praxis - malaysian bar
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PRAXISCHRONICLE OF THE MALAYSIAN BARCHRONICLE OF THE MALAYSIAN BAR
JANUARY / JUNE 2008 MAJLIS PEGUAM BAR COUNCIL
MALAYSIA
PRAXIS
PLUSRPGT Exemption - Queries Answered
Bar Council Secretariat achieves ISO 9001:2000 Certification
National Maritime Conference
Roundtable Discussion on National Unity
Cyclone Nargis - Cyclone Nargis - MyanmarMyanmar
PLUSPLUSConference on Developing Comprehensive Conference on Developing Comprehensive
Policy Framework for Migrant LabourPolicy Framework for Migrant Labour
State Bar News State Bar News
Amendments to Criminal Procedure Code: Amendments to Criminal Procedure Code: Radical or Piecemeal? Radical or Piecemeal?
Updates on Disciplinary Matters Updates on Disciplinary Matters
PRAXIS 1MAY / JUNE_2007
Editorial
PresidentPresidentPresidentPresidentPresident Ambiga SreenevasanVice PresidentVice PresidentVice PresidentVice PresidentVice President Ragunath KesavanSecretarySecretarySecretarySecretarySecretary Lim Chee WeeTTTTTreasurerreasurerreasurerreasurerreasurer George Varughese
Praxis is the chronicle of the Malaysian Bar,published bi-monthly by the Bar Council ofMalaysia.
Contribution: The Bar Council welcomes letters,articles, views and news (including photographs)for possible inclusion in the publication. However,the Bar Council reserves the right not to publishthem or to edit those published as regards content,clarity, style and space considerations.
Articles from individuals that are published herecontain the personal views of the writers concernedand are not necessarily the views of the BarCouncil. Contributions and enquiries should bedirected to [email protected]
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Yeo Yang Poh, Datuk Haji Kuthubul ZamanBukhari, Hendon Mohamed, Hj Vazeer Alam MydinMeera, Dato’ Muhammad Shafee bin Md Abdullah,Edmund Bon, Cecil Rajendra, Low Beng Choo,Christopher Leong, Roger Tan Kor Mee, K Mohana/l K Kumaran, Loh Wann Yuan, G Balakrishnan,R Subramaniam, Dato’ Hj Sukri bin Haji Mohamed,Hj Aziz Bin Haniff, Ravindra Kumar, StevenThiruneelakandan, Ng Kong Peng, R RChelvarajah, Tee Kim Chan, Pretam Singh, SyedAzimal Amir bin Syed Abu Bakar, Hj MohamedSazali Abd Aziz, Lalitha Menon, Dato’ VSithambaram, Ngan Siong Hing, ShanTheivanthiran, R V Lingam, Anuwar bin Mohd,Hj Asmadi bin Awang, Yasmeen Hj MuhamadShariff
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PRAXISCHRONICLE OF THE MALAYSIAN BAR
BAR COUNCIL BAR COUNCIL BAR COUNCIL BAR COUNCIL BAR COUNCIL 2007/20082007/20082007/20082007/20082007/2008
News2 Conference on developing a comprehensive policy
framework for migrant labour3 Official launch of the Executive Diploma in Islamic
Law5 Roger Tan barred from entering Fiji6 LAWASIA’s letter to the Attorney General of Fiji7 IRB Ruling - Recognition of Income Subject to Tax:
Update8 Nepal - Constituent Assembly Elections on 10/4/08
- Nepal Election Observation Committee8 Re : Tibetan Protest9 LAWASIA Statement on the Detention of Hindraf
Leaders Under Isa in Malaysia10 Book Review - Nose Dive – The Crippling of Justice
State Bar News13 Little change to 4 State line-ups13 Pahang Bar passes ISA motion14 Changes at Perak Bar leadership, Malacca Bar
leadership unchanged15 Poh Teik elected as Johor Bar’s Rep15 Selangor Bar gets a new Chair
Comment16 An Open Letter - Appeal for a better Parliament17 Fulfilling the nomination process18 Judicial Commission19 Why I was arrested21 The Internal Security Act 1960: A throwback to the
era of tyranny22 Court Jesters
Committee23 Penang Bar votes against having Young Lawyers
Committee
Human Writes25 POST MORTEM on Festival of Rights themed “As I
Believe: Freedom of Expression through Art, Music,Culture and Conscience” – Sunday 9th December2006
Article28 Amendments to the Criminal Procedure Code:
Radical or Piecemeal Legislation?37 A self-insured fund - Our next step?
Speeches40 Ethics Course Luncheon Speech by
Ms. Sitpah Selvaratnam42 Ethics Course Luncheon Speech by Mr Lim Kian
Leong
Disciplinary Oders45 Disciplinary Matters – Updates
Certificate No: 22470
PRAXIS 2 JANUARY / JUNE_2008
News
A one and a half day Conference
entitled “Developing a Comprehensive
Policy Framework for Migrant Labour” was
jointly organised by the Malaysian Bar
Council and the International Labour
Organisation (ILO).
Representatives from the judiciary,
government ministries and departments,
foreign missions and civil society including
representative from trade unions and
employers’ organisations attend the
Conference which took place on 18 and
19 February 2008.
Dato’ Ramachelvam, the Chairman of the
Ad Hoc Committee on the Immigration
Act, began the Conference by thanking
all the speakers and participants for taking
the time to attend the Conference.
He said that migration was an
international phenomenon and that in the
region, Malaysia had the highest ratio of
migrants in its workforce. He added that
migrants and their families today
constituted the third largest community
in Malaysia. He noted that despite the
huge presence of migrant labour in the
country, the Malaysian government did
not have in place a comprehensive policy
framework to deal with migrant labour.
The purpose of the Conference was to
address the absence of proper regulatory
mechanisms in the whole process of
recruitment, placement and employment
of migrant workers as well as to deal with
the gaps in existing policy with a view to
developing a comprehensive policy
framework for migrant labour.
Ragunath Kesavan, the Vice President of
the Malaysian Bar, in his welcome speech
said that the Bar Council’s policy on
migrant workers was founded on the
principle of equality before the law as
provided for in Article 8 of the Federal
Constitution. The Bar Council’s Legal Aid
Committee had always worked together
with various stakeholders i.e. Tenaganita,
AWAM, WAO and other NGOs, in
providing legal assistance to migrant
workers.
He pointed out that Malaysia did not have
a good track record in dealing with
migrants, though he said that some of this
might have more to do with problems of
implementation than policy. Some of the
problems faced by the migrants included
profiling, stereotyping, and the absence
of a policy to prevent migrant workers from
being exploited. He urged the participants
of the Conference to discuss ways to resolve
Conference on developing a comprehensivepolicy framework for migrant labour
by M. Moganambal
continued on page 4
JANUARY / JUNE_2008 PRAXIS 3
News
The International Islamic University
and the Bar Council launched the
Executive Diploma in Islamic Law (Islamic
Banking and Finance) programme on 15
February 2007. The launch was attended
by Mr. Steven Thiru, Puan Hendon
Mohamed and En. Rashid Ismail of the
Professional Standards and Development
Committee of the Bar Council and
Professor Dato’ Dr. Sano Koutoub
Moustapha, Assoc. Professor Dr. Haji Azmi
Bin Haji Harun and Professor Dato’ Dr.
Zaleha Kamarudin of IIUM.
Professor Dato’ Dr. Sano, the Deputy
Rector of IIUM said that under the 9th
Malaysian Plan the government has
emphasised the importance of Islamic
banking in Malaysia. The government
hopes that the Islamic banking industry
will continue to expand parallel with
conventional banking. By 2010, the
Islamic banking industry is expected to
constitute 20% of the overall banking and
insurance market.
Professor Dato’ Dr. Sano also said that the
government intends to develop Malaysia
as a Global Islamic Financial Hub which
will serve as a platform for the origination,
issuance and trading of Islamic capital
market and treasury instruments, for fund
and wealth management, offshore Islamic
financial services market as well as takaful
and retafakul business. This will be
complemented by the formation of centers
of excellence for education, training,
consultancy and research in Islamic
banking and finance.
Professor Dato’ Dr. Sano further said that
in the 2007 budget, the government has
once again emphasised the development
of Islamic banking in Malaysia. This was
under the Accelerating the Development
of Islamic Finance initiative. This shows
that Malaysia has progressed significantly
in the development of Islamic financial
services, especially in terms of the size of
investments, efficiency in services,
diversity of products, well-developed
infrastructure and an increase in the
number of institutions. According to him,
Malaysia is the country that issued the first
global sukuk in 2002 which attracted
investors especially from West Asia and we
are also the first to issue the ringgit-
denominated Islamic bonds, namely the
International Finance Corporation.
Official launch of the ExecutiveDiploma in Islamic Law
by Linda Tey (Executive Officer)
The Official launch of the Executive Diploma in Islamic Law (Islamic Banking And Finance) - ACollaboration between the International Islamic University Malaysia and the Bar Council
PRAXIS 4 JANUARY / JUNE_2008
NewsMr. Steven Thiru, the Chairman of the
PSDC, said that in line with the
government’s plan as mentioned by
Professor Dato’ Dr. Sano, Bank Negara
Malaysia intends to launch the Malaysian
International Islamic Financial Centre
(MIFC) initiative. In this regard, Bank
Negara Malaysia is concerned that the local
legal profession lacks the necessary legal
expertise in particular areas of Islamic
Banking and Finance Law and it intends
to allow for the admission of foreign
lawyers to practice in these areas. The Bar
Council has expressed its reservations over
the proposed initiative and has also
objected to the admission of foreign
lawyers in the manner suggested by Bank
Negara Malaysia. The Bar Council is
nevertheless determined to equip
members of the Bar, through professional
development programmes to face this
challenge. The Executive Diploma
programme is one of the steps undertaken
by the Bar Council and about 30 members
of the Bar have already registered for the
programme.
Mr. Steven Thiru said that the course will
begin on 23 February 2008. He stressed
that it is a highly recommended
programme which will immensely benefit
students, both in the face of the Bank
Negara Malaysia’s MIFC initiative as well
as in their practice. This programme will
also enhance student’s knowledge on
Islamic commercial legal principles
especially on Banking and Takaful. Mr.
Thiru further said that the programme is
also the first step in the Bar Council’s plans
to collaborate with universities and
professional bodies to offer a buffet of
professional development events for
members. This will enable members to
broaden their scope of knowledge in
different areas of the law.
For those who are interested in registering
for the programme, you may contact Ms.
Linda Tey at 603-2032 4498 or email
these issues as no one could deny that the
country needed migrant labour especially
for its construction, plantation and service
sectors. He said that migrant workers had
contributed to the economy of Malaysia
and therefore it is only right that these
workers be afforded the protection and
security of the law. He suggested that the
way forward was to consider the
possibilities of having a more open and
free flow of migrant labour along the lines
of the model used in the European Union.
Government agencies must work together
and dialogue with all relevant stakeholders
in the formulation of a long-term
consistent policy to regulate migrant labour
in Malaysia.
Mah Weng Kwai, the President of Lawasia
then delivered his keynote address. He
agreed that the Conference was timely and
necessary. Lawasia ‘s primary aims and
obligations were to promote the
administration of justice, the protection
of human rights and the maintenance of
the rule of law. The rapid expansion of
international labour migration in the
1980s had seen the emergence of a new
set of problems in Malaysia and its
neighbors. It could not be denied that
there was a need for a good regulatory
system to protect all stakeholders, both the
sending and receiving countries and their
economies as well as safeguard the welfare
of migrant workers.
Migrant workers in Malaysia could be
divided into 2 categories, legal or
documented (workers with valid work
permits and proper travel documents) or
illegal or undocumented (workers who do
not possess any valid documents). While
the rights of the legal migrant workers were
protected by law – the Workmen’s
Compensation Act, 1952, the
Employment Act 1955, the Trade Unions
Act 1959, the Industrial Relations Act
1969, and the Occupational Safety and
Health Act 1994, the rights of illegal
migrant workers were not. He said that it
was imperative therefore that the
Malaysian government develops a
comprehensive in-depth all embracing
policy framework that would effectively
deal with the myriad of issues relating to
foreign workers and the problems arising
from the point of recruitment to return.
The keynote address was followed by
paper presentations on the following areas
– Right to Livelihood, Arrest and
Detention and Social Challenges.
In the final session, on Day 2, Lotte Kejser
from ILO Jakarta presented a paper ILO’s
Multilateral Framework on Labour
Migration and Dato’ Ramachelvam
presented a 20 point plan of action which
needed to be taken into account in
developing a comprehensive policy on
migrant labour.
continued from page 2
JANUARY / JUNE_2008 PRAXIS 5
News
M alaysian Bar
Councillor, Roger
Tan has been barred from
entering Fiji after the
interim government there
issued a stop arrival order to
border officials at the Nadi
International Airport last
Friday prohibiting him
from entering the country.
Tan, who was supposed to board the flight
from here to Sydney en route to Fiji
yesterday evening, was part of an
International Bar Association (IBA)
delegation scheduled to arrive in Fiji today
to examine the independence of judiciary
and the state of the rule of law in the
country.
The order, effective from February 18 to
22, also prohibits other members of the
delegation – including Justice Roslyn
Atkinson of the Supreme Court of
Queensland, Australia and Felicia
Johnston, from the IBA’s Human Rights
Institute.
However, Felicia who arrived in Fiji at
5.30am yesterday morning from Los
Angeles unaware of the order was denied
entry. She left for Brisbane, Australia seven
hours later.
Fiji Law Society President, Isireli Fa said
the action taken by the government was
totally unnecessary and this
had only painted a negative
image of Fiji.
When contacted, the
Malaysian Bar President,
Ambiga Sreenevasan said
this is a missed opportunity
for Fiji government to show
that its judicial process is
above board and that they have nothing
to hide.
“I am confident that the IBA will be very
professional and neutral in its observations
as they are highly experienced in
undertaking missions of this sort”, said
Ambiga.
On January 30 last month, the interim
Attorney General of Fiji, Aiyaz Sayed-
Khaiyum said the IBA Human Rights
Insitute is not welcome to visit Fiji now
because their presence will undermine the
independence of judges hearing high-
profile cases.
When asked when was a good time for
the IBA to visit Fiji, Sayed-Khaiyum said
it should be when all the high-profile
constitutional cases currently before the
courts and the tribunal settings were
completed.
However, various non-governmental
organisations including the Fiji Law
Society have backed the planned visit.
The Fiji Law Society which invited the
IBA to Fiji said the decision to ask the IBA
to send a team of eminent jurists followed
the IBA Conference in Singapore last
October.
“It is critical that we draw on the wisdom
of our international friends to come in and
make objective assessments of our situation
and assist us by making helpful
suggestions to solve our problems and
move forward,” said Graham Leung, a
former president of the Fiji Law Society.
The Human Rights Institute of IBA or
better known as IBAHRI was established
in 1995 under the honorary presidency
of Nelson Mandela as a leading voice in
the promotion of the rule of law
worldwide.
Justice Roslyn Atkinson is a Judge of the
Supreme Court of Queensland.
Tan is the Chair of the Conveyancing
Practice Committee of the Malaysian Bar
Council. He holds a Bachelor of Laws with
Honours from Queen Mary College of the
University of London, and a Master of
Laws from the National University of
Singapore. He is also a barrister-at-law of
Gray’s Inn, London and an advocate and
solicitor of the Supreme Court of
Singapore.
Roger Tan barred from entering Fijiby Rajen Devaraj (Director)
PRAXIS 6 JANUARY / JUNE_2008
NewsFiji which achieved independence in 1970
has been affected by several military coups;
the most recent being the December 2006
coup engineered by the army’s
commander, Frank Bainimarama.
Since then, members of the Fijian legal
fraternity are deeply concerned by
appointments to the judiciary in Fiji. It
started on January 3, 2007 when Chief
Justice Daniel Fatiaki was ordered to take
leave from his office. On January 16, 2007,
Justice Anthony Gates was sworn in as
the Acting Chief Justice. Two days later,
Chief Justice Fatiaki was formally
suspended.
In addition, the legality of subsequent
appointments to the judiciary made by
the Judicial Services Commission under
the chairmanship of the Acting Chief
Justice has been called into question.
Examples of recent appointments include
two Malaysian lawyers, Dato’ Cyrus Das
and Dato’ Cecil Abraham who were
appointed to the Court of Appeal on
September 5, 2007 despite having no
apparent judicial experience. (It is
understood the duo subsequently declined
to accept the appointments.) On
September 20, 2007, Justice Pathik’s
contract was extended until April 2008
this year despite being 77 years of age
when under the Constitution, a judge’s
appointment expires when they reach 65
years of age for the High Court or 70 years
of age for the Court of Appeal.
The Fiji Law Society is also contemplating
of challenging the legality of the
appointments of puisne and appeal judges
of the Fiji Court of Appeal since the events
of December 2006.
The IBA has over 30,000 members
consisting of over 195 bar associations and
law societies from all over the world.
The Hon Mr Aiyaz Sayed-Khaiyum
Dear Attorney General
LAWASIA has been made aware that the members of an
intended mission to be made by the International Bar
Association to Fiji may be subject to orders that would prevent
their entry into the country.
We were surprised to learn of this, especially given our own
experience when we undertook a mission in March 2007.
LAWASIA was at that time impressed by the fact that, although
feelings in Fiji ran very high, its mission was not only
welcomed into the country, but was also entirely free to meet
with many who held vastly differing views.
The result, in our view, was the ability to form a balanced view
of a very complex situation and we hope that our report
indicated that.
We believe that the IBA is a fully independent body and that,
with its long experience of undertaking missions of this sort, it
is well-placed to deliver an informed, unbiased and well-
considered report.
Yours sincerely
Mah Weng Kwai
PRESIDENT
February 20, 2008
LAWASIA’s letter to the AttorneyGeneral of Fiji
by Mah Weng Kwai
JANUARY / JUNE_2008 PRAXIS 7
News
Dear Members,
As members would be aware, we have
been having an ongoing dialogue
with the Inland Revenue Board (“IRB”)
regarding the basis of recognising the
income of legal practitioners for tax
purposes.
Under Malaysian law, the self-assessment
system of taxation has been applicable to
legal practitioners from the Year of
Assessment (“Y/A”) 2004.
Many members have been submitting
their tax returns on the “cash” or “receipts”
basis of income recognition. The IRB has
taken the position that the income of legal
practitioners should be recognised and
subject to tax on the basis of accruals.
The Bar Council had received information
from some members that they were being
audited by the IRB for previous Y/As and
were told that they would be subjected to
penalties. The audit process forms part of
the self-assessment system which came into
force from Y/A 2004.
The Bar Council set up an Ad-Hoc
committee comprising of tax lawyers and
chaired by Ragunath Kesavan, Vice-
President of the Bar. The Bar Council also
appointed a tax consultant, Taxand
Malaysia Sdn Bhd (“TAXAND”) to act
for the Bar. Thereafter, comprehensive
representations were made by the Bar to
the IRB.
The IRB and the Director General of
Inland Revenue (DGIR) have maintained
that Section 24 of the Income Tax Act
1967 (“ITA”) provides that gross income
derived from a business should be
recognised on an accruals basis. For tax
purposes, legal firms are required to report
their income as business income, as
“business” has been given an extensive
meaning under the ITA to include,
amongst others, any “profession, vocation
and trade ...”.
