INFOLINE THE OFFICIAL NEWSLETTER OF THE MALAYSIAN BAR
3 Editorial 5 News 28 Your Opinion 31 Comment 37 Book Review 38 Articles 58 Press Statements 60 Notices 72 D B Order 73 Diary 74 Library Update 75 In Memoriam
OCT / NOV / DEC 2004
Opening of the Malaysian Bar Building
11 LAWASIAdownunder 2005 13 LAWASIA IT Conference
15 Intellectual Property Committee Seminar on Managing Technology Infringement
20 Conference Tackles Landmark Changes 23 Asian Integration: Towards the Asean Community
Impact of Terrorism and AntiTerrorism Measures in Asia: Malaysia
12 Unprecedented Amicus Brief Filed in Guantanamo Bay Detention Cases
CC o on n tt e en n tt ss 31 The Malaysian Judiciary
45 Crisis in the Judiciary - Part 4 & 5
(An Infoline Pull-Out) Issue 12 Oct / Nov / Dec 2004
RESULTS OF BAR COUNCIL ELECTION 2005/2006 Total number of Ballots issued Total number of Ballots received Number of spoilt Ballots Number of Ballots undelivered
BAR COUNCIL OF MALAYSIA
: : : :
11,616 2,984 14 74
BAR COUNCIL Nos 13, 15 & 17 Leboh Pasar Besar 50050 Kuala Lumpur Malaysia Telephone (03) 2031 3003 Fax (03) 2026 1313, 2034 2825, 2072 5818 e-mail: [email protected]
BAR COUNCIL OFFICE BEARERS AND COUNCIL MEMBERS 2004/2005 OFFICE BEARERS Chairman Vice Chairman Secretary Treasurer
Hj Kuthubul Zaman Bukhari Yeo Yang Poh Ambiga Sreenevasan Ragunath Kesavan
COUNCIL MEMBERS Hendon Mohamed Hj Sulaiman Abdullah Mah Weng Kwai Dato’ Dr Cyrus Das Dato’ Mohd Sofian Abd Razak Malik Imtiaz Sarwar Low Beng Choo Hj Hamid Sultan Abu Backer Christopher Leong Cecil Rajendra Yasmeen Hj Muhamad Shariff Jerald Gomez (Kuala Lumpur) George Varughese (Selangor) S Ravichandran (Selangor) Tony Woon Yeow Thong (Negeri Sembilan) Krishna Dallumah (Negeri Sembilan) Aloysius Ng (Melaka) R R Chelvarajah (Melaka) E Ramasamy (Johor) Suppiah a/l Pakrisamy (Johor) Ong Siew Wan (Pahang) Hon Kai Ping (Pahang) Faridah bte Yusoff (Terengganu) Hj Asmadi bin Awang (Terengganu) Aziz b Haniff (Kelantan) Indran Rajalingam (Kelantan) Hj Vazeer Alam Mydin Meera (Kedah/Perlis) Jegadeeson Thavasu (Kedah/Perlis) Fredrick Indran Nicholas (Perak) Ngan Siong Hing (Perak) V Sithambaram (Penang) Petra Oon (Penang) Infoline is the official newsletter of the Malaysian Bar, published monthly by the Bar Council of Malaysia. Its editor is Ms Ambiga Sreenevasan. Members of the Publications Committee are Mr Ragunath Kesavan, Mr Frederick Nicholas, Mr S Gunasegaran, Mr P K Yang, Mr Cecil Rajendra, Mr George Varughese, Mr Jerald Gomez, Ms Melina Yong Mei Lin, Mr Sanjeev Kumar Rasiah, Andrew Das Solomon, Mr Chan Kheng Hoe and Mr Colin Andrew Pereira. The Bar Council welcomes letters, articles, views and news (including photographs) for possible inclusion in the newsletter. However, the Bar Council reserves the right not to publish them or to edit those published as regards content, clarity, style and space considerations. Articles from individuals that are published contain the personal views of the writers concerned and are not necessarily the views of the Bar Council.
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Hendon Mohamed Ambiga Sreenevasan Low Beng Choo Sulaiman Abdullah, Haji Cecil Rajendra Mohd Sofian bin Tan Sri Abd Razak, Dato' Yasmeen bte Haji Muhamad Shariff Mah Weng Kwai Hamid Sultan bin Abu Backer, Haji Christopher Leong Charles Hector Ragunath Kesavan Ramdas Tikamdas Lee Swee Seng Chia Loong Thye Shamsuriah bte Sulaiman, Hajjah S Ravichandran Lim Chee Wee Andrew Khoo Chin Hock Ranjit Singh s/o Harbinder Singh P Suppiah Jegadeeson Thavasu Alex Nandaseri De Silva Vincent Lawrence Rajindar Singh s/o Gurbachan Singh Chan Yiew Hock Visvanathan Murugiah
2107 1653 1649 1640 1581 1568 1483 1434 1422 1093 1065 982 946 941 893 883 837 823 808 663 617 541 476 367 325 320 260
Dated this 1st day of December 2004 We declare the first twelve (12) persons abovenamed duly elected to the Bar Council for the year 2005/2006 on the assumption that the said persons were not disqualified from being nominated or from holding office under the Legal Profession Act.
Mr Inderjit Singh
Encik Zainudin Ismail
Mr Vernon Ong
mark your diaries!
Annual General Meeting of the Malaysian Bar 2005 10.00 am
Annual Dinner and Dance 8.00 pm
19 March 2005 Hotel Nikko, Kuala Lumpur
Solicitors’ Remuneration: More For Less
he Solicitors’ Remuneration (Enforcement) Rules 2004 came into force on 1.11.2004. These rules were made following the resolutions of the Bar, passed at the last Annual General Meeting, to enforce the Scale of Fees for Non-Contentious matters. A flurry of activity followed these rules coming into force and many State Bars organised dialogues to address the numerous queries raised by their members. The State Bars should be commended for being proactive. Without a doubt, the coming into force of the SRO Enforcement Rules is the single most dramatic event to impact the livelihood of practitioners this year.
Management of the Royal Malaysian Police
Arising out of the dialogue sessions held by the various State Bars, the Bar Council has issued further guidelines relating to the issue of waiver of fees. These guidelines are produced at page 66 for the information of members.
The release of Anwar Ibrahim
The arrest of high ranking politicians who were later charged with corruption The decisions in the case of Shamala Sathiyaseelan v Jeyaganesh C Mogarajah and Boonsom Boonyanit v Adorna Properties Sdn Bhd The unfolding tragic saga of G Francis Udayappan and the highlighting of further cases of police brutality
The amendments to the Anti-Money Laundering and Anti-Terrorism Act which brought lawyers within the purview of the Act as reporting institutions
The thrust of the guidelines is that a bona fide waiver of fees is permissible. Any waiver that constitutes a scheme or is a disguise for a discount will be caught by the rules. The guidelines may look complicated but the underlying message is clear: No schemes are allowed that attempt to circumvent the ‘no-discount rule’. In short, it calls for honesty.
Our resolutions for 2005? What are our resolutions for the coming year? Perhaps we should resolve to question: what the Special Commission has achieved. Will their reports be made public? We know they were recently in Australia to study the system there. Did Much has been, and in all probability, will continue they learn anything that can be implemented here? to be, said about the rules and the guidelines. However, Will there be complete transparency and openness the enforcement of the rules must begin and there must in the findings of the Commission? be a firm commitment by all lawyers to its enforcement, for it to work. When it works, it will if indeed a real battle against corruption has been mean more money for doing the same amount of work waged or doing less work for the same amount of money. What remains to be seen is whether the Bar Council if the Federal Court refuses to intervene in the will indeed enforce the rules strictly as promised, for bizarre Boonsom Boonyanit case, what then will it any reticence or lack of commitment on their part will take before they will? And what of the case of seriously affect their credibility. Shamala Sathiyaseelan? Does Shamala Sathiyaseelan, a mother of two and a citizen of this country, have no recourse whatsoever to our INTO 2005 courts? There was never a dull moment in 2004. We saw amongst other things: will the promises, by the authorities that police The appointment of a long overdue Special brutality will be dealt with severely see the light Commission to Enhance the Operation and of day? OCT / NOV / DEC_2004
does the AMLA not undermine the doctrine of legal professional privilege and clients confidentiality, imposing an undue burden on lawyers? In what manner and to what extent will it be enforced against lawyers?
Walking the talk? There was much rhetoric about ‘walking the talk’ and how transparency and the battle against corruption was the order of the day. That things have improved is not denied but the leaders must be in this for the long haul. Unpopular decisions will have to be made and carried through. Token prosecutions are of little use. Both the big fish and the little fish must face the music. The task ahead is undoubtedly monumental. But anyone who tires ought to read Nelson Mandela’s book ‘Long Walk to Freedom’. The last paragraph of the last chapter is worthy of reproduction:‘ I have walked that long road to freedom. I have tried not to falter; I have made missteps along the way. But I have discovered the secret that after climbing a great hill, one only finds that there are many more hills to climb. I have taken a moment here to rest, to steal a view of the glorious vista that surrounds me, to look back on the distance I have come. But I can rest only for a moment, for with freedom come responsibilities, and I dare not linger, for my long walk is not yet ended.’ We too must not falter or linger in our long walk towards building a truly free, honest and democratic nation. We must go the distance. We at the Bar have a duty to ensure that our path to achieving this stays true. All this without forgetting that there are many people in the rest of the world that suffer atrocities and injustices that we could not even begin to imagine. May they find justice and peace in 2005. (This editorial was written before the tsunami disaster and we offer our heartfelt sympathy to the victims and their families. This is a disaster which underscores the frailty of humans in the face of the forces of nature which we cannot control. It makes more acute the senselessness of the suffering inflicted by man upon man. The Bar Council has set up a Tsunami Relief Fund for the victims. Let us help those in need.)
OCT / NOV / DEC_2004
Circular No. 1 /2005 - 7th January 2005 Re: Hotline for queries relating to the Solicitors’ Remuneration (Enforcement) Rules 2004 Please be informed that the Secretariat has installed a hotline to address queries from members of the Bar pertaining to the said Rules and the Guidelines on Waiver of fees. Should you have any queries relating to the said Rules and the Guidelines as mentioned, you may call the Secretariat at Telephone No. 03 - 2031 9943 from 9.30 a.m. to 6.30 p.m. on weekdays. In the event your queries require clarification from the SRO Enforcement Committee, they will be referred to the Committee and the Secretariat will revert to you in due course. Please also be informed that any complaints pertaining to the giving of discounts by solicitors may be referred to the Bar Council without the necessity of a Statutory Declaration but please ensure that there are sufficient particulars to enable the Bar Council to conduct investigations. In the event the complainant’s name is provided, it shall remain confidential. Circular No. 2/2005 - 3rd January 2005 SPECIAL NOTICE BY THE BAR COUNCIL PERTAINING TO CONVEYANCING FEES AND THE “NO-DISCOUNT RULE” Please be informed that the Bar Council has reproduced in A3 size, the said notice which was published in the vernacular newspapers in early November 2004, in the four languages, for you to post in your offices if you so wish. You may obtain a copy of the same from your respective State Bar Secretariats. We hope this notice will further assist you in explaining to your clients the position of the Bar Council in strictly enforcing the no-discount rule. Kindly note the above Thank you. Yours faithfully, Ambiga Sreenevasan Secretary, Malaysian Bar
Opening of the Malaysian Bar Building Hj Kuthubul Zaman Bukhari President Malaysian Bar
Ladies & Gentlemen,
t is an honour to be invited to say a few words at the official opening of the Building of the Malaysian Bar.
In 1966, there were only 180 members of the Malaysian Bar and the office of the Honourary Secretary was used as the official premises of the Malaysian Bar. This was the case until 1971 when the then Honourary Secretary KA Menon, fondly remembered as Atchu, emigrated to Australia. Mention should be made of a special member of the Secretariat staff, none other than Catherine Eu, who has served the Malaysian Bar loyally from 1966 until this day. She has witnessed the various changes and developments of the Malaysian Bar over a period of more than 30 years; from the days when she single-handedly manned the Secretariat from 1966 until 1971 when it was relocated to the Bar Room of the High Court in Jalan Raja, which now houses the Criminal Court. This was the first time that a permanent office of the Malaysian Bar was established and an additional staff was employed making a total of two staff. We are indeed privileged to have Catherine here with us today, when she is now the head of a staff force of approximately (70) and hopefully she continues to serve the Bar with her continued dedication.
