Chelvarajah, Tee Kim Chan, Pretam Singh, Syed Speeches Azimal Amir bin Syed Abu Bakar, Hj Mohamed 34 Young Malaysians’ Roundtable Discussion on National Sazali Abd Aziz, Lalitha Menon, Dato’ V Unity and Development in Malaysia: Prospects and Sithambaram, Ngan Siong Hing, Shan Theivanthiran, R V Lingam, Anuwar bin Mohd, Challenges for Nation Building Hj Asmadi bin Awang, Yasmeen Hj Muhamad 37 Malaysia As A Maritime Nation: Meeting Expectations Shariff Committee Publications Committee 41 Roundup on Bar Council’s Public Forum on “Senior Hj Vazeer Alam Mydin Meera (Chairman), K Citizens’ Protection : Is there a need to enact laws?” Shanmuga (Deputy Chairman), Ng Kong Peng, Andrew Das Solomon, Cecil Rajendra, Colin 43 Speaking our Hearts and Minds through Dialogue: Andrew Pereira, Edmund Bon, S Gunasegaran, Working towards greater acceptance and understanding of Sanjeev Kumar Rasiah, Tan Ban Cheng , PK Yang, our nation’s problems Nicole Tan Lee Koon, Jahaberdeen Mohamed Notices Yunoos 45 Bar’s NYLC Solomon Islands Earthquake and Tsunami Secretariat Fund (E&T Fund) Chief Executive Officer: Shaharudin Mohd Ali Deputy CEO: Kenneth Goh 45 Legal Practice Review Opinion Advertisement Executive 46 Subashini v Saravanan - Chandrika Bhaskaran A commentary on the Court of Appeal decision Tel: +603 203 13 003 extn 192 DL: + 603 203 13 180 Articles Fax: + 603 2026 1313 48 Law & Realty: RPGT queries answered [email protected] 50 Potential Impact of the Changes in the Malaysian Penal Design & Layout: Code Khairul Anuar / Norazaliza Azlin Press Statements 55 Delays in court proceedings Praxis is the chronicle of the Malaysian Bar, 55 Seniority important factor in judicial appointments published bi-monthly by the Bar Council of Malaysia. Putik Lada 56 All Malaysians need to believe that they have a place under Contribution: The Bar Council welcomes letters, the Malaysian sun articles, views and news (including photographs) 58 Young Malaysians reach 20-point consensus on National for possible inclusion in the publication. However, the Bar Council reserves the right not to publish Unity in Malaysia and urges Government to consult and them or to edit those published as regards content, listen clarity, style and space considerations. 60 “Liberated” junior Bar members secure seats in State

Articles from individuals that are published here Committees across the country contain the personal views of the writers concerned 61 Forging A Young Malaysian Identity Towards National Unity and are not necessarily the views of the Bar Human Writes Council. Contributions and enquiries should be 64 Article 121(1A) - what does it really mean? directed to [email protected] 65 SUHAKAM Public Inquiry Report into ‘Bloody Sunday’ 66 ASEAN’s empty Declaration On The Protection and Promotion of The Rights of Migrant Workers Certificate No: 22470 Library Update 69 Legislative updates andMARCH Library /Notice APRIL_2007 PRAXIS 1 Editorial

The Ethic of Reciprocity Hj Vazeer Alam Mydin Meera Editor

ecently, Datuk Zaid Ibrahim MP, in Rcommenting on the Court of Appeal decision in the case of Subashini v. Saravanan concluded by saying, “To Muslims, I say it is unfair to expect non-Muslims like Subashini to go the syariah court even if there is perfect justice in the syariah system because the law gives her the right to pursue her remedy in the civil courts and nowhere else. Muslims can do away with the civil courts if they so wish. They can seek changes to the law to incorporate criminal, contract, property laws, etc. as part of syariah law. What Muslims cannot do is to expect non- Muslims to submit to the syariah court.

How would we feel if it was the other way round? How would the Muslims feel if they have to submit to a Hindu court or to any other religious court? We should not do unto others what we do not want others to do unto us. That is the ultimate test of reasonableness. That is the test of a just legal system.”

I couldn’t agree more with Zaid. Do not do unto others what you do not want others to do unto you. This golden rule, this ethic of reciprocity, is a fundamental moral principle that is a common thread found in all major The Golden Rule – by the American Painter Norman Rockwell, 1961 world religions, faith and believe systems; flowing from ancient writings to the modern. Simply put, it Baha’i World Faith: extols us to treat others just as we would expect to be treated. “Ascribe not to any soul that which thou wouldst not Among its earliest appearance in English is Earl Rivers’ translation have ascribed to thee, and say not that which thou doest of a saying of Socrates (Dictes and Sayenges of the Philosophirs, not.” “Blessed is he who preferreth his brother before 1477): “Do to others as thou wouldst they should do to thee, himself.” Baha’u’llah and do to none other but as thou would be done to.” “And if thine eyes be turned towards justice, choose thou In many ancient cultures, traditions, and value systems, this for thy neighbour that which thou choosest for thyself.” golden rule has been a cornerstone of its teachings. I had occasion Epistle to the Son of the Wolf to browse the web to see how far and wide this rule is applied and was pleasantly surprised to find that it is indeed a universally Buddhism: extolled principle of human behaviour. I reproduce below some “...a state that is not pleasing or delightful to me, how excerpts from my research, using secondary sources from the could I inflict that upon another?” Samyutta NIkaya v. internet. The following are some of my findings. 353

PRAXIS 2 MARCH / APRIL_2007 Editorial

Hurt not others in ways that you yourself would find you, British Humanist Society. 3 hurtful.” Udana-Varga 5:18 Islam: Christianity: “None of you [truly] believes until he wishes for his “Therefore all things whatsoever ye would that men brother what he wishes for himself.” The Sunnah of should do to you, do ye even so to them: for this is the Prophet Muhammad - “Al-Nawawi’s Forty Hadiths.” law and the prophets.” Matthew 7:12, King James Version. “Hurt no one so that no one may hurt you.” — The Farewell Sermon of Prophet Muhammad “And as ye would that men should do to you, do ye also to them likewise.” Luke 6:31, King James Version. Jainism: “Therefore, neither does he [a sage] cause violence to “...and don’t do what you hate...”, Gospel of Thomas 6. others nor does he make others do so.” Acarangasutra The Gospel of Thomas is one of about 40 gospels that 5.101-2. were widely accepted among early Christians, but which never made it into the Christian Scriptures (New “In happiness and suffering, in joy and grief, we should Testament). regard all creatures as we regard our own self.” Lord Mahavira, 24th Tirthankara Confucianism: “Do not do to others what you do not want them to do “A man should wander about treating all creatures as he to you” Analects 15:23 himself would be treated. “Sutrakritanga 1.11.33

“Tse-kung asked, ‘Is there one word that can serve as a Judaism: principle of conduct for life?’ Confucius replied, ‘It is the “...thou shalt love thy neighbor as thyself.”, Leviticus word ‘shu’ — reciprocity. Do not impose on others what 19:18 you yourself do not desire.’“ Doctrine of the Mean 13.3 “What is hateful to you, do not to your fellow man. This “Try your best to treat others as you would wish to be is the law: all the rest is commentary.” Talmud, Shabbat treated yourself, and you will find that this is the shortest 31a. way to benevolence.” Mencius VII.A.4 “And what you hate, do not do to any one.” Tobit 4:15 Ancient Egyptian: 6 “Do for one who may do for you, that you may cause him thus to do.” The Tale of the Eloquent Peasant, 109 Native American Spirituality: - 110 Translated by R.B. Parkinson. The original dates to “Respect for all life is the foundation.” The Great Law of 1970 to 1640 BCE and may be the earliest version ever Peace. written. 3 “All things are our relatives; what we do to everything, Hinduism: we do to ourselves. All is really One.” Black Elk “This is the sum of duty: do not do to others what would cause pain if done to you.” Mahabharata 5:1517 “Do not wrong or hate your neighbor. For it is not he who you wrong, but yourself.” Pima proverb. Humanism: “(5) Humanists acknowledge human interdependence, Roman Pagan Religion: the need for mutual respect and the kinship of all “The law imprinted on the hearts of all men is to love the humanity.” members of society as themselves.”

“(11) Humanists affirm that individual and social Shinto: problems can only be resolved by means of human reason, “The heart of the person before you is a mirror. See there intelligent effort, critical thinking joined with compassion your own form” and a spirit of empathy for all living beings. “ 4 “Be charitable to all beings, love is the representative of “Don’t do things you wouldn’t want to have done to God.” Ko-ji-ki Hachiman Kasuga

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Sikhism: The above are some examples of the Ethic of Reciprocity found Compassion-mercy and religion are the support of the in the major religious and ethic systems of the world. If we use entire world”. Japji Sahib this ethic as the starting point in finding solutions to inter-faith issues, such as those that challenging us in present times, I am “Don’t create enmity with anyone as God is within sure we would be able to arrive at a just solution. everyone.” Guru Arjan Devji It was encouraging to note that the defacto Minister of Law, “No one is my enemy, none a stranger and everyone is Datuk Seri Nazri Abdul Aziz, in the Dewan Rakyat, had recently my friend.” Guru Arjan Devji assured Parliament that the Attorney General has been directed by the government to look into mechanisms to resolve contentious Sufism: issues such as those arising from cases like Lina Joy, Moorty and “The basis of Sufism is consideration of the hearts and Subashini, in a manner where excess to justice is not denied to feelings of others. If you haven’t the will to gladden any one party. Nazri further assured Parliament that Syariah law someone’s heart, then at least beware lest you hurt would not be forced upon the non-Muslims. It is imperative someone’s heart, for on our path, no sin exists but this.” that a just solution be found. I for one am eagerly awaiting the Dr. Javad Nurbakhsh, Master of the Nimatullahi Sufi final solution to be adopted by the government. More than Order. ever, I am inclined to believe that the solution to these problems would have to come by way of legislative reform. Taoism: “Regard your neighbor’s gain as your own gain, and your When I read Zaid’s conclusion in his article in The Sun, it brought neighbor’s loss as your own loss.” T’ai Shang Kan Ying to mind the 1961 masterpiece by the great American painter, P’ien. Norman Rockwell, entitled the “The Golden Rule”. Rockwell wanted to illustrate how the Golden Rule was a common theme “The sage has no interest of his own, but takes the interests of all the major religions of the world, and depicted people of of the people as his own. He is kind to the kind; he is also every race, creed and colour with dignity and respect with the kind to the unkind: for Virtue is kind. He is faithful to words “Do unto others as you would have them do unto to you” the faithful; he is also faithful to the unfaithful: for Virtue running across the canvas. This painting evokes such emotion, is faithful.” Tao Teh Ching, Chapter 49 it surely did for me when I first saw it, so much so that a mosaic mural reproduction of it by Venetian artisans is now to be found Unitarian: in the United Nations Secretariat at New York. This mosaic was “We affirm and promote respect for the interdependent presented to the United Nations by Mrs. Nancy Reagan, the of all existence of which we are a part.” Unitarian then First Lady, on behalf of the United States, on the occasion principles. of the fortieth anniversary of the United Nations in 1985.

Wicca: We should all be reminded of the words of President Lyndon “An it harm no one, do what thou wilt” (i.e. do what ever Johnson. “We live in a world that has narrowed into a you will, as long as it harms nobody, including yourself). neighbourhood before it has broadened into a brotherhood.” One’s will is to be carefully thought out in advance of Our lives have become intertwined with one another. We must action. This is called the Wiccan Rede wish well for neighbours and brothers, just as much as we wish a peaceful and meaningful life for us. Yoruba: (Nigeria): “One going to take a pointed stick to pinch a baby bird should first try it on himself to feel how it hurts.”

Zoroastrianism: “That nature alone is good which refrains from doing unto another whatsoever is not good for itself”. Dadistan- i-dinik 94:5

“Whatever is disagreeable to yourself do not do unto others.” Shayast-na-Shayast 13:29

The Mosaic Mural at UN Building New York

PRAXIS 4 MARCH / APRIL_2007 Editorial

MARCH / APRIL_2007 PRAXIS 5 News

Malaysian Bar 61st AGM by Web Reporter

t its 61st annual general meeting held from voting on Suppiah’s Earlier, the Secretariat sent out Aon 17 March 2007 at the Legend motion. On the other hand, SMSes twice to more than Hotel, Kuala Lumpur, the Malaysian Bar 276 voted against, 18 voted 10,500 members’ mobile overwhelmingly voted for lawyer A. for and 32 abstained from phones. But at 10am Kanesalingam’s motion on the recent Bar voting on Swee Yoke’s motion. yesterday, only 402 had Council election after a debate lasting more turned up. The meeting only than an hour. When the motion was put Kanesalingam’s motion reads as started at 10.10 after 514 had to vote, 350 members voted for the follows: M Puravalen signed up. By 2.25 pm, less motion, and 13 voted against it. There In the premises the Malaysian than 1,000 members had were 32 abstentions, essentially from Bar Bar RESOLVES that: made an effort to attend the AGM with Council members. The action of the members of the Bar only 954 members signing up. Council, who were not themselves During the candidates, in terminating the When the motion on SRO Enforcement debate, the House appointment of Inderjit Singh, S was moved by Penang lawyer, Louis roared in applause Radhakrishnan and admiration and Yaacob for former Hussain Merican scrutineer Inderjit and appointing Singh when he Zain Azahari bin

Inderjit Singh walked to the Zainal Abidin, rostrum and Zainuddin bin admitted in his maiden speech at an Ismail and M annual general meeting that at the heat Puravalen as new An overwhelming “NO” to the motion nullifying election the moment, he had made a mistake and or alternate results and calling for fresh elections acknowledged that the scrutineers did not scrutineers for the have the power to declare the Bar Elections Elections and their determination of Edward Van Buerle at about 5pm, only null and void. the valid ballots, counting of the about 150 members were present to make valid ballots and declaration of the a decision on such an important issue for Indeed, it takes a brave man to admit his results to the Secretary of the Bar the entire Bar comprising more than mistakes, and the House was moved by Council be ratified and commended. 12,300 members! his humility and sincerity. It follows that the motions by P. Suppiah and Chew Members’ apathy Motions Swee Yoke calling In fact, the members’ apathy is astounding. All in all, 15 motions were proposed, but for fresh elections It appears that most members have stayed 2 were deferred and 1 was withdrawn. were defeated by away from this year’s AGM thinking that The deferred motions were those overwhelming it would not be a problem for the Bar to proposed by the Bar Council and Suppiah majorities 343 achieve the quorum of 500 members after on the rules governing general meetings members voted the amendments to the Legal Profession whilst Kamraj Nayagam withdrew his against, 19 voted for Act, 1976. motion. A Kanesalingam and 34 abstained

PRAXIS 6 MARCH / APRIL_2007 News

The outcome of the motions is as “People think we are not united. follows: That is not true. What we have • T. Kuhanandan’s motion on is a robust Bar with diverse views the Professional Indemnity and we all respect each other’s Insurance (10 for; 116 views. We may not agree, but against and 19 abstained) we respect each other’s views • Dato’ MS Murthi’s motion on and I can honestly say certainly appointments to the from the outcome of today’s Disicplinary Board (76 for; meeting that on the major 83 against and 9 abstained) The new Office Bearers, Ambiga, Ragu, George and issues, the bar is very much • Dato’ RR Sethu’s motion Chee Wee at the Press Conference united,” she said. (amended) on the conduct of Bar Elections (28 for; 113 against and Election of Bar Council Office Bearers Annual Dinner & Dance 11 abstained) After the AGM ended at about 5pm, the In the evening, the annual dinner and • P. Uthayakumar’s motion (amended) Bar Council members held a meeting to dance was held in the same hotel. The on the IPCMC (87 for; 67 against elect the office bearers. Guest of Honour was the Attorney and 15 abstained) General, Tan Sri Gani Patail. Federal Court • R. Kengadharan’s motion (amended Ambiga Sreenevasan and Ragunath Judge, Justice Datuk Abdul Hamid bin by Shanmuga Kanesalingam) on Kesavan were unchallenged and elected Haji Mohamad, Court of Appeal Judge, demolishments of Hindu temples respectively as the President and Vice- Datuk Gopal Sri Ram, some High Court (100 for and 13 against) President of the Malaysian Bar. judges, retired judges and ambassadors • Motion by Charles Hector and Francis were also present. The Malaysian Bar also Pereira on RELA (carried unanimously) As regards the position of • Motion by Renuka Balasubramaniam Secretary, Lim Chee Wee and Latheefa Koya on the corporal was challenged by Negri punishment of whipping (carried Sembilan Chair, Tee Kim unanimously) Chan whilst George • Motion by Latheefa Koya and Varughese faced a Renuka Balasubramaniam on one challenge from Steven legal aid file per lawyer (carried Thiruneelakandan for the unanimously) position of Treasurer. After The 1st Bar Council meeting to elect the Office Bearers • Louis Edward Van Buerle’s motion on election by way of secret suspending SRO Enforcement (64 ballot, Lim and George were duly elected paid tribute to Tan Sri Siti Norma Yaakob for and 77 against) as the Secretary and Treasurer respectively. who recently retired as the Chief Judge of Malaya. At a press conference after the AGM, Ambiga said the goal of The first prize of the lucky draw being a the Bar would be two-fold; one return ticket to London was won by was to ensure development and former Court of Appeal Judge and a Past maintaining of standards of the President of the Malaysian Bar, Datuk VC profession and the other, to George. pursue vigorously on human rights matters.

Datuk VC George flanked by Lim Chee Wee and George Varughese

MARCH / APRIL_2007 PRAXIS 7 News

Annual Dinner 2007

PRAXIS 8 MARCH / APRIL_2007 News

Bar Council Secretariat achieves ISO 9001:2000 Certification by Rebecca Anthony (HR Manager)

n 6 March 2007, the Bar Council OSecretariat was certified ISO 9001:2000 compliant by National Quality Assurance Limited. It was a wonderful moment.

This signalled what we would describe as Certificate No: 22470 the first phase of change. The ISO certification provides a high degree of complex and difficult issues. Besides that, This was the crucial second stage of the assurance that the internal processes of the the organisation handles daily certification process. The auditor went to Secretariat have been individually administrative matters that affect our different departments and interviewed identified and improved so that the practice and interest as practising lawyers. staff on a random basis. Records were organisation becomes more competitive reviewed to ensure that there was and able to response and adapt to the The Secretariat passed the ISO audit compliance with the written procedures. changing needs of the Bar Council and exercise. Essentially the purpose of an members of the Bar. audit was to ensure that there was The audit findings and the corrective compliance with written procedures and action plan were then submitted to NQA’s UK office for an independent review. We The ISO 9001:2000 certification will identify areas of improvement. From 3 waited anxiously for the result! bring the Secretariat at par with other January - 10 January we conducted an organisations that have done so. internal audit for all departments and On 6 March 2007, we were presented practice areas. It was an eye opening with the ISO 9001:2000 certificate by It captures processes, ensures service levels experience understanding and learning NQA. All the hard work had paid off. are kept and streamline internal processes about the way in which different parts of and reduce bureaucracy. It also means (1) the whole functioned! In addition to We wish to thank Chong Wei Lung of putting down the processes on paper and being a learning experience we also helped Cheang & Ariff (an ISO 9001:2000 one another identify non-conformities and forcing us to be systematic in our approach; certified legal firm) for his assistance. He areas of improvement. (2) we had to consider in a rationale and had kindly assisted the Secretariat over the measured manner the best way in which a past 1-½ years. job ought to be done; (3) the procedure Everyone in the department needed to would survive even if people left the know what the departmental quality We also wish to thank Tejwinder Singh organisation. Increased focus on costs will objectives were and how these objectives from Quality Issues. An experiences trainer soon inevitably take a centre stage, to meet were to be achieved. Quality objectives as of many years, Tejwinder was well known service level driven by escalating members’ they are known under ISO 9001:2000 for assisting many organisations achieve expectations. are just another way of describing targets ISO 9001:2000 certification. or KPI’s (Key Performance Indicators). The Secretariat is a powerhouse for The Council wishes to thank the generating, keeping and storage of huge After series of requisite exercises towards Secretariat’s top management and databank relevant to the successful getting the certifications, finally, NQA employees who have sacrificed their time administration of Malaysian Bar. It is a busy auditor carried out a compliance audit on and energy to make this exercise a great organisation that sometimes handles 28 February, 1 March and 2 March 2007. success.

MARCH / APRIL_2007 PRAXIS 9 News

National Maritime Conference by Selva Rani Thiyagarajan

he day kicked off with the President focused our attention on how old ships question as to the disposal of the FSPO Tof the Bar, Yeo Yang Poh in his can be given “new lives” by being after its life span, he answered that he said welcome address emphasising the need to converted into “Floating Production technology on this is being developed. focus on reforms to take the shipping Storage Offloading” (FPSO). FSPO are industry in the direction it want to head. moving oil tankers that can harvest oil from After lunch, Dr. S. Darumalinggam, the the sea and keep them in her tanks on the Vice Chairman on Malaysian National The Attorney-General, Tan Sri Abdul unit before shuttling it off in tankers to be Shipper’s Council discussed the topic Gani Patail followed on in his speech sold. This has been a revolutionary idea “Consumers’ (Shippers) Expectations”. It praising the Bar Council for taking the which worked well, e.g. the FSPO Bunga was an engaging talk on a shipper’s pitiful initiative to co-organize the Conference, Kertas, FSPO Brasil and others. work, where they need to obtain a good and inviting members to provide feedback sea crew and reduce the costs of to Chambers on maritime issues as they The following paper on “Port Security and transportation but at same time maintain lack the necessary expertise in shipping Responsibility” was presented by the the safety and security of the fleet. He law. He also hoped that the Conference Chairman of NCB Holdings Bhd, Tan highlighted the number of the charges would be a place for an open and frank Sri Dato’ Seri Ahmad Sarji Bin Abdul incurred by the shippers and proposed a discussion of current issues which will lead Hamid who explained the types of “one-stop center” to facilitate one payment to positive endeavors. problems faced in a port such as cargo theft, for all costs. He also raised 13 illegal immigrants and drug smuggling. recommendations that shippers wanted to The Deputy Prime Minister’s Keynote He concluded that the lack of security at in the shipping industry. address was read out by the Transport the ports do hamper the businesses of the Minister, Datuk Seri Chan Kong Choy nation. We had our first inter-active panel session and touched on various developments in on the “Admiralty Court: The Need and the field including the MISC and the At the question and answer session, The Viability”. It was chaired by Dato’ establishment of Admiralty Court which Captain Abdul Aziz who is a Malaysian Cecil Abraham and one of the panellists evidenced the seriousness the working in the Marine Department, was Justice Dato’ Vincent Ng. The Government placed in the industry. Brunei, asked whether IMO rules were concern raised was the there may be delays “forced” by Europe and America, and if in cases before the Court, and whether The Attorney-General was the first speaker so, how can Malaysia’s views be heard? Tan the Court had the expertise to deal with on the topic of international conventions, Sri Gani Patail answered that current admiralty cases. and he gave a general overview discussing negotiations in relation to IMO rules are among others the Vienna Convention and being held with Chambers, and in future, The second inter-active panel session was international bodies responsible for members of the Bar should also participate titled “Time for a Multi-Modal Regime”. maritime conventions, such as the United in them. The panellists explained the Nations the International Maritime transportation of cargo which may involve Organization (IMO). He went on to Tan Sri Ahmad Sarji dealt with a question various modes such as shipping, rail, road elaborate legal aspects of the domestic whether there was a need for additional or air. legislation such as the Customs Act and security at ports post-9/11 incident by Port Authorities Act, and the need for the saying that this was not necessary as the One of the panellists, K. Patmanathan ship-owners to comply with these laws. current system is working well. raised the thought provoking question asking why all Malaysian owned or The next speaker, Zahar Mohd Hashim, In relation to the question as to whether registered ship companies must have at the Vice President for Offshore Business, FSPO ships were still single hull tankers least 30% Bumiputras? This was not MISC Bhd spoke on “Phased-Out Vessels or double hull tankers, Zahar answered beneficial because it is keeping foreign and Offshore Structures – Life After”. He that they are all single hull and to another companies away.

PRAXIS 10 MARCH / APRIL_2007 News National Maritime Conference

MARCH / APRIL_2007 PRAXIS 11 News

Nallini and Hamid Sultan made Judicial Commissioners

allini Pathmanathan and Hamid Hamid was a member of the Bar Council Conveyancing, Land Law, and Islamic NSultan Abu Backer, both members for the past six Banking. In 2005, he published a of the Bar were appointed as Judicial years and had practitioner’s handbook, encompassing Commisioners. chaired several many areas of law within the impossible committees compass of 2 volumes, entitled Janab’s series Nallini graduated with a Bachelor of including the to Law, Practice and Legal Remedies, Science degree in Physiology from the Bahasa Melayu which cover Civil Procedure, the laws of University of London in 1982 and Committee and Contract, Guarantees, Bailment, Agency, obtained a Diploma in Law from the the Admiralty Specific Relief, Hire Purchase, Partnership, University of Westminster, United Law Committee. Sale of Goods, Probate and Kingdom in 1983. She was called to the Administration, Personal Injury, Family English Bar (Middle Temple) in 1984 and Hamid is a prolific writer. It would not be Law, Industrial Law, Arbitration, to the Malaysian Bar on 15 February wrong to say that in Malaysia, no one has, Bankruptcy, Winding Up and the law 1986. She commenced legal practice with to this date, authored quite as many legal relating to Receivers and Managers. Messrs. Skrine in 1986 and in 1995, texts in quite the way he has done. became a Partner of Skrine. For a few years Nallini has been posted to the High Court prior to her elevation to the High Court These books are standard reference at Shah Alam while Hamid Sultan is of Malaya on 1 March 2007, Nallini material in legal institutions throughout serving at the High Court at Kuching. served as the Chairman of the Executive the country, and include Janab’s Key to The Malaysian Bar wishes both Yang Arif Committee of Skrine. Civil Procedure, (in its third edition), a Nallini Pathmanathan and Yang Arif Tuan vastly successful work, Janab’s Key to the Haji Hamid Sultan a successful career on Nallini served on Law of Criminal Procedure, Evidence, the Bench and look forward to their committees of the Advocacy and Professional Ethics’. considered and learned decisions. Bar Council and was a member of the Disciplinary Committee Panel of the Advocates & Solicitors Disciplinary Board. She is also a Fellow of "It is in justice that the the Chartered Institute of Arbitrators. ordering of society is centered." Hamid Sultan or ‘Janab’ as he is known widely, holds a LL B Degree and an LLM from the University of London, and was Aristotle made a Barrister of the Lincoln’s Inn in Greek critic, philosopher, 1987. His other qualifications include a physicist, & zoologist (384 BC PGD in Shariah Law & Practice, a PGD - 322 BC) in Islamic Banking, and other professional qualifications like Mci. Arb (London), and a BA degree in Economics.