On 28 January 2008, TAXAND received
a letter dated 22 January 2008 from the
DGIR in response to the submissions
made by the Bar. The DGIR’s position is
as follows:
a. recognition of both income and
expenses for ‘contentious’ and ‘non-
contentious’ matters will be on an
accrual basis;
b. where ‘non-contentious’ matters are
subject to the Solicitors
Remuneration Order 2005, the date
of income accruing to the firm will
be the date of the invoice issued by
the firm;
c. where there is no dispute on the fees
for contentious matters, the income
will be taken to accrue on the date
the invoice is issued;
IRB Ruling - Recognition of Income Subject toTax: Update
by Lim Chee Wee Secretary, Malaysian Bar
Circular No: 40/2008
Date: 15 February 2008
d. where there is a dispute on the fees
in respect of contentious matters, the
income will be taken to accrue when
the taxed costs are determined by
court i.e. upon the issuance of the
registrar’s certificate;
e. as such, even if the payment of fees
is staggered (or agreed to be made
by way of instalments), the income
of the firm therefrom is to be
recognised as being accrued upon
taxation. As such, the DGIR views
fee instalments as merely a “payment
arrangement” between a legal firm
and its clients;
The above applies for the Y/A 2008 and
subsequent Y/As. Please note that the IRB
has taken the position that they still reserve
their right to audit legal firms and adjust
the basis of income recognition for Y/As
prior to Y/A 2008. In such situations,
whilst the DGIR has said that the “cash”
or “receipts” basis will be substituted for
the accruals basis, no penalties will be
imposed by the IRB.
Whilst the Bar Council has not agreed to
any position taken by the IRB, some
aspects of the DGIR’s letter require
clarification. Accordingly, the Bar Council
and TAXAND are still in an ongoing
dialogue with the DGIR on this matter
and will update members as soon as there
are further developments.
PRAXIS 8 JANUARY / JUNE_2008
News
Nepalese go to the polls on 10/4/08to elect members of the Nepal’s
Constituent Assembly (Parliament). This
will be a historic election for Nepal as theMaoist (People’s Liberation Army) will be
taking part as well.
The elections will be observed and
monitored by the National Election
Observation Committee (NEOC) whichwill look into the various problems related
to the administration of the elections,
selection of candidates, political financing,behaviour of political parties and ways to
ensure that voters are sufficiently well
informed in the entire electoral process.To carry out its work, NEOC has invited
international observers, of whom 50 (at
least 1/3 of them women) have confirmedtheir participation. Most of the observers
will come from South Asia and South East
Asia regions, with about 12 observers fromEurope and North America.
The observers represent groups ororganizations involved in human rights,
peace building, rule of law, social justice,
minority rights and trade unions.
LAWASIA, the Law Association for Asia
and the Pacific is happy to announce thatits President, Mr Mah Weng Kwai of Kuala
Lumpur, has been selected as a member of
the international election observer missionorganized by NEOC, which works closely
with the United Nations in Nepal and
the Office of the High Commissioner forHuman Rights.
Mr Mah will leave for Kathmandu, Nepalon 7/4/08 for a week. International
observers will be required to travel out of
Press Statement Date : 2/4/08
Nepal - Constituent Assembly Elections on 10/4/08- Nepal Election Observation Committee
Kathmandu to the districts. NEOC hasdivided Nepal into 6 regions for the
election observation particularly in the
rigging-prone and sensitive areas in theSouthern plains, along the Indo-Nepal
border and the hilly constituencies. On
their return to Kathmandu on 11/4/08,the observers will be required to submit
their preliminary report to NEOC.
Mr Mah Weng Kwai, a past President of
the Malaysian Bar, has accepted the
invitation as a personal challenge andopportunity in the enormous endeavor to
help ensure that the election process in
Nepal will be conducted fairly and also inrecognition of the strong human rights
position taken by LAWASIA.
Mah Weng KwaiPresident, LAWASIA
LAWASIA, the Law Association forAsia and the Pacific, in noting
international concern at recent violent
unrest in the Tibet Autonomous Region,adds its voice to those who are encouraging
the avoidance of unnecessary force by
authorities to maintain order. WhileLAWASIA condemns the use of violence
or force by demonstrators, it urges the
Chinese authorities to respect the rightof the people of Tibet to freedom of
expression and of assembly consistent with
internationally recognised human rightsstandards and principles.
LAWASIA endorses the views of the UNSecretary-General, Mr Ban Ki-Moon, in
stressing the importance of a peacefulresolution to the situation.
Furthermore, it emphasizes theimportance of observing universally-
accepted standards of human and legal
rights in dealing with those who have beendetained as a result of the current unrest.
In particular, LAWASIA calls on authorities
to ensure that detainees are not subject toill-treatment and are afforded access to legal
representation and to a fair and prompt
trial.
Whilst recent news that some press and
diplomatic access to Tibet has been grantedis encouraging, LAWASIA reiterates calls
to allow immediate independentinternational access to the region.
Additionally LAWASIA calls upon theNepalese government to ensure that police
do not resort to the unnecessary use of
violence, including beatings ofdemonstrators, when dispersing street
protesters in Nepal. Recent television
footage has shown that Tibetan monksand other Demonstrators have been
severely beaten with sticks by Nepalese
police when breaking up the peacefuldemonstrations.
Mah Weng KwaiPresident, LAWASIA
Re : Tibetan Protest
JANUARY / JUNE_2008 PRAXIS 9
News
LAWASIA, the Law Association for
Asia and the Pacific, has noted the
continued detention without trial of
Hindraf leaders under the Malaysian
Internal Security Act (ISA).
Following the lead of its member
organisation, the Malaysian Bar Council,
LAWASIA voices its concern at the use of
the ISA in this context. It questions how
these detainees can be, considered a threat
to national security, especially when one
of their number, Mr Manohoran, has since
become the democratically elected member
for the Kota Alam Shah state seat in
Selangor.
Moreover, LAWASIA notes that
individuals suspected of involvement in
violent acts including acts of terrorism can
be charged and brought to trial under
Malaysia’s criminal laws and that this access
to due process is consistent with rule of
law.
LAWASIA, as an association primarily
comprised of the representative bodies for
lawyers in 24 countries of the Asia Pacific
region, stands in support of the Malaysian
Bar Council’s prolonged opposition to the
Internal Security Act and its continued call
to the Malaysian authorities to repeal this
law.
LAWASIA Statement on the Detention of Hindraf LeadersUnder Isa in Malaysia
It strongly endorses the Bar Council’s
stance that a balance must be struck
between legitimate concerns for national
security and universally accepted principles
of the protection of the fundamental right
of an individual. LAWASIA notes that this
view is commonly held by the legal
community of the region, which considers
that preventative detention laws should
be applied only with extreme caution,
given that the unnecessary or
inappropriate use of such laws is wholly
inconsistent with the rule of law.
PRAXIS 10 JANUARY / JUNE_2008
News
BEFORE 1988, our courts were held inhigh regard throughout the
Commonwealth. Their independencewas often likened to that of the courtsof India. Singapore judges, highly paidbut presiding over deferential courtskow-towing to totalitarian intolerance,were heard to whisper enviousunderstatements, such as, “Yourjudgments are better than ours.” TunkuAbdul Rahman could justly point withpride to the case where his minister ofeducation, Abdul Rahman Talib, sued theopposition’s D R Seenevasagam MP forlibel and lost.
When the Dr Mahathir regime contrivedthe ousting of Tun Salleh Abbas, the LordPresident of the final court of appeal, the reputationof our courts took a severe hammering. Whatgraphically illuminated the fall were three cases: theAnwar Ibrahim trials, the Boonsom cheating case, theAyer Molek share transfers, and the jailing of the lawyerZainur Zakaria for contempt. “Judging the Judges”by former court of appeal judge, Dato N H Chan, hasdone a public service by putting these court scandalson record.
The Boonsom case is denounced by Dato N H Chanas “the most outrageous injustice.” A crook forgedthe signature of a Thai woman on the land transferform and had her land in Penang transferred to adeveloper. The owner sued but the Federal Court heldthat the transaction was good despite the forgery.While the decision could be charitably described as“a lack of understanding of plain English,” what wasstartling was that the carefully worded judgment ofthe court of appeal, that a forged document gaveno title, was ignored. Worse still, the court failed tomention even one single precedent on the samesection of the National Land Code. This curiousabsence of reasoning is unprecedented. Even theChinese emperors of old beheaded entire familiesbased on reports of reliable ministers, even if thereports were made up.
Dato. N H Chan is scathing. “How then could Chief
Justice Eusoff Chin and P SGill, Federal Court Judge,both judges of the highestcourt in the country, fly in theface of the weighty andunanimous opinion of lawyerswho are more eminent thanthem? In their conceit theydid not even bother toconsider the opinion of thesejurists. I am not saying that theycould not do so. Of course,they could disagree, but indoing so they must say whythey disagree ... Instead theychose the path of HumptyDumpty. In effect what theyare saying is that the words
in sub-section (3) of section 340 of the National LandCode mean what they choose them to mean andnot what the words really mean.”
The Ayer Molek case was about the registration ofshares. The applicant in an ex parte (without the otherside) application asked the court to order thecompany to register his shares in it although he had notransfer form to support his application. Despite theCompanies Act laying it down that.” a company shallnot register a transfer of shares or debentures unlessa proper instrument of transfer in the prescribed formhas been delivered to the company” a transfer wasordered, The other side then applied to set aside theorder but the judge postponed the hearing to a datewhich was after the date he had given the companyto comply with his order for registration. He refused anapplication to stay his order. Mr Justice N H Chan whowas a member of the court of appeal hearing theappeal said that the judge had effectively deprivedthe other side of their right to set aside the ex parteorder. The Court of Appeal decided that “This misuseof the court’s procedure ... is manifestly unfair to aparty to litigation before it..This court, therefore has aduty to exercise its inherent power to prevent misuseof its procedure.” The court ordered that pending theoutcome of the appeal the party who was now theregistered owner of the shares should not exercise
Book ReviewNose Dive – The Crippling of Justice
PRAXIS 10 JANUARY / JUNE_2008
JANUARY / JUNE_2008 PRAXIS 11
Newsany rights relating to them.
The Court of Appeal also criticised a a brazenirregularity, that the case being commercial caseshould have been tried in the Commercial Division ofthe High Court at Kuala Lumpur. The registrationnumber, R3-25-3-1995, however was issued by theAppellate and Special Powers Division indicating thatthe applicants had filed their writ in that Division andnot in the Commercial Division as should have beenthe case.
The Court added, “The fact that the proceedingswere filed in the wrong Division does not render theproceedings to be in any way invalid but may, coupledwith other considerations in the present case, givethe impression to right-thinking people that litigants canchoose the judge before whom they wish to appearfor their case to be adjudicated upon. This, weconsider, may lead to very unhealthy negative thinkingand since justice must not only be done but must alsobe seen to be done, it is incumbent on the trial Judge,upon perusal of the pleadings, to have taken theinitiative of transferring the proceedings to the rightDivision so as to dispel any notion that he is partial toany party. This is yet another added reason thatstrengthened our conviction that it is right and properthat we exercise our inherent power to prevent aninjustice being done by the issue of an interim injunctionrestraining the respondents from enjoying the fruits ofthe registration of the infamous shares into theirnames” These observations are made so that peoplewill not say, “Something is rotten in the state ofDenmark.” Memorable words from the joint opinionof Dato Chan who sat with Datos Siti Norma Yaaconand K C Vohrah, judges who have since retired withunsullied reputations.
Incredibly, the Federal Court expunged that part ofthe judgment that it found annoying and told off thecourt of appeal. It was the chief justice Mr Eusoff Chin,the same Eusof Chin who sat in the Boonsom case,who did the “expunging,” something unheard of.
The third case is the case of Mr Zainur Zakaria. He wascharged with contempt for asking the court to prohibitthe prosecuting lawyers in one of the Anwar Ibrahimcases from prosecuting on the ground that they hadfabricated evidence against Anwar.
This application was most certainly not a contempt ofcourt, which is defined as any act done or writingpublished,calculated to bring a court or a judge ofthe court into contempt or to lower his authority. Thelawyer was refused time to prepare his defence andcall witnesses and was speedily sent to jail, even bailpending an appeal was denied. The rogue behaviourof the judge fed the popular perception that thejudge was hell bent on punishing Mr Zainur Zakaria fordefending Anwar Ibrahim, once the political darlingof the prime minister but now a spurned pariah. The maxim that justice must not only be done but mustmanifestly be seen to be done.clearly had norelevance in this sort of court.
Then there is the silly case of Mr Tommy Thomas whichagain exposes the oppressive conduct of some judgesduring this slide into shame. Mr Thomas, a defendantin a case, had agreed to a statement read out incourt that a settlement had been reached. Mr Thomaslater issued a claim that the deal had been done bythe insurers despite his objections. Incredibly, he wascharged with contempt. Despite an apology, he wassentenced to six months imprisonment.
Dato N H Chan’s book has recorded some judicialscandals. These landmarks of abuse marked theperiod after the battering of justice in 1988 with theTun Salleh Abbas “trial” and the subsequent nose diveto a bullying abjectness choreographed by some judges anxious to be storm troopers of the new era.The Anwar Ibrahim trials were accompanied by a seriesof attacks by a judge against Mr. Anwar’s defenselawyers which so alarmed the Lawyers Committee forHuman Rights that they issued a condemnatorystatement. Not to be forgotten is the barefacedmoving of a judge from the Appellate and SpecialPowers Division of the court to the Criminal Division,and the removal of Mr Justice K C Vohrah, the CriminalDivision’s senior judge, to the Appellate and SpecialPowers Division. Lawyers understandably suspectedthis was because Mr Justice K C Vohrah was seen tobe too proud a man to bow to the wishes of powerfulpoliticians, however high.
It was particularly during the Anwar Ibrahim trials thatwe witnessed how low the nose dive had taken ourcourts; it is easy to understand the anger that emergesfrom the pages of this book. . During the course of thesecond trial, Mr. Karpal Singh, one of the defence
JANUARY / JUNE_2008 PRAXIS 11
PRAXIS 12 JANUARY / JUNE_2008
Newsteam, referred in open court to a medical reportwhich showed that the levels of arsenic in Mr. Anwar’sbody were alarmingly high and that he was losingweight and hair. He asked for an inquiry to be held. Even though both the trial judge and the AttorneyGeneral expressed their concern about the reportand agreed that there should be an investigation, Mr.Karpal Singh was charged with sedition for having saidthat: “it could well be that someone out there wantsto get rid of him..... even to the extent of murder...Isuspect people in high places are responsible for thissituation.” It was only a month later that the AttorneyGeneral decided to prosecute Mr. Karpal Singh forsedition. The Lawyers Committee for Human Rightsnoted that “this is the first case anywhere in the worldin which a lawyer has been accused of sedition forwords spoken in the defence of his client. We believethat such a prosecution strikes at the heart not only ofthe immunities of lawyers in respect of the conduct oftheir professional duties but even more importantly atthe right of an individual to fair trial. Our concern is sogreat that we have taken the unusual course ofpublishing an opinion setting out our views..”
Another victim of the sedition laws is Mr Lim Guan Eng,of the Democratic Action Party, convicted on chargesunder the Sedition and Printing Presses andPublications Acts. He had questioned, in a speech andin a pamphlet, the justice of detaining for three yearsa 15-year-old victim of statutory rape while allowingher rapists, including, allegedly, the former chiefminister of Malacca, to go free. The alleged rapevictim later retracted her charges against the chiefminister, stating that she was coerced into fabricatingthem. The woman’s grandmother, who hadaccompanied the woman when she made thecharges, questioned the woman’s motives forrecanting and continued to assert that the man hadbeen guilty of statutory rape.
Then there is the disgraceful case of Far EasternEconomic Review correspondent Mr Murray Hiebertwho was convicted of contempt for writing an article,reporting a civil suit brought by the wife of a judge,Gopal Sri Ram, against the International School of KualaLumpur, the judge’s wife claiming that the school haddiscriminated unlawfully against her son by droppinghim from a school debating team after charges thatthe son had acted improperly. Mr Hiebert’s articlenoted, among other things, the unusual speed with
which the courts had disposed of the case. The Courtof Appeal agreed that the writer had “scandalizedthe court.” The case, the first in which a journalist hasbeen sentenced to jail for contempt in the ordinarycourse of his duties only confirmed that there is no freedom of the press in this country and causedconsiderable doubt of judicial impartiality.
Dato N H Chan was not a party to any of the scandalsI have mentioned. He was an honest judge. Hedisplayed this quality when the judges called for theremoval of shorthand machines from the court rooms.The machines had been brought in by that great LordPresident Tun Azmi in an endeavour to speed up casesby doing away with the snail paced note taking byjudges. The judges did not like this innovation one bit,that is, those who were in the habit of leaving out largechunks of evidence they did not like, or altering bitshere and there on a rethink. The main argument ofthe opposition was that the short hand writers werejust not good enough; Tun Azmi gave in but left it tothose judges who liked the machines to retain them.That Mr Justice N H Chan was one of the few whoretained their shorthand writers and continued tosupply lawyers with pristine notes.
NH Chan was a good judge, quick on the uptake, sureof his law, always courteous and humble enough toadmit, as he does at page 42, that he was wrong tothreaten contempt when the Ipoh Municipal chief in1980 criticised a decision of his. He was humble enoughto step down when counsel in an appeal againstsentence told him that the request was made becausehe had a reputation for hard sentences. He was oneof those who adorned the bench. The author has puton record some of the bad cases which shockedlawyers and laymen alike. He has done a publicservice.#
Lim Kean ChyeBook Reviewed:Judging the Judgesby N H Chan DPCM
Alpha Sigma 2007
PRAXIS 12 JANUARY / JUNE_2008
JANUARY / JUNE_2008 PRAXIS 13
State Bar News
Little change to 4 State line-upsby Web Reporter
Four State Bars - Kedah/Perlis, Kuala
Lumpur, Penang and Terengganu -
held their annual general meetings on 21
February 2008.
In the Kedah/Perlis Bar’s AGM held in
Alor Star, incumbent G . Balakrishnan
managed to retain his position as its
Chairman after defeating the contender,
Jegadeeson by garnering the majority votes
of 34 against 12.
R S Maniam was returned unopposed as
its Bar Representative. The new
committee members are Burhanudeen Bin
Abdul Waheed, Surinarayanan S/O
Jaganathan, Lim Yang Yang, Megalai A/P
V. Raman, Sulaiman Bin Abu Bakar, Ernie
Suffiani Binti Salim, Zul Azri Bin Abd
Khalil and Nazira Binti Abd Rahim.
In Kuala Lumpur, the incumbent
Chairman of the KL Bar, R. Ravindra
Kumar was returned unopposed for a
second term.
14 members stood for the election to the
Kuala Lumpur Bar Committee and the
10 elected were Brendan Navin Siva,
Anand Ponnudurai, N. Sivananthan, Lee
Shih, H.R. Dipendra, Dahlia Lee, Sanjeev
Kumar Rasiah, Lai Chee Hoe, Richard Wee
and Abdul Rashid Ismail.
