PRAXIS - Malaysian Bar

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]

BAR COUNCIL OF MALAYSIABAR COUNCIL OF MALAYSIABAR COUNCIL OF MALAYSIABAR COUNCIL OF MALAYSIABAR COUNCIL OF MALAYSIABAR COUNCILNos 13, 15 & 17

Leboh Pasar Besar50050 Kuala Lumpur

MalaysiaTelephone (03) 2031 3003

Fax (03) 2026 1313, 2034 2825, 2072 5818e-mail: [email protected]: www.malaysianbar.org.my

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

Publications CommitteePublications CommitteePublications CommitteePublications CommitteePublications CommitteeR Subramaniam (Chairman), K Shanmuga (DeputyChairman), Cecil Rajendra, Colin Andrew Pereira,Edmund Bon, S Gunasegaran, Sanjeev KumarRasiah, Tan Ban Cheng , PK Yang, Nicole Tan LeeKoon, Jahaberdeen Mohamed Yunoos, AvtaranSingh, Anita Shukla, Dymphna Lanjuran, Megalai VRaman

SecretariatSecretariatSecretariatSecretariatSecretariatChief Executive Officer: Corrinne WongDirectors: Cindy Chan and Rajen Devaraj

Publication ExecutiveSalina Lim AbdullahTel: +603 2031 3003 extn 189Fax: + 603 2032 [email protected]

Advertisement ExecutiveChandrika BhaskaranTel: +603 2031 3003 extn 192DL: + 603 2031 3180Fax: + 603 2026 [email protected]

Design & Layout:Khairul Anuar / Norazaliza Azlin

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


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

[email protected].

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


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)


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


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.


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


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.


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



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



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



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


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


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.


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


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


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


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.


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


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


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.


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


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.


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.”

“


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:-


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.


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


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.


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.


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.


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.


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


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.


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


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


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.


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


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.


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


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.


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.


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


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)


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)

PRAXIS - Malaysian Bar

Documents

Transcript of PRAXIS - Malaysian Bar