THE COMMONWEALTH LAWYER Journal of the Commonwealth Lawyers’ Association December 2018 Vol 28, No 3 The Facebook Conundrum: Challenges for the Northern Ireland Judiciary Bernard McCloskey ‘The New Malaysia’: How Deep is its Commitments to Human Rights? Myint Zan Unjust Enrichment: the Platypus of Private Law Susan Glazebrook Reflections on Parliament and Civil Society in Malaysia Tunku Zain Al-‘Abidin ‘The New Malaysia’: Hopes and Expectations The Modernisation of Justice Ernest Ryder Belief in Malaysia Freedom ofWong Religion Chin-Huat and THE COMMONWEALTH Hon Life Presidents Colin Nicholls QC (England & Wales) LAWYER Dato’ Dr Cyrus Das (Malaysia) Soli Sorabjee (India) Journal of the Commonwealth Lawyers’ Association President R Santhanakrishnan (India) ISSN: 0265-8100 Vice President Brian Speers (Northern Ireland) Editor: Venkat lyer, Barrister-at-Law Honorary Treasurer Laurie Watt (England & Wales) Council David Bekker (South Africa) David Greene (England and Wales) Venkat Iyer (Northern Ireland – ex officio) The Commonwealth Lawyers’ Association exists to Gordon Jackson QC (Scotland) Fiona McLeod SC (Australia) maintain and promote the rule of law throughout the Peter Maynard (Caribbean) Commonwealth by ensuring that the people of the Saima Nambinga (Namibia) Commonwealth are served by an independent and Vimbai Nyemba (Zimbabwe) Laurie Pawlitza (Canada) efficient legal profession. Steven Thiru (Malaysia) For more information about the CLA please visit the Michael Todd QC (England and Wales) Association’s website at: Alexander Ward, Past President (ex-officio) Mark Woods (Australia) <www.commonwealthlawyers.com> Executive Committee Brigid Watson (CEO & Secretary General) Mia Essien Ron Heinrich Mohamed Husain Mickael Laurens Jamie Millar The Commonwealth Lawyer is published thrice a year. Members of the Tim Otty QC R Santhanakrishnan (President) CLA receive it free of charge. Annual subscription for non-members (3 Peter Slinn issues) - £25. Subscription enquires must be addressed to the Secretary Brian Speers (Vice President) General in London. Mark Stephens CBE Alexander Ward Comments and contributions are welcome. These should be sent to the Laurie Watt (Hon. Treasurer) Editor at the following address: The Commonwealth Lawyer Dr Venkat Iyer (Editor) Dr Venkat lyer School of Law CEO and Secretary General Ulster University at Jordanstown Brigid Watson Newtownabbey, BT37 OQB, United Kingdom Commonwealth Lawyers Association Phone: (44-28) 90368876 88 Kingsway, London WC2B 6AA Fax: (44-28) 90366847 Phone: +44 20 7841 1075 E-mail: [email protected] E-mail: [email protected] THE COMMONWEALTH LAWYER Journal of the Commonwealth Lawyers’ Association December 2018 Message from the President 4 R Santhanakrishnan Editor’s Note 5 Venkat Iyer Articles Which God? Whose Country? – Freedom of Religion and Belief in Malaysia 6 Wong Chin-Huat The Facebook Conundrum: Challenges for the Northern Ireland Judiciary 18 Bernard McCloskey ‘The New Malaysia’: How Deep is its Commitments to Human Rights? 22 Myint Zan Unjust Enrichment: the Platypus of Private Law 25 Susan Glazebrook Reflections on Parliament and Civil Society in Malaysia 30 Tunku Zain Al-’Abidin The Modernisation of Justice 35 Ernest Ryder Book Reviews 40 News and Announcements 49 [Cover photo: Prime Minister Dr Mahathir Mohamed and colleagues celebrating the win of the Opposition alliance at Malaysia’s 14th General Election on 10 May 2018.] Message from the President As part of my ‘Mission Commonwealth Connect’, visiting the Deputy Head of the General Council of the Bar of South various Commonwealth countries has been a fascinating Africa. The August visit also took me to the Law Society of experience. Namibia in Windhoek and to the Law Society of Zimbabwe and to the annual conference of SADC Lawyers’ Association Europe: In April I was in London during the Commonwealth in Mozambique, where I got to meet the lawyers from most Heads of Governments (CHOGM) meeting. As well as of the countries of Southern Africa. In October I visited the attending the CLA Council Meeting, I went to some of Mauritius Bar Association in Port Louis and the Law Society of the pre-CHOGM events organised by ComSec accredited Botswana in Gaborne. Going on to the kingdoms of Lesotho organisations. Attending the reception of Commonwealth & Swaziland facilitated visits to their Law Societies. On the Human Rights Initiative (CHRI), to celebrate 30 years of its last leg of this tour I went to Blantyre and to the Law Society existence reminded me of the background under which CLA of Malawi. and its sister organisations created CHRI. A visit to Malta in May connected me to their Chamber of Advocates. Basing In September I visited the Sierra Leone Bar Association myself in London for about eight weeks in the summer helped (Freetown) and the Gambia Bar Association (Banjul) where in getting across to the legal fraternity there. We also welcomed I met the respective Presidents, executives