Steven Thiru was re-elected as the KL Bar’s
representative to the Bar Council for a third
term after defeating Brendan.
In Penang, Mureli Navaratnam and Lalitha
Menon were elected as the Chair and Bar
Representative of the Penang Bar
respectively. There was no contest for these
two positions.
In Kuala Terengganu, Anuwar B Mohd
was returned unopposed as the Chairman
of Terengganu Bar for the second term.
Lee Leng Guan was elected without
contest as its Bar Representative after the
current Bar Representative, Asmadi Awang
decided not to seek re-election.
In its annual general meeting held on
23 February 2008, the Pahang Bar
passed a motion by an overwhelming
majority calling:
!!!!! for the immediate and unconditional
release of M Manoharan, P
Uthayakumar, R Kenghadharan and
V Ganabatirau, fellow lawyers, 4 of 5
Human Rights Defenders who were
arrested and detained under the
Internal Security Act (ISA) on
December 13 last year;
!!!!! for the immediate and unconditional
release of all persons detained under
the ISA and other Detention Without
Trial laws; and
Pahang Bar passes ISA motionby Web Reporter
!!!!! for the repeal of the ISA and all laws
that allow for Detention Without Trial.
The motion was proposed by Charles
Hector.
The meeting also returned unopposed
Syed Azimal Amir Syed Abu Bakar as its
Chairman for a second term whilst Datuk
M. Ramachelvam won without any
contest as the Pahang Bar Representative
to the Bar Council 2008/9.
Among those elected as Committee
members are Mohamed Sazali Abd Aziz,
Hon Kai Ping, Jasmadi Bin Mohd Yunus,
Julita Ilhani Bt Abd Jabbar, Maslina Bt
Arshad, Mohd Tasyrif Bin Sabaruddin and
Sarengapani s/o K. Rajoo.
Syed Azimal returnedunopposed as PahangBar Chair
PRAXIS 14 JANUARY / JUNE_2008
State Bar News
The current Bar Representative of the
Perak Bar, Shan Theivanthiran
today defeated its incumbent Chair, Ngan
Siong Hing to become the new Perak Bar
Chairman after polling 84 votes against
Ngan’s 68 votes.
Asbir Kaur Sangha was however elected
unopposed as the new Bar Representative
of the Perak Bar.
The Committee members are Choy Kam
Lee, Dara Waheda Binti Mohd Rufin,
Thiru Mangai a/p Krishnani, Domnic
Selvam a/l Ganapragasam, Surinder singh,
Gavin Tang Cheng Loong, Kenny Lai
Choe Ken, Mohamad Nizam Bin
Mohamed Salleh, Rashpal Singh a/l Kajan
Singh and Hajah Shamsuriah Binti
Sulaiman.
Meanwhile Goh Chuan Chean and
Desmond Ho report that the Malacca Bar
Committee also had its Annual General
Meeting today at the Straits Hotel. They
have filed the following report:
We were hoping that last year’s good
response to a “Friday evening AGM”
would repeat this year and we obtained
quorum by 4:15 pm to start our meeting.
There was good turn out of young and
senior lawyers alike filling in the meeting
room.
Before the meeting commenced, a
representative from Echelon Risk
Consulting Asia, the Company appointed
by the Bar Council as Self Insured Fund
(SIF)Project Transition Consultant, gave
a brief talk on SIF. Clarifications were
sought and due explanations were given.
Our incumbent Chairman Ng Kong Peng
proceeded with the relevant items on the
agenda for the day. The minutes of last
year’s AGM, financial statements and
Changes at Perak Bar leadership, Malacca Barleadership unchanged
by Web Reporter
annual reports were adopted without
much hassle and it was pretty obvious
everyone wanted to get on with the
election of office bearers.
Ng was returned as Malacca Bar’s
Chairman for the third year in a row and
as fast as his name was nominated,
nominations were closed by consensus
without any challenge. R.R. Chelvarajah
continues to serve the Malacca Bar as the
representative to the Bar Council.
There was no contest for the election of
Committee members, and the eight names
proposed were accepted by the members.
The new members namely Anthony Chua
Yong Giap, Ng Aik Beng and Goh Chuan
Chean will be serving alongside the familiar
faces of Sekar Palaniandy, Jaspal Singh Gill,
Fiona Tan, Nizam Bashir and Desmond
Ho.
Malacca Bar Committee 2008/2009
JANUARY / JUNE_2008 PRAXIS 15
State Bar News
Poh Teik elected as Johor Bar’s Repby Web Reporter
Hisyam Teh Poh Teik was today elected the Johor State Bar
Representative to the Bar Council after defeating senior lawyer,
P. Suppiah. Teh polled 98 votes whilst Suppiah obtained 35 votes.
The incumbent Chairman of Johor Bar, K. Mohan and all the current
Committee members were returned unopposed for the 2008/2009
term in its adjourned annual general meeting held here at the JOTIC
building.
The motion proposed by Mohan and seconded by Nor Aisah Binti
Dato’ Abdul Rahman to increase the subscription for 2008/2009 was
however defeated with 79 members voting against it as opposed to 37
members voting for it.
The House also passed the following motion by an overwhelming majority:
! recording its utmost regret and vehement condemnation of the arrests of 9 persons including 6 lawyers on the International
Human Rights Day on December 9 last year and detaining 5 persons including 4 lawyers on December 13 last year under the
Rajpal Singh a/l Mukhtiar Singh has become the new Chairman of the
Selangor Bar Committee after defeating the incumbent, RV Lingam.
Rajpal obtained 143 votes whilst Lingam polled 81 votes in the annual general
meeting held on 27 February 2008.
In the same meeting, the incumbent Bar Representative George Varughese
(pic) was also re-elected after defeating Zalina Abidin by 60 votes.
The new Committee members are Syamsuriatina Ishak, Suraj Singh, Noor
Suhaila Saad, Sumathi Murugiah, Alvin Neo, Ashokvijay J Sanghrajka, Zalina
Ibrahim, Kunamony Kandiah, Salim Bashir and Suzana bt Jaffar.
Selangor Bar gets a newChair
by Web Reporter
Internal Security Act as being
unnecessary, deplorable,
unconstitutional and an affront to the
rule of law; and
! supporting the stand of the Bar
Council that the draconian Internal
Security Act ought to be repealed
immediately as the Act violates the
basic fundamental right that a person
is innocent until proven guilty in
accordance with the due process of law.
The motion was proposed by Matthews
George and seconded by Kuna Nadasen.
Today’s adjourned meeting was well
attended even though half way through
it, many members whose offices located
in high rise buildings in the city received
calls that there were tremors felt shortly
after an earthquake measuring 7.2 Richer
scale hit the west coast of Sumatra.
PRAXIS 16 JANUARY / JUNE_2008
Comment
Dear Fellow Malaysians,
It is true that there are things that we
Malaysians should be proud of, and
be thankful for. It is equally true that many
things are not well in our country. They
have not been well for some time now.
Matters of safety and security, price hikes,
education, issues of equal opportunities
and equal treatment, constriction of
various forms of freedom, marginalisation
of several segments of society, the failing
justice system, corruption in the public
sector, the rising denial syndromes, the
arrogance of wrongdoers nourished by
their repeated ability to get off scot-free,
and the numbness of the public reaction
towards misdeeds and the lack of
accountability, just to describe a few.
Many of the ills that we complain about
in our society are the symptoms of the
underlying causes. Some of the major root
causes are: (a) epidemic corruption in a
system that does little to prohibit or redress
it, (b) lack of a system of transparency and
accountability, (c) the suppression of
various freedoms so as to turn a silent
majority into a silenced majority, (d) a
Government that is more interested in
commanding than serving, (e) a Parliament
whose overwhelming majority cares more
about power-consolidation than nation-
building, and (f ) a weak “last bastion” in
the form of a failing justice system.
An Open Letter -Appeal for a better Parliament
Can things be allowed to go on this way?
Can we afford to do so? Should our future
generations suffer the consequences of our
permissiveness?
It is quite obvious that we need a better
Government and a better Parliament.
But that will not happen if we, the citizens
of Malaysia, do little more than blaming
the Government and criticizing our
Members of Parliament. It is we who put
our MPs in the Parliament. It is we who
must take the ultimate responsibility. The
buck stops at each and every one of us.
My earnest appeal to everyone is therefore
as follows:
(i) discuss the need for a better
Parliament and a better
Government, with your family
members, colleagues, friends and
persons close to you;
(ii) make it a point to go and vote in the
next election, and to vote for change
and for betterment;
(iii) discard the notion or excuse that
your single vote will not matter;
(iv) discard the notion or excuse that
politics is dirty and all politicians are
the same, and therefore that there is
no point in voting;
(v) influence and encourage as many of
your family members, colleagues,
friends and persons close to you as
possible, to come out and vote for
change and for betterment in the
coming election.
It is meaningless for us to complain about
our Parliamentarians and the Government,
if we do not first discharge a simple but
sacrosanct duty of choice.
Let us all take the time to look into the
beautiful but expectant eyes of our
children, and of the children of many
others for whom we care. The future of
our nation is meant for them. But millions
of them cannot vote. They put their fate
in our hands. They rely on us not just for
their present living and support. They rely
on us, too, to vote for a better future for
them.
And after discharging our duty to vote,
we must continue to be vigilant, and
ensure that our elected representatives
account for their actions, and make good
their promises.
I humbly suggest to you that change and
betterment are not empty dreams, if all of
us play our respective parts. I invite you,
and I urge you, to answer my appeal as set
out above.
Thank you.
Yours sincerely,
Yeo Yang Poh
Advocate & Solicitor,
& a concerned Malaysian
PRAXIS 17JANUARY / JUNE_2008
Comment
TOMORROW is nomination day for
the 2008 general election.
Hundreds of candidates will vie for the
191 parliamentary seats and 505 state seats
in Peninsular Malaysia and Sabah, and 31
parliamentary seats in Sarawak.
However, one hopes no candidate will
make any mistake on his nomination
papers.
Under Article 47 of the Constitution, a
nominated candidate must be a citizen of
21 years old who is a resident here.
Article 48 then provides that he is
disqualified if:
(a) he is of unsound mind; or
(b) he is an undischarged bank-rupt; or
(c) he holds an office of profit; or
(d) he has failed to lodge any return of
election expenses unless this
disqualification is removed by the
Yang di-Pertuan Agong or five years
have passed from the date on which
the return was required to be lodged;
or
(e) he has been convicted of an offence
by a court of law and sentenced to
imprisonment for a term of not less
than one year or to a fine of not less
than RM2,000 and has not received
a free pardon unless this
disqualification is removed by the
Yang di-Pertuan Agong or five years
have passed from the date on which
the person convicted was released
from custody or the date on which
Fulfilling thenomination processby Roger Tan
the fine mentioned was imposed on
such person; or
(f) he has voluntarily acquired
citizenship of or exercised rights of
citizenship in a foreign country or
he has made a declaration of
allegiance to any other country; or
(g) he has resigned from the Dewan
Rakyat less than five years ago.
Article 49 of the Constitution also prohibits
a member of the senate to stand for election
unless he has first resigned from the senate.
In addition, if the candidate is standing
for a state seat, the state constitution also
requires him to be a resident of that state.
In Abdul Fattah Mogawan & Anor v
MMC Power Sdn Bhd & Anor 1997, the
word “resident” was judicially considered
to denote a person’s home.
Article 160 defines the phrase “office of
profit” as any full-time office in any of the
public services. The phrase “public
services” is defined in Article 132.
In Lee Hie Kui @ Eric Lee v Song Swee
Guan & Anor 1998, it was held that the
office of a mayor is not an “office of profit”.
One piece of legislation which a candidate
must know is the Elections (Conduct of
Elections) Regulations, 1981.
The regulations contain important
provisions such as the following:
! A candidate for a parliamentary seat
must submit Form 4 (nomination
form) and Form 5 (statutory
declaration) while Forms 4A and 5A
are for the use of a candidate contesting
a state seat.
! The nomination form must be signed
by the candidate, his proposer and
seconder and the witness who
witnesses the signature of the
candidate. The proposer and seconder
must be registered voters of the
constituency for which the candidate
seeks election. This requirement does
not apply to the witness.
Regulation 4(6) states that the failure to
comply with the above shall render the
nomination paper to be rejected.
The 1981 regulations also require a
candidate to deposit the sum of
RM10,000 and RM5,000 when
submitting nomination papers for the
parliamentary and state seats respectively.
The deposit will be forfeited if the
candidate fails to secure one-eighth of the
total number of votes polled (not inclusive
of rejected votes); otherwise the deposit
can only be claimed one year later.
Then, the nomination papers (including
the original copy of the statutory
declaration in Form 5 or 5A, as the case
may be), must be submitted in triplicate
to the returning officer at the place of
nomination between 9am and 10am.
However, the candidate and his proposer
PRAXIS 18 JANUARY / JUNE_2008
Commentor seconder can still make any corrections
on the nomination papers before 10am.
As regards the Election Commission’s
announcement two days ago that the
statutory declaration has to be stamped
with RM10 duty, I think the decision is
unnecessary for the following reasons:
- the law allows any unstamped document
to be stamped 30 days after execution (s.
47, Stamp Act 1949);
! if not stamped within 30 days, it can
still be stamped later by paying a
penalty up to RM100 (s. 47A, Stamp
Act 1949; and
! an unstamped document will only be
rendered inadmissible as evidence in
court but its validity will not be
affected (s. 52, Stamp Act 1949).
If the matter goes to court, the candidate
can always pay up the stamp duty and
penalty before admitting the document
in court.
Further, it can also be argued that a
statutory declaration in this case is a
“declaration in writing” made pursuant to
a statute and is therefore exempted from
stamp duty under the 1949 Stamp Act.
For these reasons, it will be wrong if any
nomination is rejected on the ground that
the statutory declaration is not stamped.
Thereafter between 10am and 11am, the
returning officer will display the
nomination papers in a conspicuous
position outside the nomination place for
examination by the candidates, their
proposers, seconders and one other person,
if any, appointed by each candidate.
Any registered voter in that constituency
or candidate may then object to any
nomination paper on any of the above-
mentioned grounds only.
The objection must be in writing and
signed by the objector.
It must be submitted to the returning
officer between 10am and 11am. The
returning officer shall decide on the
validity of every objection and he may seek
the advice of the Attorney-General’s
Chambers.
The decision of the returning officer shall
be final and shall not be called into
question in any court. However, any
person aggrieved by the returning officer’s
decision may still challenge it by presenting
an election petition under the Election
Offences Act 1954. Hence, if any
candidate still does not get it right, then
maybe he is not fit to be elected.
A Judicial Commission sounds good and a viable preposition providing
that it’s properly constituted: its success hinges on who are appointed to
the Commission. The mechanism is subject to abuse and defeats the purpose for
which it’s intended if it succumbs to corruption, cronyism, patronage, nepotism
etc.
This is a heterogeneous, pluralistic, polytheistic secular society; race, colour or
creed is immaterial or irrelevant. The criteria should only be competency,
incorruptibility and independence which should similarly apply to all public
appointments.
Robert Y C Chiu
Judge Emeritus
Judicial Commission
PRAXIS 19JANUARY / JUNE_2008
Comment
Why I was arrestedby Jonson Chong Kok Wei
I was arrested at 4:30p.m. on Saturday,
26 January 2008, at a foodcourt in
the vicinity of Jalan Yap Kwan Seng, Kuala
Lumpur. I was released unconditionally
from Pudu Jail (now known as Balai Polis
Jalan Hang Tuah) at approximately
10:30p.m. on Sunday, 27 January 2008,
after a magistrate rejected a remand
application by the police to further detain
me (and nine other people, including Tian
Chua and Dr. Hatta).
Obviously, I was annoyed that I was
arrested whilst I was trying to ask the police
why they wanted to arrest Tian Chua and
Dr. Hatta, especially when they were
merely having drinks and talking to
journalists at that time. I knew that the
over-zealous SB (special branch police
officer) simply decided to arrest me
because I questioned their actions.
Indeed, when I asked an officer by the
name of Woon who was standing nearby
whether he was sure that the proper orders
have been given to arrest me, he brushed
aside my query and did not dare to say
anything. Moreover, the location where
we were arrested was beyond the one
kilometre boundaries illustrated in the
preventive court order obtained by the
police.
The three of us was brought to the Kuala
Lumpur Police Headquarters (IPK, KL),
where we joined others that were arrested
before us at various locations near KLCC.
There, after greeting friends and other
friendly faces, I saw ASP Anand (one of
the investigation officers for the case against
the lawyers who marched for freedom of
assembly on 9 December 2007).
I immediately took the opportunity to
inform him of the circumstances in which
I was arrested. Unfortunately, he said that
he has no say in the matter and that I
should take it up with ACP Khoo Chin
Wah, who would be down in a short while.
After waiting awhile, I decided to call ACP
Khoo and told him about my
circumstances. Alas, he simply said that
he could see that I was at the scene
(presumably from SB video clips or
photos); thus, implying my arrest was
justified.
I was amazed by how lightly these senior
police officers dealt with the constitutional
liberty of a citizen, not to mention a lawyer,
who is otherwise also known as an “officer
of the court”. I should highlight here also
that I was not informed of the grounds of
my arrest at any point of time, whether
during my arrest, detention and
subsequent “investigation”.
Not satisfied with the lackadaisical attitude
of the two previous officers, I decided to
PRAXIS 20 JANUARY / JUNE_2008
Commentapproach a third officer (a DSP Rortzain,
I believe) whom I recognised from the arrest
of the lawyers in December. Again, after I
told him of my circumstances, he just told
me to wait.
And wait I did. I sat around and paced
the dining area of the IPK’s cafeteria from
about 5:00p.m. until 11:30p.m.
wondering when anyone is going to take
my statement. Some young officer by the
name of Rastam came to take my I.C.
during that time but he also did not say
why I was arrested. However, when I asked
him who is the investigation officer of my
case, he said it was either Woon or Ishak.
Actually, I found out much later that my
I.O. is ASP Redzaime and Ishak was the
officer who lodged the complaint against
Tian, Hatta and me. (Obviously, the rookie
Rastam doesn’t know the difference
between an arresting officer and an I.O.)
Anyway, after much waiting (all this time,
apart from sitting or pacing idly, I was
giving free legal advice and watching
friends give statements to blur-looking
police officers), my turn finally came. An
Inspector Zakaria introduced himself –
quite politely I must say – and told me
that he was instructed to take my
statement. As he led me down the dining
hall, ASP Redzaime approached us and
introduced himself. He then proceeded
to say that Zakaria was going to take my
112 statement.
As I recall, neither Zakaria nor Redzaime
informed me of my rights under Section
28A of the Criminal Procedure Code.
Frankly, I just co-operated with Zakaria as
best I could, answering questions carefully
so that I do not implicate myself or anyone
else in anything that may be construed as
wrongdoing by the authorities.
Nevertheless, I made it very clear to him
that I was wrongfully arrested and I
considered my detention to be false
imprisonment. I am not sure he
appreciated the gravity of the matter
though.