PRAXIS 12 MARCH / APRIL_2007 News

State Bar Chairmen & Representatives 2007/2008 Contributed by Web Reporter

he following is a brief collation of the results of State Bar Terengganu Telections for the positions of Chairman and State Bar Anuwar B Mohd was elected unopposed as Representative to the Council. These positions serve ex officio the new Chair of the Terengganu State Bar membership on the Bar Council 2007/2008. and Asmadi Awang as its State Bar Representative to the Bar Council. Selangor RV Lingam was elected unopposed as the Selangor Bar Chair whilst the outgoing Chair Kelantan George Varughese was returned as the Bar Datuk Sukri bin Haji Mohamed was returned Representative. unopposed as the Chairman of the Kelantan Bar for a second term. Its former Chairman, Aziz Hanif was elected its new State Bar Representative to the Bar Council. Kedah/Perlis G Balakrishnan was elected the new Kedah/ Perlis State Bar Chair while R Subramaniam Kuala Lumpur was elected the new Bar Representative Ravindra Kumar was elected as the new Chair of the Kuala Lumpur Bar while Steven Thiruneelakandan was elected as its Bar Representative for the second year running.

Perak Incumbent Chairman of the Perak Bar, Ngan Negeri Sembilan Siong Hing was returned unopposed for a Tee Kim Chan was elected the State Bar Chair second term and Shan Theivanthiran was while Pretam Singh s/o Ujagar Singh was elected unopposed as new State Bar elected as the State Bar Representative from Representative. Negeri Sembilan.

Pahang Malacca Syed Azimal Amir b Syed Abu Bakar was The incumbents Ng Kong Peng and R R elected as the new Chair of the Pahang Bar. Chelvarajah were returned unopposed as the The outgoing Chair Mohamed Sazali Abd State Bar Chair and Bar Representative Aziz was elected the new Bar Representative respectively. for Pahang.

Penang Johor The incumbents Lalitha Menon and Datuk Johor Bar elected K Mohan as its new V Sithambaram were returned unopposed as Chairman. The new Johor Bar Representative the State Bar Chair and State Bar is Loh Wann Yuan. Representative respectively for the second year running.

MARCH / APRIL_2007 PRAXIS 13 News

Report by three Scrutineers to Complete the Tasks In Relation to the Bar Council Elections 2007/2008

he Chairman of the Bar Council, Mr. Yeo Yang Poh sent 6. The overall details are as follows: Tindividual letters dated 23 February 2007 to us: Zain (i) Total ballots received : 3403 Azahari, Zainudin Ismail and M Puravalen, appointing us as Out of these we found the following: Scrutineers for the purposes of completing the tasks in relation (a) Number of replacement ballots : 18 to the Bar Council Elections 2007/08. (b) Total number of forged ballot papers : 52 (c) Total number of spoilt ballots : 38 2. We were requested to perform the following tasks: (ii) Total number of valid ballots : 3313 (a) Verify the authenticity of all the returned ballots; 7. We decided to accept the replacement ballots as valid on (b) After the authenticity (or otherwise) of each of the ballots the basis of decision made by the Bar Council at its meeting held has been ascertained, to count the votes cast on the on 17 November 2006 which decided that replacement ballots authenticated ballots (discounting any spoilt or otherwise be issued with the same serial number but with a different colour. disqualified ballots), and to derive at the sum total of votes “If both the replacement ballot paper and the original ballot each candidate had received; paper are returned, only the replacement ballot paper will be counted.” (c) To declare the result of our findings on the above to the Secretary of the Bar Council. 8. The results of counting the valid ballot papers are as follows: 3. We started at 8.45 a.m. Our venue was the conference No. Candidate No of Votes meeting room of the Bar Council. We were assisted by Mr. 1. Hendon Mohamed 1874 Kenneth Goh and 30 Secretariat staff. In attendance were three 2. Muhammad Shafee Abdullah 1349 representatives of the Royal Malaysian Police comprising of ASP 3. Edmund Bon Tai Soon 1282 Koh, ASP Tarmizi and Chief Inspector Franky Wong. A police 4. Cecil Rajendra 1266 photographer, Corporal Mustapha Dick, was also present. The 5. Hamid Sultan bin Abu Backer 1257 Secretariat had a video cameraman to record relevant stages of 6. Low Beng Choo 1213 the proceedings. 7. Kuthubul Zaman Bukhari 1181 8. Ragunath Kesavan 1156 4. ASP Koh handed to us two sets of keys to two boxes. The 9. Christopher Leong 1142 first box was opened and found to contain 2 cardboard boxes 10. Roger Tan Kor Mee 1115 containing 135 sets of counterfoil books. The second box was 11. Lim Chee Wee 1035 opened and found to contain two cardboard boxes containing 12. Vazeer Alam Mydin Meera 1004 68 bundles of ballot papers and one cardboard box of envelopes containing returned ballot papers. 13. Yasmeen binti Haji Muhamad Shariff 999 14. Zulkifli B Noordin 984 5. We found 3,403 ballot papers from the second box. We 15. Jerald Gomez 971 proceeded to authenticate them. 16. Mohd. Rafie bin Mohd. Shafie 930 17. Andrew Khoo Chin Hock 921 18. Abdul Fareed bin Abdul Gafoor 904 19. Steven Thiruneelakandan 902 20. Zarizana binti Abdul Aziz 892

PRAXIS 14 MARCH / APRIL_2007 News

21. Shamsuriah binti Sulaiman 862 22. Ramdas Tikamdas 837 Who’s Who in the Bar 23. George Varughese 815 Council 2007 24. G K Ganesan 787 25. Lee Swee Seng 751 Office Bearers 26. Murad Ali bin Abdullah 708 Ambiga Sreenevasan (Chairperson) 27. Md. Radzi bin Mustafa 691 Ragunath Kesavan (Vice-Chairman) 28. Augustine a/l Anthony 636 Lim Chee Wee (Secretary) 29. Vernon Ong Lam Kiat 603 George Varughese (Treasurer) 30. Boniface Lobo a/l Robert V Lobo 461 Council Members 31. Raphael Tay Choon Tien 448 Yeo Yang Poh (Immediate Past President) 32. P Suppiah 387 Hendon Mohamed 33. Jegadeeson Thavasu 313 Muhammad Shafee Abdullah, Dato' 34. Wong Tat Chung 309 Edmund Bon Tai Soon Cecil Rajendra 9. We hereby confirm and declare the above result of the Bar Low Beng Choo Council election 2007/2008 as in paragraph 8 above. Kuthubul Zaman Bukhari, Datuk Hj Christopher Leong Dated this 26th day of February 2007 (10.15 p.m.) Roger Tan Kor Mee Vazeer Alam Mydin Meera Zain Azahari Yasmeen Hj Muhamad Shariff Zainudin Ismail K Mohan a/l K Kumaran (Johor) M Puravalen Loh Wann Yuan (Johor) G Balakrishnan (Kedah/Perlis) R Subramaniam (Kedah/Perlis) Sukri bin Haji Mohamed, Datuk (Kelantan) Aziz bin Haniff, Hj (Kelantan) Ravindra Kumar (Kuala Lumpur) Steven Thiruneelakandan (Kuala Lumpur) Ng Kong Peng (Melaka) R R Chelvarajah (Melaka) Tee Kim Chan (Negeri Sembilan) Pretam Singh s/o Ujagar Singh (Negeri Sembilan) Syed Azimal Amir Bin Syed Abu Bakar (Pahang)

Zain Azahari, Kenneth Goh, Puravalen and Zainuddin Mohamed Sazali Abd Aziz, Hj (Pahang) Ismail scrutinising the ballots Lalitha Menon (Penang) V Sithambaram, Datuk (Penang) Ngan Siong Hing (Perak) Shan Theivanthiran (Perak) R V Lingam (Selangor) Anuwar B Mohd (Terengganu) Asmadi Awang, Hj (Terengganu)

New Bar Council members Retained Bar Council members (Replacing Hamid Sultan Abu Backer following his Bar Council Secretariat staff assisting in the counting of appointment as Judicial Commissioner) the ballots

MARCH / APRIL_2007 PRAXIS 15 News

Malaysian Bar ready to host the premier event of the year - the 14th Malaysian Law Conference by Syirin Junisya Mohd Ali (Executive Officer)

he Malaysian Bar is going full steam REHDA to work with Bar Council “This is an opportunity for our leading Tto make its premier conference add Tan also revealed that the Real Estate and corporations to make history by colour to the 50th Merdeka joy, said Roger Housing Developers Association sponsoring some parts of the conference,” Tan after chairing the 14th Malaysian Law (REHDA) has agreed to work with the Tan said. Conference Organising Committee this Committee in organising one afternoon evening. session on property law. It will be a historic opportunity to showcase the success stories of leading Tan said the conference to be held from Tan, who is also the Chairman of the Malaysian corporations which should take 29-31 October 2007 at the Kuala Conveyancing Practice Committee, said this opportunity to “blow their trumpets”. Lumpur Convention Centre will carry the the decision of the REHDA’s National theme - “50 Years of Merdeka”. Council on March 30 to work with the Among other significant features includes Bar Council in this Conference will help keynote addresses by eminent local and He added that local and foreign delegates improve the relations between the two Commonwealth jurists and the Inspector- comprising lawyers, legal counsel, bodies after years of disagreement over the General of Police or his Deputy. The other academics, members of the judicial and no-discount rule. feature is that the National Young Lawyers legal services, other professionals and Committee will organise the events on members of various industries from “I am happy that REHDA’s Chairman, third day of the conference. Malaysia and overseas are expected to Ng Seing Liong was very positive when I attend. The areas which will be discussed mooted the idea to him about jointly “It will be their show and you can be sure include developments in Constitutional organising a session on property law in that the multi-talents of our young lawyers Law, Globalisation, Islamic Commercial the Malaysian Law Conference. will be adequately displayed,” Tan said. Law, Local Government, Property Law, Intellectual property Law, Criminal Law “While we may agree to disagree on the Tan urged members of the Malaysian Bar and Protection of Heritage. no-discount rule, we believe both bodies to keep 29-31 October free, and make can work something out which is every effort to attend the conference, Tan said the Committee is working very beneficial to our members”, said Tan. making the premier event of the Malaysian hard to finalise the list of eminent speakers, Bar for 2007 a great success. and hopes to send out flyers inviting Tan added that sponsorships will be registrations for the conference in May. sought among the top corporations in the For more information and updates, country for the identified segments of the members can log on from time to time to three-day conference to meet the expected http://www.malaysianbar.org.my/mlc or expenditure of RM0.5 million. email [email protected]

PRAXIS 16 MARCH / APRIL_2007 News

Interview with Yeo Yang Poh, Immediate Past President of the Malaysian Bar

. Can you describe your feeling when your term came to 1an end on the evening of Saturday, 17th March 2007? There was a mixture of feelings. Most prominent was the sense of relief as I passed on to my successor the responsibility of leading and protecting the Bar. There was also a sense of elation, the kind that one gets upon successful completion of a race.

2. How would you describe your 2 years at the helm of the 12,000 strong Malaysian Bar? It was challenging and demanding throughout, both externally (because the Malaysian Bar has a unique role in society) and internally (because it is not easy to manage the various demands 6. What happened in the meantime to your practice in Johor of such a large number of members with strong but diverse Bahru? views and needs). It was a series of hyper-activity, because there What practice? Oh, you mean that little office that I occasionally was always more to do than time had permitted. However, I am visited when I needed a rest? (I hope my partners are not reading interested to know how others would describe it though. this. More importantly, I hope my clients do not get to read this.) 3. You served as Vice-President for 2 years under Khutubul Zaman. Was that sufficient preparation when you took office as I managed to spend one day in a week, and if I was lucky two President in March 2005? days, on my practice. I could not take on more than that. It also Zaman was a nurturing leader. I observed his strengths and meant a 7 working-day week for me for the past two years. I had learned from it. However, there is a big switch from being the to sneak in very short breaks here and there. vice president to being the president. It is like switching from playing in a large orchestra to being the lead or solo violinist. 7. With the benefit of your experience, would you support One needs to quickly adjust to the role. The learning process a move for a full-time President who takes leave from his or her continued throughout my tenure of presidency. practice for 2 years and in return is partially compensated by the Bar with a decent remuneration? 4. How much time did you spend in the Bar Council I would strongly support such a system for the future. I am Secretariat in Kuala Lumpur in a typical week during your aware of the arguments on both sides, but in my view the factors Presidency? in favour far outweigh those against. However, this issue is more Three to four days a week, but not always at the secretariat. complex than it appears, and needs to be well thought-out. For There were lots of meetings and functions to attend to outside instance, a total absence from practice is unlikely to be practical; of the secretariat as well. so guidelines may be needed instead.

5. One assumes that you were also attending to Bar affairs 8. What was your relationship with your fellow office- when you were not in the Secretariat. How much time would bearers? you have spent in a typical week attending to Bar matters? Fabulous. We worked so well together. We supported one another. Very much so. Apart from the meetings and functions, a lot of When one was busy, the others would readily help. There was time away from the secretariat was also spent in things like no such thing as “this is not my job”. But that did not mean that preparing press releases, memoranda, position papers, etc. I would we always agreed with one another. In fact, we from time to time say that attending to Bar matters took the best part of 5 to 6 days held differing views on some issues, openly argued our respective a week. positions in Council, and voted differently.

MARCH / APRIL_2007 PRAXIS 17 News

We had the greatest respect for one another. was teamwork at its best. secretariat matters. But I had no choice I enjoyed the camaraderie. We had a because I had to use the secretariat special kind of natural loyalty to one One of the most beautiful lessons I have support, and I emphasized a lot on good another. It was not the type of blind loyalty learned in leading the Bar for 2 years is system, efficiency, and effective result. So given unconditionally to a person or that, if you are sincere and put your case when I found that even simple systems persons. No, none of us would have forward honestly, using nothing more were not in place (e.g. mail room system, wanted that. Rather, it was the kind of than the power of persuasion, there will filing system, KIV system), I could not reasoned loyalty born of our shared be enough decent people (including those take the attitude that these were matters I objectives when it came to serving the Bar, who are strangers to you) who would go was not to be concerned with. We (the and strengthened through working closely out of their way to support what you are office bearers) had to initiate reform; and I together. This is the only kind of loyalty doing. This lesson is heart-warming. It participated in that process. In this sense I worth having. gives me hope and encouragement about was indeed more “hands on”. But the bulk people and society in general. of it was implemented and supervised by I could not have asked for a more mature Ragu, the Secretary. and united team. Every one of us co- I know some had said that I had “ruled” operated and did our share of work; and the Council with a “brutal majority”. This 11. What were your relationships with no one had anything to prove to the others. is a pathetic and desperate allegation. It persons with whom you had to work, such Teamwork was so pleasant when it was implies dictatorship on my part, and as the Prime Minister, the Attorney totally free from “ego” issues, and from any cowardly conduct on the part of the other General, the Minister in charge of law, desire to claim individual credit for work Council members. But dictatorship and the Courts? What were your done. It was wonderful. There were obviously cannot exist without brute difficulties? attempts to divide us, i.e. to turn one power, and without the ability to either I tried always to maintain a good working against another, but none of which had handsomely reward loyalists or savagely relationship with them, without of course the slightest chance of success. punish detractors, none of which power compromising the principles for which the is possessed by the President of the Bar. Bar stood. That was not always easy, 9. What about the Bar Council? Worse still, this irresponsible allegation however, because I frequently took strong The same can be said about the support insults the intelligence and integrity of positions on certain issues that might not and teamwork that we had in the Council. Council members, reducing them to have been to their liking, and sometimes I Most of us had a wonderful working cowardly followers who could not think felt some subtle reaction. That of course relationship with one another, motivated for themselves. The mischievousness of did not mean that I would stop taking by a great deal of mutual respect. That such false insinuations must be pointed those positions. It only meant that I had was the case notwithstanding differences out. to maintain workable relationships in opinion that occurred from time to time. notwithstanding our obvious differences. Dissenting views within the Council were 10. Traditionally, the Secretary of the I tried to do that by consistently illustrating never a problem to us, so long as the Bar is the Head of the Secretariat to whom my bona fide, over time, and, when I had majority positions reached by the Council the Executive Director reports. As to, by remembering to disagree without were not undermined. Again there were President, were you more hands on with being disagreeable. attempts to split the Council, especially regard to Secretariat matters than your during turbulent weather. However, by predecessors? One important aspect was to convince and large we stayed united, once more not The Secretary remained the Head of the them, by conduct more than by words, because of any blind loyalty, but due to Secretariat during my tenure as President. that it was never a personal thing when common bondage by our shared objectives That did not change. What happened was the Bar took strong opposing positions; in putting the interest of the Bar above that, because of the teamwork that that it was not directed at them as a person, our own. This was the reason why the developed, and because reform was on our but at the thing that was done or omitted. ship managed to sail through rough seas, agenda, more secretariat matters were and successfully come ashore. I am brought out for discussion and collective I had varying degrees of success with extremely proud of, and grateful to, the decision than ever before. Ideally, the different persons, as it needed two hands Council of the past 2 years as a whole. It President should not have to bother with to clap. Some, like the Attorney General

PRAXIS 18 MARCH / APRIL_2007 News and the CJM, adopted a very mature and This is something that needs to be worked have saved me a lot of time. I did enjoy professional approach, and did not let any out sooner or later. writing, though the difficulty was in differences affect our cooperation in other having to do it in between the millions of areas. 13. You seemed often to be in the press, other things that I had to attend to. I think including the Chinese press. How did Bar Council should work towards In this aspect, another area of difficulty that happen? providing a good speechwriter for future lies with the demands of some Bar It developed naturally. I think it was Presidents. members who are highly passionate about because I took a humble, cooperative and one issue (whatever it may be), and feel appreciative approach right from the start. Oh, there was this rumour that Ragu was most strongly that the Bar must not only Journalists came to realize my appreciation my speechwriter. He came back one day take a firm position on the issue, but must for the important job that they were from Penang and told me about the also pursue it with maximum might. doing, especially in circumstances of rumour. We laughed about it. I told him Anything less is unacceptable to them. limited freedom. I tried to be helpful and, that he ought to admit to being my This does create a problem, because the whenever I could, to make their job easier. speechwriter for the Chinese press. Bar is not a “single-issue” organization. As Looking back, I think these were the a Bar leader, one has to strike a balance reasons that drew them closer. As for the There were several members of the Bar on among the simultaneous pursuits of Chinese press, the fact that my first whom I called upon from time to time to multiple causes. This was what I language is Chinese was definitely a big help me look up certain points of law. understood to be what the Bar had factor. The reporters from the Chinese press These members, some of whom did not wanted. It would have been different if found it easier to understand my even know me well, were ever so helpful. the membership had decided that we are comments and to report them more I am sure there were times that I caught to pursue one issue (whatever it may be) accurately than if I were to communicate them when they were very busy, and still to its fullest, and to the exclusion, or at the with them in English. they helped me as much as they could. expense, of other matters of importance For example, I recall an occasion on a to the Bar. Somehow, reporters liked calling me for Saturday when I had to quickly find out comments. I thought it had something to about the laws on gambling as they 12. How did you cope with the Bar’s do with my voice. But my colleagues applied to electronic bookmakers. I called website, and the Internet generally? dismissed that possibility entirely, and Kitson Fong, whom I hardly knew. Within This is a new medium that Bar leaders came up with much less flattering reasons. a couple of hours, he faxed me the relevant will have to deal with increasingly. The summary and materials. There were many Bar website is both a source of the Bar’s Sometimes I wished I did not have to others like him, and I want to thank all of pride (thanks to Roger Tan) and a source spend so much time answering calls from them. of increased workload. The Internet gives the press and giving all sorts of comments. rise to the continuous requirement of faster This is one of the most difficult tasks of a By the way, compared with presidents of responses, and calls for the management President, because the press expects you other law societies (such as in Singapore, of a much wider audience unrestricted by to be able to give off-the-cuff comments Australia and the U.K.), the president of geographical limits. At one stage, I was too on anything and everything they may care the Malaysian Bar does not have the same busy working in the conventional manner to ask you, and because the responsibility level of secretariat support. For example, and did not realize the full extent of of speaking on behalf of the entire Bar is a having to regularly spend time to correct Internet’s importance quickly enough, and heavy one. But I realized that press or re-draft even simple letters cannot be a I paid a price for that, until I took steps to coverage was important for the Bar’s image sign of adequate secretariat support. Also, remedy the situation. But it is also not in our society, and so I persevered. a large portion of the substantive work reasonable to expect Bar leaders to have to (e.g. the preparation of memoranda and respond to so many comments, queries and 14. You were quoted considerably in position papers) currently depends heavily allegations in cyberspace. For the future, the press, whether by way of Official on volunteer lawyers rather than the Bar must come to an understanding Statements, interviews, letters or articles. professional secretariat staff. All these will as to what members can realistically expect Did you have a speechwriter? have to change in the future, if the Bar of their leaders’ response over cyberspace. I wished I had. A good speechwriter would Council is going to keep up with the

MARCH / APRIL_2007 PRAXIS 19 News increasing demand on its services. Some of them were extremely moving and I am one of them. Let me quote you what unforgettable. Karpal Singh said about the amendments. 15. Under your leadership, the Bar He said: “I read the amendments. There was Council has started to work more closely 17. There is talk that you met, at regular only one provision that I did not agree with, with NGOs. Was that a conscious effort intervals, with a group of former Bar i.e. that a decision of the DB in which Bar on your part? Presidents who adviced on how you Council members were present would not be Yes. For some time I was told that civil should handle the job. If so, was this invalidated where the Bar Council is the society perceived the Bar Council as elitist. necessary? complainant. The Minister agreed, and that I felt that there was a lot that we could No, I did not meet them on a regular basis. provision was removed. So much has been achieve in collaboration with NGOs that I do not know why you have that made about the removal of judicial review, share certain common objectives with us. impression. But I did meet them whenever but no one talks about what has replaced After getting Council’s approval, we they requested a meeting. To be fair, some judicial review. There is now a 3-tier appeal started a few projects with NGOs and of them would give me their views, which process, i.e. appeal to the High Court, Court other bodies, e.g. the IPCMC petition, I appreciated, and simply leave it to me to of Appeal and the Federal Court. There on refugees and migrant issues, on issues decide. I saw nothing wrong with that. cannot be judicial review when there is an of fundamental freedoms, and even alternative remedy like an appeal.” matters such as the “build then sell” I did not accord previous Presidents concept. From the feedback I get, I am special treatment. I would meet them just I agree with Karpal. If by holding that glad that such collaborations have as I would meet other members who asked view I should be castigated, as a few have enhanced the standing of the Bar in the to meet me. I would carefully consider clamoured, I will have no problem with eyes of the public. their opinion just as I would the views of that. In any event, the ad hoc committee’s other members. In fact, I think it was report has made several useful 16. Apparently, your hand-phone precisely because I did not give them improvements to the amendments, but it number was known to thousands of special status, or treat their advice as certainly did not find the amendments to members of the Bar. With the increasing binding on me or as superior to the be draconian. popularity of sms, how did you cope with Council’s views, that upset a few of them. the incessant and non-stop accessibility to 19. Were you concerned with the no- you? 18. The 2006 amendments to the confidence motion against the office- I don’t know if it was known to thousands. Legal Profession Act, which resulted in bearers and 2 others at the 16 November But it was certainly known to many, and an EGM on 18 August 2006, seemed to 2006 EGM, and were you relieved at its was not difficult for anyone to find out. have hit a raw nerve among some outcome? Fortunately, the number of telephone members of the Bar. Would you have Of course. One could hardly be calls, sms, and emails, though many, were handled the whole exercise differently? unconcerned if such a motion was on the spread out and still manageable. It did I am not sure how things could have been table. But more than that, I was concerned occur to me at one stage that the time done differently, given the circumstances that 5 other good people were pushed into might come when I could no longer cope and the constraints. I would be grateful if the mud pool with me, which made it 5 with rendering the courtesy of answering I could be shown how, with specifics. times more unfair. Their inclusion or replying each person. But it did not What the episode showed, to my convinced me that there was some other come to that. There were 2 or 3 matters, understanding, was that accurate and in- plan afoot, and that it was not a simple though, that came in February and March, depth information regarding the exercise to unseat me. You do not challenge that I was unable to complete, and had to amendments was not adequately 6 persons to a fight if all that you desire is leave them for Ambiga to deal with. disseminated and properly understood. A to beat up one of them. Developments careful reading of the ad hoc committee’s leading to 16 November 2006 fortified Not all the sms were enquiries or requests report will show that. my assessment of the situation. All kinds for some form of action. Sometimes they of rumours were about, including even were simply expressions of support and There are members who believe that while one concerning the involvement of a encouragement. There were lots of those the amendments are certainly not perfect, sitting judge. around the time of the November EGM. they are not fundamentally wrong either.