Later, at the recommendation of the Building Committee, chaired by the late GTS Sidhu, the Council considered purchasing the premises beside Hock Lee’s in Jalan Tun Perak. The number of staff had by then increased to 12. GTS Sidhu moved a resolution in 1978 which was adopted by the Bar to establish a Building Fund and with the help of Chan Hua Eng, who was on the Board of Directors of UMBC, the Council purchased the premises in Jalan Tun Perak. That building was officially opened by GTS Sidhu on 12 September 1987. GTS Sidhu was then President of LawAsia and a past president of the Malaysian Bar and today, we are fortunate to have present here with us his widow, Maureen Sidhu. In 1977, the library was moved to the Bar Room of the High Court building and subsequently to the Straits Trading Building and later, Loke Yew Building which housed both the Library and the Auditorium. Even with these premises, it was only a matter of time before suggestions were made for further expansion.
Finally, another Special Committee was formed sometime in early 2001, chaired by Roy Rajasingham to look into whether the premises at Jalan Tun Perak could be redeveloped or whether new premises ought to be acquired. The Committee recommended Two lots were purchased on the 5th floor of Wisma purchasing this present building, which was formerly Central, Jalan Ampang and the Secretariat moved into the OUB building. It was considered the most suitable, its new premises in 1976 where a small library was set due to its location and size. up by the late Abdullah A Rahman, who was the then President. The staff force of the Malaysian Bar had by We moved into this building in March 2003 and then increased to six. These premises at Wisma Central the Secretariat, the Auditorium and Library were, for were officially opened by the then Lord President, the the first time, housed under one roof with the late Tun Mohd Suffian. Membership Department on the ground floor, the Complaints, Professional Development and Press and The rapid growth in the membership of the Malaysian Publications Departments on the mezzanine floor, and Bar meant that a shift to bigger premises was inevitable. the Auditorium, which can accommodate 280 persons, A Committee chaired by YB Dato Dr Peter Mooney on the 1st floor. The offices of the Office Bearers, the was formed to look for suitable premises. A shop lot Executive Director, Legal Aid, Human Rights, Accounts was purchased in Subang Jaya which was subsequently Department, the main practice areas and the sold. Administration Department are all housed on the 2nd OCT / NOV / DEC_2004
NEWS floor. On the 3rd floor are (8) conference rooms, the largest of which can accommodate 42 persons. The other rooms can accommodate between six to 12 persons each. These are mainly used to host meetings of the various committees of the Malaysian Bar. The Library is located on the 4th floor.
tenure in the Bar Council and his unsurpassed record of 3 terms as President, he has witnessed every historical event of the Bar. His contribution to the legal fraternity cannot be overstated.
Many of us of course know him as lead counsel to former Lord President Tun Salleh Abas in the dark We are indeed indebted to Roy and to members events of 1988. More recently he was counsel in Anwar of the Special Committee for their tireless efforts in Ibrahim’s corruption trial. He acted in the sedition case the acquisition and renovation of this magnificent of PP v Param Cumaraswany. He also acted in the building within a short period of (6) months as the matter concerning the constitutionality of section tenancy for the Library and the Auditorium was 46A(1)(a). Other notable cases in which he appeared expiring. include the UMNO - UMNO Baru case, and the contempt cases involving Manjeet Singh Dhillon and, You may have noticed that, traditionally, it is not later, Zainur Zakaria. In the midst of all his endeavours, the President of the Malaysian Bar who officiates at he even found the time to pen a book entitled ‘Conduct the opening of the Bar’s premises. In not breaking with Unbecoming’ to set right the record of the 1988 judicial tradition, YM Raja Aziz Addruse will officiate the crisis. opening ceremony today. I apologize in advance to Raja Aziz, as he does not need me as a character witness. He Raja Aziz has never hesitated to step forth, to is, after all, synonymous with the purpose and principles defend and fight for the cause of justice. He is the of the Bar. However, a few words are in order for me epitome of humility, intellect, courage and decency. to introduce Raja Aziz. He is a champion of the Bar and it is only apt that he takes centre stage today in marking another milestone YM Raja Aziz Addruse holds the distinction of in the history of the Bar. It is my honour to now call having been President of the Malaysian Bar on three upon YM Raja Aziz Addruse to officially declare open separate occasions. He has also been a member of the the Malaysian Bar building. Bar Council from 1968 to 2002. Throughout his Thank you
Photograph of past Presidents of the Malaysian Bar taken in front of the new Malaysian Bar building. L-R: Mah Weng Kwai, Hendon Mohamed, R R Chelvarajah, Zainur Zakaria, Raja Aziz Addruse, Catherine Eu (Executive Director), Dato' Dr Cyrus Das and Kuthubul Zaman (current President) INFOLINE 6
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Chess Tournament Justice Mahadev Shankar Chess Challenge Trophy
he idea of hosting a chess tournament had been on the drawing board for some time now after the concept was initially mooted by the Honourable Dato’ Mahadev Shankar, a former Judge of the Court of Appeal and our own S Ravichandran, Chairman of the Sports, Charity and Welfare Committee. It subsequently materialised when the Bar Council held its inaugural chess tournament on 31st July 2004. Members of the Bar from the States of Penang, Malacca, Negeri Sembilan, Selangor and Kuala Lumpur converged at the Royal Selangor Club’s Sports Annex at Bukit Kiara to do battle for the Justice Mahadev Shankar Chess Challenge Trophy which is a magnificent silver sculpture of the Sultan Abu Samad Building in Kuala Lumpur. Once paired, the players underwent five gruelling rounds under the watchful gaze of Jax Tham, the chief arbiter in this tournament. Many exciting games were played as players raced against time to conquer their opponent and edge their way closer to that splendid silver trophy.
En Adnan Seman @ Abdullah winner of the Chess Tournament
chess tournament at their Sports Annex.
It was unanimously agreed by all present at the tournament that if members of the Bar generated an adequate response, the Sports, Charity and Welfare Committee would look into the merits of setting up a regular chess session for members of the Bar and their Congratulations goes to the tournament winners. children. Many members present at the tournament Adnan Seman @ Abdullah emerged as the tournament were even keen on chess being introduced formally as champion. The first runner-up was Sanjay Mohana- an event in the annual Bench and Bar Games against sundrum and the second runner-up was Vijay Raj. As Singapore. in most scholastic events, there were no losers on the When asked about his passion for chess, Justice day for everyone received some sort of achievement regardless of score. Special thanks must also go to the Shankar explained that chess and the practice of law Royal Selangor Club for allowing the Bar to host our are very much intertwined. By way of illustration, he reminded us of a quotation from Thomas Henry Huxley’s renowned essay on ‘A Liberal Education’ which states: ‘The chessboard is the world, The pieces are the phenomena of the universe, The rules of the game are what we call the laws of nature, The player on the other side is hidden from us, We know that his play is always fair, just and patient. But we also know to our cost, That he never overlooks a mistake Or makes the smallest allowance for ignorance.’
The Challenge Trophy
We hope to see more members at next year’s chess competition. OCT / NOV / DEC_2004
The Cricket Match Against The Law Society of Western Australia
n November 2001 the Law Society of Western Australia (‘LSWA’) invited members of the Law Society of Singapore (‘LSS’) and the Malaysian Bar to Perth, Western Australia to participate in a cricket match which was hosted by the LSWA and played at Richardson Park in South Perth. Both teams were vying for the Olivier & Talbot Trophy which was donated by the Western Australian firm of solicitors known as Messrs Olivier & Talbot.
Lumpur to participate in the second international cricket match to be played at the Royal Selangor Club sports annex in Bukit Kiara. Both the LSWA and the LSS accepted the invitation and two matches were fixed for 12th and 13th November 2004. The Malaysian Bar and the LSS agreed to field a combined XI against the LSWA.
The match on the 12th November 2004 was a 25 over match and it was more of a social game. The It was through the initiative of members from Malaysia/Singapore Bar XI was captained by Sanjay these three legal entities that three international legal Mohanasundram who won the toss and sent the LSWA jurisdictions were brought together through the sport in to bat. At the end of their innings, the LSWA were of cricket. The Law Society of Singapore and the all out for156 runs. The highest scoring batsmen for Malaysian Bar formed a combined XI known as the the LSWA were Peter O’Sullivan and Simon Taskunas Malaysia / Singapore Bar XI and this eleven took on a (capt) who both scored 23 runs each. The top bowler LSWA XI in Perth. Although the LSWA XI won the for the Malaysia/Singapore Bar XI was A Sivam who match, there were no real losers on that day because captured figures of 2 wickets for 20 runs off 5 overs. the event achieved the desired result, which was to foster Other bowlers from the Malaysia/Singapore Bar XI who closer ties between our respective legal fraternities. The contributed were Murali Pany (LSS) and Mark Talalla LSWA were terrific hosts and the then President of the who both took 2 wickets each. LSWA, Ms Clare Thompson expressed hope at the At the change of innings, the Malaysia/Singapore celebratory dinner that this inaugural match would serve Bar XI were chasing 157 runs for a win. They went in as a springboard for future matches between our legal fraternities to further enhance the close ties that were to bat and had a cracking start. Unfortunately midway being established and forged between our respective through their innings play was suspended due to rain. The rain persisted and after due consultation with the legal bodies. captains, the umpires decided to call an end to play. On 16th July 2004, S Ravichandran, the Chairman The Malaysia/Singapore Bar XI were unable to of the Sports, Charity & Welfare Committee of the complete their innings and play was abandoned after Bar Council wrote to the Presidents of the LSWA and 17 overs due to rain. The score was 5 wickets for 88 the LSS inviting their respective societies to Kuala runs and the top scoring batsman for the Malaysia/
Both teams posing for a combined team photo before the start of the match. INFOLINE 8
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NEWS Singapore Bar XI was Paul KW Kwong who scored 24 runs. Impressive batting was also seen by Conrad Young who knocked up a quick 20 runs off 17 balls. A high tea was hosted by the Malaysian Bar and the LSS after the match at the Royal Selangor Club (‘RSC’). The guest of honour was The Honourable Dato’ VC George, a former Judge of the Court of Appeal. Senior members of the Bar including WSW Davidson and Vinayak Pradhan were also there to watch the game and to support this event. The hi tea served as a welcome reception to receive the LSWA players. For a number of these players, it was their first visit to Malaysia. It was a short function because the players from both teams had to be back at the grounds early the next morning to battle it out for the Olivier & Talbot Trophy. However, it was a good opportunity for people to mingle and establish new friendships. On Saturday, 13 th November both teams mustered at the RSC. After a group photo was taken on the outfield, both team captains agreed that the Olivier & Talbot Trophy would be played over 2 innings of 40 overs each. The Malaysia/ Singapore Bar XI was captained by Muralee Nair who won the toss and sent the LSWA in to bat. At the close of the first innings, the LSWA were 5 for 210. Top scorer for the LSWA was Peter O’Sullivan who made 58 runs, which included a massively struck six which sailed over the boundary line and cracked the upper most panel of the Club’s perspex skylight. The best bowler for the Malaysia/Singapore Bar XI was Sanjay Mohanasundram who took 1 wicket for 27 runs off 8 overs. The teams then broke for lunch and the Malaysia/
Malaysian Bar Cricket Convenor, Alex De Silva, presenting a souvenir plaque to Richard Stapely-Oh, Council Member of the Law Society of Western Australia.
Singapore Bar knew it was chasing 211 runs to capture the trophy. After lunch, the Malaysia/ Singapore Bar XI went in to bat. They made a terrific start and maintained a higher run rate than the LSWA from the commencement of their innings until the 36th over. Although the batsmen gave a great chase, they could not amass the required target of 211 runs and the team was all out for 181 runs. The highest run scorer for the Malaysia/ Singapore Bar XI was Sanjay Mohanasundram who scored 38 runs before being bowled by the captain of the LSWA. The Malaysia/ Singapore Bar XI fell short of 30 runs and the LSWA retained the status of champions of the Olivier & Talbot Trophy. That evening, the Malaysian Bar and the LSS hosted a barbeque at the RSC. The guest of honour was The Honourable Justice Richard Talalla, a former High Court Judge. Justice Talalla was also present at the inaugural cricket match in Perth in 2001 during which he not only supported the match but also gave the Bar team tremendous support by agreeing to attend the dinner hosted by the LWSA as our guest, in light of the fact that we had no Bar Council committee members touring with us in 2001.
The Honourable Justice Richard Talalla presenting the Olivier & Talbot Trophy to Simon Taskunas, the Captain of the Law Society of Western Australia team, which was the winning team. In the middle is Mark Talalla, Malaysian cricketer.