Later on, when Redzaime appeared again,
I repeated the circumstances of my arrest
to him. Unsurprisingly, he did nothing
except say that he will check with ACP
Khoo. I do not know whether he actually
did call his boss, but at the end of the long
day and night, I was still moved to the
lock-up together with everyone else.
Despite my many attempts to inform the
various police officers, all the time
highlighting the implications of my
wrongful arrest and false imprisonment, I
was ignored. Not only that, they had the
gall (or perhaps stupidity) to apply for
remand against me, giving the lame reason
that they needed to make further
investigations. And here I am trying to
mitigate the serious damage they are
doing.
Luckily, sense, or maybe conscience,
prevailed over the magistrate who heard
the remand application against the ten of
us who had the same I.O. To the
amazement of everyone, including the
lawyers who defended all of us, the
magistrate said that she was releasing us
(unconditionally) because she did not find
any evidence to show that the ten of us
were linked to the “illegal assembly”.
By the time we walked out of Pudu Jail, I
was deprived of 30 precious hours of
freedom. Why? All because I acted to
question the arbitrary arrest of two
Malaysian citizens who happened to be
leaders in their respective political parties.
Politics aside, it is high time all Malaysians
take a good look at what is happening to
our country. Do we want to let this go on?
When are we going to make a stand and
say “no more”?
Note: I represented the 35 who were charged
in court the next day. I was not charged
although various news sources have reported
that the ten who were released will be charged
at a later date.
PRAXIS 21JANUARY / JUNE_2008
Comment
Settling disputes among individuals
and ascertaining the guilt of a
member of society who is charged with
committing an offence by a tribunal of
law has been the hallmark of a civilised
and democratic society for some time now.
In feudal times and before, the power to
decide on a dispute and to mete out
punishment lay absolutely in the hands
of one person or with a privileged few. It
was a power that was used, often I suspect,
without question and arbitrarily.
The majority of legal systems which exist
in this day and age are not without flaws
but as the essential feature of most of these
systems are public trials presided over by
persons charged with upholding the rule
of law and dispensation of justice, it must,
in my view, be accepted that anything else
would be a poor substitute.
John Emerich Edward Dalberg Acton,
otherwise known as Lord Acton, once
wrote in a letter to Bishop Mandell
Creighton in 1887 that “Power tends to
corrupt, and absolute power corrupts
absolutely.”
The validity of that statement is beyond
reproach and I would think that no right
thinking member of society would dare
disagree, at least not in broad daylight.
It therefore seems inconceivable to me that
even in these ‘enlightened times’, there
exists a patch of the past, a throwback, if
you will, to the bygone era of tyrannical
monarchs where the word of one is
sufficient to affix guilt to a human being.
Inconceivable it may be but the continued
existence of legislation like the Internal
Security Act 1960 (I.S.A.) is such a ‘patch’
and an unjust one at that.
The I.S.A. conveys into the hands of one
person, the power to detain without trial
and also it appears, without question. The
existence of such power would perhaps
be excusable if that one person had the
biblical qualities of Nabi Sulaiman or King
Solomon as he is otherwise known, but
alas we don’t run into many kings of that
nature these days.
Some may reason that preventive
detention is a necessary evil, especially in
these dark times of terrorism but the
upshot is that the liberty of individuals
takes a backseat, the years of legal evolution
grind to a halt and the trek towards
authoritarianism begins anew.
The I.S.A. is a common dirty word [sic]
among Malaysians who even consider
voicing their dissent against government
policies and decisions. It is an abbreviation
which strikes fear and stifles the
development of a just and equitable
society.
Tunku Abdul Rahman, when faced with
criticism for the enactment of the I.S.A.
said that it will “be used solely against the
communists...My Cabinet colleagues and
I gave a solemn promise to Parliament and
the nation that the immense powers given
to the government under the I.S.A would
never be used to stifle legitimate
opposition and silence lawful dissent.”
Even at its inception, it was recognised
that the I.S.A. could be abused and that it
is a powerful tool in the hands of the
government of the day.
Today, the spectre of the unchallenged use
of the I.S.A continues to haunt the citizens
of this nation.
The time is long overdue for the
abolishment of this draconian and archaic
legislation.
It is with that in mind that a motion calling
for the abolishment of the I.S.A. has been
submitted for consideration at the Kuala
Lumpur Bar’s 16th Annual General
Meeting on February 21, 2008.
The Internal Security Act 1960:A throwback to theera of tyrannyby Sunil Lopez a/l Ceasar Lopez
PRAXIS 22 JANUARY / JUNE_2008
Comment
Thanks to the advent of hidden videocameras, the skeleton(s) in many
closets have now been open to fullscrutiny. One Minister was literally caughtwith his pants down.
The video camera, as such, is now mightierthan any sword, pen or any otherinvention. If only it could solve crimes too.
It would as such be almost impossible forany literate person in Malaysia not to beaware of the precarious standing of theJudiciary in Malaysia at this present timedue to the “expose” of the Lingamgatetape.
Daily headlines of all major newspapers,in Malaysia and around the world, carrythe story, and even on Sunday, there is aweekly digest of the inquiry. Even my 4year old son talks about Lingam and whatastounds me is that my young child’sfavourite line is “Correct correct ah ah”instead of a simple “Yes” to any of ourconversations. My handphone ringingtone has been charged with the sound ofLingam’s loud irritable voice.
Lingam is indeed a famous star now andhow OUR lives have been changed byhim. Everyday we get famous lines to useon a daily basis. “It was just coincidencethat he was in bed with me” would be mydefence if I ever get caught in acompromising position. “I was notextremely close to him”; “I had too muchdrink”. And yes, if anyone handed inevidence to show my misdeeds, I will juststate, “It looks like me and it sounds likeme”.
So who hasn’t heard about the Royal
Court Jestersby Nik Elin Zurina Bt Nik Abdul Rashid
Commission of Inquiry where an ex-headof the Executive, 3 ex-heads of theJudiciary, one Minister, and one braggingand bullshitting lawyer have been calledas witnesses? I wouldn’t say, they were thereto “testify” or “give evidence” as that wouldmean that they told “the truth, the wholetruth and nothing but the truth” so helpthem God.
But what particularly hit me was howstupid do these witnesses think we are?Are they thinking that we would be sogullible to accept their evidence? Theymust think we are drunk.
Unfortunately, for the MalaysianJudiciary, (or rather, fortunately for us) thenew year heralded more than a loud bang.It brought colour to an otherwise boringinquiry. Every morning we would wakeup to read the newspapers and that wouldbe enough dosage of entertainment for usto last a lifetime.
I never thought I would be seeing the daythe topmost senior Judge at one time inMalaysia, whom we would reasonablyexpect to be able to dispense justice hasnow been put on a “trial’ of sorts. “Helies”, says his predecessor, “ That’s why Idislike him”.
This I guess, was what they meant by theterm “COURT JESTERS” and realComedy Court. He must have thoughtthat this day would never EVER come.But yes, in the Court from which he onceruled, the bag of worms is now open toscrutiny and now he is screwed.
By the way, can any one, anyone, swallowhis so called “testimony”? When the man
was in power in the Judiciary, and withthe blessings of another man in power inthe Executive, there was no way that thiscould ever have been allowed to happen.
But thanks to some cunning Chinese witha “tool”, one bragging and bullshittingIndian, one once powerful Malay, it’s beena “right riot” this time for Malaysia.
And thank God for the creation of thehidden video camera, the judicialcorruption is now out in the open.
Actually we knew it all along. We weremade aware since the Lingam-Eusoffphotographs, I mean, fishing, arms onshoulders, holidaying together (oops,tagged along), not just by onedocumentary evidence, but by manyphotos, all after a successful judgment.
And I am glad that Lingam never askedfor a copy of the original picture form hisUK experts to verify the authenticity ofthe videos.
The judicial corruption scandal isoutrageous but soon enough all will beforgotten and the rot will be allowed toproceed.
Yes, remember there is a fresh face in theJudicial line-up. Not that there weren’tenough “Good enough” judges to be inthe line.
It should put all those in position now,not to abuse their position as everythingcould be secretly recorded now and 7 oreven 14 years from now it may bring youshame.
PRAXIS 23JANUARY / JUNE _2008
Press StatementsCommittee
There was a familiar ambience in the
air as distinguished-looking ladies
and gentlemen, mostly dressed in black
and white, arrived at the ballroom of the
Bayview Hotel, Penang.
They slowly trickled in, mingling amongst
themselves with cups of coffee and tea,
helping themselves to the delicious fried
noodles prepared outside the ballroom.
The occasion was none other than our
Penang Bar Annual General Meeting.
After making small talk and catching up
with colleagues and friends, the lawyers
made their way inside the ballroom where
the AGM was ready to begin.
The Chairman of the Penang Bar
Committee, Ms Lalitha Menon called the
meeting to order at approximately 2.45
p.m. She announced that the quorum was
sufficient to begin the meeting and she
commended the Penang Bar for turning
up in large numbers despite the quorum
now being reduced to only 52 members.
As in the years before, the Chairman
proposed that the election of the Penang
Bar Committee Chairman and
Committee Members be first on the
agenda, in order to save time as the rest of
the agenda could be discussed while the
votes were being counted. First up on the
list was the election of the Penang Bar
Commitee Chairman.
Nominations were called for from the
floor and the first and only nomination
received was for Mr Mureli Navaratnam.
There being no other nominations, Mr
Mureli Navaratnam was duly elected the
Chairman of the Penang Bar Committee,
amidst loud applause.
Next came the elections for the Committee
Members. Eleven names were proposed,
namely Ms Jo-Anne Leslie De Vries, Mr
Nicholas Tan, Ms Pravin Kaur, Mr Rajdev
Singh, Ms Yuslinov Ahmad, Mr
Parthiban, Mr Thanges, Ms Saw Hoay
Hoon, Mr Clement Cheng, and Ms
Angeline Cheah. Ms Yuslinov declined the
nomination and as such, the ten remaining
nominations were duly elected into the
Penang Bar Committee.
There were also no other nominations for
the Penang Bar Representative to the Bar
Council, so Ms Lalitha Menon was duly
elected the same.
After the elections, the Chairman then
addressed the issue of the Young Lawyers
Committee (YLC) and whether or not it
should be re-started in Penang as per the
decision made by Bar Council. She
suggested that it should be open to the
floor to hear the views of the members
and then to take a vote to decide on the
outcome. Before it was open to the floor,
however, Mr Mureli Navaratnam and
Dato’ Sithambaram took the mike to
explain to the members how the YLC came
to be and since the repeal of Section 42A
of the Legal Profession Act, the Penang
Bar felt that it was no longer necessary to
have a YLC in Penang since seven out of
10 members of the Penang Bar Committee
were in fact young lawyers.
Dato’ Sitham also said that there should
be no discrimination between senior
lawyers and young lawyers and all lawyers
could in fact serve the Bar, irrespective of
their age or years in practice. The floor was
then opened for members to share their
views. It can be said that not many
members chose to state their opinions, the
reasons of which could be many. But for
some brave ones they chose to defend the
Bar Council’s decision, making certain
suggestions such as maybe changing the
definition to that of 7 years of practice
and below and under the age of 30 (not
40). In the end when it came to vote, 104
voted against having a YLC and only 13
voted in support of it.
Having closed the issue, the Chairman
went on to the next item on the agenda
which was to adopt the minutes of last
year’s AGM. There being no amendments,
the minutes were duly adopted.
She then went on to discuss the various
reports of the sub-committees, as well as
the Chairman’s Report and the Treasurer’s
Report. There were a number of questions
Penang Bar votes against havingYoung Lawyers Committeeby Angeline Cheah Yin Leng
PRAXIS 24 JANUARY / JUNE_2008
Committeeraised by the floor in respect to the
Chairman’s Report and the Treasurer’s
Report, both of which were responded to
respectively by the Chairman and the
Treasurer, Mr Nicholas Tan.
The floor was then open again for the
members to air their views about issues in
general affecting the Penang Bar. Some of
the issues raised were regarding the increase
in Bar subscriptions, lack of volunteer
lawyers for the Legal Aid Centre, as well as
parking at the new court complex. There
was also the issue of the Bar Room at the
new court complex.
Currently the Bar Room at the new court
complex has been described as a “fish
bowl”. Many of the members would like
the old Bar Room to be retained, a room
currently known as “The Gallery”. As
such, the Chairman has assured that they
have written to the Head Judge to try to
procure the old Bar Room and would keep
members informed of any updates.
There being no other matters to discuss,
the Chairman then passed the mike to the
new Chairman for him to say a few words.
The meeting ended at 4.30 p.m and the
members then adjourned downstairs for
Happy Hour courtesy of our new
Chairman.
PRAXIS 25JANUARY / JUNE_2008
Human Writes
Human Rights (“HR”) Day is celebratedworldwide on the 10th December every year.
The Bar Council has celebrated HR Day withfestivities organized by its HR Committee for thepublic for the last 8 years. Work began since Aprilof that year to plan 2007’s HR Day celebration.
With a Festival of Rights themed “As I Believe:Freedom of Expression through Art, Music, Cultureand Conscience”, the Organising Committeeinitially planned to have 2 segments: first, apeaceful “Peoples’ Freedom Walk” from Sogoagainst traffic along Jalan Raja Laut towards theBar Council Secretariat, to celebrate the freedomof assembly and expression (which would havebeen in its 3rd year); and secondly, a fair consistingof an exhibition, family oriented games andcolouring contests, a forum as well as stageperformances to be held at the Central Market openair stage/parking area.
Due to growing uneasiness arising from untowardincidences suffered during the recent gatheringsby the Bersih and Hindraf, which had beendeemed illegal by the authorities, the Bar Councilconvened a Council meeting resulting in a majoritydecision to hold only the second part of theFestivities. Subsequently, Central Marketmanagement declined their involvement and it wasdecided that the performances would be held inthe Auditorium of the Bar Council secretariat whilethe fair would held in Booths set up at the privatecar-park adjoining the Bar Council Secretariat,rented specifically for this purpose.
Despite the heavy police presence and subsequentuntoward incidents that led to the arrest of EdmundBon, Chairman of the Bar Council Human RightsCommittee, the Festival of Rights did proceed onSunday 9 December 2007 and below is the post-mortem report (divided into two segments based onthe two venues):-
Segment 1: Festival of Rights - Performances (heldin Bar Council Auditorium)At 7.00am, we started off with rehearsal for thestage performers, arrangement of chairs and floormats, and setting up of TV live airing equipmentdownstairs. Everything went on smoothly.
Around 8.15am, a crowd of approximately 200people of various races and ages, comprising lawyers,their family, members of the public, NGOs and theOrang Asli group started to arrive and settledcomfortably in the Auditorium.
The opening ceremony of the event was slightlydelayed due to commotion between the police anda group consists of individuals and NGOs whoarrived at the Bar Council after completing theirhuman rights day walk from Sogo ShoppingComplex. Due to this, response to attempts bymembers of the Bar to draw the crowd into theAuditorium was lukewarm. Meanwhile, someindividuals informed us that they refused to enterBar Council as sign of protest towards the BarCouncil for canceling the Peoples’ Freedom Walk.
At 9.15am, Masters of Ceremony, lawyers Nik Elin
POST MORTEM on Festival of Rights themed “AsI Believe: Freedom of Expression through Art,Music, Culture and Conscience” –Sunday 9th December 2006by Dara Waheda, Syamsuriatina Ishak, Usha Kulasegaran, Kenny Lai and Lai Chee Hoe
PRAXIS 26 JANUARY / JUNE_2008
Artic
leNik Zurina Dato’ Nik Abdul Rashidand Kenny Lai (presenting in Englishand Malay respectively, as a protestagainst stereotyping) began the eventby inviting Ambiga Sreenevasan,President of the Malaysian Bar todeliver her Opening Address.
Ambiga began by informing theaudience that eight people includingfour members of the Bar, participatingin an impromptu 200 person walk tocelebrate HR Day without BarCouncil’s participation, had beenarrested earlier that morning. Ambigaexplained that the Bar Council haddecided despite tremendous pressuredone everything possible to ensurethat the Festival of Rights 2007 in itspresent form would go on as planned.After declaring the Festival open, sheleft the Auditorium with few otherBar Office Bearers heading to IPKKuala Lumpur to deal with the arrests.
At 10.00am, a childrens’ drawingsession commenced on the 3rd floorof the Secretariat.
The festivities kicked off with a silentrecitation of the UN Charter called“Speechless” symbolising thevoiceless struggle of people deniedhuman rights. This was followed byprize-giving ceremony for an essaycompetition (in Bahasa Malaysia andEnglish) for secondary school childrenwhich had been held throughout theprevious year. Prizes were alsopresented to participants of theChildren’s drawing session.
Noreen Ahmad Ariff was the next toentertain the audience with her high-spirited poetry reading of her own
piece called “Melayu” before theforum or ‘Conversation’ entitled“When Faith Meets Law” took place.
The Conversation heralding the startof our many initiatives to developmutual tolerance and respect amongthe different religious groups was ledby six prominent speakers namelyProfessor Shad Saleem Faruqi fromUITM, Bishop Paul Tan fromChristian Federation Malaysia, DatukA. Vaithilingam from Hindu Sangam,Hargopal Gill Singh, representative ofthe Sikh community, Ng Chek fromFederation of Taoist AssociationsMalaysia and Dr Mohamed AzamMohamed Adil, a member of BarCouncil’s HR and SyariahCommittee. Several individuals latervoiced their satisfaction on witnessingsuch a mature dialogue.
The event then proceed with a skit bygroup comprising of Instant Theatreperformer Jo Kulkatas with lawyersNell Ng and Dipendra Harshad Rai.This was followed by the Orang Aslicultural dance and musicalperformance, which was enjoyed byall.
A stage performance by some bandsand performers had been scheduledbut most performers were nowhere tobe seen (we were informed later thatthey faced difficulties reaching theSecretariat due to the numerous mainroad blockages around KL). Therefore,events proceeded with the remainingperformers Fahri Azzat followed bySyamsuriatina Ishak who took the stageand impressed the audience with theirsinging. They were also joined byKuyana, Nik Elin’s daughter, for a final
rendition of “Colours of the Wind”in celebration of indigenouscommunity rights.
At this point, the event’s fluidity wasshattered when we came becomeaware of commotion downstairs andsubsequently of Edmund Bon’s arrestin his attempt to rationalize withDBKL against the removal of HRbanners which graced the privateproperty of the Bar CouncilSecretariat.
On transit to the police station,Edmund Bon communicated throughSMS with Dara Waheda, theOrganising Committee Chairperson,reassuring all that he was alright andwith instructions to proceed with theevent through to the end as planned.However, while the next performer DrWan Zawawi began his performance,members of the audience started toleave the Auditorium, on the premisethat they heard that the Authoritythreatened to raid the building andthat they feared for their safety.Despite our reassurances that thelawyers present would not allow thisto happen, the Auditorium continuedto empty until eventually only lawyersand their family members, the OrangAsli and performers remained in theAuditorium.
In view of Edmund’s arrest and howthe event was rudely interrupted anddisrupted, Nik Elin announced to theremaining attendees that theOrganising Committee would notclose the Festival and shall insteaddeclare it open until Edmund’srelease.