PRAXIS 20 MARCH / APRIL_2007 News

That experience taught me an invaluable If you ask me, there was no election fiasco On the one hand I may laugh at these lesson. After the event, a number of persons as such. What we had was a normal childish rumours. But on the other hand asked me how I managed to stay so calm election, sabotaged by an abnormal crook, I sometimes feel angry, because they insult throughout the conduct of the EGM that and then somehow turned into a fiasco the intelligence and integrity of good day, when things were so nasty. I reflected by a few. Things were eventually sorted people. That is not right. on it, and I realized that it was because I out, but not until after unnecessary was at peace with myself, knowing that spotlight was shone on the Bar, to no one’s 22. What would you regard as your my colleagues and I had done an honest benefit except those who do not wish the greatest success during your term? day’s job and that the accusations were Bar well. The first thing that comes to my mind is trumped up. I was not presumptuous the enhancement of the Bar’s image and about the outcome that day. Rather, I was The outcome of the AGM on 17 March standing in the public’s eyes. But, hold prepared for any outcome. The precious 2007 was exceedingly conclusive of the on, I think there is something else. I would lesson I learned from the experience is this: wishes of the Bar. The Council’s action say it was the fact that I was able to lead a when you are at peace with yourself, it was firmly ratified and commended. The Council that had (by majority at least) becomes clear that the way the journey is number of members who wanted to insist consistently and over a long period of time travelled matters even more than the on a fresh election was reduced to less than remained steadfast in making decision after outcome. Once that becomes clear, calm 20. It is crystal clear what the Bar feels is in decision through thorough debate and ensues. its interest. principled considerations, never bowing to undue pressure nor taking the easy way I was more than relieved at the outcome Of course now there is this suit by Ronnie out. We spent a lot of time debating issues of the November EGM. I was encouraged Wong. Let that take its course. The Bar before coming to our decisions. My by it. I think most others were, too; except has already spoken. colleagues sometimes had to put up with a few who felt disappointed at that my long-windedness when doing so. outcome. The overwhelming support we 21. Did you put Foo Ton Hin up to received gave us renewed enthusiasm to his litigation? But that was not my success. That was the continue working hard in serving the Bar. I have not spoken a word to him. But I do collective success of the team. It might at hope to meet him some time in the future, times be tempting to say, when things got 20. What do you make of the election because I am interested in getting to know tiresome, “let us just give them what they fiasco? Was the election process held any members of the Bar who have the Bar’s want, even though we don’t believe they differently in 2006 than from previous interest at heart. are right”. But we never did that. We never years? succumbed. For that I am very proud of, As I had explained at the AGM, the Another thing I learned on the job is that and grateful to, my colleagues. I think this October/November election was ridiculous allegations of this nature will spirit that I have described is the best legacy conducted in the same manner as in all be made against Bar leaders. The only that we have jointly left behind. previous years. As for those who suddenly thing we can do is to ignore them. But became anxiously concerned with the sometimes it can get too much. 23. And the worst failure? election procedure in November 2006, I I did not manage to nip Bar politics in the wonder what they had been doing in the For example, I have heard that I paid some bud, and so had to spend too much time past 30 years? members of the Bar to write on the Bar and energy to overcome it. This left too forum and e-groups. I must be quite rich little time to devote to the meaningful and It was thus a normal election. What was according to this rumour! Then there was constructive work of the Bar. I could have abnormal was that a fraudster decided to talk that I got Karpal to come to the undertaken more projects than I did. crawl out of the woodwork to sabotage it. November EGM and to say what he said. The act was done in such a clumsy way I must be pretty powerful, to be able to 24. Any regrets? that it was probably meant to be move into action someone who has fought Not for myself. I am thankful that I was discovered. When discovered, there was a against kings and prime ministers, and given the opportunity to have the simple (and right) way to deal with it. But who would not do or say anything that experience of leading the Malaysian Bar, things took an unexpected turn. he himself does not believe is right. even though it was not that every minute

MARCH / APRIL_2007 PRAXIS 21 News of it had been enjoyable. Bar as well.) But what is most important again be up to the good people in the Bar ultimately is the verdict of the majority of to continue to rise to the occasion (no But I do regret that my colleagues were the Bar. matter how frequently called upon) in put through a rough and bumpy ride. order to defeat maneuvers that are not in Sometimes I have wished that it were Ambiga once gave me a very apt analogy, the interest of the Bar. You can count on otherwise. which I will share here. She said that I was me for that. like a driver of a car who embarked on a 25. One gets the impression that your journey. Those who felt I drove too slowly 26. Have you any advice for your presidency of 2 years had been more knocked me from behind. Those who did successor? eventful and troublesome than usual. not like the way I steered the car rammed Be yourself. Lead with your own style. By Why was that so? me from the sides. When I was parked, all means seek views and advice, but make I used to joke about being a lightning some others would still drive into my car. up your own mind. Occasionally have conductor. Chee Wee said my hair was And then they gathered together and someone check the letters-to-editor too straight.But seriously, there were a accused me of being accident-prone. I columns. Beware of grievance collectors. number of reasons. Most of them had think her observation was spot-on. Deal with them early. Do not their root in my desire and determination underestimate the nasty obstacles some to introduce a number of changes and Let bygones be bygones. Blame it, if you may place before you. reform, in an institution that has been like, on the character of a particular entrenched in the way it was run. That president. That is not important to me. But, in Ambiga’s case, it will be like was the start of all my “troubles”. Change What is important is that what had teaching a dolphin how to swim. creates discomfort, discomfort produces transpired in the past 8 months should resistance, and resistance turns into an not be repeated in future. It is not right to 27. Any message to Bar members? opposing force. If you introduce more than impede democratically elected Bar leaders Most of all, a big thank you. You were one change, you will find more than one in that manner. It affects the meaningful there when we needed you. Please opposing force. work of the Bar. This is the appeal I am continue to be there when my successors making. I urge everyone to act responsibly and future Councils need you. They need One of the methods of resistance was to and honourably. your support and encouragement in order enlist the help of some elders in the Bar to to give their best to the Bar. “knock some sense into me”. I listened, I will be a very happy person if what had but I was unconvinced. I discussed with occurred does not recur in the future. But 28. How has life been treating you since my colleagues, and most of them were I have little reason to be optimistic about 18th March 2007? unconvinced. So I carried on. I knew it that, because of the new suit and the threat Gentle and kind, for a change! I am was politically unwise to break rank with of another suit by another member. It enjoying my relaxed schedules. I am back a few Bar elders (and others) all at the same seems to me that those determined to to my daily exercises. I do have office work time. I knew it would also open the door disturb the status quo will not give up, to catch up, but I am choosing to do it at for opportunists to attack. But I had no even though the Bar has spoken loud and a more leisurely pace. My experience these choice, because I was not prepared to give clear. In fact, this is the main reason why I 2 years has made me reflect on many issues, up my independence of thought in return agree to this interview and to say the things such as my work, my time management, for peace and quiet. I have said above; because it remains and my life. I hope to continue to relevant for me to state and convey my contribute to the Bar and society. But I That was what happened. I lost the views to members of the Bar. The latest also want to make use of what I have support of a number of Bar elders, whose developments make it necessary for me to learned, make some changes within myself, support I used to previously enjoy, to do so. Otherwise I would have preferred move on to other things, and generally try differing degrees. (But I must hasten to to let bygones be bygones. to lead the rest of my life in a way that I add that I had the support of other Bar may find happy and fulfilling. That is a elders and people of high standing in the So, if history should repeat itself, it will tougher challenge.

PRAXIS 22 MARCH / APRIL_2007 News

It’s not over yet, lawyer wants Bar Council Elections 2007-2008 nullified by Web Reporter

ust as everyone thought the Bar has by the 2nd team of scrutineers vide and to maintain honesty, impartiality, Jmoved on after resolutions calling for their report dated 26 February 2007, independence, integrity and openness fresh Bar Council elections were from taking and or continue in office and to seal the opportunity to overwhelmingly defeated at the March 17 as elected members of the Bar Council manipulate the incomplete ballots by annual general meeting, lawyer Ronnie on the 17 March 2007 or at anytime inserting the name of favoured Wong Chim Yam is obviously of a thereafter; candidates. different view. • liberty to parties to apply for further • as a voter, he feels that he has been Last Friday, Wong decided to proceed with consequential directions or order; denied a clean election conducted the originating summons he filed with the under a process which is beyond Kuala Lumpur High Court on March 15, • such further or other reliefs, order or reproach. 2 days before the AGM, by serving a copy directions as may seem just; and on one of the 12 successful candidates. • as a member, he fears that the huge • the costs of the suit. funds to which he has personally Wong, who did not sign in for the March contributed may not be safe in the 17 AGM, named the Malaysian Bar as In his affidavit, Wong states, inter alia, hands of a body of which one third of the sole defendant. the following grounds to support his the membership has a dubious claim application: to legitimacy and a doubtful right to In his summons, Wong, who is represented • the original scrutineers have declared hold office. by M/s Chambers of Murthi & Partners, the election null and void and unless seeks the following reliefs: the declaration is set aside, the • that by the true construction of section declaration of invalidity remains 50, 58 and 57 of the Legal Profession operative. Act, 1976, the appointment of the 2nd team of scrutineers namely, Zain • the Bar Council itself is functus officio Azahari, Zainuddin Ismail and M. in the appointment of the second team Puravalen on 23 February 2007 by of scrutineers and the LPA has not the President of Malaysian Bar Yeo vested the Council with any power to Yang Poh is ultra vires the Legal appoint second set of scrutineers after Profession Act 1976 and accordingly the month of November in the the said appointment and the calendar year. declaration of the 2nd team of scrutineers dated 26 February 2007 • there is no letter of resignation from “It is forbidden to kill; is null and void and inoperative; any of the original scrutineers and as therefore all murderers are such the Council has no power to • consequent thereto, an injunction be superimpose a second set of scrutineers. punished unless they kill in granted to restrain the Malaysian Bar large numbers and to the from allowing or permitting all person • the court ought to make the sound of trumpets.” or persons purportedly declared as consequential reliefs in order to prevent elected to the Bar Council 2007/2008 a recurrence of the forgery and fraud - Voltaire

MARCH / APRIL_2007 PRAXIS 23 News

Tun Dzaiddin Trophy Report by Muralee Menon, Golf Cenvenor

Preliminary Dinner The details of the event were as follows : The dinner was attended by the golf participants and by Ms. Date: 3rd March 2007 Ambiga Sreenevasan and Mr.George Varughese from the Bar Place: Palm Garden Golf Club, Putrajaya Council. The event ended at 10.00pm Time: 1.30pm Participants: 43 persons Sponsors The following sponsors were acknowledged : The above event was a great success with a total of 22 members i) Mr. Roger Loo - Golf instructor Kiara Driving range of the bench and 21 members of the bar. Due to a ii) Pan West (M) Sdn. Bhd. miscommunication 1 member of the bar ‘forgot’ to turn up. iii) Auto Bavaria (M) Sdn. Bhd. iv) Galeri Trofi The Malaysian Bar Team overwhelmed the Judiary Team by v) Crescent Links (M) Sdn. Bhd. 293 points as against 270 points and regained the Trophy they vi) Palm Garden Golf Club lost in 2005. The mode of play was based on stableford best vii) Palm Garden Hotel combined score.

Detailed Result Malaysian Bar Team Champions Maria Stanislaus 81 points Mesnor Bujang 2nd Placing SS Ravichandran 80 points Rasheed Hassan 3rd Placing T.K. Sunther 79 points P.Param

Judiciary Team Champions Tn. Mohd. Jamil Husain Tn. Nu’ aman Mahmud Zuhudi 77 points 2nd Placing Tn. Harminder Singh En. Sharkawi Alias 76 points 3rd Placing Tn. Hj. Zaini A. Rahman Tn. Hamidon A Fatah 73 points

Individual Placing Champion SS Ravichandran 45 points 2nd Placing Mesnor Bujang 44 points 3rd Placing Y.A. Dato’ Raus Sharif 43 points

PRAXIS 24 MARCH / APRIL_2007 News

BAR COUNCIL Diary of upcoming Events

APRIL 9th - 10th May 2007 22nd - 23rd May 2007 17th April 2007 at Bar Council Auditorium at Bar Council Auditorium at Bar Council Auditorium Ethics Lecture Programme Judicial Commission Debate Judicial Commission Debate Officer in Charge: Ms. Lilian Officer in Charge: Mr. Rajen Officer in Charge: Mr. Rajen 11th May 2007 OCTOBER 24th April 2007 at Bar Council Auditorium 29-31st October 2007 at Bar Council Auditorium Talk on Corporate & Securities Law at KL Convention Centre Judicial Commission Debate by Mr. Kenny Poon 14th Malaysian Law Conference Officer in Charge: Mr. Rajen Officer in Charge: Ms. Emily Lee Officer in Charge: Ms. Lynette Tan

MAY 4th - 5th May 2007 at Bar Council Auditorium * For updates/changes, please visit our website at Training by Guna & Prabha www.malaysianbar.org.my Officer in Charge: Ms. Marianna

RECENT EVENTS

Talk by Subramaniyam A Nambiar - Even if there is a Will there is a Way on 23 March 2007

Courtesy visit by the School of Law-University of Press Conference - Young Malaysians Roundtable East London on 26 March 2007 discussion National Unity & Development in Malaysia on 29 March 2007 MARCH / APRIL_2007 PRAXIS 25 News

Book Review -The Arbitration Act 2005: UNCITRAL Model Law as Applied in Malaysia

ome of the common ailments with which law lawyer, ex-Judge and Omar Khayyam all rolled into Sbooks are reputed to suffer are their excessive one has his own personal eloquence and style which bulk, lengthy footnotings and an ‘elephantine has turned the Foreword into a valuable asset to the laboriousness’ (if one may borrow this phrase from book. Lord Mustill) which oozes out of their every page. Obviously, these ‘attributes’ make the law books Coming within a few months of the enactment and difficult to read, except as a helping device to implementation of the Arbitration Act 2005, the book overcome insomnia, and not so easy to buy. Books is indeed the first commentary written on this Act. on the law of arbitration are no exception. These The authors have purposely written it to provide, on are also obese, as well as fat priced. a section by section basis, a commentary, brief background information, relevant case law and some Sundra Rajoo and Davidson’s The Arbitration Act indications to the changes introduced by the new 2005: UNCITRAL Model Law as Applied in Act. The writing style is direct and lucid, unlike the Malaysia is a forceful refutation of the ‘theory’ that style in which law books are generally written. For law books cannot be slim, readable and affordable. instance, there is not a single footnote in the entire Sweet & Maxwell Asia deserve praise for publishing book, making it easier to read, citations are given in this sleek and lovely 293 page beauty, wrapped in the text itself. There are a total of only 245 cases artistic bluish black with a tinge of burnt amber cited in this book, taken mainly from five jurisdictions: hardcover, and still affordably priced. Adding to the Malaysia, U.K., New Zealand, India and Australia. beauty of the book is a very poetic and literary The job of selecting these few cases should have Foreword by Dato’ Mahadev Shankar, who as a posed for the authors an equally serious problem as

Book Review of: Sundra Rajoo & WSW Davidson, The Arbitration Act 2005: UNCITRAL Model Law as Applied in Malaysia (Sweet & Maxwell Asia, Malaysia, 2007) xxxvi + 293 pp., hardbound by Prof. Dr. Syed Khalid Rashid Professor of Law International Islamic University Malaysia

PRAXIS 26 MARCH / APRIL_2007 News selecting finalists in a beauty contest of the new Act, so also many cases from other jurisdictions. The authors presumably omitted their The book contains the usual Table of Cases, Table mention for the sake of brevity, an objective they of Statutes, a list of publications (bibliography) and a followed with unwavering conviction and detailed index. In the two Appendices are given the commitment. The book could also have contained at texts of the UNICITRAL Model Law and the ‘New least a mention, if not detailed discussion, of some of York Convention’ 1958. It is really good to have these the much talked about lacunae in the drafting of the texts, as several provisions of the 2005 Act are literally new Act. It would have assisted possible future or loosely based on these. amendments in the Act. Dato’ Mahadev Shankar rightly says that a great responsibility lies on the A complete absence of the judicial precedents arising shoulders of the first commentators of the 2005 Act out of the 2005 Act has indeed posed a serious because as the authors of this work they will now problem for the authors in interpreting the new Act. “find their names recorded in the sands of time”. But they nevertheless enjoy the unique privilege and advantage of being associated with the drafting of It is to be acknowledged that the authors have given this Act, in their capacity as the members of the ad a good account of some of the important provisions hoc committee set up by the Malaysian Bar Council of the 2005 Act. A few of those worth mentioning to formulate a draft for the new law. They have are: the extent of court intervention (pp. 33-39); effectively utilized their rich experience in writing interim measures (pp. 53-58); appointment of this book with a deeper than usual insight and arbitrators (pp. 61-66) and challenge procedure (pp. understanding. 73-77); competence of arbitral tribunal to rule on its jurisdiction (pp. 84-91); form and contents of award However, as usually happens when authors of this (pp. 147-154); grounds for refusing recognition or high stature as Sundra and Davidson write a book, enforcement (pp. 184-190), reference on questions expectations of readers tend to rise in direct of law (pp. 196-203), and cost and expenses of an proportion to their stature. Here, probably, lies arbitration (pp. 206-213). Useful references are something to be desired. The book might have embedded in the text to guide the curious ones to contained a relatively more detailed introductory other relevant sources and material. The book is free chapter listing all the negative elements in the from printer’s devil, is neatly printed and nicely bound. Arbitration Act 1952 which awaited reform and the Sweet & Maxwell Asia have done a good job in corresponding improvements brought about by the publishing this nice book at an affordable price. Every new Act. For example, it might have been useful for student, academic and professional will welcome its the readers to know why section 34 of the 1952 Act publication and will eagerly look forward to have its has not found a place in the new Act, in spite of its second edition which, as the authors have promised, insertion into the old Act in 1980 with so much of will come soon and “will contain more Malaysian fanfare. Why, for instance, the concept of ‘umpire’ material”. so prominently contained in the old Act has lost favour in the new. For the authors these might be things As rightly said by Dato’ Shankar, “it will be a very trite, but surely not so for many of the readers. bold practitioner who would dare venture into the Similarly, many of the innovative provisions in the field of arbitration in Malaysia without this book at new Act deserve to be highlighted more sharply. his elbow”. Well done Sundra and Davidson to have There are very many judicial precedents relating to ushered in the era of slim, beautiful and affordable the 1952 Act which are still relevant in the context law books in Malaysia.

MARCH / APRIL_2007 PRAXIS 27 State Bar News

PRAXIS 28 MARCH / APRIL_2007 State Bar News

MARCH / APRIL_2007 PRAXIS 29 State Bar News

Malacca Bar Committee to work together with the police by Wong Fook Meng

he Malacca Bar Committee, led by • The police will exercise their discretion TNg Kong Peng, paid a courtesy call in detaining people who are suspected to the Malacca Police Chief, Senior for dangerous driving offences. Assistant Commissioner 1 Datuk Ayub Yaakob. Datuk Ayub Yaakob said that the police and the legal fraternity are part of the same operation from all quarters, including the The others who were present at the criminal justice system and that we should legal profession. He encouraged members meeting were the Melaka Tengah OCPD, work together to serve the community. On of the Malacca Bar Committee to the Jasin OCPD and representatives from that note, the Malacca Bar Legal Aid Sub- participate in the Rakan Cop programme the Special Branch, Traffic, Narcotics and Committee and the police agreed to have and give information on criminal activities Commercial Crime divisions. a joint project in the near future to conduct to the police. talks in secondary schools on issues of In his welcoming address, Datuk Ayub crime prevention. The meeting ended on a positive note and Yaakob said that the police force is working is a precursor for future collaboration hard to gain the confidence of the people Datuk Ayub also invited the Malacca Bar between the Malacca Bar Committee and and is open to ideas from the legal Committee to visit the various police the police. It is noteworthy to mention fraternity in improving its services. stations in the State and give suggestions that while lawyers and police are often at for improvements. He said the police are opposing ends in the court, there is still The several key issues that were discussed very serious in protecting and serving the much common ground where we can work are as follows: community but they need the co- together in serving the community. • There will be a liaison person from the police department whom the Bar Committee can contact to seek HO KEE POH @ HO KHEE POH assistance and information regarding DECEASED matters arising in the future. • For drug cases, suspects will not be We act for Mr Ng Aik Pung, the next of kin of the detained on the basis of non- abovenamed who passed away in Ipoh on 19.12.2006. confirmatory urine tests alone but will be released on police bail. However, if We are instructed to enquire if any firm of solicitors or a person is arrested for possession of anyone has knowledge of or is in possession of a Will dangerous drugs or other seizable executed by the deceased in Malaysia. Parties with any offences, the person will be detained. information are kindly advised to contact:- • Family members have the right of filler information on detainees, especially CHAN & ASSOCIATES detainees who are minors. Advocates & Solicitors • For accident cases, the complainant No.1 (1st Fl) Jalan Tun Sambanthan and their lawyers are entitled to 30000 Ipoh obtaining copies of the police reports Tel: 05-254 5293 and the police assured that there Fax: 05-253 4091 should be no difficulty in the extraction of the reports.

PRAXIS 30 MARCH / APRIL_2007 State Bar News

Growing in Compassion, Courage and Understanding by Raymond Mah

n 1 March 2007, some 80 pupils before being called to the Bar. Those with Rajen from the Orientation Committee Ogathered in the KL Bar Auditorium less reluctance, began thinking they would closed the sharing session with a challenge for the exit evaluation of their legal aid gain some ‘practical experience’ from the to the pupils – always remember to do the programme. programme. Most students, however, had right thing in any given situation. not anticipated growing in compassion, Stephanie, the Administrator of the KL courage and understanding in they ways Listening attentively to the sharing by the Legal Aid Centre, opened the session with that they described. pupils was Yeo Yang Poh, President of the a simple and sincere message to the pupils. Malaysian Bar. Having described the She urged pupils to continue their In their sharing, some pupils expressed sharing as a “most interesting session”, Yeo participation in legal aid as volunteer how they were challenged with fears of went on to note that the stories shared lawyers. After being divided into groups, dealing with accused persons and working were less about the law, and more about pupils shared with each other their in prisons. Others struggled to maintain human life. experiences during the programme. The their objectivity amidst stories by clients room quickly filled with smiles, laughter of victimisation and misfortune. It seemed And reflecting briefly on life, Yeo warned and tales of almost comical experiences, that the pupils, through their interactions of the danger to society when humans including a man who misunderstood the with their clients, had come to shed the cared only about their own “little turf”. court interpreter and dropped his pants! commonly held stereotypes of accused But to match every light moment was a persons. They had come to realise that “Don’t forget today. Don’t be numbed by sober story of empathy. every person is not so different, and at all your experiences in life. Your family and times deserving of compassion and friends are important. But you can and For many, the legal aid programme was dignity. must continue to contribute to society.” ‘something that had to be completed’

Veteran Penang lawyer slips away by Stephen Tan Ban Cheng

eteran Penang lawyer Yeap Ghim when preparing to attend the Malaysian In subsequent VGuan, 66, slipped away at 3.30pm Bar annual general meeting, and was elections, his on 12th March 2007 without recovering partially paralysed after that. Gerakan detractors from a coma sustained after a fall ten days were believed to ago. Yeap was called to the Malayan Bar As leader of the Penang State Opposition, have twisted that on March 23, 1964. he challenged the Penang State simple argument by Government, then led by Dr (now Tun asking him to jump Yeap, leaves behind his wife, Rita Wong, Dato’) Lim Chong Eu, on the State from the bridge and three daughters, one of whom, Su Government’s financial capacity to build since it has been built. However, to those Lynn, is a practising lawyer. the Penang Bridge, stating that if the in the know, including this writer, the Penang State Government could build the challenge remained unresponded since the The former Penang State Assemblyman bridge, he would be the first to jump federal government, and not the State for Kelawei from 1969 to 1974, had down from it. government, implemented the bridge earlier suffered a stroke in his daughter’s project. apartment in Kuala Lumpur in 2004

MARCH / APRIL_2007 PRAXIS 31 Comment

The Indomitable Spirit

ecently, Akbar Hussain you go faster. If you pass this on, R Meera Hussain, a member we may be able to change our of the Malaysian Bar, was the guest hearts as well as someone else’s. A of His Excellency Dr A.P.J. Abdul candle loses nothing by lighting Kalam, President of India, at the another candle” Presidential Palace, the Rashtrapati Bhawan in New Delhi. Knowing What will You be Remembered that I am an avid reader of President For? Abdul Kalam’s writings, Akbar “The two questions I often ask presented me an autographed copy people I meet are: of President Kalam’s latest book “What have you learnt so far in entitled “Indomitable Spirit”. life?” President Kalam is a prolific writer. “What will you be remembered Indomitable Spirit is a collection for?” of President Kalam’s thoughts and observations on various issues Asha Ramaiah, an HIV/AIDS facing his nation and the world at patient, who works as a National large. It is a wonderful reflection Advocacy Officer for the Indian of his life’s journey – collection of Network for people with HIV/ gems of wisdom and some Akbar with His Excellency President Dr APJ Abdul AIDS gave touching answers to proffered prescription for the Kalam at Rashtrapati Bhawan, New Delhi both these questions. ailments of modern society and “True learning in my life began how we can better ourselves and give our couple of times, and began to cry. The when it was discovered that I had children a more meaningful future. The other eight heard the boy cry. They slowed HIV/AIDS and had to face the following are two of such reflections. The down and looked back. And then they all reality of my situation. My first is about the spirit of helping others turned around and went back, every one husband’s family turned me away win, and the second is on leaving a legacy. of them. One girl with Down’s syndrome from their home and even my father I hope you enjoy reading it, as much as I bent down and kissed him and said, “This told me to leave his house. My did. (Editor's note) will make it better.” Then all nine linked plight was like that of any other their arms together and walked together abandoned woman left to face life A Noble Action till they reached the finish line. Everyone alone as a fallen leaf just drifting “At a sports meet for the physically in the stadium stood and clapped and the with the wind. At the first instance handicapped children conducted by the cheering went on for several minutes. I had to face up to the challenge of National Institute for the Mentally mere existence itself. Thanks to the Handicapped, Hyderabad, I witnessed an People who were there that day are still strength of my womanhood, I unforgettable incident. In one race, nine telling the story. Why? Because deep down could absorb the feeling of shock, contestants, all physically or mentally we know this one thing: what matters in and overcome the trauma of being disabled, assembled at the starting line for this life more than winning for ourselves thrown out of my home. I realised a 100-metre race. At the starting signal, is helping others win, even if it means that it was my responsibility to they all started out, not exactly in a dash, slowing down and changing our course. I make efforts to bring about a but with a relish to run the race to the would say that you do not have to slow change in the lives of other people finish and win. But one little boy down. Rather by helping others through affected with HIV/AIDS in India. stumbled on the asphalt, tumbled over a the difficult areas, the feedback will make