Prior to commencing the barbeque, the usual formalities were adhered to. Alex De Silva, the cricket convenor of the Malaysian Bar exchanged plaques with Richard Stapley-Oh, council member of the LSWA. In addressing those present, Mr Stapley-Oh, in thanking the Malaysian Bar and LSS for hosting this event, expressed his sincere hope for the continuance of this OCT / NOV / DEC_2004
NEWS unique event. This was reiterated by Alex in his reply. Next the captains of each team were asked to come up and say a few words about the 2 days of cricket from their own perspective. Each captain then nominated a player from the opposite team whom he thought was the best player for that team. The LSWA nominated Sanjay as best player for the Malaysia/ Singapore Bar XI and the Malaysia/ Singapore Bar XI nominated Peter O’Sullivan as best player for the LSWA. Each player received a tie from the other team’s respective law society. Finally, Justice Talalla was invited to present the Olivier & Talbot Trophy to Simon Taskunas, the Captain of the winning LSWA XI. Once the formalities were dispensed with, guests and players alike enjoyed a sumptuous barbeque. There was great interaction amongst everyone present and the lawyers from the LSWA were very keen to learn about the structure of the Malaysian courts and what legal practice in Malaysia was like. Members of the Malaysia Bar were equally keen to learn about practice in Australia and the set up of the courts there.
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There was also talk of the LSWA hosting the event again next year in Perth at the famous ground known as the WACA, which till today, remains one of the fastest international cricket pitches in the world. What a treat that would be! The whole event was a wonderful opportunity to make new friends and to bring our respective legal fraternities closer. The inscription on the plaque which was presented to the LSWA by the Bar Council sums it all up. It aptly says: Presented to THE LAW SOCIETY OF WESTERN AUSTRALIA In true appreciation of our continued friendship through cricket This plaque commemorates the second international cricket match between our respective legal fraternities Played at Kuala Lumpur 12th & 13th November 2004
LAWASIAdownunder2005 - the Leading Legal Conference for Asia and the Pacific in 2005
et to take place from March 20-24, at the glorious each session will include expert speakers at regional, Queensland Gold Coast, LAWASIA downunder national and state level. 2005 will undoubtedly be the leading legal conference Bringing the profession together from around for Asia and the Pacific in 2005. the region
LAWASIA downunder 2005 will combine the international interest created by LAWASIA’s traditional biennial conference, with the national profile of the Law Council of Australia’s 34th Australian Legal Convention – the Meeting of Meetings.
Traditionally, delegates at a LAWASIA Biennial Conference come from as many as 30 different countries from the region and beyond, and tend to be drawn from amongst the leading law firms and chambers. LAWASIA’s national member organisations send representatives, so the opportunity for delegates to mix with the leaders of the Asia-Pacific profession is an invaluable one.
The conference is proudly arranged and hosted by the Queensland Law Society, and its 44 th Queensland Law Symposium will be held under the LAWASIA downunder 2005, as an educational LAWASIA downunder 2005 banner, bringing a unique event, will provide a climate that promotes open and networking opportunity to Queensland practitioners, as well as the chance to show off their home state to informed discussion aimed at fostering regional uniformity and understanding in the increasingly crossnational and international legal colleagues. jurisdictional legal world. As a professional event, it Importantly, the conference will run concurrently will bring together those who have an active interest in with the 12th Conference of Chief Justices of Asia and the development of the profession and the welfare of the Pacific, with the Chief Justices combining their those who practice in it. As a networking event, it creates activities with those of LAWASIA downunder 2005 at opportunity to develop state, national and international relationships. various times throughout the week. What to expect from the program
The work program will cover (10) separate streams: Criminal Law Dispute Resolution/Litigation Human Rights and Constitutional Law Trade and Business Law Intellectual Property Law Legal Practice Family Law Property and Succession Law Legal Education Judicial
The social program will combine formal and informal occasions that will deliver a uniquely Australian social experience to overseas guests, and that will bring Australian colleagues together to celebrate the sense of belonging to an international legal community. An exciting new venue
The conference venue, the Gold Coast Convention and Exhibition Centre, is a brand new facility in the heart of this popular destination, one that needs no introduction to Australian delegates. Those coming from overseas will enjoy the chance to explore some of the area’s attractions, which range from endless white sandy beaches, breathtaking hinterlands and golf at over 30 world class courses to international shopping, casinos, theme parks and zoos.
A panel of high profile practitioners, academics and others has been appointed as session rapporteurs, and to them goes the honour of arranging some (60) sessions within those streams. The work program will One of the major benefits of this destination is cater to the practical, the esoteric, the commercial, the inspirational and the need to collect CLE points, and the comprehensive variety of accommodation that the
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NEWS conference can offer. Conrad’s Jupiter Hotel, attached to the Convention Centre, will be the 5 star jewel in the accommodation crown, but other possibilities, including apartments for the family and friends-minded and 3 and 4 star hotels for the budget-conscious will be readily available, and within easy reach of the conference venue. In that context, potential delegates might note that the conference dates are set to lead into the Easter vacation, and there is no doubt that the Queensland coast would be a highly desirable spot to spend a few post-conference days.
Queensland Law Symposium attendees will find CLE delivered at a more significant level than ever before. Queensland Law Society looks forward to welcoming over 1000 judges, lawyers, academics and business partners to this premier event, and encourages delegates to register early to ensure participation at the conference and in its surrounding activities. Need more information?
Full detail can be found on the conference website at: http://www.lawasiadownunder.com or contact: LAWASIAdownunder2005 Secretariat Tel: + 61 7 3368 2644 In all, there will be something for everyone at Fax: + 61 7 3369 3731 LAWASIA downunder 2005. The conference organising E-mail:[email protected]
committee members are drawn from the three Postal: LAWASIAdownunder2005 Secretariat PO Box 177 organisations that are coordinating to put the event RED HILL QLD 4059 together, so the needs of legal professionals at all levels AUSTRALIA and in all areas of legal interest are addressed. Office: LAWASIAdownunder2005 Secretariat Office 14, First Floor Those who have attended a LAWASIA biennial The Red Hill Centre conference before will attest to the camaraderie that 152 Musgrave Road the event produces; others are encouraged to experience RED HILL QLD 4059 it. Those who have enjoyed the stimulation of the AUSTRALIA Australian Legal Convention will enjoy the added regional and state level emphasis, and regular
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LAWASIA IT Law Conference Lawrence Chong JP Co-Chairman, Organising Committee
for the practitioners with his paper ‘IT in Practice’. He was followed by Ms Elizabeth Broderick, (Partner, Blake Dawson Waldron, Melbourne, Australia) on the same topic. Other practitioners with presentations included Rajesh Sreenivasan (Rajah & Tann, Singapore), T Kuhanandan (Badri Kuhan Yeoh & Ghandi, Malaysia), Hariram Jayaram (Ram Rais & Partners, Malaysia), Azad Virk (Anand & Anand, New Delhi, India), Wong Shou Sien (Raja Darryl & Loh, Malaysia), Deepak Pillai (Rajes, Hisham Pillai & Gopal, Malaysia), Anthony Wong (ICT Counsel, Aequitas Attorneys, Sydney) and AJ Surin (Azmi & Associates, Malaysia). Topics of discussion at the conference included: 1. Protection of Electronically Stored Information 2. Domain Name System and Trade Mark Litigation he IT Conference themed ‘Evolving Legal Issues 3. Contract Formation Issues & Risk Minimisation in Contracts in IT’ was held at the Pacific Sutera, Sutera 4. Open Source: Legal and Policy Issues Harbour Resort & Spa, Kota Kinabalu, Sabah from th th 5. IT Outsourcing Contracts 26 to 27 August 2004. 6. Convergence: Regulatory and Legal Issues Jointly organised by LAWASIA, the Bar Council of Malaysia and the Sabah Law Association, the 2-day Other speakers who presented papers were Dr Gordon Conference was well attended by some 150 participants Hughes (Immediate Past President, LAWASIA) and from all over Malaysia and the neighbouring countries. Yeo Ling Ling (Kuala Lumpur Regional Centre for The Conference Organising Committee was headed Arbitration), Ramani Ramalingam (Senior Legal by Dato’ Mohd Sofian Abdul Razak in Kuala Lumpur Manager, Public Performance Malaysia Sdn Bhd), Goh and Lawrence Chong in Kota Kinabalu. YA Datuk Ian Chin Hon Chong and Wong Sai Fong
Officially declared open by YB Datuk Dr Yee Moh Chai on behalf of the Chief Minister of Sabah, YAB Datuk Seri Musa Hj Aman, nine papers were presented by academics, practitioners and corporate personalities in the field. Among the academics were Dr Michael Wong (Biotechnology Research Institute, UMS) with his paper entitled ‘Biotechnology & Bioinformatics’, Professor Brian Fitzgerald (Head of Law School, Queensland University of Technology, Australia) with his paper entitled ‘Music and Movie Piracy on the Internet’ and Associate Professor Dr Zaiton Hamin (Deputy Dean, Faculty of Law, UiTM) with a paper entitled ‘The Role and Application of the Computer Crimes Act 1997’. Senior Resident Judge, High Court Kota Kinabalu, YA Datuk Ian Chin Hon Chong led the way
From left: John Sikayun, Lawrence Chong, Elizebeth Broderick and Dr Gordon Hughes OCT / NOV / DEC_2004
YAA Tan Sri Datuk Amar Steve Shim
Dato' Sofian , Bazain Idris (Sabah State, Attorney General) and D C Alfred
Seow Hiong (Director of Software Policy (Asia), Business Software Alliance, Singapore), William Bangert (Global Head of Sourcing, Gartner Group, USA), Sudhir Ravindran (CEO, Global Business Solutions, Chennai, India), Laura Ho (Manager, Regulations, Multimedia Development Corporation Sdn Bhd) and Pushpa Nair (Legal Department, Malaysian Communications and Multimedia Commission). This most successful Conference was declared officially closed by the Chief Judge of Sabah & Sarawak, YAA Tan Sri Datuk Amar Steve Shim Lip Kiong, on 27th August 2004.
John Sikayun, Daniel Tan, Hj Kuthubul, YB Datuk Dr Yee Moh Chin, Datin Yee, Lawrence Chong and Alex Pairin Kitingan
Delegates, especially from foreign countries enjoyed themselves tremendously and some stayed on after the conference to explore the attractions of Sabah. Mention must be made of the official dinner, which was generously sponsored by the State Government, during which delegates and special guests were fabulously entertained by a local modern dance group and the world-class, award-winning Sabah Cultural Dance troupe. Speakers and delegates
Speakers and delegates INFOLINE 14
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Delegates and guests at the dinner
Bar Council's Intellectual Property Committee Seminar on Managing Technology Infringement 2 December 2004
he intellectuals behind the Bar Council’s Intellectual Property Committee (‘the IP Comm’) had held long discussions for some time about organising a conference focused on the setting up an IP Court. At long last, the IP Comm finally decided to go ahead and organise the seminar with the theme Managing Technology Infringement, incorporating within it a section called Towards an IP Court.
Dato' Sofian, YAA Dato' Hj Abdul Malek and Yeo Yang Poh
The seminar was very well received, with more than a hundred participants, comprising members of the Bar as well as representatives from the Judiciary, the Attorney-General’s Chambers and members of organisations dealing with intellectual property. The one-day seminar incorporated topics such as Infringements of Copyright in Technological Age, Patent Infringement, Passing Off/Unfair Competition, Infringement Issues in the World of Computer Gaming and, as stated earlier, the session called Towards An IP Court. To kick-off the seminar, Bar Council member and Chairman of the IP Comm, Y Bhg Dato’ Mohd Sofian Tan Sri Abdul Razak, delivered the introductory speech.
He gave a brief background of the work undertaken by the IP Comm over the years. He commented that the seminar was timely, as infringement involving intellectual property was growing rapidly. He recalled that the IP Comm had undertaken a study tour to Thailand in 2003, to gather information as to how Thailand had set up their Intellectual Property Court. He noted that the delegation was impressed with the structure of the said court. To provide us with a better perspective of how the specialised court works, the IP Comm had extended an invitation to the IP Court to participate in this seminar. It was indeed an honor to the Committee, and to the Bar Council, to have the Honorable Justice Jenjesda as a speaker at our seminar, to present his paper on Towards an IP Court. The Chairman took the opportunity to thank all the Committee members for their efforts in organising and coordinating the seminar.