PRAXIS 27JANUARY / JUNE_2008
ArticleDara with the help of Tijah, thespokesperson for the Orang Asli,asked her group to remain calm whilelawyers Brendan Navin Siva and LaiChee Hoe then went to speak to thepolice requesting for their peacefuldeparture. After some discussion andBrendan’s details taken, the policeagreed to escort the bus right up tothe council premises. After saying agroup prayer for their safety, theOrang Asli left the secretariat. The Organising Committee memberswere saddened by the entire affair butalso relieved that the premise was notraided. However, despite everything,it was believed that participantsenjoyed themselves.
Segment 2: Festival of Rights - Fair(on rented private parking spaceadjacent to Bar Council Secretariat)Canopies were set up around 8.15amunder the supervision of Usha andSonia at the private car-park adjacentto the Bar Council Secretariatbuilding. By 8.30am, participants (theLegal Aid Centre, Falun Gongand Amir Muhammed) had decoratedtheir respective areas while a NescafeMobile service van took its place atthe sidewalk to make available freesamples of Nescafe drinks to allparticipants.
The booths, a hive of bustling activitydrawing a huge amount of interestfrom the public, were open from8.00am to 12.00 noon and.comprisedof the following:-a) Falun Gong movement with their
crew of approximately30 members occupied one-thirdof the canopy area. Among theiractivities was a signature petition
drive for their torch relay, acontinuous sessiondemonstrating the spiritualexercises practiced by themovement, a memoriam inremembrance of their deceasedmembers and a display of their‘mock organ-harvesting’ session.As expected, the activitygenerated a lot of interest.
b) Amir Muhammed was
personally present to autographhis latest book and to sell hisDVD. This went very well.
c) The Legal Aid Centre (“LAC”) had
2 sets of T-shirts for sale:- i) Their own edition (Red) ii) The Bar ‘Walk for Justice’
(Black)Sale was very brisk and all theblack T-shirts were all sold outby 11.30am. Brochuresconcerning the Legal Aid werealso snapped up by the public.
When the DBKL team arrived atapproximately 12 noon, the FalunGong group and Amir Muhammedpromptly packed up their belongingson their own accord. The LAC teamalso packed the remainder of the redLAC T- Shirts. After the commotion, the Booths werethen utilised for serving a simplelunch to members of the public andorganizers who were still present from12.30 noon until about 2.00pm. On the whole, activity and movementat the Booth was very wellcoordinated and went smoothly.
ORGANISING COMMITTEEFestival of Rights 2007Human Rights CommitteeBar Council of Malaysia
The Conversation heralding the start of our many
initiatives to develop mutual tolerance and respect
among the different religious groups was led by six
prominent speakers namely Professor Shad Saleem
Faruqi from UITM, Bishop Paul Tan from Christian
Federation Malaysia, Datuk A. Vaithilingam from Hindu
Sangam, Hargopal Gill Singh, representative of the Sikh
community, Ng Chek from Federation of Taoist
Associations Malaysia and Dr Mohamed Azam
Mohamed Adil, a member of Bar Council’s HR and
Syariah Committee.”
“
PRAXIS 28 JANUARY / JUNE_2008
Articles
Introduction
The 7th of September 2007 marked
an important milestone in criminal
jurisprudence in Malaysia when the main
provisions of the Criminal Procedure Code
(Amendment) Act 20061 came into force.2
A similar date was appointed for the
amendments to the Penal Code
(Amendment) Act 2006.3
It must be acknowledged that the
amendments were the result of detailed
deliberations and consultations with
various parties including NGOs,
government bodies and professional bodies
undertaken by the Parliamentary Select
Committee which culminated in a Report
to Parliament.4 The question that lingers
is whether the amendments constitute an
attempt to overhaul the process and
procedures to further preserve the right of
citizenry or merely piecemeal amendments
for stopgap measures. This article would
survey the amendments and would
attempt to point out the impact of the
amendments.
The Amendments
Basically the amendments relate to the
following areas:
(1) Rights of the arrested person -
sections 28, 28A of CPC and
remand provision - section 117 of
the Criminal Procedure Code.5
(2) Police investigation powers - sections
112 and 113 of CPC.
(3) The lodging of a police report
pursuant - section 107 of CPC.
(4) Failure to report certain offences -
section 13 of CPC.
(5) Procedure on search of a person -
new section 20A of CPC and
insertion of a new schedule.
(6) Report on status of investigation -
new sections 107A and 120 of CPC.
(7) Procedure in relation to cases
involving violence- new sections
106A, 106B and 106C of CPC.
(8) Pre-trial discovery – new section 51A
of CPC.
(9) Meaning of prima facie in relation
to sections 173 and section 180 of
CPC.
(10) The rights of the accused after the
end of prosecution before defence is
called - section 173 of CPC.
(11) Liability for offences committed out
of Malaysia – additional provision
to section 127A of CPC.
(12) Evidence through live video or live
television links - new section 272B
of CPC.
(13) Whipping for male offender of the
age of 50 and above – the list of new
exception in section 289 (c) of CPC.
(14) Community service – section 293
of CPC.
(15) Rehabilitation and counseling – new
section 295A
The significance of these amendments
will now be highlighted.
Amendment to the rights of arrested
persons.
Section 28(1) and 28 (3) of the CPC are
amended where the word “court” is
deleted.6 This means therefore the arrested
person is only brought before the
Amendments to the Criminal Procedure Code:Radical or Piecemeal Legislation?ByBaljit Singh SidhuAdvocate & Solicitor High Court of Malaya
1 Act A12742 See P.U. (B) 322/2007. The sections amended which came into force are Section 2-8; Section 10-19, Section 21-32; paragraph 33(a);paragraph 33 (c); paragraph 33(d); paragraph 33 (e); paragraph 33 (i); paragraph 33(j); paragraph 33 (l) to 33 (u) and section 34 of the Act1274. Prior to this other provisions that deal in the main, with terrorism offences came in to force earlier – see P.U. (B) 68/2007 relatingto section 9, section 20 and paragraph 33(b), (f ), (g) and (h) which came into force on 6th March 2007. See also P.U.(B) 243/2007 whichappoints 2nd July 2007 as the date of coming into force of paragraph 33(k) and (v) of the Act.Subsequently the Act (A1274) was further amended by virtue of Criminal Procedure Code (Amendment) (Amendment) Act 2007- ActA1304 to corrent many glaring errors. The Amendment Amendment Act came into force also on 7th September 2007.3 Act 1273. For a discussion on the potential impact of the amendments see the authors view in Potential Impact of the Changes in the MalaysianPenal Code [2007] 2 MLJ xcvii.4 See “Laporan Jawatankuasa pilihan Khas Dewan Rakyat Untuk Mengkaji Rang Undang-undang Kanun Kesiksaan (Pindaan) 2004 danRang Undang-undang Kanun Tatacara Jenayah (Pindaan) 2004 DR 1 Tahun 2006.5 Criminal Procedure Code (Revised 1999) Act 593. Hereafter referred to as CPC.6 The new provision reads:-
PRAXIS 29JANUARY / JUNE_2008
ArticlesMagistrate and not the Magistrate’s Court.
This amendment is in line with Article 5
(4) of the Federal Constitution.7 Before
the amendment the section 28 (1) reads
“before a Magistrate’s Court”. This means
that the person arrested must be brought
into the Court whether in open court or
in chambers. With the deletion of the word
“courts” the accused could always be
brought before a Magistrate and the venue
that the Magistrate sits is of no importance.
This also means that the accused may be
brought before the Magistrate either in
Court or at the Magistrate’s residence or
any other place and will not be hindered
by restriction on office hours.
This amendment clears all the uncertainty
as to how to compute the time of 24 hours
as stipulated in the Federal Constitution
within which the accused must be
brought before a Magistrate. Thus, today
even though it is weekly or public holiday
the remand accused could always be
brought before the Magistrate before the
expiry of 24 hours. Previously it was
common practice for the police to make
an arrest on weekends or public holiday
since the accused person may be detained
for a longer period as the holidays are
discounted in computing the period of
24 hours.
The insertion of section 28A8 in the CPC
is also significant as the heading itself gives
us a clear intention of Parliament to
safeguarding the rights of arrested person.
This amendment again is made to be
consistent with the Article 5(3) of the
Federal Constitution9 namely to inform
the grounds of arrest and rights to legal
representation.
The new section 28A is an attempt made
by the parliament to entrench the right of
an arrested person. The section 28A
namely provides:
! To inform the grounds of arrest
! To inform a relative or friend on the
arrest
(1) A police officer making an arrest without a warrant shall without unnecessary delay and subject to the provisions herein as to bail orprevious release take or send the person arrested before a Magistrate.7 The relevant provisions of Article 5(4) of the Federal Constitution reads:-(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding thetime of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’sauthority:8 The new section reads(1)A person arrested without a warrant shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest.(2)A police officer shall, before commencing any form of questioning or recording of any statement from the person arrested, inform theperson that he may—
(a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts; and(b) communicate or attempt to communicate and consult with a legal practitioner of his choice.
(3) Where the person arrested wishes to communicate or attempt to communicate with the persons referred to in paragraphs (2)(a) and (b),the police officer shall, as soon as may be, allow the arrested person to do so.(4) Where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time—
(a) for the legal practitioner to be present to meet the person arrested at his place of detention; and(b) for the consultation to take place.
(5) The consultation under subsection (4) shall be within the sight of a police officer and in circumstances, in so far as practicable, wheretheir communication will not be overheard;(6) The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until thecommunication or attempted communication under paragraph 2(b) or the consultation under subsection (4), has been made;(7) The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilitiesprovided shall be free of charge.(8) The requirements under subsections (2), (3), (4), (5), (6) and (7) shall not apply where the police officer reasonably believes that—
(a) compliance with any of the requirements is likely to result in—(i) an accomplice of the person arrested taking steps to avoid apprehension; or(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.(9) Subsection (8) shall only apply upon authorization by a police officer not below the rank of Deputy Superintendent of Police.(10) The police officer giving the authorization under subsection (9) shall record the grounds of belief of the police officer that the conditionsspecified under subsection (8) will arise and such record shall be made as soon as practicable.(11) The investigating officer shall comply with the requirements under subsections (2), (3), (4), (5), (6) and (7) as soon as possible after theconditions specified under subsection (8) have ceased to apply where the person arrested is still under detention under this section or undersection 117.9 The provision reads(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and bedefended by a legal practitioner of his choice.
PRAXIS 30 JANUARY / JUNE_2008
Articles! Consultation with legal practitioner
Grounds of arrest
Section 28A (1) clearly states that a person
arrested without warrant shall be informed
as soon as may be of the grounds of his
arrest by the police officer making the
arrest.
The words “as soon as may be” must be
construed strictly to mean “forthwith”.
Further a police officer before
commencing any form of questioning or
recording on the arrested person must
inform the arrested person that he may
communicate or attempt to communicate
with a relative or a friend to inform of his
whereabouts.
It is disappointing however when the
words “attempt to communicate” are
employed. This may lead to abuse when
the police would only make one call and is
unable to contact and the question arises
whether that would be regarded as
sufficient.
For the purpose of legal representation
section 28A (4) (b) provides that where
the arrested person has requested for the
consultation with a lawyer the police officer
shall allow reasonable time for the person
arrested to meet his legal practitioner for
consultation to take place. This is an
interesting development in the Malaysian
legal history as it was always difficult for a
legal counsel to have such consultation.
In addition to that the consultation shall
be within the sight of a police officer and
the conversation will not be heard- section
28A (5).
In this regard for the consultation to take
place the police shall provide for such
facilities. It will be interesting to observe
that the police station now, as a result of
the amendment, must comply with
section 28A (5).
Section 28A (6) is also important in that
the police may neither question nor record
any statement from the arrested person
until the arrested person has had a
communication with the legal practitioner
of his choice. However this positive
requirement seems to be diluted with the
insertion of the words “reasonable time”
which suggests that the questioning and
recording of statement if the legal
practitioner takes “an unreasonable time”
to see the arrested person. Then again there
is no yardstick to determine “reasonable
time”.
Section 28A (8) has also placed a
qualification wherein police officer does
not have to comply the requirement to
inform the relative or a friend and the
right to legal counsel if the police officer
reasonably believes that it will result in an
accomplice absconding or the
concealment, fabrication or destruction of
evidence or intimidating witness.
In order to avoid any abuse of section 28A
(8) there is a safeguard placed in section
28A (9) where section 28A (8) can only
be invoked upon authorisation by a police
officer not below the rank of Deputy
Superintendent of Police.
With the insertion the police force has to
get ready with the necessary recourses
namely personnel and finances for section
28A to effectively work. Nonetheless the
amendment is a step forward in enhancing
the rights of arrested person.
Amendment to section 117
This amendment is another significant
amendment. It is related to the
amendments in sections 28 and 28A of
CPC. Prior to the amendment section 117
of CPC, which allows for a detention, what
is commonly known as remand
proceedings, was often the subject of
much criticism as it opened door for abuse.
The public often argued, one or more of
the following:-
! Tendency of the Magistrate to issue
remand order has requested by police.
! Tendency of the police for not
completing or conducting the
investigation the past 24 hours.
! Remand period requested by police is
unreasonable.
The amendment would appear to address
these grievances. With the amendment the
detention allowable for the purpose of
investigation is now categorised into two
categories based on the maximum
punishment for offences being
investigated:-*(see the chart on the next
page)
Thus it is clear that for offences being
investigated falling under category (a)
above the maximum period of detention
is only 7 days (excluding the first 24
hours). This demarcation is laudable as
there is a tendency in the past to straight
jacket all offences and to obtain maximum
period of detention by the police.
The amendment also inserted new sub
sections (3), (4), (5) and (6) with a purpose
of compliance with decided cases such as
Polis Diraja Malaysia v. Audrey Keong Mei
PRAXIS 31JANUARY / JUNE_2008
Articles
Cheng,10 Leonard Teoh Hooi Leong11and
Sivarasah R & Others12
Police investigation powers to pursuant
to sections 112 and 113 of the CPC
Section 112 and 113 of the CPC
underwent a major overhaul. This is not
surprising as these sections were the subject
of disputes in many reported cases. With
the amendments it can be argued that the
power of the police to record a cautioned
statement and to rely on the same as
evidence is now abolished. The new
section 112 can now be used to record
statement of witnesses including the
statement of the accused person. The
recording of section 113 has been
abolished due to the fact of frequent
abuses by the police in recording the
statement at many occasions. The Court
has held the statements recorded under
the old section 113 to be invalid due to
lack of voluntariness and or given as a result
of oppression. Previously there was also
the tendency of the police to just act based
on the statement recorded under section
113 to conclude their investigation.
This amendment restored the section to
the position prior to 1976 with minor
amendments.
The net result of the amendments may be
tabulated as follows:-
A. Statement made by the accused
person
! Police can request a statement
under section 112.
! No caution is required
B. Admissibility of the statement by the
accused person
! The statement cannot be used
by the Prosecution at all not even
for the purpose of impeachment
! But the accused can use the
statement in support of his
defense.
C. Exception to non admissibility
! Statement made in the course of
an identification parade;
! Statement falling under section
27 of the Evidence Act 1950;
! If the accused person is charged
with a separate charge of in
relation to make or the content
of any statement that statement
may be used during prosecution
case.
! Under paragraph 32 (1) (a), (i)
and (j) of Evidence Act
It is noted that with this amendment, there
is possibility that other Acts have to be
amended to include the same intention of
the Parliament such as section 37A of
Dangerous Drug Act 1952, section 45 of
Anti Corruption Act 1997, section 16 of
Kidnapping Act 1961 and Regulation 21
of the Emergency (Security Cases)
Regulation 1975.
Amendment to section 107 of CPC.
The amendment to section 107 is made
by inserting after subsection (2), the new
section 3 (a), (b), (c) and section 4.
The reason of said amendment is as
reflected in many incidences reported in
the newspaper of refusals by the police to
take reports for simple reason that the
incident occurred not within the locality
of the police district therefore the reports
must only be made to a particular police
station only.
Thus with the new insertion of section
107 (3), the police report could be lodge
at any police station or “pondok polis” or
to any police officer on beat duty or
patrolling. It is pertinent to note that to
show importance of the reports, section
107(4) makes it mandatory for the police
officer to receive any information in relation
to any offence.
At first blush, this amendment would
seem to be a positive step. But on further
reflection the fact that a report is able to
be lodged does not equal to prompt action.
The investigation will invariably be
conducted based on established
jurisdiction of the police district and that
the complainant may still be required to
attend that police district which may be
far from the place where the report was
lodged.
Category
a. For offences which is punishable with
imprisonment of less than 14 years
b. For offences which is punishable with
death or imprisonment of fourteen
years or more
Duration of Detention
The detention shall not be more than 4 days
on the first application and shall not be more
than 3 days on the second application
the detention shall not be more than 7 days
on the first application the detention shall
not be more that 7 days on the second
application.
10 [1994] 3 MLJ 296 HC; [1997] 3 MLJ 477 CA.11 [1998] 1 MLJ 757.12 [1996] 3 MLJ 611.
PRAXIS 32 JANUARY / JUNE_2008
ArticlesAmendment to section 13 of CPC
This amendment is in relation to the
obligation to report certain offences. The
amendment includes new offences to
include sections “372, 372A, 372B, 376,
376B 377C, 377 CA, 377E which are
sexual offences.
The law of search
The current procedural law of search on
person can be found in sections 17,19,
20, 21 and 22 of the CPC. In general, the
law of search in Malaysia is inadequate and
there is a heavy reliance on the common
law position. It is interesting to see that
the lacuna is sought to be filled with the
introduction of section 20A and the
inclusion of Fourth 13 Schedule of this
Code.
It is clear that this section was introduced
as a result of highly contentious incident
famously known as the “ear squat” incident
where a Royal Commission was set up and
in the process the procedure on search of a
person took center stage.14
The Royal Commission came up with a
recommendation on the procedure for
carrying out a body search. This is now
reflected in the Third (sic) Schedule of
the CPC. The insertion of a new schedule
has created four types of body search:
(a) pat down search;
(b) strip search;
(c) intimate search; and
(d) intrusive search.
This amendment is very positive in the
light of the Universal Declaration of
Human Rights and also Syariah Principle
especially on the adherence to the principle
of decency. The module of search is an
amalgamation on the procedures adopted
in other jurisdictions such as in Singapore,
New Zealand, Canada and Australia, the
bulk of which having close resemblance
to that of Australia.
In brief, the four types of search may be
explained as follows:
(a) pat down search is a search that is
based on patting the outer clothing
of the person arrested. The
authorization and the procedure of
the search is reflected on paragraphs
4, 5 and 6 of the Schedule;
(b) Strip search- means the search
involving the removal of the entire
person arrested clothing. This may
be done part by part for example by
allowing him to dress his upper body
before removing items of clothing
from his lower body. The
authorization and the procedure of
it are governed by paragraphs 8 and
9 of the Schedule;
(c) Intimate search- this method of
search consists of the physical
examination of the arrested person’s
body or orifices other than the
mouth, nose and ears. For the
purpose of intimate search it requires
prior approval of a police officer not
below the rank of Assistant
Superintendent of police or for other
enforcement agency with the
equivalent ranks. The authorization
and procedure is reflected in
paragraphs 11 and 12 of the
Schedule;
(d) Intrusive search- this method of
search means a search involving the
examination to determine the
existence of any object, evidence,
weapon or contraband inside the
body or body orifices of the person
and including the removal of it. This
search is only conducted by a
government medical officer or
medical officer or by any hospital
assistant or registered nurses acting
under the government medical
officer or the medical officer‘s
direction. The authorisation and
procedure can be reflected in
paragraph 14 and 15 of the
Schedule;
Report on status of investigation namely
sections 107A and 120 of CPC.