PRAXIS 32 MARCH / APRIL_2007 Comment

Today because of my constant victorious when, after waiting for We see how Asha, with courage, not only efforts and support from my fellow years, it was confirmed that our defeated the disease but more important people living with HIV, I am not child had no infection. Now we how she withstood the onslaught of stigma only accepted in my community have the responsibility of planning hurled at her by her parents, husband and but even people of high positions the future of my child for the next society. This I call an indomitable spirit. come to me for my opinion, twenty years. Our quality life time guidance and counselling on can be utilised for imparting our What would you like to be remembered various personal issues. My parents parental responsibility by ensuring for? Would you like to be remembered for are proud that I have become a role him education, security and a your Ph.D thesis? Would you like to be model for others to follow. With future. We learnt that dreams do remembered for your innovative thinking? family and a good peer support, I come true but only when you own You have to evolve yourself and shape your got remarried to a person suffering them and accept the responsibility life. You should write it on a page. That from HIV. My husband of the possible risk in pursuing page may be a very important page in the encourages and supports me to them. book of human history. And you will be work with my HIV fellow patients remembered for creating that one page in for betterment of our lives. I will be remembered by the the history of the nation – whether that people afflicted with HIV/AIDS page is the page of invention, the page of When we had to decide about living in various parts of the innovation or the page of discovery or the having a child, I learnt how difficult country and my family, relatives page of fighting injustice.” it is to make decisions in the face of and associates for the courage I uncertainties; plunging into the showed to stand up and face life, Excerpt from “Indomitable Spirit” by unknown that may have the risk and for my efforts in sharing the A.P.J. Abdul Kalam. Rajpal & Sons, Delhi of having a HIV positive child. We light I have acquired in the midst 2006. followed all medical guidelines to of struggle.” reduce the risk and came out

MARCH / APRIL_2007 PRAXIS 33 Speeches

Young Malaysians’ Roundtable Discussion on National Unity and Development in Malaysia: Prospects and Challenges for Nation Building Keynote Address by Duli Yang Teramat Mulia Raja Muda Perak Darul Ridzuan Raja Nazrin Shah Ibni Sultan Azlan Muhibbuddin Shah on 3 April 2007

Ladies and Gentlemen: make mistakes along the way socio-political integration of a nation, i.e. t is my pleasure to be here as part of their overall prosperity and national unity.” This Ito deliver the keynote learning process. If we do captures what are hopefully the two end address at this Roundtable these things, our actions will results of nation building, but it makes no Discussion on National echo loudly into the future. mention of its nature and process. I prefer Unity and Development in the more common understanding, which Malaysia: Challenges and 3. My address this is that it is the use of state power across Prospects for Nation morning is on the challenges different dimensions to ensure that a Building. I am always happy and prospects of nation country is politically stable and viable in to take part in an event where building, a topic that is of the long term. These dimensions include there are many young informed the greatest and gravest importance. ethnicity and religion. Malaysians. I find that this is time well Nation building is essential to national spent. Not only does it give me a chance unity which lies at the heart of what this 5. As a brief footnote, it should be to share my thoughts, but it also lets me country was, is and will be. With the noted that nation building is a heated and do a bit of opinion research among the passage of time, it seems that we are starting even hated notion in some parts of the younger generation. We like to say that to forget this and it is imperative that we world. The main reasons for this are, first, our youth are the future of this country, do not. In the time available, I hope to say that it is taking place in the midst of great but then we proceed to ignore or enough to provide some fuel for the domestic turmoil and, second, that it is marginalise them. We want our future discussions to follow. It is my earnest wish primarily initiated and managed by generations to be able to think and act that you will gain some further foreign powers. Trying to cobble a wisely, but then we do not give them perspectives on the nature of nation functioning state by papering over deep sufficient opportunities to do so. building and that you will also deliberate social and political rifts is, of course, easier on specific actionable ways to further it in said than done. History has shown us time 2. In my view, this is not a good way this country. and again, that it is much easier to break to prepare those who will take our place. down, rather than build up, nations. If the young are to be good leaders and 4. Confucius insisted that language citizens, they must be exposed to more must be properly used if things are to get 6. In the case of Malaysia, nation than just abstract concepts. Even those done, if justice is not to go astray, and if building has occurred in generally peaceful nation states which have failed miserably people are not to “stand about in helpless circumstances. It was not imposed by have had great political ideals. I believe confusion.” He disapproved of those who another country. And it is undertaken that good and upright leadership must be misused words to hide their true mainly by collective choice rather than demonstrated. It has to be both taught intentions and actions. So what exactly is compulsion. The fact that we have been and observed at work. Then, those who nation building? Not surprisingly, there able to forge a nation without resorting to are found to be able must be mentored by are many definitions, some which differ the rule of the gun has made us something those who are capable. In this way, success by a little and others by quite a lot. In his of a rarity and a case to be studied, if not can be learned and replicated. Finally, the book, The Making of a Nation, for emulated. It has allowed a relatively young must be given responsibilities they example, Professor Cheah Boon Kheng effective system of governance to develop. can handle. They should be allowed to defined it as “both economic progress and Our track record at development and

PRAXIS 34 MARCH / APRIL_2006 Speeches resolving problems such as illiteracy, especially watchful, and particularly if they world. poverty and poor health has been good. have a weak sense of national collective identity. In the absence of a strong 11. What does Malaysia have to do to 7. There is, of course, much more that binding nationalism, they are prone to ensure that it continues to be successful at can be done. Our institutions of polarisation and competition along ethno- nation building? Psychologists say that our governance are far from perfect and quality religious lines. The state, which may well short-term memory can only hold seven improvements will probably occupy us for start out by being a relatively honest items. Let me outline seven guidelines that at least the next fifty years, if not longer. broker, can become increasingly pressured I think will have to be borne in mind in Nevertheless, for all the criticisms that have to act in ways that favour the interests of future national building efforts. been made, it is only common sense that one group over another. If the pendulum we could not have survived, let alone swings too far in one direction, 12. First, Malaysians of all races, prosper, these last fifty years if government dissatisfaction and frustrations will religions, and geographic locations need institutions had not been responsive or inevitably result. These can be expressed to believe beyond a shadow of a doubt effective. in ways that range from passive non- that they have a place under the Malaysian

8. So what are the central challenges to nation building going forward? Let me speak first more generally about the world, and then move specifically to Malaysia. To my mind, there are many challenges, but the one that stands out most is that of having to balance the need for change with that of continuity. Globalisation, in particular, has unleashed sweeping economic, political, social and cultural transformations that have weakened national institutions, values and norms. It cooperation to active opposition and even sun. Only when each citizen believes that is as if all the boats on the ocean had violent conflict. To a large extent, this has he or she has a common home and is suddenly lost their anchors, rudders and led to the fragmentation of states. working towards a common destiny, will compasses overnight. Naturally, this has he or she make the sacrifices needed for produced a strong reaction in the form of 10. Countries need to recognise the the long haul. In Malaysia, the Federal a desire to preserve identity, character and larger macro forces at work and understand Constitution, the Rukun Negara and tradition. These are among the strongest their implications. They have to engage Vision 2020 encapsulate the rights, hopes motivations known to mankind and have creatively to ensure that there are sufficient and aspirations of the population in a way been at the foreground or background of investments in social capital and cohesion. that no other documents do. The integrity practically every conflict that has ever been They must create and capitalise on co- of these documents must be defended and waged. Add to this, a deep sense of operative systems within societies. In recent promoted, especially the first. deprivation, powerlessness and injustice, times, it has become usual to try and place both real and imagined, and the tension the blame for the disintegrating state of 13. Second, when we seek solutions to between change and continuity mount world affairs on the doorstep of religion. problems in nation building, we must be greatly. This is a misunderstanding of the first careful not to assume away problems. order. Religion is not the cause of societal Nation building is required precisely 9. Managing change on a national dystrophy; it is the antidote. It is a social because there are stark differences within level is never easy, and certainly not on the stabiliser that allows believers to reconnect society. If we all walked, talked and scale and speed that we are witnessing. to values that are fast being lost in today’s thought the same, it would probably not Multi-ethnic countries have to be ever more materialistic and self-centred be needed. There will therefore be

MARCH / APRIL_2006 PRAXIS 35 Speeches chauvinistic groups in this country, just as democracy, caring society and innovation. young. Through textbooks, sports and there are in others. They will fight the idea Only by being inclusive and participative interaction, educators should eliminate of national unity, block social change and can the various sectors of our society be ethnic stereo-types. Through the try to be politically dominant. The productively engaged. It follows that all imaginative teaching of the history of existence of these groups, however, does forms of extremism, chauvinism, racism Islamic, Chinese and Indian civilization, not mean that nation building is a futile and isolationism must be guarded against. educators could foster greater exercise. It does mean that we must be They must be soundly sanctioned socially, understanding among different ethnic prepared to negotiate our way through politically and, if necessary, also legally. groups. and around these differences. We can, for example, create social movements that aim 17. Sixth, nation building is a process 20. It is said that it takes a village to raise to enlighten and dissuade popular support rather than an outcome. When Malaysia a child. I believe this is true. To me the being given to them. started off fifty years ago, there were no village comprises three main institutions - examples to study. There were no manuals family, school and community. From birth 14. Third, nation building requires to follow. Mistakes were made and, to a we should be taught to respect and honour accommodation and compromise. In our greater or lesser extent, lessons have been each other’s culture and heritage. Learning haste to be prescriptive, we should not be learned. While a sense of impatience is to interact with others is part of this so idealistic that we are incapable of also perhaps fully understandable, nation process. Playing with children of other being practical. We should not allow building takes place over a period of time races on the play ground and in friends’ perfection to be the enemy of the good. and only with persistence. Where there is homes, we learn to go beyond the colour Yes, we should seek the best solutions and no trust, trust has to be built. Where there lines early in life. In school we should be expect the highest standards of is no cooperative network, one has to be taught about other cultures and beliefs performance. But we should also be established. Building on layers of under the same roof as others of different prepared to sacrifice some part of our foundation is the only way to ensure that ethnic groups - once again cutting through positions for the good of the whole. The the process is solid and sustainable. the colour lines. virtues of pure self-interest are largely a Ladies and Gentlemen: myth. What seems to be a reality is that 18. Seventh, the political, social and individuals end up worse off when they economic incentives must reward good 21. I am aware that there are many act out of self-interest, as opposed to acting behaviour and penalise bad. I know that Malaysians who are deeply troubled at the in their collective group interests. this statement is virtually self-evident, but state of national unity in this country. it is a fact that many countries are as likely What I have tried to do today is disabuse 15. Fourth, if nation building is to be to punish good behaviour as to reward it. you of the notion that there are any “quick successful, enforced solutions must be After all, if there are benefits for fix” solutions in nation building. If you avoided. Nation building is effectively corruption, then there is a real cost to being look closely enough at any country, even rendered null and void by coercion or the honest. The incentives for building up a ones that are regarded today as highly threat of violence. ‘Might’ cannot and nation must be greater and more successful such as Japan, you will find there must not be shown to be ‘right’. If compelling than breaking it down. The have been episodes in its past where events solutions cannot be found within the price of racial and cultural intolerance must were very tenuous. I hope we will do our political and social structures, there will be made prohibitively high. best to guard against cynicism and be a strong temptation to resort to Ladies and Gentlemen: hopelessness. And I hope we will all stay illegitimate ways and means. the course. Failure, may I remind you all, 19. I believe fostering national unity is is a costly option. 16. Fifth, nation building occurs when the responsibility of every Malaysian. society is open, tolerant and forward- However, schools, institutions of higher 22. I wish all speakers, facilitators and looking. So important are these values that learning and sports centres have a very participants a constructive and fulfilling they are embedded in Vision 2020’s nine special role to play. This is because the sense day ahead. strategic challenges, as are those of mature of national unity is best inculcated in the

PRAXIS 36 MARCH / APRIL_2006 Speeches

National Maritime Conference Malaysia As A Maritime Nation: Meeting Expectations Keynote Address by Dato’ Seri Chan Kong Choy On behalf of the Deputy Prime Minister, YAB Dato’ Sri Mohd Najib bin Tun Hj Abdul Razak on 8 March 2007

ang Berbahagia Abdul Gani Patail, more than 60,000 vessels plying the Ythe Attorney General of Malaysia, Straits each year. 30% of the world’s Mr Yeo Yang Poh, the President of trade and 50% of the world’s energy pass Malaysian Bar, Ms Sitpah Selvaratnam, Co- through our Malacca Straits. Its Chair of the Organising Committee, biodiversity continues to be a source of Honourable Judges, members of the livelihood to many Malaysians, and media, distinguished guests, ladies and people of the region. gentlemen. Selamat pagi dan salam sejahtera. The mission by our forefathers to develop Malaysia into a dominant introduced by an amendment in 1979 to First and foremost, please accept my very developed maritime nation was clearly the Income Tax Act of 1967, for total sincere apology on behalf of the Deputy justified in strategic and economic terms. exemption from tax of income derived Prime Minister who is not able to have his The challenges towards this end however from the carriage of cargo or passengers by presence here this morning and on behalf remains onerous. sea, and from the voyage or time charter of the Deputy Prime Minister to convey of Malaysian owned vessels. Concurrently, his warmest greetings from Japan. Can I I must congratulate the Bar Council and the Cabotage Policy was introduced to have your kind permission to read out the the Attorney General’s Chambers for their promote domestic trade on board speech of the Deputy Prime Minister. wisdom and initiative in jointly hosting Malaysian owned vessel, implemented this Conference as a National Event, to through the Domestic Licencing Board. Multi-cultural Malaysia is what she is identify the maritime milestones achieved This was towards reducing reliance on today, because of the seas. The voyages to date, and the tasks ahead of us as we foreign ships, for savings in foreign and adventures of traders and travelers move forward in our quest to become a exchange, and the development of from all corners of the world and spanning Maritime Nation. expertise in the Malaysian shipping more than 600 years, have shaped our industry. nations’ heritage, culture and composition. Malaysia has come a very long way in her The ships of old were not only laden with maritime achievements. In 1968 we had The 1970s also saw the formation of treasure and commodity, but more one National carrier, Malaysia Shipping MASA, the Malaysian Shipowners’ importantly they contributed shaping the Corporation Berhad which owned 2 Association (1976) as a common voice for people and culture of Malaysia. These vessels, and there were 2 major ports, Port Malaysian shipowners; the Maritime ships sailed our surrounding seas and plied Swettenham and Penang Port. Regardless Training Centre (1977), now known as the Straits of Malacca in the name of trade, of these modest beginning, the vision was Akademi Laut Malaysia, ALAM to groom territory and religion and along the way firm - to nurture Malaysia’s maritime ships’ officers and seamen; and Bank they contributed to the tapestry of our development to make it a significant player Pembangunan Malaysia Berhad (1973) history. in the region. to invest in the shipping sector. Bank Pembangunan, was later to develop into The Straits of Malacca has sustained its From the Third Malaysia Plan, in the late the custodian of the Shipping Fund of strategic position as the main highway 1970s, maritime enhancement was RM1.3 billion allocated by the connecting the East and the West, with aggressively driven. Tax incentives were Government for the provision of ship

MARCH / APRIL_2006 PRAXIS 37 Speeches financing on advantageous terms, and to export. The maritime sector is fundamental to the encourage the establishment of world class continued success of this nation. 95% of shipyards in Malaysia. Institutes of PETRONAS, where I began my young the country’s RM1 trillion trade finds its learning and research have contributed working life, also the brainchild of the entry and exist by sea. Sea freight is significantly to the advancement, 1970s (1974), was incorporated pursuant projected to more than triple to 751 adoption, and application of superior to the Petroleum Development Act 1974 million tonnes by 2020. The efficiency technology in the maritime sector. passed by the Government to provide for of the entire maritime network is heavily a structured exploration and exploitation depended upon, to support the The privatization of the ports from the of resources of the seas. From her first manufacturers and traders, and in itself 1980s further inspired creative and export of crude oil in 1975, PETRONAS generates employment and revenue on- productive joint ventures between port has now grown into a world giant, shore and off-shore for many. Ladies & operators and main line shipowners, entering into major joint ventures for Gentlemen, the seas clearly continue to increasing manifold the traffic of cargo and exploration, exploitation and retailing in impact on our lives, directly and indirectly. vessels in our 7 international ports, in Myanmar, Vietnam, South Africa, China, Penang, Port Klang, Johor, Tanjung Gabon, Pakistan, Algeria, India, Morocco, It is undisputed that the maritime Pelepas, Kuantan, Kemaman and Bintulu. Mozambique, Indonesia, Turkmenistan, industry’s comprehensive and wholesome Sudan, Egypt, Ethiopia, United development must be, and will be, Today we have achieved an enviable Kingdom, Iran, Philippines and afforded high priority. In so doing, the position in terms of our ports, specially Switzerland. concerns of all sectors within the industry Port Klang and Port Tanjung Pelepas, both need simultaneous attention, be it the of which have regularly broken records These achievements, in all sectors of the ports, the shipowners, the logistic and received international awards, maritime industry do us Malaysians operators, the insurers, the shipyards, the securing admirable rankings in the world proud. But, there remains much more to ship financiers, the shippers, and the as among the best seaports and container be done. In this present age of rapid national and international consumers of terminal operators. All of our ports have changes and high expectations, there is all these services. directly contributed to achieving the no time nor room for complacency, Underlying the capacity for great maritime record trade value of RM1 trillion in lethargy or indifference. success is the soundness in foundation of revenue for the nation. the maritime laws that govern Malaysia’s We are 13 years away from attaining our maritime dealings. The laws are the Our shipowning in tonnage, although common dream of a developed nation. It bedrock of any society. The unseen experiencing some fluctuation, earned us is now the moment of self-audit and critical protection, and the threat. The protector a place as the 20th most important Maritime analysis, of constructive criticism and and the prosecutor. The law-makers, Nation under the Review of Maritime positive action. regulators, the lawyers, the Judges and the Transport 2006 released by UNCTAD. entire legal system are therefore vital to MISC Berhad, 40 years later, has a fleet of 106 vessels, with 26 new ship constructions in the pipeline. Her fleet includes 23 LNG carriers, 45 Petroleum tankers and 13 chemical tankers, making MISC Berhad the largest single owner- operator of LNG tankers in the world. The strategic acquisition by PETRONAS of MISC Berhad in 1998, created integrated and rationalized logistics and shipping support for PETRONAS’ operations in LNG crude oil and petroleum product

PRAXIS 38 MARCH / APRIL_2006 Speeches the proper and effective reports of the IMB, workings of the maritime cycle. International Maritime The confidence to use Malaysian Bureau, prove that the ships, to deal with Malaysian measures taken by Malaysia, traders, and to ply Malaysian both unilaterally and with waters are premised on the the co-operation of its fairness and relevance of neighboring countries, have Malaysia maritime laws, in proven to be effective in ensuring that anticipated rights reducing the instances of are recognized and upheld attacks significantly in 2005 expeditiously through an and 2006, such that the effective legal system. controversial categorization of the Straits of Malacca as a In the context of maritime rights, much Malaysia participates as a member at the War Risk Zone, has been properly of these are governed by International IMO, International Maritime revoked. Conventions, custom and practice. To Organization, which is concerned meet Expectations, is to know, understand, primarily with safety, and pollution of the The MMEA, Malaysia Maritime and where compatible with national seas. Many international conventions have Enforcement Agency, was established in circumstances, to apply such international been adopted and implemented in 2005 to provide an authoritative presence yardsticks of rights and responsibilities, Malaysia, including UNCLOS, the Third of organized patrol in the Straits, both as a through our laws, in our Courts and our United Nations Convention of the Law deterrent and as a responsive mechanism alternative dispute resolution centers. of the Seas 1982, which defines amongst to combat piracy. I have no doubts that at others, the sovereign rights of nations over the Conference, the MMEA will be drawn I am therefore, tremendously pleased to their Territorial Waters, and their into hearty discussion on the measures learn that an Admiralty Court was exploration and exploitation entitlement taken, and to be further taken, in established in July 2005, within the within the Economic Zone and enhancing the safety and security of Commercial Division of the High Court Continental Shelf. Malaysia waters. of Malaya at Kuala Lumpur. This sends a positive message that maritime interests are In recent times, UNCLOS has proven On the issue of safety and security there properly looked after by a dedicated useful in dealing with the differing views can be no compromise. There can be no Admiralty Court, that can ensure speed, on the rights to police the safety of waters, hint of their neglect to meet bottom lines. uniformity and quality maritime decisions. such as the Straits of Malacca, against Malaysian commerce must place security I believe that Practice Directions for attacks of piracy. and safety as paramount considerations, Admiralty Actions, a first of its kind in and effect all measures necessary in Malaysia, has come into effect in the High The right of Transit Passage under ensuing their fulfillment. One life lost is Courts of Malaya from 1st February UNCLOS through the Straits of Malacca one life too many. Security extends to 2007, to procedurally compliment the is clear in its preservation of a balance responsibility over cargo and commodities smooth and consistent determination of between the usage of territorial waters of a moving on our ships, through our ports maritime disputes in Malaysia. These country by foreign vessels, with the and over our soil. One consignment lost, efforts are commendable, but we must sovereign right of the coastal states to is one too many. The highest quality of continue to strive to be a foremost forum manage the affairs of security and safety services are demanded by consumers, and for resolution of maritime disputes. in their waters. Whilst suggestions on the highest quality of service is the very means to overcome the hazards of piracy Expectation to be met. Consistent with Malaysia’s intent to co- are welcomed, the ultimate control over exist uniformly, and harmoniously with the measures taken in protecting the Straits Malaysia has faired well in terms of her the international shipping community, remains with the littoral states. The recent technological know how. We need

MARCH / APRIL_2006 PRAXIS 39 Speeches seriously to focus on our investment in ships. For all these Government efforts to meaningful Conference. human capital; the development of the bear result, there must be co-operation intellect and the maturity of the mind. within the maritime industry, and faith in I have pleasure in Opening the National Our training centers, our universities, and local talent. The Malaysia maritime Maritime Conference, and hope that it our research institutes must prime industry cannot afford to be fragmented. will be the first of many. themselves to produce the best. This can only work with the co-operation of the The Malaysian maritime industry must Summary business sector. Opportunities for training act in concert to support one another. In Malaysia has achieved tremendously but the best must be made available by turn, the industry must, at all times, there remains much more to be done. The commercial entities, viewed as a vital conduct its affairs with utmost good faith, foundation in maritime success in Malaysia investment component of their future, with complete integrity and relentless is premised on the fairness and relevance and the maritime future of the nation. diligence. This is a pledge you, the of Malaysian maritime legal system. To this maritime industry must make, to take this end, the Admiralty Court was established There is so much potential for growth in nation to great heights. You can rest in 2005 within the Commercial Division the Malaysia maritime industry. We are assured that the Government will be fully of the High Court of Malaya and Practice well placed to assume the role of a Global behind you. Directions for Admiralty Actions were Halal Hub. The Governments’ allocation introduced to ensure smooth and of RM95 million towards this It is recognized that in meeting consistent determination of maritime development, needs the dedicated support Expectations of a Maritime Nation, laws disputes in Malaysia. Malaysia is also a of the maritime industry to provide may need to be introduced, rules may member at the International Maritime impressive, world class services, using need to be amended, systems may require Organisation, concerned with safety and world class technology. That is the refining. There should be no hesitation pollution at sea, and also UNCLOS 1982. Expectation. in placing these reforms as matters The UNCLOS has been effective in deserving of immediate attention. The dealing with the safety of the waters of Transhipment traffic through Malaysia fact that the private and public sector Malacca Straits against piracy attacks. The increases significantly each year. Malaysia lawyers have combined their efforts in Malaysia Maritime Enforcement Agency must be geared to harness these slaving over this Conference, generously in 2005 as a deterrent and responsive opportunities. The anticipated shortage sponsored by PETRONAS and MISC mechanism to combat piracy. Malaysia of shipping space for palm oil in 2007, Berhad, with the objective of maritime now needs to focus on the investment in with the introduction of new pollution reform is most heartening. The nation human capital. Our training centers, prevention rules, must be effectively requires the combined strength of all universities and research institutes must addressed within the Malaysian maritime institutions and organizations in the work with the cooperation of the business sector. We cannot continue to allow over Malaysian maritime industry, working sector. The country’s role to assume the 75% of our trade volume to board foreign with the public maritime authorities, to role of a Global Halal Hub needs shipping lines. The Third Industrial channel collective resources to inspire and dedicated support of the maritime Master Plan, IMP 3, for the years 2006 to implement reforms that fully befit industry to provide world class service. To 2020, strives to achieve for Malaysia a three Malaysia as a superior maritime nation. capture the 75% of our trade volume fold trade growth, anticipated to reach currently onboard foreign shipping lines RM2.8 trillion in 2020. Significant I am confident that this Conference will and to capture the increasing emphasis is placed on exports. In meet its objective of laying strong transshipment traffic through Malaysia, recognition of the need to complement foundations towards joint and unified the Third Industrial Master Plan, the focus trade growth with a duly corresponding efforts in improving maritime standards is on the development of shipbuilding and ship fleet, the IMP 3 focuses on the in Malaysia, to meet national and shiprepairing activities. In meeting development of shipbuilding and international Expectations; in taking expectations of a maritime nation, legal shiprepairing activities to increase the Malaysia Towards Global reforms may need to be introduced. capacity to build and maintain Malaysian Competitiveness. I wish all participants a