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NEWS On behalf of the Bar Council, Yeo Yang Poh, the Vice-President, welcomed the participants and the distinguished guests and speakers to the seminar. He pointed out that the seminar would not be concentrating on the traditional forms of infringements of intellectual property rights but would rather focus on relatively newer types of infringements, which had taken on a new dimension due to the rapid advancement in technology. He added that the seminar had successfully secured expert speakers from two neighboring countries, Singapore and Thailand. Referring to the Honorable Justice Jagkrit Jenjesda, whom the Vice President had privilege of meeting when he led the delegation to Bangkok last year, he recalled that the delegation had indeed been warmly received by the Honorable Justice Jagkrit and his colleagues. Indeed the delegation had been very impressed with Thailand’s IP Court. The Vice-President was certain that the participants would learn how the specialised court was structured and carried out its functions in dealing with intellectual property matters. YAA Dato’ Haji Abdul Malek bin Haji Ahmad, President of the Malaysian Court of Appeal opened the seminar. His Lordship's speech is published in full on page 17 of this issue. The seminar, when it began, was divided into two sessions. The morning session was chaired by Ambiga Sreenevasan, the Hon Secretary of the Bar Council and past Chairperson of the IP Comm. In view of the Committee’s special emphasis on managing technology infringement, David Oh, Director of Mindvault Sdn Bhd, an Intellectual Property Consulting Company based in Kuala Lumpur, was invited to address the topic of Infringement of Copyright In A Technology Age. David brought with him a global perspective of copyright infringement. He showed how the world had changed over the last 15 years, with democratisation of technology and information. Malaysia, he said, had also adapted to all these changes and was ranked 19th in the world as a user of modern technology. Along with the changes in technology, it was necessary for the law governing intellectual property to evolve and to comply with related protocols and agreements. The participants were then taken through INFOLINE 16
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the various issues concerning copyright infringement. Michael Soo, of the IP Comm, then called upon Chew Kherk Ying to address the topic Unfair Competition/ Passing Off. Kherk Ying, also a member of the IP Comm, discussed the historical development, as well as current extensions, of passing off. She also gave us further information on passing off and unfair practices available on the internet and took pains to explain the concept of “sui generis”- Unfair Competition law. Timothy Siaw, also of the IP Comm, then invited Dr Timothy Watkin, a partner of Lloyd Wise Singapore, to speak on Patent Infringement, covering issues such as initiating patent infringement proceedings, typical defenses to patent infringement and amendment during litigation. The seminar then adjourned for lunch to partake of the sumptuous spread prepared for them. Many of our participants having come from afar, and after the exquisite hospitality shown to us by our brethren while we were in Thailand, required that we ensure that no one went hungry. The second session, held shortly after lunch, started off with Benjamin Thompson, of the IP Comm, calling upon Wong Jin Nee, Deputy Chair of the IP Comm. Jin Nee, who addressed the topic Infringement of Trademark in A Technological Age, took the participants through the various areas of trademark such as the functions of trade marks, the importance of trade marks online, the rights conferred by registration, the elements of trade mark infringement and new age issues.
NEWS Chew Kherk Ying, of the IP Malaysian Lawyer selected Comm, then called upon Lau as International observer at Kok Keng, a partner of Rajah & Tann, Singapore who addressed the Parliamentary elections the topic Infringement Issues in in Uzbekistan on the World of Computer Gaming. December 26, 2004 While Kok Keng provided an interesting insight as to the issues governing the world of computer gaming, such as intellectual and virtual property in computer games, legal issues arising from virtual property, infringement of intellectual property in computer games, security and other threats to computer gaming and licensing of computer games, anyone coming in just then could have been forgiven for thinking that the seminar had ended and the participants were on a ‘gaming’ break. Kok Keng enchanted the participants with a video clip presentation he Consultant of Shearn Delamore & Co, Mr S of ‘Fung Wan – online’ to highlight the issues involved Radhakrishnan who is also the Honorary Secretary in the world of computer gaming and how of the Asean Law Association of Malaysia has been infringements took place via computer games. selected to participate as one of the International Last but not least, Karen observers at the Parliamentary elections in Uzbekistan Abraham, of the IP Comm, on December 26, 2004. It is for the first time that the called upon our special guest, the people of the Republic of Uzbekistan will exercise their Honorable Justice Jagkrit right to elect members of the Senate, the upper chamber Jenjesda, Judge of Thailand’s of the bi-cameral Parliament.
Central Intellectual Property and International Trade Court, Bangkok to address the topic Towards An IP Court. His Lordship brought with him a detailed insight on the background of the setting up the court and the approaches as well as the implementation of the court structure.
Uzbekistan is located in Central Asia, north of Afghanistan. The present population is about 26 million.
The other members of the delegation from Malaysia include Datuk Azman Ujang (Editor In Chief of BERNAMA), Encik Halim Saad (Director of Training of Institute of Diplomacy and Foreign It was, without doubt, a most enjoyable, fruitful Relations) and Dato’ Moehamad Izat Emir (Chairman and beneficial seminar for the participants. It left the of Emir Group). audience with many questions, primarily whether The delegation from Malaysia left for Tashkent Malaysia would, one day soon, move towards on December 22, 2004. establishing her own specialised IP Court.
Erratum In our news item on Page 4 of the July / Aug / Sept 2004 issue of Infoline, the Director of the Qualifying Board is Dato’ Noraini Abdul Rahman and not as described therein. The error is regretted and the Editor apologises for any embarrassment caused.
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Managing Technology Infringement Speech by YAA Justice Dato’ Haji Abdul Malek bin Haji Ahmad, President of the Court of Appeal
Mr Yeo Yang Poh, Vice-President of the Malaysian Bar Y Bhg Dato’ Mohd Sofian bin Tan Sri Abd Razak, Chairperson, Intellectual Property Committee, Bar Council Malaysia The Honourable Justice Jagkrit Jenjesda, Judge of Central Intellectual Property and International Trade Court, Thailand Members of Organising Committee Ladies and Gentlemen
t is my pleasure and honour to be invited to deliver the opening address at this one-day Seminar entitled ‘Managing Technology Infringement’ organised by the Bar Council Intellectual Property Committee, Malaysia. I wish to extend a very warm welcome to all the distinguished speakers and participants of this Seminar.
innovations would enjoy, the advancement of this industry would also help to propel and strengthen the economies of countries which are at the forefront of this industry. This is evident by the fact that technologically powerful and advanced countries like the United States of America, Japan, the United Kingdom and Germany are able to exert so much influence on the rest of the world, in particular on the economic front.
Therefore, it is extremely vital that owners of technological inventions and innovations must ensure that they take all the necessary steps to manage and protect their rights. These rights may come in various forms, such as patent and copyright. This is something that cannot be overstated. Let me illustrate this by the following examples : The technology industry, in particular information there was an article in a local newspaper just a few and communications technology, is one of the most weeks ago regarding a new product invented by a dynamic and fastest growing industries in the world. Japanese inventor. The Japanese inventor also The rapid advancement of technology has had a great happens to be the inventor of the first karaoke impact on all aspects of our lives and will continue to machine in the world but unfortunately, he did not do so. It has largely benefited us in many ways in terms patent the karaoke machine. Those of us who are of making certain aspects of our lives more convenient, familiar with patent law would know that he can productive and, arguably, fulfilling. For instance, the no longer patent his invention now as it is no longer advancement of technology has made it possible for us a new invention. The newspaper article estimated to : that if he had patented his invention, he would have communicate with anyone in almost anywhere in become a billionaire by now! the world instantaneously via mobile phones, emails and teleconference the computer games industry is a multimillion, or purchase products via the Internet even multibillion dollars industry in countries like conduct banking or business transactions via the United States of America, Japan and the United Internet Kingdom. It was reported in the technology pull listen to songs on mobile phones and computers out of a local newspaper 2 weeks ago that buyers in watch movies and play electronic games on the United States of America queued up for hours computers at about 7,000 planned ‘midnight madness’ obtain the latest information on current events with opening sale to buy the first copies of a game called the click of a mouse ‘Halo 2’ at US$50.00 a copy. The publisher of the game, Microsoft Corporation, said that it had There is no denying that the technology industry is a received 1.5 million pre-sale orders and estimated very important industry in today’s information age and that first day sales of the game was more than US$ borderless world. Apart from economic and monetary 100 million. So you can imagine the large amount benefits that owners of technological inventions and of royalty and profits the owners of the copyright INFOLINE 18
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NEWS in the game will earn. It is pertinent that our laws evolve in tandem with the rapid changes in the technology industry. This will ensure that we create a technology-friendly legal environment which is conducive to the development, application and exploitation of technology. To this end, our government has enacted the Computer Crimes Act 1997, Digital Signature Act 1997, Telemedicine Act 1997, Communications and Multimedia Act 1998, and amendments to the Copyright Act 1987 by adding provisions relating to infringement of copyright by circumventing technological measures.
have no control over the activities of the users and the programmes could be used for legitimate purposes. Thus, the companies are not guilty of facilitating copyright infringing activities of the users. As a result of this, the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) have taken the drastic step of filing waves of lawsuits against individual Internet users in the United States of America who trade pirated copies of songs and movies whose copyright is owned by the members of RIAA and MPAA.
It is also of paramount importance that the Courts, it is reported that based on an estimate by Symantec Corporation, an Internet security solutions provider, law enforcement agencies and the legal profession must phishing costs US banks and credit card issuers nearly keep abreast of the latest developments in the US$ 1.2 billion in damages over the past 1 year. technology industry and continually seek to improve According to US-based Anti-Phishing Working our knowledge on the applicability, implementation Group (APWG), phishers are able to convince up and enforcement of the relevant laws. Otherwise, we to 5% of recipients to respond to them by ‘hijacking’ will surely be left stranded and eventually drift into trusted brands of well-known banks, online retailers technological abyss. and credit card companies. This begs the question whether the existing laws on intellectual property The task facing the law makers, the Courts, law are adequate to protect the goodwill and reputation enforcement agencies and lawyers is by no means an easy one. The challenge is made more daunting by the of such banks, retailers and companies vis-a-vis their fact that technology is changing at such a rapid pace brands or trade marks from such damaging activities. that laws are often unable to cope or keep pace with the changes. Today we are faced with many new mind- In view of the potential loopholes in as well as boggling legal and social issues which were unheard of uncertainties surrounding the applicability and not many years ago but have arisen due to the rapid enforcement of existing laws, perhaps owners of advancement of technology. For instance, the advent technological inventions and the related intellectual and popularity of the Internet has created new legal property rights should not rely solely on the laws but and social problems such as online music and movie also adopt other innovative methods to protect their piracy, hacking, phishing (i.e. attacks made by using rights. For instance, some games publishers have started spoofed emails and fraudulent websites designed to fool using forced-registration where users are compelled to recipients into divulging personal financial data such as register online the copy of games they are playing which credit card numbers, account usernames and passwords) will enable the publisher to verify whether the copy is original or pirated. Some recording companies have also and cybersquatting. sold music CDs which are copy-disabled to prevent Owners of technological inventions and the related users from making copies of the songs in the CDs for intellectual property rights therein around the world distribution on the Internet. are facing an unenviable task in attempting to protect Once again, I wish to express my gratitude to the their rights in the face of these new forms of infringement which have challenged the effectiveness Intellectual Property Committee of the Bar Council, in terms of applicability, implementation and Y Bhg Dato’ Mohd Sofian bin Tan Sri Abd Razak, Chairperson of the Committee and members of the enforcement of existing laws. For instance : it is estimated that popular peer-to-peer file sharing Organising Committee for organising this Seminar programmes like KaZaa and Morpheus which are which I believe will be most beneficial to all the widely used for trading pirated copies of songs and participants. movies are costing the recording and movie With that note, I wish you a fruitful discussion and industries millions of dollars every year. The successful Seminar. It gives me great honour and industries are unable to stop the companies privilege to declare open the Seminar. distributing such programmes from their activities as it has been ruled by a US Court that the companies Thank You. OCT / NOV / DEC_2004
Conference Tackles Landmark Changes Tan Ban Cheng BA, LL.B, CLE (Canty, NZ)
hange in the form of the newest developments and the latest trends in the law of the various jurisdictions was on the minds of the organisers of the 6 th LAWASIA Business Law Conference, themed ‘Revitalised Asia - Roadmap for Sustained Growth’. A total of 41 Mah Weng Kwai (Chairman, Organising Committee), G L Sanghi (LAWASIA speakers presented papers at the President), YAA Dato' Hj Abdul Malek (President, Court of Appeal) and Conference held at the Nikko Hotel Attorney-General Tan Sri Abdul Gani Patail on 7-8 October 2004 in Kuala Lumpur. There were two streams running concurrently, Lending an international perspective to the giving the delegates a choice of the sessions to attend. delegates in just one of the ten sessions of the conference, Nigel Morris-Cotterill of the Anti-Money On the first day, the conference saw two sessions Laundering Network outlined the Hot Pursuit of on Corporate Governance and one session each on Terrorist Funds. The session was chaired by Justice Ashok 'Biotechnology & Life Science' and 'Funds & Assets Desai, former Chief Justice of the High Court, India Management'. During the first day, the Attorney-General Tan Sri On the second day, there was a session each on Abdul Gani Patail officiated at the opening of the Islamic Finance, Dispute Resolution, Taxation, Conference and delivered a special address in which he Corporate Counsel, Securities Fraud and Money spoke about corporate governance. He touched on Laundering and Doing Business in Asia. legislation which has been revamped to incorporate and raise the standards of transparency and corporate The session that attracted most attention from governance, at the same time observing that if we the 150 delegates concerned Securities Fraud and enhance self discipline, exercise restraint and observe Money Laundering. Queensland Law Society president high standards of governance, laws may not always be Glenn Ferguson presented A Study on Corporate necessary. The AG also spoke about the fight against Collapses and Securities Investigations, tackling corruption, as well as Malaysia’s position in the monumental scandals such as Enron of the United forefront of Biotechnology Research and Development. States and the earlier Dotcom companies. The Plenary Session on ‘Law and Economic Malaysian lawyer Tan Hock Chuan followed, Development’ was presented by Professor Dr Mahani giving the Defence Lawyer’s Perspective in Securities Law Zainal Abidin, who also represented Minister in the Prosecution, while the past President of the Malaysian Prime Minister’s Department and Executive Director Bar, Dato’ Dr Cyrus Das, spoke on Securities Law of the National Economic Action Council, Dato’ Litigation - Judicial Review of the Regulatory Bodies and Mustapha Mohamed, . The Minister’s speech stressed Bank Negara Malaysia’s Financial Intelligence Unit the importance of having a sound legal system in order director Koid Swee Lian touched on the Implementation to have an orderly and organised economic of the Anti-Money Laundering Act 2001, which has development, particularly in this era of accelerated been recently brought into force. globalisation.