The amendment insertion of section
107A on report on status of investigation
must be welcomed. It provides for
accountability and good governance of the
police officer and the same time provides
the citizen the right of information on the
status of investigation by the informant.
As a result of the amendment the police is
required to provide the status of
investigation:-
(a) If the offence is a seizable offence;
(b) The period of four weeks has lapsed
from the date the information has
been reported; and
(c) Providing the status of investigation
13 The schedule was initially read as Third Schedule but as there was already an existing Third Schedule which relates to the applicability ofthe CPC to the Sabah and Sarawak. This was subsequently rectified by the Criminal Procedure Code (Amendment) (Amendment) Act2007- Act A1304 which came into force on 7th September 2007.14 As a result of the incident also the victim has now filed a civil suit against the relevant party and the writer is the counsel having conductof the case and related criminal matter in Petaling Jaya Magistrate’s Court.
PRAXIS 33JANUARY / JUNE_2008
Articleswill not undermine the investigation
or presentation.
Where a request is made for the status of
police investigation the informant may
then write to the Public Prosecutor who
shall that direct the officer in charge of the
Police District to furnish him with the
detailed status report on the investigation.
At the stage of the Bill it was included
that it would be offence if the police officer
were to fail to give status but this appears
not to have been passed by Parliament.
Thus there is no repercussion for failure
to adhere to this new provision. So the
worst case scenario the police officer will
only commit a “disciplinary action” or at
the very serious committing an offence
under section 175 of the Penal Code.15
Amendment of section 120- Report of
police officer.
This amendment is made for the purpose
to tighten the current procedure. The
police officer conducting the investigation
is required to produce the report of the
investigation together with the
investigation papers to the Public
Prosecutor officer within one week upon
the expiry of three months from the date
the information is given pursuant to
section 107 of CPC.16 In case of
immediate urgency the Public Prosecutor
may at any time regardless of the period of
three months direct the police officer to
submit such report.17
Procedure in relation to cases involving
violence – sections 106A, 106B and 106C
These amendments are in relation to the
ancillary investigation powers in relation
to terrorism offences. Section 106A
provides the essential definitions in relation
to these new provisions including phrase
“terrorism offence” which means the
terrorist act or terrorism financing offence.
Section 106B empowers any police officer
to arrest without warrant any person who
has committed or is committing or whom
he has reasonable grounds for suspecting
to have committed or to be committing a
terrorism offence. This power is wide in
nature.
Further, section 106C provides the powers
to the Public Prosecutor to authorise any
police officer to intercept communication
if the Public Prosecutor is of the opinion
that the communications likely to contain
information of terrorism offences.
The opposition, political parties and other
NGO’s are worried and concerned that
the term “terrorism offence” is given a wide
meaning. The power of arrest under
section 106B is equally too wide. Perhaps
the power to intercept communication
should only be allowed on the
authorisation of a High Court Judge or
Session Court judge and not by the Public
Prosecutor. The wordings in section 106C
(2) “consider that it is likely to contain” is
too wide and only incorporate a minimum
standard. Perhaps the term used should
have been “has reasonable ground to
suspect”.
But in general the inclusion of these
provisions is necessary to combat terrorism
which has proven to be a menace to global
peace. Further, such powers are also found
in the Kidnapping Act 1961, Anti
Corruption Act 1997 and Dangerous
Drug Act 1952.
Pre-trial Discovery- the insertion of
section 51A of CPC
Section 51A is an interesting development
of law by including some kind of discovery
process which is the cornerstone of the
civil process but otherwise alien to criminal
proceedings.
With the amendment the Prosecution is
required to deliver to the accused the
following documents before the
commencement of the trial:
(a) a copy of the First Information
Report under section 107 (if any);
(b) a copy of any document which
would be tendered as part of the
evidence for the prosecution; and
(c) a written statement of facts favorable
to the defense of the accused signed
under the hand of Public Prosecutor
or any person conducting the
prosecution.
The term in section 51A (1) (c) - “facts
favorable to the defence of the accused” is
wide in nature. Given a broad
interpretation this would indeed be a boon
for the defence.
15 The section readsWhoever, being legally bound to produce or deliver up any document to any public servant, as such, intentionally omits so to produceor deliver up the same, shall be punished with imprisonment for a term which may extend to one month, or with fine which may extendto one thousand ringgit, or with both; or, if the document is to be produced or delivered up to a Court, with imprisonment for a termwhich may extend to six months, or with fine which may extend to two thousand ringgit, or with both.
16 Section 120(1) of CPC.17 Section 20(2) of CPC.
PRAXIS 34 JANUARY / JUNE_2008
ArticlesPrior to the amendment copies of
documents that prosecution intend to
tender is never given to the defence. In
fact at times the defence will have to make
various applications under section 51 of
CPC to request for copies of important
documents such as cheques, and other
documents in the possession of the
prosecution. This would unnecessarily
lengthen the trial process.
The introduction in section 51A is for the
purpose of “fair play” and transparency in
the interest of justice. Despite the wide
powers in section 51A one must also take
into account the proviso in section 51A
(2) wherein the prosecution may not
supply any facts favorable to the accused
if its supply would be contrary to public
interest.
On a general note it is the respectful view
of this writer that the development of law
on this area is much awaited for in
particular in the interest of justice and fair
play. More so in our adversarial system,
there should not be a trial on ambush and
the accused be given all reasonable
opportunity to defend himself therefore
giving the real meaning to the
presumption of innocence.
Amendment of section 173 and section
180
Section 173 is in relation to summary trial
procedure applicable to the Magistrate
Court and Sessions Court. There are two
amendments in section 173 namely the
insertion of paragraph (h) (iii) and after
paragraph (h) the insertion of paragraph
(ha).
The insertion of section 173 (h) (iii) is
made to circumvent the decision of the
Federal Court case of Arulpragasan a/l
Sundaraju v. PP18. The speech by the
Minister when tabling the Bill clearly
stated that the intention behind the
amendment is made to return to the
principle established in the case of Haw
Tua Tauv PP.19 It is also to reaffirm the
decisions of the Court of Appeal in Looi
Kow Chai v. PP20and the Federal Court in
Balachandran v PP21.
Previously there is a lot of uncertainty as
to what is required to establish a prima
facie case and the standard of proof at the
end of the case for the prosecution. The
new clarification 173 (h) (iii) is made in
the hope that it would be bring certainty
to the law.
Similar amendments made to section 180
of the CPC in relation to High Court Trials.
A further scrutiny on the amendment
would reveal that the new provision is not
free from uncertainty for example the
words “credible evidence” are not self
explanatory. The Concise Oxford
Dictionary22 defines credible as “believable
or worthy or believe”. This is more in line
with a high standard of proof.
Therefore, seeing in this light the
amendment is pointless as the standard of
proof remains to that as interpreted in
Arulpragasan’s case. That said, it will be
interesting to wait and see how the court
is going to interpret “credible evidence”.
The right of the accused after the end of
prosecution of defence are called- section
173 of CPC
The amendment to section 173 (ha) is
long overdue and it is most welcome. Prior
to the amendment, it was the Court’s
practice to inform the three electives to
the accused person namely to give
evidence in the manner of sworn, unsworn
or to remain silent upon the defence being
called. The insertion of section 173 (ha) is
to enact the said practice into law.
Liability for offence committed out of
Malaysia- section 127A of CPC.
This amendment is made to give a wide
scope to offences against the country and
crimes of violence under chapter VI and
VIA of the Penal Code.
Evidence through live video or live
television links- section 272B
This development is in line with current
changes of time and to keep in tune with
the development of law in other countries
and the development of technology. This
section allows a witness (other than the
accused) to give direct evidence through
video or live evidence, through a live video
or live television link in any trial or inquiry.
The intent behind this section is to allow
witness to give evidence without fear and
favour and without the fear of security,
more so when the witness is a child. The
18 [1996] 4 CLJ 56719 [1981] 2 MLJ 49.20 [2003] 2 MLJ 6521 [2005] 1 CLJ 8522 See also the case of Armah v Government of Ghana & Anor [1968] AC 192 where similar phrase was interpreted by the House of Lords tomean a higher degree.
PRAXIS 35JANUARY / JUNE_2008
Articlessafeguards of this section is clearly reflected
in section 272B (2) (a-h) and 272B (3).
Amendments under section 289 (c) of the
CPC.
The amendment in this section is for
whipping to be allowed to be executed
for all male offenders who are beyond the
age of 50 for offences under section 376,
377C, 337 CA or 377E of the Penal
Code. The above offences are sexual
offences in nature. The Select Committee
is of the view that such offences are serious
in nature and public policy demands that
heavy sentence is imposed due to the
despicable nature of offences.
Related amendments can also be seen in
section 291 of CPC where whipping
cannot be inflicted in one transaction than
the imprisonment term is now amended
to twenty four months imprisonment
(previously twelve months imprisonment)
Community service – section 293 of the
CPC.
This amendment is made so that an order
of community service could be made to a
youthful offender for the purpose of
rehabilitation of the offender. This section
is in line with one of the aims of sentencing
namely rehabilitation. The community
service order was added in the
amendments as an alternative punishment
for offenders aged 18 to 21 i.e. youthful
offenders. The amendment in section 293
(e) is as follows:
“(i) to make an order requiring the
offender to perform community
service, not exceeding 240 hours in
aggregate, of such nature and at such
time and place and subject to such
conditions as may be specified by
the Court
(ii) the phrase “community service”
means any work, service or course of
instruction for the betterment of the
public at large and includes, any
work performed which involves
payment to the prison or local
authority; and
(iii) the community service under this
paragraph shall be under the
Minister charged with the
responsibility for women, family and
community.”
The enforcement of this order is under
the care of Minister responsible for
women, family and community.
Issues on Section 293 CPC
A. No minimum period stated.
Section 293(1)(e)(i) of the CPC stipulates
maximum duration for community service
but does not stipulate the minimum
period. There is also a fear that by not
stipulating the minimum period there is
no form of guideline to the Magistrate.
This position is somewhat similar to
Singapore. In United Kingdom the
minimum period to be imposed in 40
hours and in Australia it is 24 hours. It is
apparent from the Parliament that the
intention of Parliament to legislate such a
section is for the purpose of namely:
! Rehabilitation – by providing social
responsibility and making community
service a worthwhile experience for the
offender.
! Reparation – by providing an avenue
for the offender to make amends and
providing tangible benefits to the
community.
! Punishment – by depriving the
offender of his free time and place an
obligation on him to work during that
period.
B. No specific condition.
The section empowers the court to attach
such conditions as it may specify when
imposing an order for community service.
The powers are very wide in nature and
there is a fear that the powers would not
be exercised properly by the judicial
officers. There is suggestion that a proper
guideline is formatted for the success of
the program. The fact that the
Community Service Order is something
new in Malaysia, it is suggested that a
proper outline is provided to the
Magistrate to exercise such power.
C. Consequences of violating Community
Service Order (CSO).
It is clear that the section does not state
the situation if for some good reason the
offender is unable to perform community
service and further the community service
order does not provide any form of
variation of the condition imposed by the
court. It is submitted that the
consequences of breach of the order
should be clearly spelt out.
It may be suggested that when the
Magistrate provides for the order of
community service he must also state the
consequences of breach on such order to
provide certainty to the principle of
community service and Section 293 in a
form of punishment.
D. Committing offence during the period
of community service.
The new amended section does not state
what happen if the offender whilst under
community service order commits another
offence, and for the new he is punished
with imprisonment. What will be the
PRAXIS 36 JANUARY / JUNE_2008
Articlesstatus of the community service order?
Will it be suspended?
E. What type of offences to be given
Community Service Order (CSO).
It is also unclear on the offences where
CSO would be suitable. It is respectfully
submitted that the CSO should only be
given to the less serious offences.
F. General
It is noted that this intended model of
community service is based on the model
in Singapore. Based on the act the youthful
offender is required to perform
community service not exceeding 240
hours in total and this program is intended
to prevent the youthful offender to
commit the said offence and to allow them
to return to society as soon as possible
wherein through the sentence it forbids
the free time of the youthful offender and
gives them a responsibility to complete.
True rehabilitation gives the young
offender social responsibility and ensuring
the offender is remorseful and repentant.
It also gives room to the offender to reform
himself to enable him to return to society.
It is important that the implementation
of this program is co-coordinated in the
interest of the offender. The program must
have a purpose of check and balance to
ensure the intention of Parliament. It is
also hoped that the agency involved will
have sufficient officers to supervise the said
community service order in public
interest.
It is hoped that the community service
order does not conflict with the studying
hours of the offender and if the offender
is working, the working hours. That the
community service order should not
burden him to the extent that it is affecting
the working hours. Thus it can be
suggested that CSO should be conducted
after the working hours. The courts should
also take into account various factor be it
social and legal and to award a suitable
hour as not to burden the offender in a
very inconvenient manner. The courts
should take into account in general:
1. The nature of the offence
2. The circumstances in which the
offence was committed
3. The hours suitable based on the
current timetable the offender is
having;
Needless to say that the supervision by
the agency responsible must be done well
and the procedure must be checked from
time to time. In fact the writer would
respectfully suggest that a committee
should be formed by the Ministry of
Women, Family and Community Service
to prepare a module of community service
which is represented by various NGO’s,
Bar Council and various agencies to ensure
justice is served.
Amendment to section 295 and 295A of
the CPC
The amendment of section 295 (1A) is in
relation to police supervision orders for
offences under section 376, 377C,
377(A) or 377E of the Penal Code where
Court would be able to impose police
supervision for a period of not less than
one year and not more than three years
commencing immediately after the
sentence passed on him.
Further, the amendment in section 295A
stipulates that the person undergoing
police supervision under section 295 (1A)
may upon the order of the court attend
rehabilitative counseling.
Appeal –section 307
The time limit for fiing the requisite
documents in an appeal process such as
the Notice of Appeal and Petition of
Appeal has been extended from 10 days
previously to 14 days.
Concluding Remarks
The writer has in discussing the
amendments highlighted the strength and
shortcomings of each of the amendments
in general. One must observe however that
despite the time taken before the Act was
passed by Parliament little care was given
to the finer points of drafting, which as a
whole, is very poor. As a result the
grammatical errors are aplenty and now
sought to be corrected by another
amendment which produces a comical
result of amendments of amendments.23
On the whole the amendments brought
about some positive changes especially on
the aspect of discovery and statements by
accused persons. These amendments are
radical changes and is hoped that the
Courts will give liberal interpretations in
favour of protecting the rights of the
accused and at the same time ensuring that
crime will not go unpunished.
23 Criminal Procedure Code (Amendment) (Amendment) Act 2007- Act A1304 which came into force on 7th September 2007.
PRAXIS 37JANUARY / JUNE_2008
Articles
In 2005, a major revamp of the PII
Scheme was initiated and over the past
three (3) years, significant progress has
been made on improving the Scheme.
Notable changes to the Scheme include
the removal of the confidentiality clause
which gave the Bar Council (BC) access
to previously unavailable claims
information, data and statistics on the
Scheme; removal of the punitive and
prohibitive pre-settlement claims loading
structure, removal of work and
responsibility loading, the removal of the
cap on defamation, extending the
notification of claims period in 2008,
availability of the option to buy down base
excess (self retention risk), and the
mitigation of loss rider clause.
Our PII Scheme turns 16 this year, and
the PII Committee is proposing a move to
a Self Insured Fund (SIF). Ragunath
Kesavan, the PII Committee Chairman
has to date been very upbeat and positive
about this move, explaining that (1) It is a
natural step forward in our Scheme’s
evolution; (2) This proposed move to a
SIF is not sudden nor is it radical; it has
been contemplated and envisaged since
1992.
This proposal to initiate a SIF Transition
Project was first mooted in 2006. Since
then, it has became an integral part of the
PII Committee’s 3-year plan in driving the
Malaysian Bar PII Scheme forward to
becoming a sustainable, equitable and
affordable PII Scheme.
The Web Reporter recently sat down with
Ragu to find out more about this exciting
new project and what it means for the
Malaysian Bar.
In the past year, you’ve mentioned a Self
Insured Fund (SIF) for the Malaysian Bar
PII Scheme in most of the Risk
Management newsletter editorials and PII
Circulars. Can you remind us what SIF
means and update us on the current status
of this project?
Put simply, a SIF is merely a mechanism
for the Malaysian Bar to reserve against
PII claims by setting aside funds in a
segregated account, dedicated specifically
for this purpose.
These funds are collected from members
in the same way as the current insurance
premiums, but rather than being passed
to a third party (the insurance company),
they are kept “in-house” and over time,
the surplus funds not needed to pay claims
can be used for the benefit of the
MALAYSIAN BAR membership, rather
than the insurance company’s
shareholders!
Echelon Risk Consulting Asia (Echelon
Asia) has been appointed by the BC as
SIF Project Transition Consultant. In this
role, Echelon Asia’s specialist technical
consultants will be assisting the PII
Committee in reviewing the feasibility of
a SIF arrangement. To date, much progress
has already been made and members will
be kept informed as we move along.
As a start, the PII Committee and the
Echelon Asia consultants will be
conducting a Roadshow to all the State
Bars in the run up to the 2008 Bar Council
AGM, 15 March 2008 to inform
members of this project, obtain their
feedback and answer any queries members
may have.
A report on the SIF’s viability will
presented to members at the March 2008
AGM; the PII Committee will be seeking
a positive resolution from the Malaysian
Bar to push forward with this project.
The SIF Roadshow team is tentatively
scheduled to present at the State Bars on
the following dates:
State Bar Date*
Johor Bar 2 Feb 2008
Kelantan Bar 3 Feb 2008
Penang Bar 14 Feb 2008
Kuala Lumpur Bar 21 Feb 2008
Kedah Bar 21 Feb 2008
Melaka Bar 22 Feb 2008
Perak Bar 22 Feb 2008
Pahang Bar 23 Feb 2008
Selangor Bar 27 Feb 2008
Negeri Sembilan Bar 29 Feb 200
Terengganu Bar To be confirmed
* Subject to change
Why is Bar Council considering a SIF?
The PII Committee views moving to a
SIF as the natural next step in the
evolution of the PII Scheme, which is now
in its sixteenth year. Whilst this idea was
first envisaged in 1992 (when the Scheme
A self-insured fund - Our next step?by Web Reporter
PRAXIS 38 JANUARY / JUNE_2008
Articlesbegan), it has only truly taken off in the
last two years where we have been
reviewing alternatives to the current
arrangements and are targeting
implementation in 2010. This is of course
subject to a positive answer to the feasibility
study and the approval of members at the
2008 AGM.
Although there have been many
improvements to the PII Scheme, the
bottom line is that as long as this Scheme
is insured, the BC and our members are at
the mercy of the insurance market, and
subject to great volatility in pricing caused
by events beyond our control. For
instance, after the 9/11 terrorist attacks in
the USA, rates increased dramatically, even
though our claims record was not affected
by this event. In moving to a self-insured
arrangement, we will insulate ourselves
from such volatility, because we will be in
control of our funds.