PRAXIS 40 MARCH / APRIL_2006 Committee

Roundup on Bar Council’s Public Forum on “Senior Citizens’ Protection : Is there a need to enact laws?” by Helen L.M. Chin

rue to the tenet of generally and one working, Prof. Madya opined that T ensuring that participant professed to be resources on a community level be proposed laws are legislated to touched to his soul by the explored to support the elderly. serve the needs of society and eminent speakers and called move with society trends, the for a more altruistic society. Welfare Department Elderly and Family Law Reform and Special Areas Session chairmen, Su Tiang Division Director, Nik Omar bin Abdul Committee held a public Joo and RV Lingam were Rahman informed participants of the forum to gather views of senior called to exercise their National Advisory and Consultative citizens and professionals dexterity of thought and Council for Older Persons under the involved with the welfare of the elderly. leadership in moderating the question and chairmanship of the Minister of Women, answer sessions skillfully. Needless to say, Family and Community Development for Approximately 50 people from non- they had very good support from Lee Swee drawing up programmes to protect the governmental organisations, retirement Seng who was his usual eloquent self. elderly and improve their quality of life homes, senior citizen clubs, universities through subcommittees for social and and government departments attended Gerontologist, Prof. Madya Dr. Tengku recreation, health, education, training and the forum at the Bar Council Auditorium Aizan binti Hamid of Universiti Putra religion, housing, research and publicity. and participated actively. However, it was Malaysia stressed that the number of older sad to note that very few lawyers besides persons has increased from 1.03 million During question time, he disclosed that the organising committee members were in 1991 to 1.73 million in 2005. Based elderly persons without sources of regular present despite several announcement on Statistics Department data, the income and without any offspring capable notices earlier. proportion of people aged 60 years or over of supporting him / her is eligible to receive is expected to increase to 9.9% of the total the “Bantuan Orang Tua” of RM200 per The opening message by Yeo Yang Poh, population by 2020 as compared to 4.8% month from Welfare Department. the Chairman of Bar Council who noted in 1960. Administrative delays in payment of the that in our society nowadays, senior monthly allowance and the inadequacy citizens are sometimes revered but Emphasising that laws are essential to of this amount in the light of rising costs sometimes are regarded as ‘excess baggage’ protect senior citizens, she pointed out that for basic living were highlighted by in some families set the mood for healthy specific legislation for older persons already participants and the speaker noted it for debate when he invited participants to exist in the Philippines, Thailand, the attention of the consultative council consider how society should go about Singapore, Australia, Israel, Canada and at its next meeting on 13th March 2007. resolving problems peculiar to aging United States. population through formulating Dr. S. Chandra Mohan a practising lawyer appropriate legislation or improving To ensure an effective national policy for and former District Court Judge as cultural values of respecting the elderly. the well being of older persons, other member of the Tribunal for the professionals besides lawyers should be Maintenance of Parents in Singapore Dato’ M. Ramachelvam, the Chairman of involved to achieve social inclusion rather enlightened forum participants on the the Law Reform and Special Areas than exclusion of the elderly in our society. working of the Maintenance of Parents’ Committee emphasised on the Act 1995 in the island state. importance of the subject in the light of Cognisant of the family structure where society’s needs. Participants were very keen both the child and the spouse would be It places the obligation on the child /

MARCH / APRIL_2007 PRAXIS 41 Committee children of the elderly citizen as the first Action, the UN Principles for Older by court for offenders guilty of abusing or line of support instead of the state and is Persons vide Resolution 46/91 at Geneva assaulting older persons and that the based on the equitable principle that a and the International Plan of Action on Government adopts the tribunal approach child should financially support a parent Ageing Population vide United Nations in Singapore for maintenance of parents if the parent has supported him. Provisions Resolution 37/51 December 1982 and / or the Australian model as well. Her for mediation conducted in a non- subscribed to by the Malaysian final observation was on the practice in adversarial manner, in privacy and dignity Government which hold that all people Samoa where community and family are hallmarks of the system. A parent aged should have adequate economic and social support is so strong that legislation is not 60 years and over who is unable to provisions including the disabled and the required. Being devoted Christians maintain himself / herself is entitled to aging population. predominantly, the inhabitants of Samoa apply for a maintenance order or the are faithful in observing a regular family application may be made by the She emphasised that diseases associated prayer time and adopting a healthy Commissioner for the Maintenance of with ageing can be very debilitating lifestyle. Parents or any approved organization or especially for women. Social problems person in whose care the parent resides. highlighted include the loneliness Husain b. Haji Anjang Pulau, Secretary The Maintenance Order is General of the Government enforceable as District Court Pensioners’ Association lamented Orders and variation of the general indifference amongst maintenance orders as well as the general public to problems appeals can be filed in the High of senior citizens in the family Court. structure and in daily activities. Moral training to inculcate The Asian model of laws for respect for the elderly is felt to be maintenance of parents and elderly urgently needed. To protect persons in India was highlighted senior citizens, he surmised that during the forum. According to a specific legislation and press article in the Times of India, amendments to existing New Delhi on February 23, 2007 the experienced by elderly commonly referred legislation are required urgently. He Cabinet in India had on 22 February to as “empty nest syndrome” when referred to the Pensions Act 1980 (Act 2007 cleared the Maintenance and children grow up and lead their own lives 227) Section 22(1) where the maximum Welfare of Parents and Senior Citizens’ Bill or migrate from rural to urban areas and pension is capped at half of last drawn imposing a jail term of three months and a when the elderly spouse passes away. Dr. salary amongst several other provisions. fine payable by children who refuse or fail Raj asserted that whilst responsibility for to provide a life of dignity to their elders. the care of the elderly parent is to be on Participants were chagrined when it was It provides for offenders under this Act to the child, the state should provide housing pointed out that ministers’ pensions were lose his / her rights of inheritance for not facilities for older people near the residence based on their full salaries for each position taking care of his / her elders. The age limit of their children, community day care held during his/her term of office after for elderly parents entitled to maintenance centres for elderly people and five years of service and that in Sri Lanka, orders is 60 years but it includes parents opportunities for willing and capable older retirees’ pensions are based on the last below the age of 60 years if they need care persons to participate in the community drawn salaries. by their offspring due to sickness or other and community clubs. In New Zealand reasons. and Japan, there is no compulsory Adjunct Professor Puan Mehrun Siraj of retirement age and there is a Register of International Islamic Universiti Malaysia Dr. Raj Karim representing SUHAKAM Volunteers of Older Persons. Other held a unique view when she asserted that referred to various international plans of provisions recommended by SUHAKAM action including the Copenhagen Plan of are the imposition of more severe sentences continued on page 44

PRAXIS 42 MARCH / APRIL_2007 Committee

Speaking our Hearts and Minds through Dialogue: Working towards greater acceptance and understanding of our nation’s problems by Syirin Junisya Mohd Ali (Executive Officer, Syariah Law Committee)

groundbreaking closed-door passed on. Hence, if race relations is ! The central idea of a harmonious A dialogue titled “Issues Affecting a not handled constructively, violence multi-racial society is that we need not Multi-Racial Society” among members of would definitely be an undesirable to have divisions along racial lines. the Bar was held on 2 March 2007 with option. India’s President, Abdul With these divisions, the tendency is the intention of strengthening ties Kalam, was quoted as saying that to to identify oneself with race first, and through discussion and understanding of eradicate corruption, one needs to start citizenship second. The government’s different views and perceptions regarding with the mother and father. portrayal of Malaysia as an Islamic state ethnic and religious relations in the country. is not fair in views of the existence of The event was co-organised by the ! Another participant said that there are multi-racial groups in this country. National Young Lawyers Committee, many challenges faced in schools, Syariah Law Committee and Human especially that of government schools. ! Another related that her father had Rights Committee. More than 100 She thought the school would great ambitions for her and enrolled members of the Bar and pupils-in- facilitate her son’s exposure to a multi- her in a Chinese school in Penang chambers attended the Dialogue. Tan Sri racial environment, and was shocked where she was discriminated but Anuar Bin Dato’ Zainal Abidin, former to find that segregation is practiced in under the conditions she kept her Chief Judge of Malaya and ex- schools and perpetuated by the emotions in check and prevailed to SUHAKAM Commissioner was the education authorities. An example prove her worth. She thinks of herself moderator for the dialogue. cited was that only Muslim festivals as a social reformer in the quest to end are celebrated in schools but there is discrimination against women under Our ertswhile President, Yeo Yang Poh in no recognition of other religious Syariah. She supports the Article 11 his welcome note said that the Dialogue festivals. Such issues are driving non- initiative as she is for freedom of was an opportunity for members to “listen Malay students away from religion. But the coalition appears to to one another with humility and an open government schools and we need to only push for Article 11(1) in their mind”. He added that this was a difficult address the root causes of this agenda, and does not give much challenge as lawyers are used to arguing situation. attention to Article 11(2). The and debating, but participating in a animosity to the coalition may be due dialogue is entirely different. ! There was another view which spoke to the feeling that those for Article about the problems of labels. We hear 11(1) are also imposing their views A brief compendium of the participants’ of Islamisation and fundamentalism vis-à-vis Article 11(2). But she hopes key reflections is as follows: but what is fundamental about Islam that these factions can find a solution ! Touching on racial polarisation in is in understanding the religion. The together. schools, a participant related how his essence of this is destroyed since it is daughter was upset when she was now associated with terrorism. The ! One member remarked that we need called derogatory names in reference majority of detainees held under the to understand the country’s journey to her race in school and resorted to Internal Security Act at present under to this point where we have seen violence to shut them up. Children charges of terrorism are Muslims simply increased polarisation. Our political would pick up things from their because they practice a certain type of system has evolved around ethnicity parents and likewise, negative traits are Islam. and that is a fundamental problem.

MARCH / APRIL_2007 PRAXIS 43 Committee

Secondly, the prevailing authoritarian ! A member spoke of Pol Pot and how Tan Sri Anuar in his summation said that system does not offer public space for upon seizing power, the first group of the issues discussed focused on the need civil discourse. In recognising this, people he went for were the lawyers. to have greater education for our citizens, changes must be made both at During Tun Mahathir’s to eradicate corruption and to forge a personal and institutional levels. The administration, a similar move was united nation despite our diversity. country needs to move away from made and the Bar was infiltrated. He politics based on race and religion. We recalled that he grew up confused In his closing statement, Yeo Yang Poh need to build on that. Further, we whether we are “satu bangsa” because thanked all present for their frank views need to instill the right values such as if we are, why do we still need to and expressed that the prevalent greater freedom of information in our identify our race and religion every sentiment is to continue this dialogue. He society as a way to deal with unjust time. We should decide on this. said that perhaps one reason certain practices such as detention under the quarters do not participate actively in Internal Security Act. ! “We are all victims of political plays dialogue could be due to fear, and he where my discrimination is bigger thought that if we want to have a genuine ! A member spoke about politicisation than yours”. If we want to effect dialogue we need to undertake the heavy that is happening outside. As this change, it is not about pushing out responsibility to understand the reasons dialogue is between members of the “the wrong”, but doing what is “right”. behind the fear. Bar, the opportunity should be taken Since we want a non-polarised society to explore the reason for politicisation it is our duty as lawyers to place more Feedback regarding the Dialogue has been within the Bar along racial and effort into this. positive, and much hope has been religious lines. He wondered how it entrusted on the leaders of the Bar to had got to the point where the ! A comment was made that there are continue this approach in nation- supremacy of the Constitution is now concerted efforts by some quarters not building. The success of the Dialogue has being slowly eroded in the name of to dialogue on issues affecting the dispelled anecdotal myths that the peoples religion. He also posed a question country. This is unfortunate because of Malaysia, in particular lawyers cannot whether members want a united Bar many Malaysians are willing to listen peacefully and cordially express themselves on questions of the Constitution. and understand, and wish to clear and listen to one another with an open many doubts which are lingering in heart in a manner befitting a civilised their minds. country. continued from page 42 poor parenting is the cause of the failure are important. In order to adopt the and not ritualistic memorising and increase of children to care for their elderly parents. Singapore tribunal approach, Malaysia in the maximum age limit by commercial As such, she advocates that training for needs to have sufficient manpower trained banks for housing loan applications to 75 filial piety in children has to start from in family mediation techniques and years as is practised by Citibank and young in the family and in the community counseling practices. She stressed that the speedier implementation of statutory through the media. However she feels that state should organize a nationwide survey provisions to protect senior citizens. maintenance of the elderly should be a to obtain an overall view of society’s needs family responsibility and failing that, the in this respect. In closing the forum, Ramachelvam state should shoulder the task of providing thanked the participants and gave an for the elderly. For implementing Other demands requested by participants assurance that the Law Reform and Special legislation relating to maintenance of related to automatic entitlement to full Areas Committee would be studying the senior citizens, many programmes to medical benefits, 50% discount on air deliberations and submit a memorandum promote understanding of the statutory travel, emphasis on filial piety in religious to the Government of Malaysia in due responsibility and other provisions involves education through experiential learning course.

PRAXIS 44 MARCH / APRIL_2007 Notices

Bar’s NYLC Solomon Islands Earthquake and Tsunami Fund (E&T Fund)

Circular No. 82/2007 Dear members and pupils-in-chambers

he Solomon Islands Bar Association (SIBA) has requested If you are making a direct deposit, Tfinancial assistance for victims of the recent earthquake please keep the deposit slip, and and tsunami there. See: http://www.malaysianbar.org.my/ fax the same to the Bar Council content/view/8322/2/. Attached herewith is the letter from (Attention: Ms Lily Aw) with the Andrew Radclyffe of SIBA dated 3 April 2007. note “For Solomon Islands Fund”. This would ease the administration of the account. We are also informed that “all donations would then be made available to the Red Cross or other relief agencies in order to The deadline for collections is 9 May 2007 after which we will obtain water tanks, medical supplies and other much needed close the Fund and proceed to channel the money to SIBA. It items for the worst affected areas”. will represent the Bar’s donation to the peoples of the Solomon Islands. We have set up an E&T Fund at the Bar for this purpose, and we strongly urge members to donate generously. Details for Alternatively, members who wish to expedite their donations payment are as follows: may directly channel funds as set out in SIBA’s letter. 1. By Cheque Please write the cheque payable to “BAR COUNCIL” Just as we collected more than RM20,000 in a short space of and state on the reverse side of the cheque as follows: “For time for victims of the floods in our south, we believe we can do Solomon Islands Fund” the same for our friends in the Islands.

2. By Direct Deposit / Inter-Account Transfer Dated this 9th day of April 2007 Name of Payee : “BAR COUNCIL” Bank : HSBC Bank Malaysia Berhad Yours sincerely No 2 Leboh Ampang Edmund Bon Tai Soon 50100 Kuala Lumpur Chairperson Account No. : 301-022166-001 National Young Lawyers Committee

Legal Practice Review

he PII & RM Department will continue with our Our aim is to provide an objective assessment and to TLegal Practice Review project this year and we’d subsequently make recommendations (if any) to help like to visit 30 legal firms! We’ve scheduled June to reduce or eliminate any identified issues that may September 2007 for the Legal Practice Review. lead to increased exposure to risk of claims. A report of the findings and recommendations will be made Each session will take no longer than 3 hours. Our available to your firm. officers will talk to you about your firm’s operational processes, methods and systems. Four (4) main There will not be any costs involved on your part in areas will be discussed: office management, accounts this Review! For more information, do call the PII & management, general litigation and real estate RM Department at 03 – 20313003 (LiChin ext 150; conveyancing. Corrinne ext 190).

MARCH / APRIL_2007 PRAXIS 45 Opinion

Subashini v Saravanan - A commentary on the Court of Appeal decision by Norman Fernandez

n the recent majority decision of the enough for Subashini a non-Muslim to that the religion of Islam becomes ICourt of Appeal in Subashini a/p seek redress in the Syariah Court while tarnished. Rajasingham v Saravanan a/l feeling hapless and constrained to interpret Thangathoray the appellant Hindu wife s.121(1A) beyond the narrow To some extent, the civil courts are at faults was effectively told to submit to the interpretation and do justice for Subashini. too. When marriages break down, the jurisdiction of the Shariah court and seek innocent child unwittingly becomes the recourse through the Syariah Appeals In Malaysia, the Federal Constitution is pawn. In divorce proceedings/custody Court to stop her Muslim convert husband the supreme law of the country and by applications there is a tendency for many from converting their children without the virtue of Article 4(1), all other laws must judges to maintain status quo and favour wife’s permission. be constitutionally consistent and thus also or lean towards the wife by giving custody making Malaysia constitutionally secular. and care to the wife while giving the The majority decision is most worrying in In contrast, Pakistan’s constitution states husband / father limited access to the the sense that it permeates not only a that all laws must be consistent with child. In many instances it is the fear of feeling of uneasiness and hopelessness Syariah. Further, Schedule 9, List 2(1), of loss of custody and limited access to the among non- Muslims but also of greater the Federal Constitution clearly limits the child which is fuelling the husband to seek significance is the implications hereon and jurisdiction of the Syariah Courts to redress in the Syariah court. Rightfully, the worrying precedent the case and persons professing the religion of Islam. unless there are overwhelming and particularly the decision of Justice Hasan Thus it is unconstitutional to elevate and compelling reasons, courts in such Lah has for future cases. Justice Hasan Lah extend the jurisdiction of syariah court circumstances should grant joint custody had held that the wording of s.53 of the (which is constitutionally subordinate to and if such an order is not ideal then grant Administration of Islamic Law (Federal the civil court) to non-Muslims when the husband / father liberal access, instead Territories) Act, was wide enough to enable none exist. And that is precisely what has of giving restrictive, limited and regulated Subashini to apply to the Syariah Appeals happened in Subashini’s case. visitation rights as the courts are more Court to rule on the legality of her inclined to do now. It is the husband and husband’s application and the interim In Subashini’s case and as in previous cases, wife who are at logger- heads. Not the order he had obtained. the unfolding saga is almost similar. unfortunate child. Marriage breaks down and an inevitable While there is every possibility that tussle for the custody of the children of A husband caught in such a situation Subashini may find justice and fairness in the marriage begins. The husband (more often turns the Syariah court as a court of the Syariah court, had she submitted often than not), confronted with the convenience. His conversion and the herself, the fact is that the Syariah court knowledge that under civil laws, the immediate conversion of the child has no jurisdiction over non-Muslims. It courts are generally minded to give custody provides the easiest and fastest route to begets the question why couldn’t the civil of children and particularly children of gaining full custody of the child easily courts grant her the appropriate remedies tender age to the wife/mother and fearing defeating the wife’s similar claim in the instead of shunting her to a court which the inevitable, in quick time not only civil court. Thus, Syariah courts are indeed under the Federal Constitution has no converts to Islam but also their children. being abused by “non-Muslims” who are jurisdiction over her. Stranger still is the The matrimonial dispute then rears its embroiled in marital dispute. It is well fact that the civil court was prepared to ugly head by having the Syariah Court worth noting that almost in every instances, construe to s.53 of the Administration of dragged in and a party to the dispute. In the husband's conversion of convenience Islamic Law (Federal Territory) Act wide the ensuing saga, it is most unfortunate and the conversion of the child in secrecy

PRAXIS 46 MARCH / APRIL_2007 Opinion occurred only after the husband and wife the constitutionality of law rests defend the constitution, the civil courts becoming embroiled in marital dispute upon civil court. But none of the judges should do just that - defend the and fighting to have custody of the child. civil judges are prepared to look at constitution and not shy away from it this way. It is an abdication of deciding by using Article 121(1A) as an Coming back to the main issue, the civil power and function. excuse or the fear that his own faith may courts when called upon to adjudicate become compromised. It is a worrying regretfully, take the easy way out by Therefore, it is the problem of the trend that civil courts are simply unwilling referring to Article 121(1A) of the Federal court and not the legislation. If the to take up disputable cases like this. Constitution which prevents the civil civil court judge is true to the oath, courts from interfering with the decisions there will be no problems like we In Subashini's case, Justice Suriyadi Halim of the Syariah courts. Article 121(1A) are facing now. 121(1A) is not Omar called on Parliament to cap any ought not to be an escape clause or an intended to limit the civil courts.” obvious lacuna promptly and as equitably excuse for the courts to abdicate as possible to harmonise the two systems. responsibility. It is strange that in many In Subashini’s case, Justice Gopal Sri Ram Justice is never irreconcilables. Similarly in civil courts, judges in divorce proceedings said “at the end of the day, the courts S.Shymala v Dr Jeganesh Mogarajah, the in order to do justice insist on the presence decide on justice and remedy of then High Court Judge, Justice Faiza of both parties before a decree nisi is made. individuals and not the legislative body”. Tamby Chik in rejecting the wife’s Yet, when the issue facing the court is the Surely, the civil courts can see that the wife application that the conversion of their legitimacy and legality of the conversion is not disputing or even contesting the two children was null and void said “the answer is not for the court to legislate and of a child in secrecy and which occurred conversion by her estranged husband. confer jurisdiction on the civil courts but without consent and knowledge of one Instead what matters to the wife is the for parliament to provide the remedy.” parent, the courts are constrained to do attempt or the act of the husband without Could the court not instead interpret justice. knowledge or consent of the wife coveting liberally and expand the spirit of the law their child by converting their child. instead of maintaining a narrow At the parliamentary Roundtable on Could the courts not see that the husband interpretation of Article 121(1A). But if Article 121(1A) on Jan 5, 2006, the is in truth abusing the legal process - both the law as it presently stands mean that former Attorney General who incidentally civil and syariah courts. Surely they can. the civil courts in these situations are was responsible for drafting the said In the circumstances should the court still unable to grant remedies to the non- Article) had this to say to the judges of the reward him. Muslim wife, then it is time for legislative civil court:- intervention to ensure equal justice. “In a democratic country, one has Just like Subashini and many anguished to accept the view of the majority. mothers before her caught in such a It is worth reminding that, just as the father 121A(1A) will not be a problem if predicament, sees the judiciary as the last who takes advantage of Article 121(1A) the civil court has the courage to bastion of hope and the bulwark of justice. and abuses the Syariah courts for the sole act fairly and independently. The No doubt in cases such as this, the judges purpose of gaining custody of the child, system is just if the judicial process must also be wrestling not only with in the light of the majority decision of the is in place. The reason for such a difficult issues but also issues pertaining Court of Appeal in Subashinis’s case, the clause was that the Syariah court to his faith. Nevertheless, the hapless non-Muslim mother recognizing that she was more competent to deal with mother expects the judge not to allow his will not be able to find legal redress or Islamic affairs. personal and religious sentiment to cloud justice in the civil courts may in the his judgment but instead to be circumstances decide that the best and the Schedule 9 of the constitution is compassionate, sensitive and courageous right option is to simply disappear with clear that the Syariah Court only enough to do justice. If not for the wife at the child. Such a situation has already has jurisdiction over people least for the child caught in a legal tussle. occurred. Article 121(1A) and judicial professing Islam. Yet it has Is that asking too much? Thus, having predicament is no concern for her. constantly been ignored. However, taken the oath of office and sworn to continued on page 49

MARCH / APRIL_2007 PRAXIS 47 Articles

Law & Realty: RPGT queries answered by Roger Tan

HEN Prime Minister Datuk Seri (3) Does this announcement also apply Of course, whenever such an important WAbdullah Ahmad Badawi to corporations and foreigners; policy is made by the government, two announced on March 22 at the Invest parties will be immediately affected – the Malaysia Conference 2007 that the real (4) If a sale and purchase agreement party that implements it and the other property gains tax (RPGT) would be (SPA) is dated prior to April 1, party which is affected by it, all the more scrapped (see theSun report, “Real Property 2007, whether the seller/disposer so when the change in law would take Gains Tax scrapped”, March 23), many and buyer/acquirer still need to file effect about one week after the conveyancing lawyers were immediately CKHT 1 and 2 forms, and what if announcement. faced with the following consequential it is after April 1, 2007. In other issues: words, which is the cut-off period Due to the urgency of the matter, I then (1) Is this an exemption from RPGT – date of the SPA or date of spoke to the Treasury Solicitor of the under the Real Property Gains Tax completion of the purchase in the Finance Ministry, Hue Siew Kheng, who Act 1976 or a total abolition of SPA?; and referred me to the Ministry’s Tax Analysis RPGT? Division. (5) If a property is disposed prior to (2) Do sellers/disposers still need to file April 1, 2007, is the seller/disposer On March 29, I was able to speak to the the CKHT 1 form (“Cukai required to declare any gain in his Senior Deputy Secretary of the Division, Keuntungan Harta Tanah Borang personal income tax returns and Siti Halimah Ismail who kindly on the same 1”), and buyers/acquirers, the what if it is after April 1, 2007. day directed her assistant, Kamariah CKHT 2 form; Ahmad, to provide us with oral answers

PRAXIS 48 MARCH / APRIL_2007 Articles to the above queries over the phone, • If a disposal occurs on April 1, 2007 However, if it is sold/disposed on April subject to a written reply and confirmation or thereafter, both the seller/disposer 1, 2007 or thereafter, a declaration from her division to our said letter. and buyer/acquirer will no longer need not be made.” need to file CKHT 1 and 2 forms for As April 1 is a Sunday and armed with the any sale and purchase of property; With this, members of the public are now oral responses, the Council was able to advised that unless there is a requirement provide legal practitioners and their clients • If a disposal occurs before April 1, to file CKHT 1 and 2 forms after April 1, before April 1 the answers to be expected 2007, both the seller/disposer and 2007 as explained above, no solicitor will from the division to the above-mentioned buyer/acquirer are required to file now charge his clients the fees for queries. CKHT 1 and 2 forms; preparation, filing or witnessing of CKHT 1 and 2 forms which are fixed at RM300 On April 1, the Real Property Gains Tax • The RPGT abolition applies to all and RM200 per form respectively under (Exemption) (No. 2) Order 2007 was categories of sellers/disposers and the Solicitors Remuneration Order 2005. published in the Gazette vide P.U. (A) buyers/acquirers i.e. individuals and 146: (see attachment) corporations including nonresidents; Lastly, the Bar Council wishes to • The date of disposal of a property is commend the Finance Ministry, in The Division of Tax Analysis replied based on the date the sale and purchase particular Siti Halimah of its Tax Analysis officially with the answers to our queries agreement is executed or on the date Division, for being so helpful and quick in its letter dated April 4 to the Council’s of completion if the agreement is a to attend to our queries. We also note that Conveyancing Practice Committee as conditional contract (new amendment we are able to reach the relevant Ministry follows: to paragraph 16 of Schedule 2 to the officials quickly because their contact “• The Real Property Gains Tax Real Property Gains Tax Act 1976 details are published on its website at http:/ Exemption Order which has been through the 2007 Budget) or on the /www.treasury.gov.my. gazetted as P.U.(A) 146 on April 1, date of the transfer/completion if no 2007 exempts the application of all sale and purchase agreement has been All these speak volumes about the provisions of the Real Property Gains signed; and importance of having a business-friendly Tax Act 1976. This Order came into and effective public delivery system force from April 1, 2007 and will • If a property is sold/disposed prior to whenever the government wishes to apply to all disposals that occur with April 1, 2007 then the seller/disposer implement new policies and undertakings. effect from April 1, 2007. must declare any real property gains The exemplary working attitudes of these tax in the personal income tax returns. civil servants should be emulated by their other colleagues. continued from pg 47 courageously and following the spirit of law gives her right to pursue her remedy To prevent the existing situation from the law. Courts more importantly must in the civil courts and no where else. morphing into racial and religious lines, a ensure that no one parent can unilaterally Muslims can do away with the civil courts judicious and equitable solution has to be decide the child’s religion if they so wish. They can seek changes to expeditiously found so as to prevent any the law to incorporate criminal, contract, party from abusing the legal process be it Zaid Ibrahim, a lawyer writing in theSun property laws etc as part of syariah law. civil or Syariah. Until such time, civil court March 27, 2007 rightfully expressed the What Muslims cannot do so is to expect judges should ensure that the unfortunate views of the non-Muslims when he said non-Muslims to submit to syariah court.” child should not become a pawn to be “To Muslims, I say it is unfair to expect Rightfully said. fought over by parties embroiled in marital non-Muslims like Subashini to go to disputes. That would mean requiring Syariah court even if there is a perfect judges to interpret Article 121(1A) justice in the shariah system because the

MARCH / APRIL_2007 PRAXIS 49 Articles

Potential Impact of the Changes in the Malaysian Penal Code by Baljit Singh Sidhu*

Introduction The Amendments b. New category of robbery uly 2006 marked an important Basically the amendments relate to the · Matters involving snatch thefts are J milestone in criminal jurisprudence in following areas:- categorized as robbery as a specific Malaysia for on the 18th day of July, the illustration is now inserted.8 Penal Code (Amendment) Bill 20041 a. Sexual Offences (hereinafter referred as the “Penal Code”) · Revisit the definition of rape. A new c. Amendment Pertaining to and the Criminal Procedure Code classification was added;4 Terrorism Offences (Amendment) Bill 20042 were passed by · Creation of a new category of offence · The penal Code (Amendment) Act,9 the Parliament. The amendments were to committed during marriage, which has yet to come into force, is commence on 1st January 2007. It was somewhat akin to marital rape;5 further amended.10 Various categories reported that the Minister in charge of · Creation of a new category of offence of offences are listed. Legal Affairs in the Prime Minister’s categorized as sexual connection by Department Datuk Seri Nazri Aziz has objects;6 d. Increase in the punishment. deferred the enforcement of both Acts · Bifurcating the category of rape into:- until further notice. Therefore as of now i. Rape; and e. Miscellaneous other amendments. both Acts have not come into operation.3 ii. Aggravated rape each attracts different kind of I will in this short period of time allude I will now deal with the amendments to punishment with the latter category only to certain key areas. the Penal Code. incurring greater punishment.7

*LL.B (Hons), Lond, LL.M (Malaya), CLP, DSLP (IIU), Advocate & Solicitor High Court of Malaya 1 See Act A1273 2 See Act A1274 3 Section 1(2) of the respective Act provides that the amendment would come into force on that date appointed by the Minister in the Gazette. 4 See the Act A 1273, section 5 wherein a new paragraph is now added to section 375, which states as follows:- (f) with here consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her. 5 See section 6 of Act A1273 where a new section 375A is introduced which reads:- Husband causing hurt in order to have sexual intercourse 375A. Any man who during the subsistence of a valid marriage causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be punished with imprisonment for a term which may extend to five years. 6 See section 8 of Act A1273 where a new section 377CA is introduced which reads:- 377CA. Any person who has sexual connection with another person by the introduction of any object into the vagina or anus of the person without the other person’s consent shall be punished with imprisonment for a term which may extend to twenty years and shall also be liable to whipping 7 See Section 7 of Act A1273 where section 376 is amended to reclassify the categories of rape. See also sub-section (3) of the all new section 376 which introduces the category of aggravated rape which carries a minimum sentence of 8 years imprisonment and not more than 30 years and whipping of not less than ten strokes. It is clear from the language of this sub-section this new category covers the incidence of incestuous rape. 8 See section 9 of Act A1273 which inserted a new illustration in section 390 which reads (e) Z is walking along a road. A on a motorcycle snatches Z’s handbag and in the process causes hurt to Z. A rides away with Z’s handbag. A has therefore committed robbery. 9 Act A1210 10 See section 26 of Act A1273 where the new section 130B, which was introduced by the Amendment in 2003 vide Act A1210 is further amended.