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NEWS The two-day conference was organized by a committee led by the immediate past President of the Malaysian Bar, Mah Weng Kwai, and graced by the presence of LAWASIA president G L Sanghi of India. Both made opening remarks.
in many respects, the fundamentals from a legal, commercial and financial perspective are intertwined and the achievement of one or two in the absence of the second or third is apt to result in a less than satisfactory outcome; and stressed the importance of the role of the lawyer in drafting licence agreements in Six speakers spoke at the two well-attended sessions concise, mutually understood legal terms which cover on Corporate Governance. They included Malaysian all the necessary issues. This session was chaired by S Institution of Corporate Governance president Dato’ Radhakrishnan, Honourary Secretary of the ASEAN Seri Megat Najmuddin Megat Khas, Stephen Peepels Law Association of Malaysia. of Jones Day Hong Kong, former UN Rapporteur on Judicial Independence Dato’ Param Cumaraswamy, Jal The session on Funds and Assets Management had Othman of Shook Lin & Bok, Malaysia, Malaysian Latest Developments and Innovations in the Funds and Resource Corporation Bhd group managing director Assets Management Industry From A Legal Perspective and chief executive officer Shahril Ridzuan, Chew Seng as one of the topics. Ameer Ali Mohd, Assistant Vice Kok of Zaid Ibrahim & Co., Malaysia, Simon Tang of President of Mayban Investment Management Sdn PC Woo & Co, Hong Kong, and Vincent Lim, Bhd, spoke on Islamic Unit Trusts, Karen Kaur from Solicitor Director of VTS Sydney Lawyers. The sessions Jeff Leong, Poon and Wong, Malaysia, spoke on were chaired by Jeff Leong, Chairman of the LAWASIA Guaranteed Funds and Hedge Funds, and Francis Li Business Section and Chairman of the LAWASIA from Paul, Hastings, Janofsky & Walker in association Corporate Securities and Investment Standing with Koo and Partners, Hong Kong, spoke on Real Committee; P H Parekh, LAWASIA Country Estate Investment Trusts. Councillor, India, and Michael Lim, Shearn Delamore & Co, Malaysia. The topic on Corporate Responsibility and Accountability of Funds and Asset Managers was handled Those who attended the session on Biotechnology by Iskandar Ismail, Chairman of the Malaysian and Life Sciences heard from three prominent speakers, Association of Assets Managers, who highlighted some namely: of the regulations and issues governing the operation 1. Dr Sharr Azni Harmin (Acting MD, Malaysian of fund management companies. He also touched on Biotechnology Secretariat) the role and objectives of the Malaysian Association of 2. Dr Michael Hsu (CEO, Endpoint Late Stage Asset Managers in the regulation of the industry. The Fund, USA) Chairs for this session were John Versantvoort, 3. Bernard O’Shea (Deacons, Australia) Chairman of the Business and Finance Section, LAWASIA and Tommy Thomas of Tommy Thomas, Dr Sharr gave his views on biotechnology from a legal Malaysia. perspective while Dr Hsu spoke about technology transfer and commercialisation of biotechnology in On the second day, three speakers spoke on various Malaysia, and the structure needed to ensure the success aspects of Islamic Finance and Banking: of such ventures. Bernard O’Shea identified the key 1. Mohd Arshad Ismail, Assoc Director, CIMB issues which are likely to arise in the context of Islamic, CIMB biotechnology licence agreements. He concluded that 2. Assoc Prof Dr Kameel Mydin Meera, Deputy Dean (Postgraduate), Faculty of Economics and Management Sciences, International Islamic University 3. Wan Abd Rahim Kamil, Managing Director, Abrar Discounts Bhd The session was ably chaired by Mohamed Ismail Mohamed Shariff of Mohamed Ismail & Co., Malaysia. Delegates OCT / NOV / DEC_2004
NEWS The session on Taxation had four speakers: 1. Robert Meldman, Deputy Chair, LAWASIA Business Law Section and Chairman of the Taxation Standing Committee), spoke on Transfer Pricing and International Taxation; 2. Anand Raj (Shearn Delamore & Co, Malaysia) spoke on Malaysia’s Self Assessment Taxation System; 3. Nik Saghir (Nik Saghir & Ismail, Malaysia) spoke on Surviving Tax Investigations and Audits: Measures for Self-Preservation; and, 4. Jennifer Chang (Executive Director, Financial Services (Taxation), Pricewaterhouse Coopers) spoke on Group Holding Structures for Domestic and Cross-Border Investments.
gave their insight into Doing Business in Asia: 1. Dr Wang Li (Deheng Law Offices, Beijing, China) 2. Dang Xuan Hop (Philips Fox, Vietnam) 3. GL Sanghi (President, LAWASIA) 4. Douglas Mancill (Price Sanond Prabhas & Wynne, Bangkok, Thailand) 5. Rick Beckmann (Brigitta I Rahayoe & Syamsuddin, Jakarta, Indonesia) The speakers discussed the legal framework in each country and the roles of the respective governments in promoting foreign investment in their countries. This session was chaired by Lester Huang, LAWASIA VicePresident and Chairman of the Young Lawyers Section.
The Conference dinner at the end of the second The session was chaired by Beh Tok Koay, Executive day was well attended. Delegates were treated to Director, Deloitte Kassim Chan Tax Services Sdn Bhd, performances by jazz musicians Greg Lyons and his Malaysia. band, Jimmy Louis and his band, and a cultural dance troupe from Tourism Malaysia while dining on fine In view of the trend towards resolution of disputes Chinese cuisine. The next day, several foreign delegates outside of the courtroom, a session was set aside to took up the offer of a half-day tour of Kuala Lumpur, discuss the topic Planning for Problems: Drafting kindly arranged and sponsored by Tourism Malaysia. Effective Dispute Resolution Clauses, which had the following in the panel of speakers: This conference was remarkable in that CDs were 1. Stephen Kai-yi Wong (Deputy Solicitor-General, presented to all delegates instead of the usual papers. Hong Kong) Understandably, some of the papers were not included 2. Oon Chee Kheng (CK Oon & Co, Malaysia) because of intractable problems in logistics when 3. Sundra Rajoo (Chartered Arbitrator, Architect and dealing with speakers from so many jurisdictions within Town Planner, Sundra Rajoo Arbitration the time frame allotted. The organisers have Chambers Sdn Bhd, Malaysia) since updated the CD and copies sent to all delegates. This session was chaired by the Organising Committee A start has been made in the right direction and Chairman and LAWASIA Vice-President, Mah Weng soon CDs incorporating conference papers should Kwai. become available to all lawyers who cannot make it to such meetings but who are nevertheless interested in In the Corporate Counsel Section chaired by Jal the eye-openers that mark these proceedings. The Othman, four eminent speakers gave their views and conference organisers must be given a well-deserved pat experiences on the various roles and responsibilities of on the back for a job not just well planned, but also the Corporate Counsel. They were: well executed. 1. Suflan Shamsuddin (General Counsel, Shell Malaysia) 2. Ernest Boswarva (General Counsel, Petrochemical Business, Petronas Bhd) 3. Jeff Leong, (Chairman, LAWASIA Business Law Section and Chairman of the Corporate Securities and Investment Standing Committee) 4. Robert Winter (Dibbs Barker Gosling, Brisbane, Australia) Five speakers from countries in the Asia Pacific Region INFOLINE 22
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NEWS Presentation to ASEAN Law Association of Malaysia , Singapore High Commissioner on 3 December 2004, Royal Selangor Club
Asean Integration: Towards the Asean Community H E Ashok Kumar Mirpuri
he past few years have been difficult for ASEAN. In the late 1990s, it was hit by its worst-ever economic crisis. ASEAN countries succumbed to capital and investor flight, and several economies were on the verge of collapse. Before ASEAN could fully recover, it was confronted with the global economic downturn. The 9/11 attacks against the US followed shortly. In 2003 and 2004, ASEAN was hit by SARS and avian flu respectively.
Community is based on three pillars, viz. economic cooperation, political and security cooperation, and socio-cultural cooperation. I will briefly touch on each of these pillars.
ASEAN Economic Community
Pillar #1 – ASEAN Economic Community (AEC). The AEC is envisaged as a single market and production base with free flow of goods, services, investment, skilled labour and a freer flow of capital. In order to ASEAN countries strived to overcome the crisis, achieve this, ASEAN has agreed to intensify current repair the damage, recapitalise banking systems, economic cooperation initiatives, and develop new ones restructure companies in difficulties, and most to accelerate the integration. importantly restore confidence. Despite the setbacks, The economic integration measures include: ASEAN countries continue to embrace globalisation, work to attract FDI, liberalise trade, and broaden enhancing the attractiveness of ASEAN as an investment destination; accelerating the liberalisation of trade in linkages with the outside world. goods and services; improving trade and business As a result, the major ASEAN economies have facilitation; reducing trade transaction costs; upgrading emerged in an improved position. The economic competitiveness of ASEAN SMEs; strengthening the recovery is evident. Exports are growing, and stock ASEAN dispute settlement system; and other markets are up. Malaysia is excellent evidence of this integration support measures. return of confidence. Regionally, ASEAN member As an important step toward the AEC, ASEAN countries have continued to integrate their economies agreed to fast track integration of 11 priority sectors, while individually pursuing restructuring. viz. electronics, e-ASEAN, healthcare, wood-based However, while ASEAN’s economic performance products, automotives, rubber-based products, textiles has generally been positive and there is commitment and apparels, agro-based products, fisheries, air travel to economic integration, there are many external and tourism. These sectors were selected on the basis challenges which could impact negatively on Southeast of comparative advantage in natural resources, labour Asia. Rising oil prices and the threat of international skills and cost competitiveness, and value-added terrorism are two obvious examples. Nevertheless, contribution to ASEAN’s economy. As the institutional ASEAN believes that by pulling together, all ten capacity of ASEAN for economic integration is built member countries can gain substantively and through experience, more sectors will be included in the accelerated integration programme. substantially. Roadmaps, with detailed specific measures and This pulling together is the development of the ASEAN Community to be realised by 2020. The timelines, have been finalised to serve as the basis for OCT / NOV / DEC_2004
NEWS economic integration of each of the priority sectors, with the active involvement of the private sector. These roadmaps aim to (i) enhance the competitiveness of ASEAN; (ii) strengthen regional integration efforts through liberalization, facilitation and promotion measures; and (iii) promote private sector participation. To advance the AEC, ASEAN has also been working to strengthen its institutional mechanisms, including dispute settlement mechanisms. ASEAN is moving ahead with the ASEAN Consultations to Solve Trade and Investment Issues (ACT), which is an internet-based problem-solving network to resolve complaints within 30 days. The ASEAN Compliance Body (ACB) has been set up to provide an adjudication mechanism for member countries to make use of less legalistic peer pressure in dispute resolution. The Protocol on ASEAN Dispute Settlement Mechanism has been enhanced to ensure expeditious and legally binding decisions in resolving trade disputes.