Members’ contributions can be based on
the experience of the Malaysian Bar PII
Scheme and, as mentioned above, over
time, any surplus funds not required to
be held in reserve for the payment of claims
can be used for the benefit of members.
Thus, the main benefits that we are
expecting from the move to SIF can be
summarised as - control, stability and
affordability.
How will this differ from current
arrangements and from the members’
perspective, what would change if Bar
Council moved to a SIF for the PII
Scheme?
From the members’ perspective there may
be some minor changes to the
administration and operation of the
Scheme, in terms of documentation and
claims procedures, but the biggest impact
would be “behind the scenes” and thus
unlikely to have a major impact on
members. Renewals will be dealt with in
the same way, although some of the
terminology may have to be altered to
recognise the self-insurance aspect of the
Scheme.
Will the SIF replace the current Scheme;
meaning Bar Council no longer buys PII?
If so, how will members’ interests be
protected?
The SIF will replace the current Scheme,
but not in its entirety, so this does not
mean that BC stops buying any insurance.
Although this sounds contradictory, under
the anticipated structure, SIF and
insurance are actually complementary and
both will form an integral part of the new
scheme.
Particularly in the earlier years as the fund
builds-up, insurance has an important role
to play in protecting the SIF against the
financial consequences of unexpected
claims and we are actively negotiating with
a major international company of the
highest financial standing to “partner”
with the BC SIF and completely re-design
our PII programme.
Thus, members’ interests will be protected
through partnership with a financially
strong organisation, whilst still
maintaining the control and stability of
the SIF. Our aim must always be to protect
members’ interests first and we will try to
achieve this at the lowest possible “cost” in
terms of payments made outside the SIF
structure.
What other Schemes have made such a
move? Did they succeed?
There are many examples of Law Societies
from around the world moving away from
a fully insured model and into self-
insurance in one form or another. Some of
these, such as the Victorian Law Society
in Australia have been successfully
operating for over twenty years, and have
grown into significant and financially
stable organisations in their own right.
The various forms of self-insurance used
by Law Societies in places such as Australia,
UK, Canada, Ireland and Hong Kong
vary, but all operate on basically the same
principle as a SIF - the use of a fund to
self-insure a primary layer of risk, with the
insurance market being used for
protection against severe claims and a large
number of individual claims in any one
year. This is a tried and tested model that
we are very confident will suit the
characteristics of our Scheme.
What are the short and long term benefits
of moving to a SIF?
By its nature, the SIF is a long-term strategy
and most benefits to members will become
apparent over time. As previously
mentioned, the major long-term benefit
is the ability to control our own destiny
and insulate ourselves against insurance
market volatility. This will lead to greater
stability in pricing of PII cover for
members and improved budgeting
confidence, knowing that premiums will
not be subject to dramatic and
unanticipated increases year-on-year.
Another benefit of the SIF approach is
that over time, surplus funds (those not
required to be held in reserve against
notified claims) can be used for the benefit
of members, for instance, to fund risk
management and other PII related
PRAXIS 39JANUARY / JUNE_2008
Articlesinitiatives that may otherwise be cost-
prohibitive.
Will the amount that members pay for
PII differ under a SIF and how will this
be calculated?
Under a SIF, the amount that needs to be
paid in “contributions” to the fund is
related far more closely to the actual claims
experience of the Scheme than may be
the case under an insurance arrangement.
Therefore, the amounts paid by members
will depend very much on claims paid out,
as the Fund will need to be sufficient to
cover these claims.
Over time, we would expect members to
pay less under a SIF, as the insurer will
always need to load the “risk” element of
the premium with a margin to cover its
profit and expenses. However, it is
important that members do not equate
the move to SIF as being the signal for a
dramatic reduction in premium
contributions - the SIF is not profit driven
but does need to be sustainable and able
to meet its current and future liabilities, so
there will be an element of prudency and
conservatism in the setting of rates in the
early years. As previously mentioned,
benefits are likely to become apparent in
the longer term, only if the SIF is
sufficiently funded in relation to its
liabilities.
In order to determine the correct levels of
funding, the PII Committee and its
advisors will obtain actuarial analysis of
likely claims and this analysis will form an
important part of the feasibility study to
be presented at the 2008 AGM.
Will the Legal Profession Act 1976 (LPA
1976) pose a problem in setting up a SIF?
We have reviewed the provisions of the
LPA 1976 and in particular Section 78A,
which provides powers to the BC to make
rules on professional indemnity. Our
concern was whether the relevant Section
allowed for the setting up of the SIF.
We have taken a legal opinion on Section
78A and can confirm that it allows for the
setting up of a fund subject to the approval
of the Attorney General who would be
guided to ensure that the interest of the
public is protected.
Formal representation on the SIF, its rules
and the safety features would be made to
the Attorney General to satisfy any
concerns, which he may have in the
implementation of the SIF.
What are the key milestones and timelines
for the SIF project and when can
members expect to see a more definitive
proposal / recommendation from the PII
Committee?
The target date of implementation for the
SIF is 2010. In 2008 and 2009, the PII
Scheme will continue to run in its current
form, whilst transition arrangements are
being put in place for the move to SIF in
2010.
There will be much to do during the
transition to obtain all necessary approvals;
finalise the structure and pricing
parameters, and develop the operating
protocols. The PII Committee and our
consultant will keep members informed
throughout this process.
It is anticipated that if the feasibility study
produces a positive result and the SIF
project is approved at the 2008 AGM,
then a definitive proposal to move to a
SIF in 2010 will be put to the vote at the
2009 AGM.
Is there a backup plan in the event the
SIF does not go through?
Presently, the PII Committee is researching
the feasibility of a SIF and no definitive
decision has been made whether or not to
proceed along this route. In the event that
the SIF does not go ahead, the PII Scheme
will continue to be insured and subject to
annual review of potential alternative
markets and structures.
The PII Committee is of the firm view
that SIF offers major benefits to the
members, but it is important to note that
this is not the only option, nor is the
insurance market forcing it on us. By
reviewing this approach, we are not
“burning our bridges” and always have
the option to remain in an insured scheme,
if this is the wish of the Malaysian Bar.
PRAXIS 40 JANUARY / JUNE_2008
Speeches
Good Afternoon Ladies & Gentlemen
You have come a long way towards
achieving your dream of being
robed in black and white. You are
probably expecting me to say – “It is only
the beginning”. And so, I will not
disappoint you. A well earned beginning
though; at foothills several thousands of
feet above sea level. You have every reason
to be proud of your accomplishment, and
it is of this pride that I address.
You should rightly be proud of joining an
esteemed fraternity of lawyers. We, lawyers
are often the brunt of many entertaining
(and not so entertaining) jokes. But, as it
has been said:-
“Justice is the only thing that allowed
the human race to stop living as animals
and to start living as human beings”
– Frank W. Wilson,
American Judge
You are now an integral part of this process
of justice. Together, we have an enormous
role to play in ensuring that the human
race does not descend to living as animals.
Yes, be proud of this right that you have
earned in society. But, be acutely aware
that as with all rights, come responsibility.
The spectrum of our responsibility is wide
and varied. I select, for easy digestion with
your lunch, some that are basic, but
fundamental.
“If young people entering the law are
honest with themselves, have the ability
to say no, resolving not to serve themselves
more than their clients, and commit
themselves to the oath of the Court, we’ll
all be the better for it.”
- Pamela Ann Rymer,
Los Angeles Federal Judge
To me, this statement beautifully
summarises essential ethics of the Bar - (1)
intellectual honesty (2) strength to resist
temptation (3) serving the client above
self and (4) retaining an element of
impartiality as officers of the Court. I will
add to Pamela Rymer’s list - (5) common
courtesy between members of the Bar.
When I joined the Malaysian Bar in 1990,
obtaining an extension of time from one’s
opponent, to file pleadings or an Affidavit,
was not difficult. Every lawyer knew that
one day he would need to be the party
asking for time, and so naturally
entertained a similar request. More striking
is the fact that rarely was such a telephone
conversation for extension confirmed in
writing. That was the level of trust and
honour between members of the Bar.
Obviously, the Bar is now far bigger, and
the movement of lawyers in and out of
firms more rampant. It has become
Ethics Course Luncheon Speechby Ms. Sitpah Selvaratnam*
* LLB (Wales), LLM (Cantab), Barrister-at-law (Lincoln’s Inn), Advocate & Solicitor (High Court of Malaya)Delivered at the Luncheon Talk for pupils-in-chambers, engaged in the Ethics And Professional Standards Course of the Bar CouncilMalaysia, at Kuala Lumpur on 21st February 2008
PRAXIS 41JANUARY / JUNE_2008
SpeechesSpeechesnecessary to confirm conversations in
writing. But, there is still no justification
for the refusal of simple requests, or to
assume aggression in communications with
fellow lawyers. We do not have to prove
in every conversation that we are the best
lawyer there ever was. There is no necessity
to identify ourselves with our clients 110%
of the time. All letters do not have to carry
battle cries!
In fact, we achieve far more professionally,
by developing goodwill amongst our peers
and the Bench. You will soon observe in
the course of your practice that some
lawyers need only to state a proposition in
law or fact to have the Bench accept it
without much formality. That is the
power of goodwill. That is the respect
one earns over the years from maintaining
a measured detachment from the cause of
one’s client, and observing the requisite
impartiality as officer of the Court.
Concede settled law and facts to progress
the common cause of justice.
It is not all about winning. Clients do
have bad cases, at times. Saying “no” is
therefore, important. “No, it is unlikely
that you will succeed”. “No, I’m afraid the
law is not on your side”. “No, I regret that
would be a misinterpretation of the law”.
“No, I will not bribe to guarantee your
success”.
It may be that you will lose the client, but
you will certainly live to find another.
Not saying “no” can be the thin edge of
the ice. Apart from drawing one into
outright dishonesty and corruption, it can
prompt arguments that distort the law.
In the guise of false intellectualism, do not
succumb to submissions that mangle the
law or procedure. These lead to distorted
judgments and distorted precedents in
law. Remember, the law and justice are far
bigger than our clients and certainly,
bigger than us. It was there before us, and
will remain after us. Let us not make it an
ass, just to satisfy our client or our desire to
win; to get one up over our opponent or
to see our bank balance grow.
Winning obviously is good, but someone
has to lose in every case. The process of
resolving the dispute is just as important,
if not more. The healing of the wound of
grievance, through fairness in the exchange
between the parties of their respective
positions, is vital. More so, where the
clients are engaged in a bitter battle that
runs high in emotion, or with negative
sentiment. A lawyer exercising neutralized
empathy has much value to add to such a
dispute.
In the words of another American lawyer:
“My thesis is that the truly successful
lawyer finds a good heart more useful than
sharp fangs”
– Matthew A. Hodel
We are far more than hired guns. We are
ultimately engaged in a profession, to serve
the public and the nation. Behind the
high drama of Court, and the pub talk
that ensues afterwards, is an individual
who has pledged to do justice; to keep
man above animal; to therefore protect
justice from falling into disrepute; to assure
man that his hurt can lessen through the
legal process of justice.
This does include subordinating our
interest in earning a living, to our client’s
interest in legitimately resolving a legal
issue - at least slightly! It does mean
reporting to clients on the progress of their
matter. Explaining the niceties of the legal
process, procedure and law. Taking
instructions. Engaging them in the
process of justice. It is their entitlement.
Admittedly, in the current pace and style
of living, it is sometime difficult to
remember that we are not running a
business with targets to meet, mouths to
feed (and flash cars to be had).
But, these are the ideals we all have to live
up to; and that which you have chosen to
live up to. If each of us does our little bit
at every level, we grow into a formidable
source of collective strength as an
independent Bar that is intellectually
honest, steady from external influence,
and mindful of our responsibility to
protect and preserve justice. The
Malaysian Bar has earned a well deserved
reputation for its independence, and for
fearlessly fighting for what is right and
lawful. You inherit well. It is your task
now to preserve, and enhance well.
PRAXIS 42 JANUARY / JUNE_2008
Speeches
Madam President, Mr Secretary,Honourable Council members, ladies andgentlemen, fellow lawyers.
Good afternoon.
I have been asked to work for my lunchand give a short talk.
The nice lady from the Bar Council whocalled to invite me to give this talksuggested I keep it brief because the realreason people would be there was for thelunch.
When I accepted the invitation I was toldI could talk about anything I wanted to solong as it had to do with the practice oflaw. If possible it should somehow beconnected with the topic of ethics. It alsohad to be suitable for ChamberingStudents attending a compulsory ethicsevent … in other words, people whowould rather be somewhere else.
My immediate problem in deciding whatto talk about was that back in the old days,1983 when I was called, we didn’t have toundergo a compulsory Ethics Course, sothe fact is, I have no idea what topics youhave been learning or what to say thatmight be relevant. So naturally, of course,… I’ve decided to talk about … SEX.
When I was a student, I was attending acontracts law class.
What struck me was the way the tutorintroduced the topic, which had to dowith a particularly difficult issue, I think
Ethics Course Luncheon Speechby Mr Lim Kian Leong*
it was propriety estoppel.
He said, “Trying to understand this issueis like making love in the bath. Just whenyou think you’ve got a grip on things, as itwere, in a split second everything just slipsaway and you’re desperately trying just tokeep your head above the water, tryingnot to drown”.
He went through the whole class makingincreasingly lurid analogies about soap andfoam and lack of friction … fine for abunch of over hormoned college studentsbut of course totally unsuitable for thisaudience of young lawyers, so I’ll moveon.
Anyway, the contract law class concludedwith the proposition that what appearedon its face to be a simple contract law matterbecame more and more complicated thedeeper one looked into it until it becamealmost impossible to understand.
The reason I mention my old tutor is thatevery time I come across a difficult issue,be it in law or life, his words always cometo mind. Whenever I think I understandsomething, the next minute it just slipsaway and I realise, well, may be there’smore to it than that.
It all depends how far you want to look.
As you will all soon discover, the practiceof law is often like that.
Nothing is really as it seems.
Every problem is fraught withcomplicated twists and turns.
It all really depends how far you want tolook.
One of the reasons for this, apart from theintrinsic difficulty of the law, is of coursethat legal relationships, such as Contracts,are made and broken by PEOPLE.
At the end of the day, many things dependon the facts.
What did they Sign?What did they Do?What did they Say?What didn’t they Say?
The mark of a truly great lawyer is in howhe or she applies the law to the facts.
Notice what I just said … “how he or sheapplies the law to the facts”.
* Delivered at the Luncheon Talk for pupils-in-chambers, engaged in the Ethics And Professional Standards Course of the Bar CouncilMalaysia, at Kuala Lumpur on 17th April 2008
PRAXIS 43JANUARY / JUNE_2008
SpeechesSpeechesThat’s really all there is to the practice oflaw. Applying the law to the facts.
But what facts?How do we know the facts?How do we establish the facts?Are the facts the same as the Truth?If I know the Truth, do I have to tell?
This, ladies and gentlemen, is a real ethicalissue you will come across every day inpractice.
Before you can apply the law, you need toknow the facts. IS THAT THE SAME ASKNOWING THE TRUTH?
Well, that’s what the law of procedure andevidence is for. In law, the Truth issomething that’s established according tothe rules.
That’s sometimes a hard lesson to learn.
As lawyers, never put your trust in theadage “the truth will prevail”. In Court,somebody has got to reveal and prove the“Truth” and that task has to be doneaccording to strict Rules and Procedure.
As a lawyer, if you want the truth to prevail,you better know your Rules of Evidenceand Procedure inside out. You better learnall the techniques available and ensure thatyou are a master of the art of revealing theTruth. And in the process, you had bettermake sure that you all know the differencebetween “right and wrong”.
We all know the difference between “rightand wrong”. Correct?Its wrong to murder.Its wrong to steal.
As a lawyer, it is wrong to use money fromyour client’s account without theirconsent.
Its very clear. No ifs and buts.
On the other side of the coin, Its right to
save someone else’s life. Its right to spendyour own money to save someone else’slife. (Malaysians are famous for respondinggenerously to appeals for donations.)
So, should Lawyers spend their ownmoney to save someone else’s life? Ofcourse.
Should Lawyers spend their client’s moneyto save someone else’s life?Obviously not without their client’sconsent.
Now, lets imagine.
You are a lawyer.
Your best friend needs surgery to save hislife TODAY. Without the surgery he willdie. He’s 28 years old. He has a youngwife and 3 kids.
The cost is RM25,000.00, but you andyour friend are flat broke. So is your family.
All your money and their money werespent sending you to law school.
But, you do have RM25,000.00 sittingin escrow in your client’s account, onlydue for release in 3 months.
What if you honestly believe that the clientwould agree to let you use the money butthere’s no time to ask? He’s uncontactableoverseas.
What if you honestly believe you can takethe money out, spend it on the life savingsurgery, and replace it within the 3 monthswithout the client suffering loss?
Would you use the money?
Having doubts?
NOW, WHAT IF THE PATIENT WHONEEDED THE LIFE SAVINGSURGERY WAS YOUR MOTHER?
WHAT IF THE CLIENT WOULDNEVER KNOW?????
Think about it.Your Mother needs the operation today.You have the money in your client’saccount.You can replace it in time.The client would never know.Its not that you would be taking themoney to buy a new Mercedes. Its yourmother’s life.
Lets say you, the lawyer, decide to go aheadand do it.You take the money.You save your mother’s life.You work flat out and earn enough toreplace it with interest within 3 monthsand your client gets his money in full.
Everyone’s happy.No one got hurt.A life was saved, your Mother’s.Your client got his money.
Right or wrong?
I’m not going to give you the answer.
I’ll just tell you my view.
My view is that the lawyer who saved hismother’s life and paid his client in fullSHOULD BE SEVERELY PUNISHEDAND EVEN DISBARRED.
That’s only my view.Ultimately a Disciplinary Committeewould decide.
But hang on a minute. In my little exampleNO ONE EVER KNEW...The client never knew.He got his money.For a DC to sit, somebody has tocomplain.Who would ever lodge the complaint?
Looks like the lawyer got away with it …on the facts.
PRAXIS 44 JANUARY / JUNE_2008
SpeechesBecause on the facts … there are no facts.There’s no case.No one suffered.No one complained.None ever knew.
The lawyer in my example, manipulatedand suppressed the facts to get away witha crime.
He used his knowledge and his client’signorance to his advantage.
Some might say he’s a good lawyer.
But who suffered?The Truth suffered.The Law suffered.
The lawyer in my example knew that hewas breaking the law.He knew the truth.He knew what he was doing was illegal.But he also knew he could get away withit.
He did it to save his mother’s life.Morally justified? Some may think so.
But he is unfit to be a lawyer.
Why?Because that’s the LAW.