and the countries’ the appointment of our new Secretary General, Brigid Watson, Chief Justices. My last visit of the year to West Africa was in who assumed office at the beginning of June. Since then October to attend the swearing in ceremony of our own Nene she has shown enthusiasm, unrelenting commitment and a Amegather as a Judge of the Supreme Court of Ghana. determination to take the CLA to a different level. Along with her, I attended a meeting of the Commonwealth Legal As for East Africa, I attended the annual conference of Forum. In July I was part of the ‹Peace at the Crease’ initiative the Law Society of Kenya in August. In November I was in of ComSec where a cricket team from Vatican played against Mombasa to attend the annual conference of the East Africa a team from the Commonwealth. In September I was in Law Society. There we also had the first meeting of the Scotland where I had a meeting with the Dean of the Faculty CLA’s Regional Hub for Africa, attended by bar leaders from of Advocates. Tanzania, Uganda, Rwanda, Kenya and South Sudan and a representative from the Law Society of England and Wales. Americas: I visited Barbados in May to attend the Annual Whitsun Weekend Conference organised by the Barbados Australasia: In December I was in Fiji to attend the Attorney Bar Association where I met Bar leaders and judges from General’s Conference. This gave me the opportunity to meet various parts of the Caribbean (including the President-elect the President of the Law Society of Fiji. I then went to Samoa of Caribbean Court of Justice). In September I attended the and met the President of the Law Society there. This was annual conference of the Organisation of Eastern Caribbean followed by a visit to Sydney where I called on the Law Society States (OECS) Bar Association in St. Kitts. I got an opportunity of New South Wales and on Michael Kirby. Later, in Canberra, to speak at this event about CLA and about our Livingstone I met some officials of the Law Council of Australia. I then conference (CLC). moved to Wellington to meet the President of the Law Society of New Zealand and some senior colleagues. Africa: In April I attended the annual conference of the Law Association of Zambia in Livingstone. With CLA colleagues I would like to end this message by wishing you all a happy I also went to inspect the venue of, and the facilities for, the new year! CLC. I then went to the Law Society of South Africa at – R Santhanakrishnan Pretoria and met some of their Council members as well as 4 © Commonwealth Lawyers’ Association and Contributors 2018 Editor’s Note I start with an apology: we regrettably had to skip what Malaysia occupies a significant proportion of the contents would have been our August 2018 issue. But I am pleased to of this issue. It is a country which has been very much in say that, with the current issue, the frequency of the journal has the news in recent months, not least for the results of the now been restored. As you will see from the pages to follow, dramatic general election held on 9 May 2018 which have we have a rich fare of articles, book reviews and other items of been variously described as an earthquake or a tsunami. The interest which I hope you will enjoy. ‘regime change’ that the election brought about saw the end of 70 years of uninterrupted rule by a Malay-dominated coalition, The Senior President of Tribunals in England and Wales, Sir the Barisan Nasional (National Front) and the return, in Ernest Ryder, offers some helpful insights into the opportunities dramatic circumstances, of the country’s former strongman, and challenges of modernising the delivery of justice. His Dr Mahathir Mohamed, as prime minister at the ripe old age reflections will, I am sure, strike a chord with those involved of 92. This development has, not surprisingly, spawned a in that process in other jurisdictions as well. The rationale huge volume of media comment and continues to engage the that he puts forward for making change happen merits careful attention of experts and laypersons alike. consideration: One aspect of the ‘regime change’ that has been the focus The modernisation of justice is not simply a technical of particular scrutiny is the extent to which the new leaders of endeavour to digitise process and minimise mountains Malaysia are willing to tackle, head-on, the very thorny issue of paper: we can do that and have done so around the of the discriminatory policies practised by successive Barisan world. It is nothing less than a new emphasis on strategic Nasional governments for decades. Under those policies, leadership by the judiciary. We are called upon to deliver an race and religion became so deeply entrenched as criteria for administration of justice that is patently fair, that protects determining the entitlements of ordinary citizens that they the judiciary’s independence and provides equality of access polarised Malaysian society in a very toxic manner.