ASEAN Security Community
Pillar #2 – ASEAN Security Community (ASC). For ASEAN to achieve the AEC, it is essential to have a more conducive political and security environment.
Hence, the resolve to establish the ASC, built on an action plan covering five strategic thrusts, viz. political development, shaping and sharing of norms, conflict prevention, conflict resolution, and post-conflict peacebuilding. The implementation of the ASC action plan will contribute to peace and security in the Asia-Pacific region, strengthen ASEAN’s role as the driving force of the ASEAN Regional Forum (ARF), and continue to enhance ASEAN’s engagement with Dialogue Partners and other countries and regions.
ASEAN Socio-Cultural Community
Pillar #3 – ASEAN Socio-Cultural Community (ASCC). The AEC and ASC will be complemented by ASCC to ensure that the people of ASEAN are prepared for, and benefit from, economic integration. Through the ASCC, there will be more resources allocated for basic and higher education, training, science and technology development, job creation, and social protection. The development and enhancement of human resources is a key strategy for employment generation, alleviating poverty and socio-economic disparities, and ensuring economic growth with equity.
Group photograph of the members of the Executive Council of ALA Malaysia taken with the High Commissioner of Singapore. L to R: S Radhakrishnan, Zita Fahmi, Bharti Seth, Justice Dato'James Foong, Justice Dato' Hashim Yusoff, HE Mr Ashok Kumar Mirpuri, Hendon Mohamed, Dato' Dr Cyrus Das and Professor R Rajeswaran INFOLINE 24
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NEWS The roadmap being developed for the ASCC focuses on four strategic thrusts, viz. (i) having strong and functional systems of social protection that address poverty, equity and health impacts of economic growth; (ii) promoting environmental sustainability and sustainable natural resource management that meets current and future needs; (iii) ensuring social governance that manages impacts of economic integration; and (iv) maintaining the preservation and promotion of the region’s cultural heritage and cultural identity.
The Need for Deeper Integration
The need to broaden and deepen economic cooperation is a necessity recognised by ASEAN more than a decade ago. In 1992, ASEAN started the ASEAN Free Trade Area (AFTA) to boost intra-ASEAN trade and establish the region as a common area for manufacturing operations. At that time, the catalyst was globalisation. Competition was getting tougher. Europe was consolidating and integrating itself to form the Single European Market. In North America, the US, Canada and Mexico were preparing to form the North America Free Trade Area (NAFTA). Both the Single European Market and NAFT A threatened to divert investments away from Asia. Determined not to be left behind, ASEAN responded with AFTA.
ASEAN needs to stay ahead of the curve. Deepening and accelerating regional economic integration will significantly improve ASEAN’s attractiveness as a global production base. More than that, economic integration will also contribute to regional cohesion. This will strengthen ASEAN’s bargaining power and geopolitical influence. ASEAN’s banding together will maximise our strengths. Our fundamentals are strong, and can be further reinforced. ASEAN has a large market, with a population of 560 million and a combined GDP of US$330 billion, which is comparable to China’s coastal region. We have an abundant supply of skilled labour – young, eager to learn, and with a good attitude towards work. ASEAN also has a good track record in welcoming trade and foreign investments. We have always been outward- looking, and our belief in free and open trade is reflected in the bilateral and regional FT As that we are currently pursuing. The new ASEAN members have not progressed as far as the original ASEAN members in economic development and liberalisation, but they too are moving, and their rich human and natural resources as well as lower costs are key advantages that will fuel their economies.
We must also remember that although the competition seems formidable, international Now, the competition is even closer to home, from competition is not a zero-sum game. ASEAN can China and India. China grew an impressive 9% last benefit tremendously from the rise of our large year and is expected to do the same this year. A neighbours by trading with them, investing in them, prosperous Chinese middle class has emerged, buying and attracting investments and tourists from them. But goods and services from ASEAN. China has it means working smart, cooperating with China and fundamentally changed the pattern of trade and India, and complementing their activities. It also means investment in the region. India, for its part, was the further integrating our economies. second fastest growing economy in this region after China. Indian industry has a new found sense of You are aware that all major economic powers in confidence. They are expanding and investing overseas. the world are ASEAN’s key cooperation partners. By Furthermore, India has also become more competitive 2010, we should have an FTA between China and the in manufacturing. original six ASEAN countries. By 2015, all ten ASEAN members will be included. India is also negotiating to To a certain extent, we are witnessing the re- establish a FTA with ASEAN by 2011. Japan, which emergence of an Asian trading network, anchored by has been a key investor in ASEAN, will negotiate a China and India. However, this network will be much Japan-ASEAN CEP. With ROK, we have AKFTA broader and complex. Therefore, ASEAN must negotiations with a goal of having at least 80% of continue to position the region as an integral part of products zero tariff by 2009. this Asian trading network. We must offer goods and services that are competitive and of high value. It is not Since 2003, our relationship with the EU has taken possible for ASEAN to remain as a middleman servicing on anew dimension with the launch of a regional trade our giant neighbours, or a cheap manufacturing hub. action plan, the Trans- Regional EU-ASEAN Trade Initiative (TREATI), which seeks closer co- operation OCT / NOV / DEC_2004
NEWS between both regions on a wide range of trade, investments and regulatory issues. Closer to home, in 2005 ASEAN is commencing negotiations for an ASEAN-Australia & New Zealand FTA to be fully implemented within 10 years. The US, too, has announced the Enterprise for ASEAN Initiative, under which it will pursue various agreements with ASEAN countries, taking into account their respective progress in economic liberalisation.
In the longer-term, how successfully ASEAN economies integrate depends on how well the member countries meet several major challenges. First, bridging the development gap in ASEAN, to enable the four new ASEAN members to catch up and advance with the rest. Second, managing ASEAN’s external economic linkages to enhance the competitiveness of ASEAN as a regional production and tourist destination, as well as enhance the competitive edge of individual ASEAN members to trade, innovate, and attract investors and tourists. Third, resolving bilateral differences and tensions in a predictable and systematic way to remove and prevent misunderstanding and ill-feeling between neighbours. In addition, we need to do away with many nontariff barriers within ASEAN. As it is now, products have to comply with a bewildering range of standards, which vary from one ASEAN country to another. For instance, to bring a new pharmaceutical drug to the ASEAN market, a manufacturer needs the approval of ten health authorities. This raises costs for companies. In major economies like the US or China, they only deal with one health authority. Indeed, for businesses, ASEAN has yet to become a ‘single production base’ that would enable manufacturing operations to be linked seamlessly throughout the region.
cost by up to 20%. This translates into additional GDP of US$50 billion for the whole of ASEAN. Terrorism Threat
ASEAN integration and continued growth can only be achieved under a stable and secure environment. The threat of terrorism and the regional flashpoints can easily unravel ASEAN’s economic objectives. Security and trade are mutually reinforcing objectives and both are requisites for economic growth. The 9/11 attacks raised the spectre of terrorism over our region. The Bali bomb and the recent bomb at the Australian Embassy in Jakarta has strengthened ASEAN’s resolve not to shrink back, but to band together as we have in the past, to weed out the threat of terrorism. Terrorists also engage in transnational crime such as money laundering and arms smuggling to fuel and finance their activities. Countering these threats is a global priority. While the region has rallied together well against terrorism, the ASEAN law enforcement agencies must continue to harness the value of developing and mobilising collective resources to deal with these threats at hand. ASEAN needs strong political leadership and determination to ensure continued stability and prosperity for ASEAN .The stakes are high. If ASEAN fails, the shape and complexion of the region will be radically altered. At the same time, through constant dialogue and consultations with our Dialogue Partners and through mechanisms like the ARF, ASEAN can hope to lessen tensions in the region’s potential flashpoints.
Health without Frontiers
Other non-traditional threats have also made it necessary for ASEAN to work together. For instance, SARS and avian flu reminded us that with globalisation and jet travel, our region is borderless. It is one Integrating our economies requires hard work, quarantine area. It is no longer sufficient to expect political will and often, tough decisions. It requires all national frontiers to fend off a virus attack. With ASEAN countries to make difficult internal globalisation of trade, comes globalisation of diseases. adjustments. We must make it easy for investors to For decades, when most travelling was via roads and take advantage of each other’s competitive strengths, if railways, Singapore could manage its public health we want sustained economic growth and to regain our concerns by treating only West Malaysia and Singapore dynamism. A study by McKinsey estimated that an as one quarantine area. But now, the footprint of each economically integrated ASEAN could increase the virus has spread wider and broader. region’s GDP by at least 10% and reduce the operational
OCT / NOV / DEC_2004
NEWS Fortunately, in dealing with SARS, ASEAN was exemplary in its collective response. Concerted steps were taken to combat it. Within days, Malaysia initiated a special ASEAN+3 Ministers of Health Meeting on SARS. Thailand convened a Special ASEAN-China Leaders Meeting on SARS. Similarly, our agriculture and health authorities have worked closely to prevent the spread of avian flu this year. Our quick response prevented a larger loss of confidence in ASEAN.
courted by its many external partners. Third, ASEAN has demonstrated that it can rise to the occasion when faced with a crisis. And fourth, ASEAN countries have not let bilateral spats and hiccups affect regional cooperation. ASEAN has nurtured habits of cooperation to enable us to interact at the broader regional level.
ASEAN is in a much improved position. The region offers investors an attractive value proposition: ASEAN will continue through multilateral strong upside potential, a high degree of market stability cooperation to collaborate with neighbouring countries as well as liquidity and easy access to capital markets. and regions to deal with the myriad of transnational Politically, ASEAN has become more integrated. issues facing us. ASEAN today is committed to greater regional security, and the member countries also show growing determination to make their voices heard in key The Vientiane Summit international fora. In an increasingly globalised world The 10th ASEAN Summit resulted in many substantive with the intertwining of geopolitics and economics, outcomes, in particular, the ‘Vientiane Action ASEAN must continue to stay open and competitive Programme’ and the Plans of Action for the ASEAN and keep its outward-looking approach. Security Community and ASEAN Socio-Cultural Community .The ASEAN Leaders discussed the need [Note: The session was chaired by the Honourable for ASEAN to expedite economic integration. They Justice Hashim Yusoff, President of the ASEAN Law understood that the economic challenges from Association of Malaysia who is also a Judge of the Northeast Asia and India would only increase. Even as ASEAN economic integration accelerates, Singapore is mindful of the need to narrow the development gap within ASEAN. Therefore, PM Lee Hsien Loong announced in Vientiane that Singapore would extend its commitment to the Initiative for ASEAN Integration (IAI) beyond December 2005 for a further three years. The extended training package, valued at S$28.9 million, will incorporate some of the existing programmes, such as the Singapore Scholarship and the in- country training courses. In addition, Singapore will be introducing anew Executive Management Training Programme for senior CLMV officials. Singapore will continue to do its part to facilitate the integration of the newer ASEAN members.
I know that conventional wisdom is to lament ASEAN’s sluggishness, consensual decision-making processes etc. But, having dealt with ASEAN for many years, I am generally encouraged and optimistic about ASEAN’s future. First, ASEAN is aware of the need to get its act together and be competitive. Second, ASEAN countries remain outward-looking, notwithstanding our various internal preoccupations. ASEAN is being
Malaysian Court of Appeal. The talk was attended by Ambassadors and High Commissioners and /or their representatives, representatives from the Attorney-General’s Chambers, members of the Malaysian Medical Association, lawyers, law lecturers and members of the public.]