PRAXIS 50 MARCH / APRIL_2007 Articles

Amendment to section 375 of the Penal always lodge a report the offender to imprisonment for a term which Code the authorities, family etc. may extend to five years”. As stated earlier the amendment, iv. In the event the woman offers herself introduced a new paragraph to section to submit to the man, but At first blush one would be forgiven if he 375, namely paragraph (f) which reads: unsuccessful, this Section can be used were to think that this section is intended “With her consent, when the to accuse the man of rape. to include marital rape as an offence. A consent is obtained by using his v. Women can use this Section to “tie” scrutiny of the section however would position of authority over her or their boyfriends who refused to prove otherwise. This new provision because of professional relationship marry them or even blackmail them. punishes the husband who causes hurt in or other relationship of trust in order to have sexual intercourse with the relation to her”. The fears stated by the Bar Council are wife. Therefore the actus reus for the offence not totally unfounded. Indeed during the is hurt13 and not the sexual intercourse This amendment prima facie has received debates on the Bill members of both itself. An example would be where the thumbs up by the Women Action Houses repeatedly warned that the husband wishes to have sex with the wife Groups and various other NGOs. provisions may be abused. 12 but the wife refuses. Not taking “no” for an answer, the husband gave a few slaps The Bar Council on the other hand It is also pertinent to note that this section and punches or putting fear, without maintained that this provision may open covers a much wider spectrum than that physical touch, to the wife and forces door of abuse in the sense that “an innocent originally intent; to address the offence himself into the wife. Therefore, as a result man may be easily accused of rape”.11 The committed by the “bomoh” (medicine of the slaps and punch or putting fear Council went on to illustrate the man) against women seeking treatment. into the wife, the husband would be following:- committing an offence under this section i. Consent obtained by imposing The fears aside, in my view the enactment i.e. for causing hurt to the wife. authority or any form of coercion or of this provision is necessary to curb the duress is no consent and therefore prevalence of abuse on the part of the Apart from creating a special category of rape and hence this offence is employer who prey on unsuspecting and hurt with a greater punishment this section redundant and the existing laws are naivety of the employee. It is indeed a does not appear to come anywhere near to sufficient; harbinger of what awaits the offender who criminalizing marital rape.14 Although one ii. Consent which is obtained by a got away with sexual harassment and may be disappointed with the fact that professional relationship or wishes to take it further to a new level. marital rape is still considered lawful, this relationship of trust is vague. It can section at the very least a step in the correct be misused for example in a The insertion of Section 375A direction and is considered an “unhappily- circumstance whereby the The new Section of 375A reads: happy” middle way especially considering relationship fails and this section is “Any man who during the the differences of opinion among the races used for revenge purposes. subsistence of a valid marriage and religious leaders in Malaysia. One may iii. The women basically have options causes hurt or fear of death or hurt at least say that this is unique to Malaysia to refuse since there is no immediate to his wife or any other person in where the sexual act is not criminalized threat or danger posed to them to order to have sexual intercourse with but the prelude to that sexual act is engage in sexual intercourse. She can his wife shall be punished with criminalized.

11 See Malayasian Bar Council’s Views and Comments on the Laporan Jawatankuasa Pilihan Khas Dewan Rakyat Untuk Mengkaji Rang Undang- undang Kanun Keseksaan (Pindaan) 2004 dan Rang Undang-undang Tatacara Jenayah (Pindaaan), 21st June 2006. 12 See Parliamentary Debates especially on 18th July 2006 available at http://www.parlimen.gov.my/eng-op.php 13 Section 319 of the penal Code defines hurt as “causing bodily pain, disease or infirmity”. In my view the word “infirmity” is wide enough to cover non-physical hurt, as its meaning clearly suggests. 14 The exception to section 375 proves to be the biggest stumbling block to criminalizing marital rape. It would appear from the Hansard that this new section 375A is intended to be a “middle way’ between criminalizing and not criminalizing marital rape. See the Debate on 18th July 2006 especially at page 83;

MARCH / APRIL_2007 PRAXIS 51 Articles

In terms of evidence, I am of the opinion Secondly, in relation to Statutory Rape that this offence is easier proven as For the second category (aggravated rape) which falls under section 376 (1), the compared with the offence of “marital the section provides minimum period of custodial sentence has rape” where cogent evidence is required. been taken away where with the new By emphasizing the mens rea of the offence Whoever commits rape on a woman under amendment no minimum period is to that of “hurt” instead of sexual any of the following circumstances: prescribed. At present the minimum intercourse the evidential requirement a) At the time of, or immediately before period is fixed at not less than 5 years. associated with the offence of rape is side or after the commission of the offence skirted. causes hurt to her or to any other In my view this is a welcome amendment person; as the sentencing ought to be left to the The purpose of this section is clear: to b) At the time of, or immediately before discretion of the Court. For example protect the wives who have been beaten or after the commission of the mandatory imprisonment may not be up by their husbands especially in a failing offence, puts her in fear of death or suitable where sexual relationship was marriage in order to have sex or the hurt to herself or any other person; consensual especially involving teenagers, husbands are not fully satisfied. However, c) The offence was committed in the who understand the nature and the following matters should be reviewed company of or in the presence of any consequences of their action, as well: other person; i. This Section can easily be abused d) Without her consent, when she is The insertion of Section 377 (CA) especially if the marriage is breaking under sixteen years of age; Section 377 (CA) speaks of sexual down. e) With or without her consent, when connection by object. This Section ii. It is easy for a woman to accuse her she is under twelve years of age; stipulates: husband of putting her in fear of f) With her consent, when the consent “ Any person who has sexual death or hurt and very difficult for is obtained by using his position of connection with another person by the man to rebut as no physical authority over her or because of the introduction of any object into evidence is needed for this professional relationship or other vagina or anus of the person accusation. relationship of trust in relation to her; without the other person’s consent iii. A man who causes hurt or fear or or shall be punished with hurt on his wife can be charged g) At the time of the offence the woman imprisonment for a term which under other sections of the Penal was pregnant, may extend to twenty years and Code. And this Section is redundant shall also be liable to whipping”. e.g. section 323 and 324 of the Penal Shall be punished with imprisonment for Code. a term of not less than five years and not Exception- This Section does not iv. Women can use this section for more than thirty years and shall also be extend to where the introduction revenge purposes against their liable to whipping. of any object into the vagina or anus husbands. of the other person without the Few matters may be noted. First, in other person’s consent shall be The Amendment to Section 376 relation to paragraph (g). The issues arises punished with imprisonment for a As stated earlier the punishment for rape as to whether the Prosecution has to prove term which may extend to twenty now depends on category of rape. knowledge on the part of the man that years and shall also be liable to the woman is pregnant when convicted whipping. For the first category the section provides with this aggravated rape or is this a strict (1) Subject to subsections (2), (3) and liability offence, where the man’s It would appear that this Section is (4), whoever commits rape shall be knowledge that woman pregnant is applicable to both genders i.e. male and punished for a term, which may irrelevant. This new amendment should female. The emphasis of this Section is to extend to twenty years, and shall also deal with this issue clearly. be liable to whipping.

PRAXIS 52 MARCH / APRIL_2007 Articles the object of “inanimate thing”15 for victims died or were grievously hurt.16 The which it was once described (this offence example piece of wood, broomstick, cloth, statistics are also alarming. In Penang alone was previously categorized as “petty hanger, bottle etc as illustrated in the cases between January to May 2004 there were theft”) this illustration was introduced. that surface in the media. On the other 374 reported cases.17 Perak Chief Police hand, parts of human body for example Officer reported a total of 374 cases of Amendment to Section 391 fingers or tongue does not fall within the snatch thefts in the state during January This section cuts down the number of ambit of an object. to May 2004.18 It was revealed in persons acting together to fall under the Parliament that there had been an increase category of gang robbery. The number of Therefore, the element of consent is in the number of reported snatch thefts person is reduced from 5 previously to material in the said Section. In other words these past years: from 14,368 reported only 2 persons. the purport of this section is to cases in 2001, to 14,640 cases in 2002, unsanctioned the use any object in sexual to 15,798 cases in 200319. Amendment to Section 392 connection into the vagina or anus of the The amendment of this Section is to other person without his/her consent. The problem is deepening. Based on a standardize the punishment for robberies survey which it conducted between 1-6 to a maximum 14 years imprisonment, as An exception to this section was created June involving 337 respondents, Nanyang to whether it was committed between whereby the introduction of the object is Siang Pau20 reported that 50% of the sunset and sunrise is no longer relevant. sanctioned for “law enforcement purpose”. respondents had been victims of robbery, This in my view is too wide. It may lead to snatch thefts and sexual harassment. Of Deletion of the Penal Code Sections: abuse by the law enforcement authorities. these victims, 61% were females while As part of the amendments, certain sections 89% lived in urban areas. Significantly, have been deleted for instance in Section The amendment to Section 390 only about half of the victims (50.3%) 444 (lurking house-trespass by night), This amendment is made by an insertion had lodged police reports. Among the Section 446 (house-breaking by night), of paragraph (e) in illustration, which reasons offered for not reporting to the Section 454 (lurking house-trespass or states: police were: “Police unable to help” house breaking in order to commit an “ Z is walking along the road. A on (45.2%); “no evidence” (29%); and offence punishable with imprisonment), a motorcycle snatches Z’s handbag “procedure for lodging report was Section 456 (punishment for lurking and in the process causes hurt to Z. troublesome” (11%). It is pertinent to note home-trespass house-breaking by night) A rides away with Z’s handbag. A that that many victims of snatch thefts and Section 458 (lurking house-trespass has therefore committed robbery”. did not lodge police reports in the media. or house breaking by night after preparation made for causing hurt to any The amendment is required due to the The alarming statistics has lead to a public person). rampancy of the offence. The media outcry for a tougher action and in order to reports of late are replete with cases arrest further inflammation of this offence Minor Amendments involving snatch thefts. In many cases the which can no longer be described as petty, Minor amendments were made on the

15 See the speech by the Minister in the Hansard dated 18th July 2007 at page 113 16 There are so many cases reported in the media. Chin Wai Fung died in Brickfields in May when she fought back against a snatch thief. Then Chong Fee Cheng fell, went into a coma and died while resisting a snatch thief in Johor Baru in mid-June. This was followed by the killing of Rosli Mohamed Saad who had gone to the aid of an Indonesian woman whose bag was snatched in Ampang in June 29. Rosli chased and caught the thief who then stabbed him twice. Other cases of snatch thefts were also reported. The headlines included: “Four in court for snatch thefts”, referring to cases which occurred in Sungai Petani; “Teenager remanded for seven days for snatch theft”, referring to another case in Kuala Lumpur; “NS trainee helps bring habitual snatch thief to justice”, an incident occurring in Tampin; “Policewoman’s handbag snatched,” a case in Malacca; “Suspect pays with his life in botched handbag grab” in Klang. “Victim who was left paralysed”, was the headline of an interview with a victim of a snatch theft in Damansara in 1996; “Snatch thief gets 30 months”, a case in Kuala Lumpur; and “Snatch thieves get MPs’ attention”. 17 The Star, 16 June 2004 and 19 June 2004 18 The Star, 8 July 2004 19 The Star, 6 July 2004. 20 6 July 2004

MARCH / APRIL_2007 PRAXIS 53 Articles following sections:- political, religion or ideology. The previous punishment. It is very much doubtful that i. Section 406; interpretation does not contain these three by the increase of sentence from 20 to 30 ii. Section 160; elements. The new interpretation excludes years the crime sought to be prohibited iii. Section 186; an act of advocacy, protest, dissent and would go on the decline. It must be iv. Section 225B; any industrial actions for example a strike, pointed out that the aim of prevention v. Section 408; which is not intended to cause hurt, harm and aim of deterrence have taken over as vi. Section 447; or death or to create a serious risk towards the foremost consideration in the aims of vii. Section 448: health and safety of the public. Therefore, sentencing. Needless to say, the aim of viii. Section 453; the new interpretation provides much retribution is the last sword to invoke. The ix. Section 455; needed clarification. With this aim of rehabilitation has been abandoned x. Section 457A; amendment, the meaning of the section is sadly, even for first time offenders. Perhaps xi. Section 460 clearly understood. It resolves the concerns the clarion call by the eminent judge Wan of the opposition political parties and other Yahya J in Ram Segal v Public Prosecutor Amendment under Section 130B: NGO who fear that their rights to voice [1981] 1 MLJ 165 went unheeded. This These amendments are in relation to out their stands or comments as falling what the imminent judge said. amendments pursuant to the Penal Code under the section. “Our courts have a long time since Amendments 2003 [Act 1210]. The progressed from the “eye for an eye” and amendment provides for a meaning of Conclusion “tooth for a tooth” type of justice. The “terrorist act” that is: The Amendments took two year before avowed aims of punishments are “an act or threat of action within or they saw the light at the end of the tunnel. retribution, justice, deterrence, beyond Malaysia”. Now that the date of coming into force reformation and protection, but it is has been deferred an eclipse appears to never intended to act as a vehicle of This amendment stipulates that the act is have greeted the amendments. One hopes vengeance. This court does not sit here done or threat is made with the intention that the amendments should be enforced to hand out to victims of aggression of advancing political, religious or soon. their “pound of flesh” but generally to ideological cause and thereby would protect society by enforcing justice”. constitute a terrorist act but the act or threat I have had the privilege of appearing before is intended to intimidate the public or to the Select Parliamentary Committee It is clear that based on public sentiment influence them. representing the Bar Council and and outcry, the sentence of many sexual forwarded the views of the Bar Council offences has been raised to 30 years by the The amendment is required to restrict any on the amendments. We have emphasized recent amendment. Does is indicate that abuse of interpretation and to provide a the need to look at the draft Bills very in the years to come we would increase better meaning. carefully and undesirability of making the punishment to 40 years to reflect the piecemeal amendments as mere stopgaps. seriousness of the offence? Before the amendment, it does provide a We have forwarded the view that the entire broad ambit. The opposition political Code is in need of an overhaul to ensure The amendments have not addressed the parties and other NGOs are worried and consistency and to avoid conflicting issue of counseling, medical treatment to concerned whether the section will also provisions. the offender for purpose of reformation, include demonstrations, speech alternative sentencing such as structure condemning the Government etc. They I have when discussing the relevant community service. are worried that such acts will also be amendment set out my view on the merits considered as a terrorist act. of the amendments. I wish to say a few Sadly this is the sorry impact of the recent words on the general tenor of the amendment. It reflects our stand of Nonetheless, the meaning of “terrorist act” amendment. On would easily noticed that obstinately clinging on to the retributive is now somewhat limited to embrace an with every amendment one disturbing fact concept of punishment at the expense of act done for the purpose of extending a is ever present: the increase in the rehabilitation.

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All statements were issued by Ambiga Sreenevasan, Chairman, Bar Council 2007/2008 unless stated otherwise Delays in court proceedings 22 March 2007

he right to be heard without delay On the 7th and 8th of April 2005, of evidence and the process by which an Tis a human right. The Bar Council SUHAKAM held a forum on the right to accused is charged. welcomes the Chief Justice’s move to look an expeditious and fair trial. A written seriously into the issue of delays in court report was then prepared by SUHAKAM Clearly a holistic approach is required as cases. that dealt comprehensively with the issue even without a lawyer handling many of delay and made several cases, the court diaries are unable to However, singling out “popular lawyers” recommendations. accommodate early disposal of the cases. as a cause is to ignore the many other factors that contribute substantially to the delays The workshop also identified the many The Malaysian Bar has always been in courts. factors that contribute to delays in Courts concerned at the ever increasing number and they include the acute shortage of of cases that are being filed in our courts There is also the important principle that judges and judicial officers, insufficient and believes the recommendations of cannot be derogated and that is that an support staff, the method of the recording SUHAKAM in this regard ought to be accused person or a litigant has a right to seriously considered and implemented. the counsel of his choice. Seniority important factor in judicial appointments 6 April 2007

he position of Chief Judge of Malaya subjective and more-transparent system of suggested by the Chief Justice (and we do Thas been vacant since the retirement appointment such as a Judicial not agree that it is so), then all the more so of Tan Sri Dato’ Siti Norma Yaakob on 5 Appointment & Promotion Commission. is the present method of appointment and January 2007. Clearly it is desirable that The Chief Justice has been reported to promotion of judges. The Bar Council has this position be filled as soon as possible. have stated that all Federal Court judges always maintained that it is time for us to are eligible candidates. Naturally one catch up with other jurisdictions that have Article 122 B (3) of the Federal would assume that all Federal Court already changed their system of judicial Constitution provides that in the case of Judges have achieved the highest standards appointments to one that is more an appointment of a Chief Judge the Prime before appointment to the Federal Court. transparent and with clear criteria set out. Minister shall consult the Chief Judge of In that case there is no apparent reason each of the High Courts. In our view this why seniority should not be the first Disregard of seniority without convincing suggests that the consultation process for applicable criterion. If there is any departure reasons, especially in the absence of a the new Chief Judge ought to have taken from seniority as the first criterion there Judicial Commission system, will only place during the tenure of the retired Chief must be strong, cogent and acceptable encourage speculation that is unfair to Judge whom the Prime Minister must reasons for doing so, reasons that will pass both the promoted judges and the consult prior to her retirement. This would public scrutiny. bypassed judges, and unhealthy for the ensure a smooth transition in respect of system as a whole. positions of such importance as, we believe, In any event seniority is not an irrelevant was envisaged under the Federal factor in the Judiciary as is reflected in The Bar Council would urge and invite Constitution. Section 8 of the Courts of Judicature Act the Chief Justice to open a dialogue with 1964, which provides that all judges shall the Bar Council on the issue of judicial We are concerned that seniority does not take precedence in the order of their appointments so that we may exchange appear to presently feature in the criteria seniority. views on this issue in the interest of the for selection to the position of Chief administration of justice and the public Judge, when we do not yet have a less- If the issue of seniority is outdated, as interest.

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All Malaysians need to believe that they have a place under the Malaysian sun by Coenraad ter Welle (Intern, Centre for Public Policy Studies)

robably for the first time in the “I am aware that there are many imperative which has to be built. Phistory of the Bar, royalty officially Malaysians who are deeply troubled at the graced a program at the Bar, namely the state of national unity in this country. • Political, social and economic incentives 1st Young Malaysians Roundtable What I have tried to do today is disabuse must reward good behaviour and Discussion on National Unity & you of the notion that there are any “quick penalise bad. Development in Malaysia “Challenges & fix” solutions in nation building. …I hope Prospects for Nation Building” co- we will do our best to guard against Tan Sri Ramon Navaratnam, Chairperson organised by the Centre for Public Policy cynicism and hopelessness. …Failure, may of the Centre for Public Policy Studies and Studies, Asian Strategy & Leadership I remind you all, is a costly option.” he Ambiga Sreenevasan, President of the Institute (ASLI) and the National Young said. Malaysian Bar also spoke to welcome the Lawyers Committee, Bar Council. The participants and emphasise the importance Crown Prince of Perak, His Royal His Royal Highness set out 7 guidelines of unity in Malaysia. Highness Raja Dr. Nazrin Shah arrived at for nation building: the Bar Council Secretariat building at • Malaysians of all races, religions and Attended by more than 150 participants, about 9am to deliver the Keynote Address geographic locations need to believe there were 3 panels of 11 speakers in total and officially open the Roundtable. beyond a shadow of a doubt that they discussing the impact of ethno-religious have a place under the Malaysian sun. politics in Malaysia, whether the Raja Nazrin started his address by Government’s education policies have highlighting the importance of nurturing • When solutions are sought to problems been successful instruments in national the youth of Malaysia and warned against in nation building, we must be careful development and ways to forge a young the danger of neglecting them: not to assume away problems. Malaysian identity towards national unity. Healthy and open discourses were “We like to say that our youth are the future • Nation building requires conducted on the issues, and there was of this country, but then we proceed to accommodation and compromise, and insufficient time to accommodate all the ignore or marginalise them. We want our we should not be so idealistic that we participants who wished to speak. future generations to be able to think and are incapable of also being practical. act wisely, but then we do not give them • Enforced solutions must be avoided In the round-up at the end of the sufficient opportunities to do so. …In my if nation building is to succeed. discussion, participants agreed on a 20- view, this is not a good way to prepare ‘Might’ cannot and must not be point Consensus Document which culled those who will take our place. If the young shown to be ‘right’. key concerns from the Roundtable, and are to be good leaders and citizens, they made suggestions for lobby efforts with must be exposed to more than just abstract • Nation building occurs in a society Government and policy-makers. concepts. Even those nation states which which is open, tolerant and forward- have failed miserably have had great looking. All forms of extremism, Feedback received from the participants political ideals.” chauvinism, racism and isolationism regarding the Roundtable was extremely must be guarded against and soundly positive, and many hoped that the co- In a strong message of hope and leadership sanctioned socially and politically. organisers will proceed to take concrete and recognising the problems of unity in steps to influence the relevant parties Malaysia, Raja Nazrin called upon all • Nation building is a process as opposed dealing with national unity in Malaysia. Malaysians to “stay the course”. to an outcome, and trust is an

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Young Malaysians reach 20-point consensus on National Unity in Malaysia and urges Government to consult and listen by the National Young Lawyers Committee

n an engaging and productive education and participation with ! The interests and needs of the I roundtable held among young concomitant strategies and disadvantaged, marginalised and Malaysians including lawyers, researchers, mechanisms for enhanced vulnerable must be accorded due educators, academicians, students, political engagement with them in dialogue. recognition. leaders and NGOs, the 1st Young ! Any level of apprehension Malaysians Roundtable Discussion on ! Government, non-governmental experienced by young Malaysians National Unity & Development in organisations, religious groups, towards ethno-religious policies have Malaysia “Challenges & Prospects for Nation business enterprises and in general, a real and tangible effect upon nation Building” on 3 April 2007 saw important civil society are key role-players in building, materialised in the present concerns and conclusions drawn on various initiating and sustaining continuous and experienced in the future. aspects of national unity. dialogue in more open and wider public spheres within the scheme set ! Ethnic-based politics and racist Officiated by HRH Raja Dr. Nazrin Shah out above. ideologies in any form must be rejected. and co-organised by the Committee and the Centre for Public Policy Studies ! Constructive dialogue is an important III. On Education Policies and (CPPS) of the influential Asian Strategy tool towards enhancing inter-ethnic National Development & Leadership Institute (ASLI), a 20-point and inter-religious relations towards ! The Government’s education policies Consensus Document was drafted culling national unity. within primary, secondary and tertiary the discussions and points of agreement level institutes are important on national unity. ! Dialogue should be conducted in an instruments that should promote open yet safe atmosphere of mutual national unity. Taking the lead from HRH Raja Dr. Nazrin understanding, acceptance and Shah’s powerful Keynote Address, the respect, and that knowledge should ! The Government’s education policies Consensus Document states as follows, be exchanged through a process of should however reflect the reality of among others: sharing and discussion in a non- Malaysians and their ethnic, religious judgmental and non-discriminatory and cultural diversity. I. On Sustaining Open and way. In particular, “enforced solutions” Constructive Dialogue including threats of violence or IV. On Forging a Young Malaysian ! We have reached a stage in our nation’s coercion must be avoided. Identity towards National Unity development that necessitates a level ! There is a need to forge a Malaysian of honest and critical introspection II On Ethno-Religious Politics and identity towards shaping a future and self-examination which are crucial Implications on Nation Building founded upon national unity, elements in understanding ourselves ! The key to developing a strong and especially among the younger as a nation. united Malaysia is to be founded on generation which will form the future core principles of justice, equality and of our Malaysian leadership. ! The views of the youth as an essential respect for human rights and segment of Malaysian society must be fundamental liberties of every person ! The time has come for Malaysians to included without restrictions in regardless of race or religion, as move beyond its “accommodation-ist” forging an identity for the nation enshrined in the Federal Constitution. approach to interacting with one thereby requiring their greater another in terms of mere tolerance;

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towards a full appreciation, national unity policies. particularly in relation to the nation understanding, acceptance and equal building process. Key policy-makers are treatment of every person regardless ! All educational institutes are urged to urged to take into serious consideration of race or religion and in embracing all incorporate programmes and training the views, perspectives and opinions diversities and complexities. modules that seek to improve ethnic arising from the Roundtable during the and religious relations, bearing in mind formulation process of Government ! National unity should move beyond historical, anthropological and policies and practices. a superficial interpretation based on sociological aspects with the aim of form (e.g. food, language and promoting national unity and racial With the formulation of these parameters, traditional festivals) towards one based harmony. it paves the way for the Committee and on essence, substance and shared CPPS to explore various strategies in values (e.g. mutual respect, love, justice ! Malaysian educational institutes in utilising the Consensus Document to and equality). particular its educators are urged to lobby Government and key policy- enhance teaching and research makers. Among the initiatives under In conclusion, the Roundtable noted an standards encouraging critical discussion include: urgent need to ensure sustained and thinking including allowing greater ! Engaging official channels including effective implementation of constructive acceptance and diversity for divergent the National Unity and Social steps towards achieving the above. In this opinions with the aim of being Development Department, the regard, the Consensus Document states international leaders in their fields. National Unity Advisory Panel and as follows: the Parliamentary Select Committee on ! There is a need to stress common and ! There should be concerted efforts to National Unity and National shared values of every person determine factors which repel young Integration on the various issues. regardless of race and religion, and to Malaysians from their home country, eliminate the misuse of identification with a view to encouraging ! Conducting a quantitative survey on by ethnic or religious background. Government and civil society to seek the views of young Malaysians and solutions and strategies towards publishing the findings in a report ! There is a need to de-construct eliminating these negative features. regarding the matters under arguments or discussions entrenched consideration, and offering solutions along racial or religious paradigms The Document also calls on the and recommendations. within our nation, moving towards an Government to engage, increase its co- egalitarian issue-based paradigm. operation with, and support the Early feedback from the participants in community of young Malaysians through relation to the Roundtable have been ! There is a further need to foster and their representation and active encouraging and positive, layered with implement strategies to better manage participation at youth movements, non- hopes that inter-ethnic and -religious ethno-religious politics, in particular governmental organisations, religious relations among Malaysians will improve those which are in conflict with groups and in general, civil society in the near future.