The LAW transcends our personal viewson morality.It has a life of its own.It is your duty as a lawyer to understandthe LAW.It is your duty to understand what is rightand wrong according to the LAW.And to uphold and cherish the LAW.
We all like to believe we know thedifference between right and wrong.Well, we do not.
We have to accept that sometimes thereare higher authorities than our emotions,
our gut feelings and our own version ofmorality. What our mothers taught us.
Was the lawyer right to save his mother?
It’s not our call.It’s the LAW.It’s the LAW that we have chosen touphold.
If you cannot live your life like that, dosomething else.Go into politics. Change the law.Go into business. Be an Advertisingexecutive. Teach.All, (of course with the exception ofpolitics) reputable and worthy professions.
What I want to impress upon you is thatLawyers ARE INDEED DIFFERENT.
We ARE A BREED APART. WE ARESPECIAL.
We cannot behave like normal people whoconduct their lives according to theiremotions, their whims and their desires,their needs, their own version of right andwrong which they believe must be true.
When you practice the law, you undertakea sacred duty to act at all times in thepractice of your profession with honesty,integrity and dedication to the Law.
You, that is to say, WE, do not set thestandard. That standard has already beenset by others before us. IT IS VERY, VERYHIGH.
We have no right to lower it.
We have no right to COMPROMISE it.
Understanding and getting to grips withdifficult legal issues, complex problems oflaw, applying the law to the real facts …yes, sometimes it really is like being in thatbath tub covered in soap.
But coming to grips with honesty, ethics,behaving as a lawyer should, actually that’snot hard at all.
Get out of the bath, towel down and puton your robes.It’s that simple.
The day each of you gets called to the Bar,when you put on that robe as an Advocateand Solicitor for the first time … It’s afeeling like no other.
I’m speaking to you as one lawyer toanother. No one else, only we lawyers canexperience that feeling.
You will for a few wonderful preciousmoments, feel the full majestic weight ofall the traditions of the Bar on yourshoulders. It makes you feel special. It’s ahuge weight but it uplifts you. It scaresyou.
At that moment, your heart will bebursting with a pounding passion to beworthy of this wonderful profession thatyou have chosen.
Savour that moment. Cherish it. Neverforget it.
Whenever you have any doubt how tobehave as a lawyer, don’t think about thebath tub. Remember that moment whenyou first put on your robe ... Feel thepassion surge through you again.Suddenly, everything will become clearand you WILL know what to do.
Find a way to keep that passion alive, andyou might just make it as a lawyer.
With that I wish you all good luck and seeyou in court soon.
JANUARY / JUNE_2008 PRAXIS 45
Disciplinary Orders
DISCIPLINARY MATTERS – UPDATES
PenaltyOrder under s.100 Legal Profession Act 19761. Suzana bt Radzali - 19 October 2007 (RM1,000)2. Joginder Singh Olikh - 19 October 2007 (RM2,000)3. Fabli bin Yusof - 19 October 2007 (RM1,000)4. Teoh Ming - 19 October 2007 (RM500)5. Faizal bin Abd Jalil - 19 October 2007 (RM1,500)6. Sathival a/l V Sundram - 19 October 2007 (RM1,000)7. Nor Azri bin Mohd Arif - 19 October 2007 (RM2,000)8. Mahaletchumy a/p Ramakrishnan - 19 October 2007
(RM1,000)9. Ong Sun Juan - 19 October 2007 (RM1,000)10. Nuurul' Azmi bin Zainal Abidin - 19 October 2007
(RM1,000)11. Hasniza binti Ahmad Hassan - 19 October 2007
(RM1,000)12. Yong Wing Gin - 19 October 2007 (RM1,000)13. Toh Yoke Hin, Terence - 19 October 2007 (RM1,000)14. Wan Mohd Rashidi b Wan Yahaya - 19 October 2007
(RM1,000)15. Husna binti Sabri - 19 October 2007 (RM1,000)16. Abdul Razak bin Mellon - 19 October 2007 (RM1,000)17. Jong Yon Tzan - 19 October 2007 (RM1,000)18. Soo Bee Chee - 19 October 2007 (RM1,000)19. Mohd Shafik bin Hassan - 19 October 2007 (RM1,000)20. Samry bin Masri - 19 October 2007 (RM1,000)21. Nor Azian bt Abdul Wahab - 19 October 2007
(RM1,000)22. Rabinder Kaur a/p Ranjit Singh - 19 October 2007
(RM1,500)23. Lim Chin Hart, Stanley - 19 October 2007 (RM1,000)24. Tee Sze Ping - 19 October 2007 (RM500)25. Ellinee binti Ab Rahman - 19 October 2007 (RM1,000)26. Mohd Aidil bin Tupari - 19 October 2007 (RM1,000)27. Habsah binti Othman - 19 October 2007 (RM1,000)28. Sunita Shalini Sankey - 19 October 2007 (RM1,000)29. Yusran bin Zain - 19 October 2007 (RM1,000)30. Noor Azman bin Abdul Aziz - 19 October 2007 (RM500)31. Kuppusamy a/l Sinnasamy - 19 October 2007 (RM250)32. Wong Kok Heng, Louis - 19 October 2007 (RM2,000)33. Shobah Veeraputhran - 19 October 2007 (RM1,000)34. Kamarulzaman bin Mohamad Buhari - 16 November
2007 (RM2,000)35. Sumiyati binti Zainuri - 16 November 2007 (RM1,500)36. Syed Fakhruzzaman bin Syed Mansor - 16 November
2007 (RM1,500)37. Kamal Affandi bin Baharuddin - 16 November 2007
(RM2,000)38. Ahmad Fuad bin Zulkifli - 16 November 2007
(RM1,000)
39. Eiza Hezrina binti Othman - 16 November 2007(RM1,000)
40. Zakiah bt Hj Ahmad - 16 November 2007 (RM2,000)41. Zamzuri bin Mohamad - 16 November 2007 (RM1,000)42. Shahrul Nazim bin Baharin - 16 November 2007
(RM1,500)43. Pradap Leon a/l Leon Willian Pereira - 16 November
2007 (RM1,500)44. Mohd Nawi b Ab Hamid - 16 November 2007
(RM1,500)45. Mohd Zulkifli bin Mohd Rusad - 16 November 2007
(RM2,500)46. Saw Hoe Teik - 16 November 2007 (RM2,500)47. Lana Azman bin Eli - 16 November 2007 (RM2,000)48. Johari b Baharuddin - 16 November 2007 (RM3,000)49. Pakhiruddin bin Mat Saad - 16 November 2007
(RM1,000)50. Rafidi b Mohamad - 16 November 2007 (RM1,500)51. Fadzilah bte Hassan - 16 November 2007 (RM500)52. Mohamad Fisol bin Ismail - 16 November 2007
(RM1,000)53. Mohd Yamin bin Hj Ismail - 16 November 2007
(RM2,000)54. Azizi bin Che Hamid - 16 November 2007 (RM1,000)55. Laura Anne bt Ab Rahman - 16 November 2007
(RM1,000)56. Lim Meng Seng - 16 November 2007 (RM2,000)57. Kevindran s/o Mahendran - 16 November 2007
(RM1,000)58. Mohd Fadzil bin Mohd Khalil - 16 November 2007
(RM250)59. Zainab binti Samsudin - 16 November 2007 (RM500)60. Muhammad Firdaus bin Zakaria - 16 November 2007
(RM500)61. Hermes Media Putra bin Ibrahim - 17 November 2007
(RM1,500)62. Jeyendran s/o Ramachandran - 17 November 2007
(RM2,000)63. Baidura binti Ibrahim - 17 November 2007 (RM500)64. Lim Huan Seong - 17 November 2007 (RM2,000)65. Anuwar Hj Yeop Nasir - 17 November 2007 (RM2,000)66. Jaspita bin Salleh - 16 November 2007 (RM1,000)67. Raja Badrol Hisham b Raja Mohd Ali - 16 November
2007 (RM1,500)68. Lynn Melanie Mohan - 17 November 2007 (RM500)69. Jefrizal bin Mohd Jaafar - 17 November 2007 (RM2,000)70. Nor Hannah binti Meor Abd Ghani - 17 November
2007 (RM1,000)71. Norhasmina binti Hassim - 17 November 2007
(RM1,000)
Disciplinary Orders
PRAXIS 46 JANUARY / JUNE_2008
Disciplinary Orders
72. Teh Hock Kee - 17 November 2007 (RM1,000)73. Rahatulliza binti Salleh - 17 November 2007 (RM1,000)74. Sharifah Jaliha bt Tuanku Abdullah - 17 November 2007
(RM1,000)75. Adlina Sarlis binti Alias - 17 November 2007 (RM1,000)76. Ahmad Badri bin Othman - 17 November 2007
(RM2,000)77. Syed Iskandar Syed Jaafar - 17 November 2007
(RM1,000)78. Izharudin bin Jalaludin - 17 November 2007 (RM2,000)79. Rosdee b Abdul Razak - 17 November 2007 (RM1,500)80. Ahmad Fuad bin Hj Sungip - 17 November 2007
(RM2,000)81. Haslina binti Mohd Nor - 17 November 2007
(RM1,500)82. Raja Raziff bin Raja Shaharuddin - 17 November 2007
(RM2,000)83. Rohizah binti Ali - 17 November 2007 (RM1,000)84. Halim Ashgar bin Mohd Hilmi - 17 November 2007
(RM2,000)85. Roslinda binti Mohd Hisham - 17 November 2007
(RM1,000)86. Hazman bin Harun - 17 November 2007 (RM1,500)87. George Chelvaraj Proctor - 17 November 2007
(RM1,000)88. Amizaizul Izral bin Amran - 17 November 2007
(RM1,000)89. Pauline Sagau - 17 November 2007 (RM2,000)90. Mohd Azam b Harun - 17 November 2007 (RM2,000)91. Halila Faiza binti Zainal Abidin - 17 November 2007
(RM1,000)92. Wan Hamidah bt Wan Ismail - 17 November 2007
(RM1,000)93. Anandzachery b Mohamad - 17 November 2007
(RM2,500)94. Iskandar Putra bin Ishak - 17 November 2007
(RM1,500)95. Azian bt Shaharum - 17 November 2007 (RM1,500)96. Abdul Rahim b Abdul Rahman - 17 November 2007
(RM1,000)97. Mohamed Nordin b Hj Mohd Yusoff - 17 November
2007 (RM1,500)98. Ramis a/l Subramaniam - 8 December 2007 (RM1,000)99. Sasi Kumar a/l Kandasamy - 15 February 2008
(RM5,000)100. Salasiah binti Abd Kadir - 15 February 2008 (RM500)101. R Vigneswaran a/l Raju - 15 February 2008 (RM5,000)102. Shivdev Singh - 16 February 2008 (RM2,000)103. Yap Keng Siong - 16 February 2008 (RM1,000)104. Song Teik Kim - 17 May 2008 (RM3,000)105. Zainal bin Khamis - 17 May 2008 (RM1,000)
106. Shenton Maniam a/l R Sivamaniam - 13 June 2008(RM2,000)
Order under s.102 Legal Profession Act 19761. Mustaffa bin Idris - 20 October 2007 (RM3,000)2. Mohd Yusmadi bin Mohd Yusoff - 20 October 2007
(RM1,000)3. Mohd Azman bin Harun - 20 October 2007 (RM1,500)4. Syed Nongchik bin Syed Hussain - 20 October 2007
(RM1,500)5. Fauzi b Ngah - 20 October 2007 (RM1,500)6. Gurpreet Singh Sidhu - 20 October 2007 (RM3,000)7. Johan Nor Zaimi bin Johari - 20 October 2007
(RM1,000)8. Azrul Safinas binti Rosli - 20 October 2007 (RM1,000)9. Albert a/l Antoni Tass - 17 November 2007 (RM1,000)10. Parmjit Singh a/l Mahinder Singh - 17 November 2007
(RM2,000)11. Albert a/l Antoni Tass - 7 December 2007 (RM3,000)12. Satish s/o P S Nair - 7 December 2007 (RM1,000)13. R A Gunaseharan a/l Appoo and Roslinda binti Yahya - 7
December 2007 (RM1,000)14. Ragumaren a/l N Gopal - 7 December 2007 (RM2,000
& RM3,000)15. Zainal bin Khamis - 15 February 2008 (RM5,000)16. Aziana binti Uda Bahari - 16 May 2008 (RM500)17. Mohd Razak bin Sharif - 14 June 2008 (RM1,000)18. Fakrul Nizam bin Isahak - 14 June 2008 (RM1,000)19. Mathi S Nayagam - 11 July 2008 (RM1,000)
Order under s.103D Legal Profession Act 19761. Dato' Daud b Daros - 19 October 2007 (RM8,000)2. Paneerselvam Pandian a/l S Seeralan - 19 October 2007
(RM10,000)3. Norizlan bin Abdullah - 19 October 2007 (RM10,000)4. Shaari bin Hj Md Nor - 19 October 2007 (RM3,000)5. Hakiman Hafiz bin Husain - 20 October 2007
(RM2,000)6. Shamshuddhuha bin Ishak - 20 October 2007
(RM5,000)7. Ravindran a/l Kumaraveloo - 17 November 2007
(RM10,000)8. Keshvinder Singh a/l Kashmir Singh - 17 November
2007 (RM10,000)9. Phua Jin Key - 17 November 2007 (RM3,000)10. Rosli bin Abd Rahman - 17 November 2007 (RM5,000)11. Mesnor bin Bujang - 7 December 2007 (RM4,000)12. Sithradevi a/p P Nagalingam - 18 January 2008
(RM3,000)13. Gurbachan Singh a/l Bagawan Singh - 18 January 2008
(RM20,000)
JANUARY / JUNE_2008 PRAXIS 47
Disciplinary Orders
14. Hamidon bin Hayon - 14 February 2008 (RM5,000)15. Coomarasooriyar a/l D Subbayah - 16 February 2008
(RM15,000)16. Mohamed Fadly bin Zakariya - 14 February 2008
(RM2,500)17. Krishnamurthy s/o Karthikesu - 14 February 2008
(RM2,500)18. Venu Das a/l Sinniah - 14 February 2008 (RM2,000)19. Wong Kian Chung - 16 February 2008 (RM1,000)20. Syed Fakhruzzaman bin Syed Mansor - 7 March 2008
(RM4,000) & (RM50,000)21. Leong Mei Hing Richard - 7 March 2008 (RM10,000)22. Tamil Arasu a/l Renganathan - 7 March 2008 (RM5,000)23. Rajadevan a/l Vamadevan - 7 March 2008 (RM10,000)24. Kamal Affandi bin Baharuddin - 7 March 2008
(RM5,000)25. Brian Komathi @ S Komali - 25 April 2008 (RM3,000)26. Junaidah binti Md Noh - 25 April 2008 (RM5,000)27. Zufaidi bin Mohamad - 26 April 2008 (RM2,000)28. R Vigneswaran a/l Raju - 26 April 2008 (RM5,000)29. Rostam Khan bin Munsab Khan - 26 April 2008
(RM10,000)30. Rosdee bin Abdul Razak - 15 May 2008 (RM1,000)31. Mohd Fuad bin Jaapar - 15 May 2008 (RM5,000)32. Mohd Nazri bin Awang - 15 May 2008 (RM2,000)33. Shanmugam N - 16 May 2008 (RM5,000)34. Lee Cheng Theng - 16 May 2008 (RM25,000)35. Ramis a/l Subramaniam - 16 May 2008 (RM5,000)36. Domnic Selvam a/l Gnanapragasam - 17 May 2008
(RM3,000)37. Sivarajah a/l A Palanisamy - 17 May 2008 (RM20,000)38. Mehinder Singh a/l Shohan Singh - 13 June 2008
(RM5,000)39. Hairul Nizam bin Omar - 14 June 2008 (RM10,000)40. Hamidon bin Hayon - 11 July 2008 (RM3,500)41. Choo Meng Kwan - 11 July 2008 (RM3,000 &
RM2,000)
SuspendedOrder under s.103D Legal Profession Act 19761. Chan Wai Keong, M/s Tam & Chan (for three (3) months
to take effect twenty-one (21) days from 18 January 2008and to expire on 8 May 2008)
2. Teh Hock Kee, M/s H K Teh & Assoc (for two (2) years totake effect twenty-one (21) days from 14 February 2008and to expire on 6 March 2010)
4. Mogana Sunthari a/p Subramaniam, M/s JunaidahMogana & Partners (for three (3) years to take effecttwenty-one (21) days from 25 April 2008 and to expireon 16 May 2011)
Struck OffOrder under s.100 Legal Profession Act 19761. Sasi Kumar a/l Kandasamy, M/s Sasi Kumar & Associates
(w.e.f. 21 days from 7 March 2008)2. Norizlan bin Abdullah, M/s Norizlan & Co (w.e.f. 21
days from 16 May 2008)3. Salmahani binti Salleh, M/s Salmahani & Co (w.e.f. 21
days from 17 May 2008)
Order under s.103D Legal Profession Act 19761. Mariam bte Isa, M/s Mariam & Co (w.e.f. 21 days from
18 January 2008)2. Noor Hadi bin Sallehon, M/s Hadi & Co (w.e.f. 21 days
from 18 January 2008)3. Pathmesvary a/p Arumugam, M/s Pat & Co (w.e.f. 21
days from 18 January 2008)4. Lokman bin Mohd Yusof, M/s Lokman & Assoc (w.e.f.
21 days from 14 February 2008)5. Suwardi bin Yaacob, M/s Suwardi Yaacob & Partners
(w.e.f. 21 days from 14 February 2008)6. Hasmizam bin Mohd Hashim, M/s Izam & Co (w.e.f. 21
days from 14 February 2008)7. Loganathan a/l V Ramasamy, M/s Azizah Loga &
Associates (w.e.f. 21 days from 14 February 2008)8. Raja Raziff bin Raja Shaharuddin, M/s Raziff Razlan (w.e.f.
21 days from 7 March 2008)9. Rohaizat bin Othman, M/s Saif Ariff & Rohaizat (w.e.f.
21 days from 7 March 2008)10. Syed Ali Akbar bin Syed Husain, M/s Ali Akbar & Co
(w.e.f. 21 days from 7 March 2008)11. Rosli bin Abd Rahman, M/s Rosli Rahman & Co (w.e.f.
21 days from 26 April 2008)12. Mohamad Khoirun bin Salamat, M/s Affendy & Khoirun
(w.e.f. 21 days from 15 May 2008)13. Wan Mohd Nazri bin Wan Hassan, M/s Sulaiman & Saif
(w.e.f. 21 days from 15 May 2008)14. Ahmad Badri bin Othman, M/s Badri & Co (w.e.f. 21
days from 16 May 2008)15. Coomarasooriyar a/l D Subbayah, M/s Sooriyar & Co
(w.e.f. 21 days from 15 May 2008)16. Ravichandran a/l Dorados, M/s D R Chandran (w.e.f. 21
days from 12 June 2008)17. Paneerselvam Pandian a/l S Seeralan, M/s Azian & Co
(w.e.f. 21 days from 13 June 2008)18. Rosdee bin Abdul Razak, M/s Rosdee Razak & Partners
(w.e.f. 21 days from 13 June 2008)