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OCT / NOV / DEC_2004
Your Opinion Perasaan Takut Dalam Hidup1 Edmund Bon*
eguam-peguam adalah ejen penting dalam pentadbiran dan jentera keadilan. Peguam-peguam mempengaruhi perubahan. Kami sememangnya ditakdirkan menjadi insan yang berani. Ikrar kami, terkandung dalam seksyen 42(1)(a) Akta Profesion Undang-Undang 1976, adalah supaya menegakkan keadilan tanpa mengira kepentingan sendiri dan tidak terpengaruh oleh perasaan takut atau pilih kasih, menjadi buktinya. Namun, ada di kalangan peguampeguam kami yang mempunyai perasaan takut untuk mengharungi hidup mereka. Mereka takutkan kematian kurang dari sebagaimana mereka takutkan kehidupan. Dan itulah yang budaya dan institusiinstitusi yang wujud kini ingin kami percaya, bahawa kita tidak boleh melakukan apa-apa untuk diri kami sendiri tanpa mereka. Saya ingin melihat peguam-peguam muda bangkit daripada sikap kealpaan, keselesaan mereka dan mara ke hadapan2. Ramai di antara kami yang mengadu, di dalam kantin mahkamah mahupun dalam e-mel peribadi, tentang hakim-hakim yang kurang sopan yang sering kami hadapi, kakitangan mahkamah yang tidak sudi membantu dalam urusan kami, majikan kami yang penuh desakan, klien-klien kami yang cerewet dan gaji rendah yang kami terima. Namun demikian, apabila timbulnya peluang untuk mengubah institusi-institusi ini yang menyebabkan sebegitu, kami tidak berbuat apa-apa. “Tidak ada masa”, “Saya takut” atau “Saya tidak tahu bagaimana melakukannya” menjadi alasan. Pengutus, serta mereka yang berusaha untuk bagi perubahan keadaan sedia wujud di sekitar kami dikritikan, dan pesanan dirampas dan terus hilang. Mereka yang berkedudukan selesa terus berbangga melihat kegagalan agenda pembaharuan dan penganjur perubahan gagal sedangkan kedudukan mereka terus semakin kukuh. Mereka yang berkuasa berasa takut terhadap perubahan. Mereka takut perubahan kerana mereka takut mengharungi hidup.
Kehidupan adalah suatu proses penuh cabaran, tangappan, perubahan, pembaharuan, kelahiran semula dan tindakan yang berterusan tetapi mereka gagal memahaminya dalam konteks sedemikian. Begitu juga, peguam-peguam muda takut menghadapi perubahan kerana mereka selesa membenarkan pihak senior mara kehadapan, membuat keputusan dan menguasai kehidupan kami. Kami berasa terpegun dan takut untuk mencabar mereka yang berkedudukan kukuh. Kami pemalas. Akibatnya, terdapat diantara ahli Majlis Peguam yang tidak terdorong untuk mengambil bahagian, bekerja dan bertindak dengan berkesan. Ini amat mengecewakan kepada mereka yang sebetulnya ingin membawa perubahan dan memudahkan keadaan demi kebaikan bersama. Ada juga diantara ahli Majlis Peguam yang tidak aktif membuat kerja demi kebaikan Badan Peguam tetapi hanya menyertai aktiviti-aktiviti tertentu yang dapat memastikan profil mereka sentiasa berada pada tahap yang tinggi supaya mereka terus mendapat undian pada hari pemilihan yang akan datang. Ahli seperti ini merupakan penghalang kepada Badan Peguam. Saya ingin melihat peguam-peguam muda mula menyedari bahawa kudis sudah pun bertapak dan tidak akan berhenti sehinggalah kami bertindak untuk mengatasinya. Perkara pertama yang perlu dilakukan adalah memulakan satu kempen advokasi serta pergerakan yang tersusun untuk mengubah arah Majlis Peguam dengan memilih ahli-ahli yang berkesan dan berkelayakan. Sudah tiba masanya untuk kami memberi tekanan dan memberitahu ahli-ahli yang “kayu mati” bahawa walaupun kami menghargai usaha mereka sebelum ini, mereka haruslah melangkah ke arah lain. Kerja-kerja Majlis seperti berbahas, membentuk strategi
Pesanan yang diberikan pada “Road Show on Section 46A of the Legal Profession Act 1976” yang dianjurkan oleh Jawatankuasa Peguam Selangor pada 27 November 2004 di Kelab Golf Sultan Abdul Aziz Shah, Shah Alam. * Peguambela dan peguamcara Mahkamah Tinggi Malaya. 2 Lihat juga pesanan “Young Lawyers and Section 46A Legal Profession Act, 1976” yang diberikan pada “Road Show on Section 46A of the Legal Profession Act 1976” yang dianjurkan oleh Jawatankuasa Peguam Kuala Lumpur pada 5 September 2003 di Auditorium Majlis Peguam, Kuala Lumpur. INFOLINE 28
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Your Opinion dan polisi, mengerjakan butir-butir remeh-temeh dan melakukan kerja-kerja keras sepatutnya ditinggalkan kepada yang lain.
Kuala Lumpur? Adakah semua ahli dijemput menghadiri upacara tersebut? Adakah peristiwa ini tidak cukup penting untuk kami semua dimaklumkan mengenainya ataupun dijemput? Atau adakah ia hanya bagi segolongan ahli-ahli yang elit sahaja?
Sekarang ini, Majlis Peguam dilihat sebagai suatu “kejohanan pidato yang tidak berguna” (“pointless oratorical tournament”)3 memandangkan tidak adanya usaha bersepadan untuk membangkitkan pemikiran, (2) Apabila Jawatankuasa Peguam Kuala Lumpur polisi-polisi dan tindakan yang baru. Kami mesti hadir berjumpa dengan Ketua Hakim Negara4, tahukah kami siapa yang turut hadir? Saya telah menyelamatkan Majlis ini daripada terus merosot. Kami mesti melaksanakan hak-hak kami untuk mengundi, disedarkan bahawa tiada sebarang pewakilan dari Jawatankuasa Peguam-Peguam Muda yang hadir kami harus mengundi dengan bijak dan kami mesti atau dijemput hadir5. mula berdebat berkenaan isu-isu Badan Peguam secara umum. Buat masa ini, dan bagi tempoh singkat, penyelesaiannya Kami harus berhasrat menjadikan Majlis Peguam adalah untuk memastikan bahawa peguam-peguam sebagai suatu badan yang dijalankan secara muda memainkan peranan yang penuh dan aktif dalam professionalisme. Jawatankuasa-jawatankuasa yang kini aktiviti-aktiviti Badan Peguam dan Jawatankuasa dijalankan secara sukarela dan sambilan oleh peguam- Peguam Negeri. Kami seharusnya sudi melibatkan diri peguam perlu dihentikan secara berperingkat. Paling dalam jawatankuasa-jawatankuasa yang menarik minat tinggi pun, peguam-peguam boleh dipanggil hanya kami dan menyumbangkan seberapa banyak yang boleh. untuk memberikan nasihat berkenaan polisi-polisi dan Kami sepatutnya melafazkan soalan-soalan yang untuk memastikan polisi-polisi tersebut dilaksanakan mencabar dan membuat sesuatu demi kebaikan Badan sewajarnya. Majlis Peguam perlu diperbaharui Peguam. Mungkin sukar untuk dipercayai, berasaskan pengalaman saya sendiri, bekerja dalam jawatankuasasepenuhnya. jawatankuasa, berbahas isu dan melaksanakan polisi Satu lagi masalah yang besar adalah kekurangan dapat memperkayakan dan membantu pertumbuhan maklumat yang disalurkan kepada kesemua ahli-ahli diri kami sendiri sebagai peguam-peguam muda. setiap hari. Ada di antara kami yang mendengar khabar Kami mesti faham bahawa terdapat banyak sesuatu perkara hanya apabila kami bekerja di tahap jawatankuasa di Majlis Peguam atau Jawatankuasa peluang di luar sana yang membolehkan kami Peguam Negeri tetapi walaupun begitu, kami tidak berkembang dan boleh kami capai sebagai peguammendengar cerita sepenuhnya atau sebenarnya. Terdapat peguam muda. Kami mesti tekun, mengambil risiko banyak keluhan perasaan yang boleh didengar dan merebut peluang-peluang ini. Penting sekali, kami diperingkat akar umbi berkenaan Majlis Peguam atau tidak seharusnya berasa takut. Jikalau kami tidak Jawatankuasa Peguam Negeri, namun orang yang sama, menolong diri kami sendiri, tiada sesiapa lagi yang akan atau yang condong kearah yang sama, diundi masuk menolong. setiap tahun. Badan Peguam Malaysia sememangnya Hanya dua misalan perlu diberikan: dimaksudkan menjadi, dan adalah sebuah badan yang berani, berdiri teguh menentang segala ketidakadilan (1) Adakah kesemua ahli, terutamanya ahli-ahli muda, dan penindasan. Secara kebetulan, ada kalanya, mengetahui bahawa Majlis Peguam telah pandangan Badan Peguam tidak selaras dengan mengadakan suatu upacara pada 23 November pandangan system politik yang sememangnya wujud. 2004 bagi pembukaan resmi bangunannya di Ini tidak bermaksud bahawa Badan Peguam adalah anti3 Satu ungkapan yang dicanangkan oleh Ernesto Che Guevara, yang mewakili Cuba, dalam sesi ucapannya kepada Mesyuarat Agung Pertubuhan Bangsa-Bangsa Bersatu yang ke-19 di New York pada 11 Disember 1964. 4 Ini bagaimanapun adalah pelik memandangkan Majlis Peguam tidak berjaya berjumpa dengan Ketua Hakim Negara walaupun beberapa permintaan telah dibuat untuk berjumpa dengan Yang Amat Arif. Mesyuarat ini memalukan Majlis Peguam. 5 Dalam usaha untuk menjelaskan isu ini (antara isu-isu lain dalam mesyuarat), 3 e-mail telah dihantar pada 5 Julai 2004, 6 Julai 2004 dan 15 Julai 2004 kepada Jawatankuasa Peguam Kuala Lumpur. Satu jawapan melalui e-mail bertarikh 27 Ogos 2004 tidak menjawab pertanyaan tersebut.
OCT / NOV / DEC_2004
Your Opinion kerajaan atau pro-pembangkang. Majlis Peguam telah beberapa kali mengetuai Badan Peguam untuk menyokong pendirian Kerajaan dalam beberapa isu dan tidak menyokong pendirian Pembangkang dalam beberapa isu dan ada kalanya sebaliknya pula. Dakwaandakwaan kononnya Majlis Peguam sentiasa berkecenderungan ke arah anti-penubuhan adalah berniat jahat dan tidak berasas. Namun demikian, Badan Peguam, yang diketuai oleh Majlis Peguam, adalah salah satu daripada benteng terakhir yang menegakkan keadilan, hak-hak asasi manusia, aturan-aturan sosial, kebebasan dan keperlembagaan di Malaysia walaupun berhadapan dengan kuasa besar Negeri6. Kukuh tertanam didalam jiwanya adalah semangat kemanusiaan dan konsep betul dan salah. Secara substantifnya, ia membolehkan insan biasa seperti kamu dan saya peluang untuk membebaskan diri kami, untuk mendorong perubahan dalam masyarakat, untuk menegakkan kedaulatan undang-undang dan mengekalkan kebebasan diri kami sendiri. Jangan sampai kita kehilangan peluang ini. Kami sebagai peguam-peguam muda merupakan sebahagian daripada struktur ini. Jangan sampai kita terlupa hakikat ini atau membiarkan sesuatu untuk melemahkan semangat kami. Sebaik sahaja kami menyedari bahawa perubahan memang wujud dalam diri kami sendiri, kuasa untuk mengubah berada pada genggaman kami dan kami boleh bertindak untuk mengubah keadaan; maka hanya pada masa itu barulah kami boleh mula mengharungi kehidupan kita dengan lebih sedikit, dan berharap, dengan perasaan takut yang kurang. 6
Malahan, Majlis Peguam juga telah berhujah untuk kebebasaan kehakiman dan hak-hak hakim-hakim dalam soal ketulusan kenaikan pangkat.
ake Notice that we are searching for a legal firm and/or lawyer(s) which/who may have information on and/or prepared a sale and purchase agreement for Hashim bin Harun (deceased in 1990) and Faridah binti Hassan sometime in 1982 in respect of a ½ undivided share of land held under Individual Title Pajakan Mukim 451, No. Lot. 4414, Bandar Gombak Setia, District of Gombak, State of Selangor Darul Ehsan previously registered under the name of Rapiah binti Kontan(f). Whoever has the above information, please do not hesitate to contact M/s Tengku Azlina Rao Low & Associates at Tel: 03-4042 2148; Fax: 03-4041 2988 as the purchaser, Faridah binti Hassan is in the midst of applying to a declaration from Kuala Lumpur High Court to effect the transfer of the above said property into her name.