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“Liberated” junior Bar members secure seats in State Committees across the country by the National Young Lawyers Committee

s expected, the repeal of section Nor and both Kelantan YL representatives Amy Chong Chai Ling were elected into A46A(1)(a) recently garnered greater Nasrul Bin Mohamed and Rezalman Bin the Committee. participation and interest from younger Bahran. members of the Bar at all State levels. On 27 February 2007 in Selangor, 2 Without a legislative bar to the eligibility On 12 February 2007 in Kuala Lumpur, young lawyers stood but only Ng Chung of members to stand for positions, post- Dipendra Harshad Rai and NYLC Yee who is the Selangor YL representative repeal saw an encouraging number of Deputy Chairperson Richard Wee stood made it to the Committee coming in 10th. formerly “disfranchised” members taking for the first time and succeeded. Dipendra Renuka Balasubramaniam lost narrowly up Committee positions for the first time. was placed 9th and Richard came in 4th and was placed 11th. At the same time up in a contest between 12 candidates. north, Kedah/Perlis Bar Committee It started on 2 February 2007 in Malacca welcomed 5 young lawyers, Zul Azri Bin where NLYC Deputy Chairperson Wong In Penang on 15 February 2007, Penang Abd Khalil, Premanand a/l Adaiken, Fook Meng, NYLC member Desmond Ho YL representative Devkumar al/ Sulaiman Bin Abu Bakar, NYLC member and Nizam Bashir were elected. Kumaraendran was elected together with Lim Yang Yang and Kedah/Perlis YL Rajdev Singh and Nicholas Tan Soon Teik. representative Ernie Suffiani Binti Salim. In Pahang on 10 February 2007, Marina Stephen Tan Ban Cheng stood for State Binti Muhammad, Mohd Tasyrif Bin Bar Representative to the Bar Council but The final State Bar to hold its AGM, Sabaruddin, Mohd Taufik Bin Md Tahir lost. Terengganu today voted in Terengganu and Jasmadi Bin Mohd Yunus were YL representative Ahmad Syukri Bin elected. 3 other young lawyers, Mohamad After a short lull, the Perak Bar on 23 Yusoff, Mohd Zamri Md Jail and Nadia Hamizey Bin Mat Taib, Ruhaizah Binti February 2007 elected NYLC Deputy Binti Razali to complete a good showing Abdul Hamid and Pahang YL Chairperson Kenny Lai Choe Ken, Perak for the young lawyers. representative Mohd Busyairy Bin Che YL representative Rashpal Singh, Muda stood but lost. Busyairy has been Mohamad Nizam Mohamed Salleh and Working with senior and more co-opted as Secretary of the Committee. 2 NYLC members Gavin Tang Cheng experienced members of the various State On the same day, Johor YL representative Loong and Dara Waheda Bte Mohd Rufin Bar committees, the junior members will Lawrence Chiong and NYLC member Soo into the Committee. be able to bring fresh winds of change, Wee Loon were elected to the Johor Bar and increased effective contribution to the Committee. 3 days later in Negeri Sembilan, Bar and society at large. It is with fervent Karthigesan a/l Shanmugam who is the hope that all elected members will serve The next day in Kelantan, 3 young Negeri Sembilan YL representative and the Bar faithfully and diligently to lawyers were elected, Alauddin Bin Mat continue moving us forward.

Further information on the conference is available at the conference website - www.commonwealthlaw2007.org.

Governance, Globalisation and the Commonwealth

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Forging A Young Malaysian Identity Towards National Unity* Wong Fook Meng**

“ nation is a community of people Very few expressed concern for the wider teams and listen to the latest music from Awho feel that they belong together society. MTV. Like it or not, Western influences in a double sense in that they share deeply and pop culture has had a far-reaching significant elements of a common heritage Another study, which is alarming, is the impact on our young generation. Andrew and that they have a common future.”1 Cognitive and PsychoSocial Profile of Fletcher, a 18th century Scottish political Malaysian Adolescents (CoPs) study3 thinker, has this to say: “Give me the Introduction where a nationwide survey of 4,400 Form makings of the songs of the nation and I We are gathered in the Bar Council Four students was conducted in rural areas, care not who writes its laws”. In the eyes of Auditorium today to engage in a towns and cities across Malaysia including our youth, entertainment celebrities are discussion on issues of paramount Sabah and Sarawak. The results of the more popular compared to politicians and importance such as nation building, social study show that only 52% of the law makers. integration and forging a young Malaysian respondents said they had a friend of a identity. However, life outside this different race. Only 12.8% felt that However, the forces of globalization and Auditorium is very different. The average mixing with other races was an issue, entertainment do not completely remove young Malaysian does not wake up early demonstrating the fact that racial our Asian roots and identities. Our in the morning with thoughts of forging integration is not high on the priority list. Malaysian identity is a unique blend a Malaysian identity or nation building between a rich Asian heritage and strong dominating his mind. He is more Thus, we still have a long way to go in Western influence. While we strive to concerned about beating the traffic jam, instilling civic consciousness among young maintain Asian values such as respect for getting to work on time, surviving the Malaysians. A useful starting point for elders, tolerance, communal spirit and office ordeal and having enough money discussion is identifying young Malaysian strong religious emphasis, we also reach to pay his monthly bills. identity in the context of a globalized out to the outside world and embrace the world and an entertainment saturated larger global culture. According to the recent National Youth society. Survey 2006,2 21% of young Malaysians Cultural Diversity aged between 18 and 32 felt that fuel Globalization and the entertainment Malaysians embrace and celebrate the and price hikes were the most important industry cultural diversities of the various races issues facing Malaysia right now, as The forces of globalization and the living in this country. We have a colourful opposed to 3% who responded that it was entertainment industry have the tendency kaleidoscope of languages, dialects, food, local politics and 2% the Ninth Malaysia of homogenizing Malaysian youth culture. arts and way of life. Cultural diversity is Plan. 32 % of the respondents said that Young Malaysians, regardless of race, not a threat but a unifying force of ‘completing their education’ was their religion and geographical location, wear Malaysian society. It is the social glue that biggest personal concern while 16 % Levi jeans, eat at McDonald’s, watch keeps us together. responded ‘doing well in jobs and career’. American movies, support British football

* Edited version of the paper presented at the Centre for Public Policy Studies (Asian Strategy & Leadership Institute) – National Young Lawyers Committee (Bar Council) 1st Young Malaysians Roundtable Discussion on National Unity & Development in Malaysia “Challenges and Prospects for Nation Building” held at the Bar Council Auditorium on 3rd April 2007. ** Advocate & Solicitor, High Court of Malaya and Deputy Chairperson, National Young Lawyers Committee. 1 Harvard Professor Rupert Emerson, From Empire to Nation. 2 Merdeka Center for Opinion Research, National Youth Opinion Poll on Civic Engagement (2006). 3 The Star, Survey:Many Youngsters aren’t concerned about Social Integrration (29 March 2007).

MARCH / APRIL_2007 PRAXIS 61 Putik Lada

Take a look at the mamak stalls around us. What then is ‘Bangsa Malaysia’? I believe he is right. At present, our political Malays, Chinese and Indians drink ‘teh landscape is still very much segmented tarik’ and eat ‘roti canai’ together while Taking our Deputy Prime Minister’s cue, along racial lines and this reinforces ethnic engaging in vigorous conversations about I will not try to define it. However, I think identities as opposed to a Malaysian politics and current affairs, often in a mix I will attempt to illustrate the concept. identity. Our economic policies do not of butchered English and Malay. The distribute equal assistance to all races. After ‘mamak’ stall is a microcosm of Malaysian In Malaysia, we do not subscribe to the 50 years of independence, race cannot and society. Regardless of skin colour, we all ‘melting pot’ approach as in the US where should not be used as a criterion for the can share the same food, interests and all the various traditions and cultures are extension of economic benefits. political destinies. Our lives are enriched ‘melted’ and meshed together to form a Meritocracy is still not in wide practice. by the confluence of Malay, Chinese, new American identity. Ours is more of a The participation of non-Malays in civil Indian and other cultures in this land. ‘rojak pot approach’ or what some call the service still leaves much to be desired. Core ‘salad bowl approach’. In a ‘rojak’ pot, you matters such as justice, freedom, Having said this, and before I am accused will find crunchy ‘keropok’, ‘tau foo’, democracy, economic opportunities and of painting a rosy but inaccurate portrait ‘jambu air’, mango, papaya, ‘sengkuang’ security are commodities which are essential of Malaysia, I hasten to add that race, and cucumber all mixed together with to all of us and not the special privilege of language and religion are still sensitive thick prawn paste sauce sprinkled with any group. Thus, it is fair comment to say issues in Malaysia. This is understandable generous amounts of peanuts. The various that it is still ‘work in progress’ in respect because these issues involve basic factors ingredients in a ‘rojak’ pot are mixed of our journey towards creating a ‘Bangsa of identity and affiliation. However, as together but do no lose their individual Malaysia’. young Malaysians, we need to grapple characteristics. However, by being mixed with these issues in an open and sensible together, the sum total becomes a new and Truth Telling manner, and strive to forge a common better entity. Moving forward, how can we achieve the future for all of us. aims of creating a ‘Bangsa Malaysia’? I This is what sociologists term as the believe it is fundamentally important for ‘Bangsa Malaysia’ - The ‘Rojak Pot ‘integration approach’ juxtaposed to the there to be openness, frankness and Approach’ ‘assimilation approach’. With this sincerity as we discuss inter-communal Deputy Prime Minister Datuk Seri Najib approach, Malays, Chinese and Indians issues. The underpinning concept is that Razak, was quoted as saying that ‘Bangsa are integrated into a common society but of truth-telling, where we are able to speak Malaysia’ is a general concept and a state the various races still preserve their the truth to each other in an objective and of mind. He further said: distinctive cultural identities as an integral rationale manner. Under the Badawi “I like to stress that it is more part of the Malaysian national mosaic. administration, there is definitely greater towards a state of the mind, freedom of speech and discussion. This is meaning that we lose the So, has Malaysia achieve its objective of a positive development as a mature, prejudice, incompatibility among forming a Bangsa Malaysia? I think the intelligent and knowledge-based younger the races, and unwillingness to status is still ‘work in progress’. Outgoing generation would want a safe environment mix with other races. If we treat it Gerakan President Datuk Seri Dr Lim where honest views can be articulated as a state of mind, I think we can Keng Yaik was reported as saying: within parameters. It is unfortunate that avoid the polemics. And if we try “I regret that after 50 years of there is a ‘ban’ on the Article 11 roadshow. to define it, it will raise a lot of independence we could not instill Before the imposition of the ban, Article questions and debates on the a greater sense of nationalism 11 together with the Malacca Bar matter.”4 among the people.”5 Committee held a seminar on the freedom of religion in Malacca. There was a huge

4 The Sun, Abdul Ghani draws flak over ‘rojak’ Bangsa Malaysia remark (6 November 2006). 5 New Straits Times, ‘Gerakan Chief Steps Down Next Week’(31 March 2007)

PRAXIS 62 MARCH / APRIL_2007 Putik Lada turnout of about 600 people a respectable truth must be under-girded with respect, country. At the end of the day, it is the figure in a state where most people would or else the ‘truth’ will be repulsive to the choices we make as young Malaysians that rather spend their evenings watching listener. I am very confident that the count. television at home. This demonstrates that young Malaysian generation is able to the common ‘rakyat’ is interested and handle truth in a civilized and responsible On a micro level, we must learn to make vitally engaged in issues such as freedom manner. friends with people outside our own racial of religion and other constitutional community. Human relationships should matters. Role of Young Malaysians never be based on skin colour. That which All of us share the Malaysian dream. We is more important than what we say or do The Federal Constitution is our social cannot change the past but the future is is what we think of each other deep down contract, the Charter of the nation so to ours to make. As young Malaysians, we in our consciousness. The main question speak. It is the blueprint for our pluralistic need to grow out from our narrow is whether in the secret chamber of our society. There should be the freedom to communal concerns, and share and work hearts, we regard people of a different race engage in a discussion on issues of together on a broader national agenda. as equals in worth and dignity. paramount constitutional importance. Instead of harping on issues of racial Unless we can speak truthfully to each marginalization, we need to strive together We must have faith in a common future other, we cannot create a united and to ensure that Malaysia is not marginalized together. After all, we are all in the same authentic ‘Bangsa Malaysia’. What we can in the midst of the competitive global race ‘rojak pot’ called Malaysia. A million achieve is perhaps a superficial and external for economic development. Instead of dreams and hopes are all meshed together form of peaceful co-existence that can arguing on distributing the economic pie, in this big pot. Whether our dreams and easily be undermined by prejudices, we need to help each other to enlarge the hopes will turn into reality depends in a suspicions and underlying tensions. I say pie for our common good. A growing large part on whether we are willing to all this with one important caveat: freedom economy will have a positive impact on work together as a society. Together, we of speech must be exercised with great enhancing the stability of a pluralistic can build a better and more united responsibility. Freedom of speech does not society like ours. Malaysia, and make this a beautiful place give us a right to hurt each other and to where we can all live, work, play and laugh incite feelings of racial hatred and discord. All of us have a common stake in this together as equals on this land. It is to be used to tell the truth. But the

51st Congress of the International Association of Lawyers ( Union Internationale des Avocats - UIA)

The above Congress will be held in Paris, France from October 31 to November 4, 2007 at the Meridien Montparnasse Hotel.

Three main themes will be explored during this event - -Criminal procedure at the crossroads -Corporate governance -Women’s rights:Law as the expresion of culture and power

There will be a special workshop dedicated to the fight against terrorism. The details regarding the Congress are available on the UIA website - www.uianet.org

MARCH / APRIL_2007 PRAXIS 63 Human Writes

Article 121(1A) - what does it really mean? by Shanmuga Kanesalingam

N 1964, the family of the late Mohd “shall have such jurisdiction and powers courts cannot maintain their traditional ISaid Nabi had a dispute over his estate. as may be conferred by or under federal supervisory role over the syariah courts law”. when they act outside their boundaries. Some of his kin argued that he was no longer a Muslim when he died because he Thus, before 1988 the courts derived their We see this in 1991 when the civil High used to eat pork and drink alcohol. Others powers from the Constitution. Court decided that the late Ng Wan Chan said he remained a Muslim. was a Buddhist despite his purported Now, the courts are only meant to have conversion to Islam. The Court looked at His religious status would determine how those powers which Parliament decides to the evidence, heard both parties and his valuable assets would be distributed give them. The Judiciary was in this way decided that the documents allegedly and who would inherit them. made subservient to Parliament (and hence proving Ng’s conversion to Islam were not in our realpolitik the ruling government credible. Justice Chua in the Singapore High Court of the day). (then a part of Malaysia) refused to inquire The Judge also found that the so-called if Said Nabi was a “good” Muslim or not. The second significant amendment in conversion had been superceded by Ng His Lordship applied a simple test: What 1988 was the inclusion of new clause (1A) professing and practising Buddhism religion would Said Nabi have said he was into Article 121 that stated: “The courts thereafter. Although this was after 1988, if asked during his lifetime? referred to in Clause (1) shall have no nobody said the High Court had no jurisdiction in respect of any matter within jurisdiction to make this determination. The answer to that was clear: Said Nabi the jurisdiction of the Syariah courts.” had always professed Islam as his religion. Problems now occur because the powers He was therefore confirmed “a Muslim” Syariah courts are the courts created by and jurisdiction of the syariah courts have and his estate was administered in State Assemblies to administer certain slowly been expanded beyond the limits accordance with Islamic law. Islamic laws. The Constitution says syariah permitted by the Constitution. courts can only have jurisdiction “over In Malaysia, our supreme law is the Federal persons professing the religion of Islam ” Syariah courts began to give orders Constitution. All other laws must comply and in respect only of certain specific dissolving non-Muslim marriages with the Constitution. The Judiciary’s job matters of Islamic law, listed in the registered under civil law when only one is to make sure that Parliament and the Constitution. spouse converted to Islam, and converted Government honour the Constitution. infant children to Islam without the If two Muslims have a problem involving knowledge of the non-Muslim parent. Parliament, the Government and the their personal law (for example, a divorce Judiciary are all meant to be equal and between a Muslim couple), then this is a I have seen a syariah court order directing independent bodies, checking and “matter within the jurisdiction of the the exhumation of a corpse buried in a balancing one another so that no one syariah courts”. The civil courts should not Hindu burial ground - something only a person or body usurps too much power interfere when one party comes to the civil Magistrate is empowered to do under the onto itself. court after losing a case in the syariah provisions of the Local Government Act. courts. Syariah courts routinely direct government But in 1988, two very significant officers and the police to assist in the amendments were made to the Federal This was all that was intended with the enforcement of its orders against non- Constitution. The material part of clause inclusion of Article 121(1A). Muslims. (1) of Article 121 used to say: “… the judicial power of the Federation shall be Nothing in the Constitution says that the Matters such as the determination of vested in” the High Court. After 1988, syariah courts are of equal standing to the Article 121(1) said that the High Court civil courts, nor does it say that the civil continued on next page

PRAXIS 64 MARCH / APRIL 2007 Human Writes

SUHAKAM Public Inquiry Report into ‘Bloody Sunday’ out by Rajen Devaraj (Executive Officer)

UHAKAM (23 March 2007) Datuk K.C. Vohrah, who chaired the When contacted, she extended her S released its Report of the Public public inquiry, said that the submissions appreciation to members of the Bar who Inquiry into the Incident at KLCC on 28 made by the Bar Council and the Bar represented the Bar and the Bar Council May 2006 making findings that the Council Legal Aid Centre (KL) were Legal Aid Centre (KL) during the Inquiry actions of the police and FRU in dispersing useful. and helped draft the said reports. the peaceful assembly on that day were Members of the Bar which took an active disproportionate and interfered with the The Bar Council and the Bar Council part in this process include Amer Hamzah, rights of the protestors to assemble Legal Aid Centre (KL) both made Chen Hong Lynn, Edmund Bon, Edward peacefully. submissions to SUHAKAM giving views Saw, Fahri Azzat, Nik Mohamed Ikhwan, on the facts of the case and making Richard Wee, Ramesh Sivakumar, Chan In a 92-page strong report, SUHAKAM recommendations after taking into Weng Keng, Sivarasa Rasiah, M. made key recommendations calling for the account laws in different jurisdictions such Moganambal, Latheefa Koya and R. decriminalising of peaceful assembly as America, Hong Kong, Ireland, Australia Ragunanthanan. without a licence under section 27 of the and United Kingdom. Police Act, 1967 and the repeal of sections Ambiga also thanked the secretariat and 27(2), (2A) to (2D), (4), (4A), (5), (5A) Members of the Bar present at the press pupils of the Bar Council Legal Aid Center to (5C), (7), (8) and 27A of the Police conference lauded the SUHAKAM report (KL) who provided invaluable assistance Act. It further noted that laws regulating and thanked the Panel of Inquiry for its throughout the inquiry and Chang Lih assemblies have moved towards a “co- good work. The Bar President, Ambiga Kang, Gowri Balasubramaniam and Yap operative model” in several jurisdictions Sreenevasan expressed gratitude to Swee Seng of SUARAM who assisted in where parties, the police and the SUHAKAM for conducting the Inquiry the preparation of the Bar Council Legal organizers, co-operate in the regulation of and making the report, which the Bar fully Aid Centre Report. an assembly. supported. continued from previous page Hence, this is a matter clearly for the civil We need to also expressly and clearly limit whether or not a person was a “Muslim” courts. the syariah courts’ powers. and questions of apostasy from Islam began to be considered matters “within” The plain words of Article 121(1A) are They must not interfere in any matter the jurisdiction of the syariah courts. innocuous. What it says is that the civil where the interests of any non-Muslim is courts should not interfere in matters affected; and they should only determine In fact, the Constitution does not use the which fall “within” the jurisdiction of the issues where persons professing Islam are word “Muslim” but uses the phrase “person syariah courts. involved in a dispute regarding Islamic professing the religion of Islam”. The personal, family or criminal laws which correct question therefore is whether When the syariah courts overstep their have been expressly legislated upon by the someone is “a person professing the religion boundaries, the civil courts should stop State Legislature. of Islam” at the material time i.e. what does them but unfortunately the latter now feel or did that person say was his or her religion they cannot because of the way Article If there are mixed questions of civil law or when he or she was asked. 121(1A) is currently being interpreted. matters involving non-Muslims, the syariah courts must not usurp jurisdiction. Whether or not that person is a “Muslim” The constitutional safeguard affirming the This may be a start to ensuring that those under Islamic law is not the relevant civil courts as the repository of the caught in this quandary have access to a question, and should not be an issue at all. Federation’s judicial power must be court which can properly hear and restored. determine their grievances.

MARCH / APRIL 2007 PRAXIS 65 Human Writes

ASEAN’s empty Declaration On The Protection and Promotion of The Rights of Migrant Workers by Charles Hector

he Heads of State and Government determining what or when or even In the case of Malaysia, this Declaration Tof the Association of Southeast Asian whether anything will change for the would not even cover the about 170,000 Nations (ASEAN), attending the 12th better. Nepali migrants, being the second largest ASEAN Summit on 13 January 2007 in nationality group of migrants workers, or Cebu, Philippines came out with an Laws and Regulations are written those from countries like India, ASEAN Declaration On The Protection documents and as such it is clear whereas Bangladesh, Pakistan and other non- And Promotion Of The Rights Of “policy” is a vague creature. What is the ASEAN countries. Migrant Workers. policy of Malaysia with regard to migrant rights? No one can at any time for sure say Undocumented Migrants generally are Reading the title only, it all sounds very what it is. Some say that that it is what the also not covered and the only group of good for the promotion and protection of Prime Minister, relevant Minister or undocumented workers covered is made the rights of migrant workers but a deeper Director General of Immigration states in clear by the usage of the words “[those consideration of the said Declaration itself their speeches and statements made – but that] have subsequently become reveals that it does very little for the this can and do change all the time, and undocumented”, and with regard to protection and promotion of rights as one will find it near impossible to try to families of migrants, it only addresses everything declared is to be subject to the claim rights based on such ‘policies’. It may “family members already residing with laws, regulations, and policies of the have been reported in the print media – them” – not new members of the family respective ASEAN member Countries. but then one can always turn around and of migrants that may come to be in the say that the media got it wrong and it was future of that said receiving country. In the preamble, it explicitly states not what was meant. We need to get our “RECOGNIZING further the governments to lay down written policies As such the millions of undocumented sovereignty of states in determining their (that are accessible to the public) for us to migrants, some of whom who are really own migration policy relating to migrant be really clear about a government’s policy refugees, be it from Burma, Aceh, workers, including determining entry into on a subject matter really is. In Thailand, Southern Thailand and Southern their territory and under which conditions the Cabinet made Resolutions and this Philippines, are just not covered with migrant workers may remain”. made policy clear but this is not so in regard to rights in this Declaration. Malaysia, and even if there was such By the usage of the words “subject to the ‘Cabinet Resolutions” – it has been kept The extension of access of consular laws, regulations, and policies of respective away from the public. functions and diplomatic assistance of Countries”, which is repeated several times member ASEAN countries when an in the document, the Declaration basically ASEAN Migrants only – not other ASEAN migrant is arrested or committed allows that status quo be maintained as it migrants? to prison or custody or detained in any is now in a particular country. Any A close reading of the Declaration will other manner, under the laws and advancement and protection when it reveal that they are only talking about regulations of the receiving state seem to comes, and if it comes, with regard to rights migrants from ASEAN sending countries be a good thing especially when in that of migrants will depend on the particular – and specifically those that are receiving country there is no embassy and/ member country and the ASEAN documented or those that become or consulate of the country from where Declaration really does nothing about undocumented later by no fault of theirs. the affected ASEAN migrant originates.

PRAXIS 66 MARCH / APRIL 2007 Human Writes

Undocumented Workers In fact, in South East Asia we should be a statement of protest about Burma, As mentioned earlier, the Declaration does striving for an ASEAN community of ASEAN cannot do so because Burma (a not talk about rights of the about 2 to 5 peoples, an ASEAN community of workers member of ASEAN) objects. That’s why million undocumented migrants in our – and we should be trying to do away there may be gross human rights violations country. Officially, the number of with all these sending and receiving agents committed by some ASEAN member documented migrants in Malaysia is about and government pre-employment country, and the ASEAN makes no 1.8 million, but interestingly a recent AFP documentation procedures. The ASEAN statement or comment. Similarly the fact report in October 2006 reiterated yet again worker should be allowed to enter any that some members of the ASEAN are not that Malaysia’s 10.5 million strong labour ASEAN nation freely, but maybe on a members of the World Trade Organization force is made up of 2.6 million foreign restricted entry permit of 2 to 4 weeks, prevents the ASEAN from going into the workers. being the time for him to secure a job, and WTO meetings and negotiating as a block if he fails to do so, then he may be required for the good of the ASEAN people. Undocumented Migrant Workers is the to leave generally – but this should not be most victimized of the lot, but I believe that it is this problem sadly the Declaration clearly that has brought about this very states that it is not concerned with weak Declaration that has an the documentation of these impressive title and nothing group of workers when it stated: more. It does not even set “Nothing in the present minimum standards or Declaration shall be interpreted guarantee basic rights of as implying the regularization of workers. Maybe, the soon to be the situation of migrant workers ASEAN Charter may be able to who are undocumented” set some standards and require strict compliance by all ASEAN In some ASEAN countries like member nations within a Thailand, migrant workers from Burma the case for those who are refugees. stipulated time frame. We shall have to enter, find employment and then register wait and see. themselves with the relevant government In Thailand, I believe, if a worker is not bodies. Likewise, Malaysian migrant satisfied with his employer or his working Is there a need for the Secretary-General workers in Singapore also get the job first conditions, he can leave and be allowed to of ASEAN’s Report now? and are then registered by their employers stay in the country for a defined time As it is, there really seems to be no sense as workers. during which he should find new for this ASEAN Declaration to have the employment. It is a good practice that “Secretary-General of ASEAN to submit An ordinary Malaysian worker gets Malaysia should also seriously consider. annually a report on the progress of the employed, and then only does his implementation of the Declaration to the employer informs/registers the said worker ASEAN – consensus not majority Summit through the ASEAN Ministerial with the Employees Provident Fund decision making Meeting”. What is he going to report, save (EPF), for Social Security (SOCSO). The The biggest problem with the ASEAN is that each of the ASEAN member states income tax department is also informed that decisions are made by consensus and have complied what is required of them by the Employer. A similar system, where not by majority vote and this is a fact that in accordance with the requirement of their the obligations are placed on the employer cripples and impedes ASEAN from respective countries laws and regulations (rather than the worker) would also work moving forward in the field of promotion and policies. There were really no specific for migrant workers and that will solve and protection of rights. For example, if requirements that had to be complied by the problem of documentation, and will the majority of the ASEAN member ASEAN member nations within any result in much more cost saving for the nations are not happy with what is stipulated time frame. receiving country. happening in Burma – and want to make

MARCH / APRIL 2007 PRAXIS 67 Human Writes

ASEAN instrument on the protection For the protection and promotion of the nations are the domestic workers and this and promotion of the rights of migrant rights of migrant workers, we cannot just new ASEAN instrument must provide for workers be dealing with just the documented but clear rights for this group of too-long- To be fair, there is an indication that an must also the “undocumented” migrant. neglected workers. In Malaysia today, it is ASEAN instrument on the protection and For refugees from member ASEAN reported that there are about 320,000 promotion of the rights of migrant countries now in other ASEAN nations, domestic workers and as such this is no workers is to be developed but alas no time something more may be required – more an insignificant or small group of frame was set, and even if such an especially since most refugees are seeking workers anymore. instrument is developed it must have in asylum and protection from the wrath and place a monitoring system, a complaints possible persecution of their own country ASEAN’s concern about the Protection procedure and an adjudicating body with of origin. And Promotion Of The Rights Of penalizing powers that should be accessible Migrant Workers must be applauded but to everyone, including the migrant The instrument must also advocate the the Declaration that emerged on 13 workers and their families and not just the equality of persons and equal protection January 2007 in Cebu, Philippines was a ASEAN member states. We already have of the law in all ASEAN countries of all far outcry from what one would have UN and ILO conventions dealing with persons and all workers from ASEAN expected from a group of nations that the rights of workers, migrants or member nations and even other countries. describe themselves as a “caring and sharing otherwise; and also migrant workers and Community”. As a first step, it may be their families that could very easily be One group of workers that are presently alright but lots more is expected and adopted in toto or used as a basis for this left out in most employment laws of most needed from ASEAN. upcoming ASEAN instrument.

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PRAXIS 68 MARCH / APRIL 2007 Library Update

BILLS Authority Act 2007 [Act664] 5, 6, 9(2), 9(3), 9(4) [PU(B)110/2007] 1. Environmental Quality (Amend- An Act to incorporate the Iskandar ment) Bill 2007-DR 1/2007 Regional Development Authority, to Housing Development (Control and Tam No.1 provide for the proper direction, policies Licensing) (Amendment) Act 2007 [ACT First Reading 22.3.2006 and strategies in relation to development A1289] Publication date:-29.3.2007 within the Iskandar Development Region, Notes:-Amends long title, ss.2, 3, 7, 7A, 8A, 2. Companies (Amendment) Bill 2007 to provide for co-ordination between 11, 16C, 16E, 16M, 16N, 16O, 16P, –DR2/2007 government agencies to promote trade, 16Y, 16AC, 16AD, 18, 19, 20, 21, 22, Tam No.1 investment and development within the 22C and 24. Inserts new ss.3A, 7C, 10K, First Reading 20.3.2006 Iskandar Development Region, and to 22D, 22E and 22F Publication date:-29.3.2007 provide for matters connected therewith w.e.f:-12.4.2007 [PU(B)134/2007] 3. Consumer Protection (Amendment) or ancillary thereto. Bill 2007 –DR 3/2007 w.e.f:-17.2.2007 [PU(B)55/2007] Registration of Engineers (Amendment) Tam No.2 Act 2007 [Act A1288] First Reading 2.4.2007 AMENDING ACTS 2006 Notes:-Amends ss.2, 3, 4, 6, 7A, 10, 10A, Publication date:-12.4.2007 Exclusive Economic Zone (Amendment) 15, 17, 19, 22, 24, 24B, 25, 28 and Sch 4. Employees Provident Fund (Amend- Act 2006 [ACT A1277] 1.Inserts new Part IIIA-14A, 14B and ment) Bill 2007 –DR4/2007 Notes:-Amends s.3 14C. Tam No.2 w.e.f:-1.5.2007 [PU(B)132/2007] w.e.f:-1.4.2007 [PU(B)102/2007] First Reading 5.4.2007 Publication date:-12.4.2007 Emergency (Essential Powers) Sales Tax (Amendment) Act 2007 [Act Ordinance, No.7 (Amendment) Act 2006 A1283] PRINCIPAL ACTS 2006 [ACT A1278] Notes:-Amends ss.2, 61, 68.Inserts new Part Baselines of Maritime Zones Act 2006 Notes:-Amends s.6, Deletes ss.5 & 7 IVA Customs Ruling – ss.11A, 11B, 11C, [Act660] w.e.f:-1.5.2007 [PU(B)133/2007] 11D, 11E and s.12B An Act to provide for the declaration of w.e.f:- 1.4.2007-all sections except ss.2(b), geographical co-ordinates of base points AMENDING ACTS 2007 6, 7(2), 7(3), 7(4) [PU(B)109/2007] for the purpose of determining the Architects (Amendment) Act 2007 [Act baselines of Malaysia and for other matters A1287] Service Tax (Amendment) Act 2007 [Act connected therewith. Notes:-Amends long title, heading of Part II, A1281] w.e.f:-1.5.2007 [PU(B)120/2007] ss.2, 3, 4, 6, 7A, 8, 12, 15A, 17, 20, 22, Notes:-Amends ss.2, 41 and 50.Inserts new 24, 25, 26, 26A, 33, 34, 34A, 34B, 35B Part IIA Customs Ruling- ss.6A, 6B, 6C, PRINCIPAL ACTS 2007 and Sch. Inserts new Part VA, 27A, 27B, 6D and s.7B. Building and Common Property 27C, 27D, 27E, 27F, 27G, 27H, 27I and w.e.f:- 1.4.2007 –except ss.2(b), 6, 7(2), (Maintenance and Management) Act 27J. 7(3), 7(4) [PU(B)107/2007] 2007 [Act663] w.e.f:-1.4.2007 [PU(B)98/2007] An Act to provide for the proper Strata Titles (Amendment) Act 2007 [Act maintenance and management of Customs (Amendment) Act 2007 [Act A1290] buildings and common property, and for A1282] Notes:-Amends long title, preamble, ss.2, 4, matters incidental thereto. Notes:-Amends ss.2, 22A, 135, 142, heading of Part II, SS.6, 7, 8, 9, 10, 10A, w.e.f: 12.4.2007-Johore [PU(B)137/ 143.Inserts new Part IIA Customs ruling – 13, 14A, 15, 17, 20, 22B, 37, 39, 40, 2007], Kedah [PU(B)138/2007], ss.10A, 10B, 10C, 10D, 10E, New Part 41, 41A, 43, 44, 45, 47, 49, 50, 53A, Kelantan [PU(B)139/2007], Melacca XIVA Customs Appeal Tribunal-141A- 55, 67A, 67B, 67K, 67L, 67M, 67N, [PU(B)140/2007], Negeri Sembilan 141AB.Deletes s.143A 67O, 67P, 67Q, 67R, 67W, Sch 1, 2 and [PU(B)141/2007] ,Pahang [PU(B)142/ w.e.f:- 1.4.2007-all sections except ss.6, 8, 3.Inserts new ss.4A, 10B, 40A and Sch 5 2007], Penang [PU(B)143/2007], Perak 9, 10(2), 10(3), 10(4) [PU(B)108/2007] and Deletes Part IX. [PU(B)144/2007], Perlis [PU(B)145/ w.e.f:-12.4.2007 [PU(B)148/2007]- 2007], Terengganu [PU(B)146/2007], Excise (Amendment) Act 2007 [Act Federal Territory of Kuala Lumpur & Federal Selangor [PU(B)147/2007], Federal A1284] Territory of Putrajaya Territory Kuala Lumpur and Federal Notes:-Amends ss.2, 18A, 47, 74, 85.Inserts [PU(B)149/2004]-Johore, Kedah, Territory of Putrajaya [PU(B)151/2007] new Part IIA Customs Ruling- ss.5A, 5B, Kelantan, Malacca, Negeri Sembilan, 5C, 5D , 5E and Deletes s.47A. Pahang, Penang, Perak, Perlis, Selangor and Iskandar Regional Development w.e.f:- 1.4.2007-all sections except ss.2(b), Terengganu

MARCH / APRIL_2007 PRAXIS 69 Library Update

Street, Drainage and Building Optical (Amendment) of Second which the Act comes into operation in all (Amendment) Act 2007 Schedule) Order 2007 [PU(A)159/ the local authority areas in the State of Johore Notes:-Amends ss.3, 58, 65, 70, 70A, 70B, 2007] 75, 85A, 123, 127 and 133. Issued under s.41, Optical Act 1991 Building and Common Property -This Act shall apply only to Peninsular Notes:-Amends Sch 2, Optical Act 1991 (Maintenance and Management) Act Malaysia. w.e.f:-13.4.2007 2007 [Act663] w.e.f:-12.4.2007 [PU(B)121/2007] Appointment of Date of Coming into Registration of Pharmacists Act 1951 Operation [PU(B)138/2007] INDEX TO SELECTED PU(A) [Act 371] Notes:-12.4.2007 appointed as the date on SERIES 2007 First Schedule (Amendment) Order 2007 which the Act comes into operation in all Anti-Money Laundering and Anti- [PU(A)109/2007] the local authority areas in the State of Kedah Terrorism Financing Act 2001 [Act 613] Issued under s.6, Registration of Anti-Money Laundering and Anti- Pharmacists Act 1951 Building and Common Property Terrorism Financing (Amendment of First Notes:-Amends Sch 1, Registration of (Maintenance and Management) Act Schedule) Order 2007 [PU(A)101/ Pharmacists Act 1951[Act 371] 2007 [Act663] 2007] w.e.f:-16.3.2007 Appointment of Date of Coming into Issued under s.85, Anti-Money Operation [PU(B)139/2007] Laundering and Anti-Terrorism Financing Registration of Pharmacists Act 1951 Notes:-12.4.2007 appointed as the date on Act 2001 [Act 371] which the Act comes into operation in all Notes:-Amends Sch 1, Anti-Money Second Schedule (Amendment) Order the local authority areas in the State of Laundering and Anti-Terrorism Financing 2007 [PU(A)110/2007] Kelantan Act 2001 Issued under s.6A, Registration of w.e.f:-9.3.2007 Pharmacists Act 1951 Building and Common Property Notes:-Amends Sch 2, Registration of (Maintenance and Management) Act Anti-Money Laundering and Anti- Pharmacists Act 1951 [Act 371] 2007 [Act663] Terrorism Financing Act 2001 [Act 613] w.e.f:-16.3.2007 Appointment of Date of Coming into Anti-Money Laundering and Anti- Operation [PU(B)140/2007] Terrorism Financing (Amendment of INDEX TO SELECTED PU(B) Notes:-12.4.2007 appointed as the date on Second Schedule) Order 2007 SERIES 2007 which the Act comes into operation in all [PU(A)102/2007] Anti-Money Laundering (Amendment) the local authority areas in the State of Issued under s.85, Anti-Money Act 2003 [Act A1208] Malacca Laundering and Anti-Terrorism Financing Appointment of Date of Coming into Act 2001 Operation [PU(B)66/2007] Building and Common Property Notes:-Amends Sch 2, Anti-Money w.e.f:-6.3.2007 except para 14(a) (Maintenance and Management) Act Laundering and Anti-Terrorism Financing 2007 [Act663] Act 2001 Architects (Amendment) Act 2007 [Act Appointment of Date of Coming into w.e.f:-9.3.2007 A1287] Operation [PU(B)141/2007] Appointment of Date of Coming into Notes:-12.4.2007 appointed as the date on Anti-Money Laundering and Anti- Operation [PU(B)98/2007] which the Act comes into operation in all Terrorism Financing Act 2001 [Act 613] w.e.f:-1.4.2007 the local authority areas in the State of Negeri Anti-Money Laundering and Anti- Sembilan Terrorism Financing (Amendment of Baselines of Maritime Zones Act 2006 Second Schedule) Order 2007 [Act660] Building and Common Property [PU(A)105/2007] Appointment of Date of Coming into (Maintenance and Management) Act Issued under s.85, Anti-Money Operation [PU(B)120/2007] 2007 [Act663] Laundering and Anti-Terrorism Financing w.e.f:-1.5.2007 Appointment of Date of Coming into Act 2001 Operation [PU(B)142/2007] Notes:-Amends Sch 2, Anti-Money Building and Common Property Notes:-12.4.2007 appointed as the date on Laundering and Anti-Terrorism Financing (Maintenance and Management) Act which the Act comes into operation in all Act 2001 [Act613] 2007 [Act663] the local authority areas in the State of w.e.f:-9.3.2007 Appointment of Date of Coming into Pahang Operation [PU(B)137/2007] Optical Act 1991 [Act469] Notes:-12.4.2007 appointed as the date on Building and Common Property

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(Maintenance and Management) Act the Federal Territory of Kuala Lumpur and w.e.f:-29.3.2007 2007 [Act663] the Federal Territory of Putrajaya. Appointment of Date of Coming into Housing Development (Control and Operation [PU(B)143/2007] Courts of Judicature (Amendment) Act Licensing) (Amendment) Act 2007 [Act Notes:-12.4.2007 appointed as the date on 2004 [Act A1229] A1289] which the Act comes into operation in all Appointment of Date of Coming into Appointment of Date of Coming into the local authority areas in the State of Operation [PU(B)70/2007] Operation [PU(B)134/2007] Penang w.e.f:-6.3.2007 w.e.f:-12.4.2007

Building and Common Property Customs (Amendment) Act 2007 [Act Iskandar Regional Development (Maintenance and Management) Act A1282] Authority Act 2007 [Act 664] 2007 [Act663] Appointment of Date of Coming into Appointment of Date of Coming into Appointment of Date of Coming into Operation [PU(B)108/2007] Operation [PU(B)55/2007] Operation [PU(B)144/2007] Notes:-All the provisions of the Act come into w.e.f:-17.2.2007 Notes:-12.4.2007 appointed as the date on operation except for sections 6, 8, 9 and which the Act comes into operation in all subsections 10(2), (3) and (4). Penal Code (Amendment) Act 2003 [Act the local authority areas in the State of Perak w.e.f:-1.4.2007-all sections except ss.6, 8, A1210] 9, 10(2), 10(3), 10(4) Appointment of Date of Coming into Building and Common Property Operation [PU(B)67/2007] (Maintenance and Management) Act Criminal Procedure Code (Amendment) w.e.f:-6.3.2007 except section 9 2007 [Act663] Act 2006 [Act A1274] Appointment of Date of Coming into Appointment of Date of Coming into Pesticides Act 1974 [Act149] Operation [PU(B)145/2007] Operation [PU(B)68/2007] Appointment of Date of Coming into Notes:-12.4.2007 appointed as the date on w.e.f:- 6.3.2007 ss.9, 20, paragraph Operation [PU(B)100/2007] which the Act comes into operation in all 33(b),(f) and (h) w.e.f:-1.4.2007 –s.15 comes into operation the local authority areas in the State of Perlis throughout Malaysia Emergency (Essential Powers) Ordinance Building and Common Property No.7 (Amendment) Act 2006 [Act Malaysian Health Promotion Board Act (Maintenance and Management) Act A1278] 2006 [Act651] 2007 [Act663] Appointment of Date of Coming into Appointment of Date of Coming into Appointment of Date of Coming into Operation Operation [PU(B)99/2007] Operation [PU(B)146/2007] w.e.f:-1.5.2007 w.e.f:-1.4.2007 Notes:-12.4.2007 appointed as the date on which the Act comes into operation in all Excise (Amendment) Act 2007 [Act Registration of Engineers (Amendment) the local authority areas in the State of A1284] Act 2007 [Act A1288] Terengganu Appointment of Date of coming into Appointment of Date of Coming into Operation [PU(B)110/2007] Operation [PU(B)102/2007] Building and Common Property Notes:-All the provisions of the Act come into w.e.f:-1.4.2007 (Maintenance and Management) Act operation except for paragraph 2(b), sections 2007 [Act663] 5, 6 and subsections 9(2), (3) and (4). Retirement Fund Act 2007 [Act 662] Appointment of Date of Coming into w.e.f:-1.4.2007-all sections except ss.2(b), 5, Appointment of Date of Coming into Operation [PU(B)147/2007] 6, 9(2), 9(3), 9(4) Operation [PU(B)62/2007] Notes:-12.4.2007 appointed as the date on w.e.f:-1.3.2007 which the Act comes into operation in all Exclusive Economic Zone (Amendment) the local authority areas in the State of Act 2006 [Act A1277] Sales Tax (Amendment) Act 2007 [Act Selangor Appointment of Date of Coming into A1283] Operation [PU(B)132/2007] Appointment of Date of Coming into Building and Common Property w.e.f:-1.5.2007 Operation [PU(B)109/2007] (Maintenance and Management) Act Notes:-All the provisions of the Act come into 2007 [Act663] Free Zones Act 1990 [Act438] operation except for paragraph 2(b), section Appointment of Date of Coming into Free Zones (Amendment) Notification 6 and subsections 7(2), (3) and (4). Operation [PU(B)151/2007] 2007 [PU(B)96/2007] w.e.f:-1.4.2007-all sections except ss.2(b), 6, Notes:-12.4.2007 comes into operation in Notes:-Amends Sch 1, Free Zones Act 1990 7(2), 7(3), 7(4)

MARCH / APRIL_2007 PRAXIS 71 Library Update

Sales Tax (Amendment) Act 2007 [Act Appointment of Date of Coming into Appointment of Date of Coming into A1283] Operation [PU(B)122/2007] Operation [PU(B)128/2007] Appointment of Date of Coming into Notes:-12.4.2007 appointed as the date on Notes:-12.4.2007 appointed as the date on Operation [PU(B)116/2007] which the Act comes into operation in all which the Act comes into operation in all Corrigendum the local authority areas in the State of Kedah the local authority areas in the State of Perak Notes:-Corrigendum to PU(B)109/2007 Street, Drainage and Building Street, Drainage and Building Service Tax (Amendment) Act 2007 [Act (Amendment) Act 2007 [Act A1286] (Amendment) Act 2007 [Act A1286] A1281] Appointment of Date of Coming into Appointment of Date of Coming into Appointment of Date of Coming into Operation [PU(B)123/2007] Operation [PU(B)129/2007] Operation [PU(B)107/2007] Notes:-12.4.2007 appointed as the date on Notes:-12.4.2007 appointed as the date on Notes:-All the provisions of the Act come into which the Act comes into operation in all which the Act comes into operation in all operation, except for paragraph 2(b), section the local authority areas in the State of the local authority areas in the State of Perlis 6 and subsections 7(2), (3) and (4). Kelantan Street, Drainage and Building w.e.f:-1.4.2007 –except ss.2(b), 6, 7(2), (Amendment) Act 2007 [Act A1286] 7(3), 7(4) Street, Drainage and Building Appointment of Date of Coming into (Amendment) Act 2007 [Act A1286] Operation [PU(B)130/2007] Service Tax (Amendment) Act 2007 [Act Appointment of Date of Coming into Notes:-12.4.2007 appointed as the date on A1281] Operation [PU(B)124/2007] which the Act comes into operation in all Appointment of Date of Coming into Notes:-12.4.2007 appointed as the date on the local authority areas in the State of Operation [PU(B)115/2007] which the Act comes into operation in all Terengganu Corrigendum the local authority areas in the State of Notes:-Corrigendum to PU(B)107/2007 Malacca Street, Drainage and Building (Amendment) Act 2007 [Act A1286] Strata Titles (Amendment) Act 2007 [Act Street, Drainage and Building Appointment of Date of Coming into A1290] (Amendment) Act 2007 [Act A1286] Operation [PU(B)131/2007] Appointment of Date of Coming into Appointment of Date of Coming into w.e.f:-12.4.2007 appointed as the date on Operation [PU(B)148/2007] Operation [PU(B)125/2007] which the Act comes into operation in all Notes:-12.4.2007 appointed as the date on Notes:-12.4.2007 appointed as the date on the local authority areas in the State of which the Act comes into operation in the which the Act comes into operation in all Selangor Federal Territory of Kuala Lumpur and the the local authority areas in the State of Negeri Street, Drainage and Building Federal Territory of Putrajaya Sembilan (Amendment) Act 2007 [Act A1286] Appointment of Date of Coming into Strata Titles (Amendment) Act 2007 [Act Street, Drainage and Building Operation [PU(B)152/2007] A1290] (Amendment) Act 2007 [Act A1286] Notes:-12.4.2007 appointed as the date on Appointment of Date of Coming into Appointment of Date of Coming into which the Act comes into operation in the Operation [PU(B)149/2007] Operation [PU(B)126/2007] Federal Territory of Kuala Lumpur and the Notes:-12.4.2007 appointed as the date on Notes:-12.4.2007 appointed as the date on Federal territory of Putrajaya. which the Act comes into operation in the which the Act comes into operation in all States of Johore, Kedah, Kelantan, Malacca, the local authority areas in the State of Subordinate Courts (Amendment) Act Negeri Sembilan, Pahang, Penang, Perak, Pahang 2004 [Act A1228] Perlis, Selangor and Terengganu. Appointment of Date of Coming into Street, Drainage and Building Operation [PU(B)69/2007] Street, Drainage and Building (Amendment) Act 2007 [Act A1286] w.e.f:-6.3.2007 (Amendment) Act 2007 [Act A1286] Appointment of Date of Coming into Appointment of Date of Coming into Operation [PU(B)127/2007] NEW BOOKS IN THE LIBRARY Operation [PU(B)121/2007] Notes:-12.4.2007 appointed as the date on 1. Common Applications in Civil Notes:-12.4.2007 appointed as the date on which the Act comes into operation in all Proceedings. Petaling Jaya, Selangor: Sweet & Maxwell Asia, 2007. which the Act comes into operation in all the local authority areas in the State of 2. Clerk, John Frederic. Clerk & Lindsell the local authority areas in the State of Johore. Penang on Torts. 19th ed. Kuala Lumpur: Sweet & Maxwell Asia, 2006. Street, Drainage and Building Street, Drainage and Building 3. Chan, N.H. Judging the Judges. Petaling (Amendment) Act 2007 [Act A1286] (Amendment) Act 2007 [Act A1286] Jaya, Selangor: Alpha Sigma, 2007.

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