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SURUHANJAYA SYARIKAT MALAYSIA Announcement
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OCT / NOV / DEC_2004
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Comment The Malaysian Judiciary Dato' Dr Peter Mooney Advocate & Solicitor
he article by Paul Warren in your recent issue is majority judgment and was widely recognised as being quite remarkable. It asserts that ‘the Malaysian in the right, as the House of Lords itself was obliged to judiciary can only ever redeem itself if we once again admit many years later. have recourse to the Privy Council’. Malaysian judges, he asserts cannot be trusted to do justice. Another example is Donoghue v Stevenson 1932 A.C. 562. In that case Lord Buckmaster, in the leading This is a totally unwarranted slur on the judiciary judgment in the House of Lords described the and indeed on Malaysia which is, in Mr Warren’s view, proposition of law being contended for by the appellant incapable of providing honest judges. as ‘little short of outrageous’. Lord Tomlin totally agreed. Lord Atkin in his judgement said that if the Up until 1988, lawyers and the public had law were as declared by Lord Buckmaster it would be complete confidence in both the ability and the gravely defective and contrary to principle. He went integrity of the judiciary. Cases before them were on to say that the proposition for the appellant was decided solely on the judges’ understanding of the facts one ‘which no one who was not a lawyer would for and the law. There was no thought, and no basis for one moment doubt’ and ‘is in accordance with sound thinking, that any of them were influenced by venal or common sense.’ The other two judges agreed with him political considerations. The fact that there could be and their judgments have stood the test of time as an appeal, in some cases, to the Privy Council, was not declaring an important principle of law. a factor in the decisions of the Courts, as every practitioner knows. A more recent example is Anns v Merton Borough Council 1978 A.C. 728 where their Lordships The decline in the standard of the judiciary has its inadvertently expressed themselves in a manner which origin in the events of 1988 and some of the appeared to have invented a novel concept of the duty appointments to judicial office thereafter. of care which had no ancestry either in the history of tortious liability or in the principles of tort. The decision The discontinuance of appeals to the Privy in that case had the unforeseen result of a large number Council was, in the first place, a natural consequence of claims being brought which were previously, and of Malaysia becoming an independent nation. Many rightly, regarded as being untenable. To put a stop to former members of the Commonwealth have this development, subsequent cases have been at pains discontinued these appeals and very few are left. This is to explain that the leading judgment in Anns does not only right. It is hardly compatible with the concept of mean what it might appear to say. a sovereign, independent nation that disputes between its subjects or between the State and its subjects should The citation of these cases is not intended as a be referred for a decision to a Court of foreigners criticism of the eminent judges who decided them. It thousands of miles away. simply demonstrates that, even with the best will and the best brains, error is still inherent in human judgment. Moreover the Privy Council was not, any more than any other Court or human institution, infallible, The House of Lords/ Privy Council like all human although it was composed of able lawyers, mostly institutions is not a paragon. No human being is totally members of the House of Lords. One only has to think rational. We all have prejudices and predilections and of Liversidge v Anderson  AC 206. where Lord multifarious ideas derived from our individual Atkin, in the only dissenting judgment, derided the education and experience of life. The views we arrive at OCT / NOV / DEC_2004
Comment and our interpretations of events cannot but be influenced by our background. Malaysians are made up of differing ethnic and religious and social communities but we have much in common. Members of the Privy Council have a very different background and possess little, if any, understanding of life in Malaysia and its culture. If they are presented with a question involving a pure point of law, they bring great knowledge of the law and an acute intellect to its solution. However many appeals, which appear to present a point of law are derived from a matrix of facts, facts which are well comprehended by Malaysian judges but which can be, and have in the past been, misapprehended by foreign judges unfamiliar with the Malaysian scene and can lead them to deliver an imperfect judgment based on misapprehension.
It has always been a principle, since very early times, that one’s peers are the most suitable judges. This is so because our peers have the same general background and understanding as ourselves. The remedy for any deficiency in our judiciary is not to restore appeals to the Privy Council but to amend the Constitution so as to replace the present mode of appointment of judges, a mode which is characterised by inadequate criteria and a total absence of transparency, by a procedure which is transparent and which desiderates criteria directed to establishing the suitability of candidates for judicial office in terms of learning in, and experience of, the law, integrity, independence of judgment and judicial temperament.
Walkathon, Family Family Day and Walkathon, and Jumble Jumble Sale Sale
he Sports, Charity & Welfare Committee as part of its continuing efforts to raise funds for Lawcare is organising a ‘Walkathon, Family Day and Jumble Sale’ on 6 March 2005 at Taman Wetland Putrajaya. There will be stalls offering food, handicrafts and games for the enjoyment of all members and their families. The Walkathon will be held in the morning, followed by the Family Day and Jumble Sale. All Members are cordially invited to lend their support for this event by: 1 Taking part in the Walkathon; 2
Operating a stall - please let us know what type;
Attending with your families and friends - we need your participation to make this a success.
Coupons at RM20 per booklet are available at the Bar Council Secretariat. If you require more information, please call 2031 3003, Thoo May Leng (ext 130), Sivanes (ext 174) or Lynette Tan (ext 142). We look forward to your support for this project, which is organised for the benefit of all members. Funds raised will be channelled into LawCare, our Benevolent Fund. See you all on 6 March 2005.
OCT / NOV / DEC_2004
Comment Solicitors Remuneration Order 1991 and the Solicitors Remuneration (Enforcement) Rules 2004 Clement G Lopez Advocate & Solicitor
he recently circulated Solicitors Remuneration 4. (Enforcement) Rules 2004 (‘the Enforcement Rules’) has provoked the following thoughts in me which I believe I should share with members. I am myself in favour of abolishing the fixed scales prescribed by the Solicitors Remuneration Order, 1991 (‘the SRO’). These are my reasons: 1.
The prescribed scale is 14 years old. It is out-dated, resulting in the prescribed fees being low, especially for conveyancing transactions valued at below RM1 million. Such low fees are not commensurate with the levels of insurance premia presently being levied. Even without discounts the question is: Are the scale fees worth the time and risk in the first place? There is no sign of any higher rate being implemented as voted for at the last Annual General Meeting. 5.
The global trend has been to abolish scale fees and to replace it with safeguards against overcharging. England abolished scale fees as far back as 1972. Many other countries have followed suit. We are 32 years behind in this development. In fact, we appear to be going in the opposite direction. Is there any justification for doing so?
Lawyers should be free to negotiate fees with 6. clients for all work undertaken, including conveyancing transactions. A solicitor-client relationship must be viewed at different levels. Some clients may want to be served by particular firms, no matter who the attending lawyers are. Some clients may want to be served by particular lawyers due primarily to the existing professional and personal relationships, which these clients 7. value highly. Some clients want to be served by lawyers who can provide their services at the most affordable rate. Is there anything inherently wrong with any of these models? Why should clients with different expectations be obliged to pay the same fees? Correspondingly, why then should solicitors undertaking conveyancing matters be obliged to charge the same fee irrespective?
To my mind, the reason the scale continues to exist is because the legal profession considers itself a noble profession and discounts and undercutting apparently run counter to such a perception. Why do we deny the undoubted fact that the legal profession is in essence a business? The nobility of the profession is not at stake simply because it is also considered a business. All firms, big and small, operate with a view to a profit. Every firm operates on a different costing. Firms in the Klang Valley and the larger cities will inevitably say that their operating costs are much higher than that of firms in other parts of country. Being a business, each firm should be entitled to assess its own chargeable fees based on its actual operating costs with a view to attaining a decent level of profit (subject always to sanctions for excessive charging). By fixing a scale of charges, are we not also effectively saying that the qualifications and expertise of conveyancing lawyers are irrelevant considerations? Why is this so? In every other segment of the legal market qualifications and expertise are primary considerations in assessing fees chargeable. What is it that makes conveyancing transactions the exception to the rule? In law school we were taught that the main feature of land is its uniqueness. This forms the basis of the remedy of specific performance. Yet, fees chargeable are fixed, which must imply that the work is standard. If the subject matter is unique, how can the work to be done be said to be standard? Is the work to be done really standard in the first place? Different processes are invoked depending on, among other things, whether a separate document of title has been issued to the property, whether the subject land is a registry- or land office- title, even depending on which registry or land office one has to deal with. Ask any conveyancing lawyer who has to deal with the Shah Alam Land Registry whether the unusual OCT / NOV / DEC_2004
Comment exertions employed ought to justify charging higher fees! 8.
A segment of the consumers of legal services actually want legal fees to be reduced. If some lawyers are prepared to perform the required work at reduced fees why should they not be permitted to do so? Obviously the perceived need for enforcement is premised primarily on complaints about rampant discounts and undercutting presently prevalent in the market. Yet, who is most likely to lodge a complaint against solicitors for charging below the prescribed fixed fees? It is unlikely to be the client who obtains the discount since he receives an actual benefit therefrom. It may be another client of the same solicitor who has not received the same discount a previous client, but the risk of that happening is negligible. In actual fact, it is highly likely that the bulk of the complainants would be fellow solicitors themselves. Effectively, to my mind, the fixed scales prescribed under the SRO merely protect solicitors from other solicitors. That, to me, is insufficient justification for the continued existence of the SRO.
What would the consequences be if the fixed scale prescribed by the SRO is abolished? Inevitably, some legal firms would be prepared to offer their services at rates lower than the existing scale charges to entice prospective clients to use their services. This obviously involves a commercial risk on their part. Firms which fail to post adequate profits will eventually have to revise their fee quotes or risk being run out of business. Every firm ought to be permitted to find its own level in the market. Eventually conveyancing fees will stabilise, but it is an incorrect assumption to say that they will stabilise at any particular price, primarily because the legal business involves intangible considerations like specialization, experience, personal relationships and differing levels of service. Ultimately, conveyancing fees can and ought to be agreed between a solicitor and his client. That being the case, it is my view that the Enforcement Rules are unnecessary. In any case, the following are some comments I have on the Enforcement Rules: 1.
Rule 3(1) which prescribes that no solicitor shall carry on non-contentious business without putting up the required signage does not take into account the fact that non-contentious business involves
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work other than that for which a fixed scale is provided. Must a solicitor who only performs corporate work display the signage? What is the relevance of the signage to him? 2.
The putting up of such signage - especially with the presently suggested wording - would make solicitors look like the money-grabbing sharks they are often (wrongly) portrayed to be. My understanding of the reality is that the scale is being preserved to protect the bottom-line.
Two of the most important facets of the practice of law are privilege and confidentiality. Do the Enforcement Rules not make inroads into these? Are these acceptable?
The Bar Council should not be given carte blanche to look into the financials of individual lawyers and law firms however noble its intentions may appear to be.
Finally, the vexed question: Who polices the policemen? As a prerequisite to enforcing the SRO on solicitors, Council members must themselves be seen to be fully compliant with it. Are Council members prepared to submit to an annual independent audit of their own books and the books of their respective firms? Will this not create difficulties within their own respective firms? Will such difficulties then have the effect of preventing prospective future candidates from seeking office?
I urge members to think seriously about the ramifications of the SRO and the Enforcement Rules. I also urge the Bar Council not to implement the Enforcement Rules pending a full and proper inquiry. In any event, I further urge the Bar Council to seek the express mandate of the general body of members before putting the Enforcement Rules into effect. The Bar Council in particular and the Malaysian Bar in general should instead channel their resources to meeting the real challenges which the profession in this country presently faces. To me these include the adequacy and affordability of insurance cover, raising standards at the Bar and the inevitable opening up of the profession to foreign players. These are the issues which will propel the profession forward, not the enforcement of archaic rules relating to non-contentious fees.
Comment The Solicitors’ Remuneration (Enforcement) Rules 2004: Conveyancing Lawyers’ Utopia? Leong Cheok Keng Advocate & Solicitor
he Solicitors’ Remuneration (Enforcement) Rules 2004 came into force on 1st October 2004 with the objective of facilitating the enforcement of the Solicitors’ Remuneration Order 1991 which, inter alia, stipulates that ‘ there shall be no discount on scale fees’.
the Legal Profession (Practice and Etiquette) Rules 1978 which prohibits the sharing of profits of lawyers with non-lawyers. The Rule deems such conduct unprofessional and improper.
It is plain that Rule 52 seeks to restrain lawyers from paying ‘kick-backs’,as it is commonly called, referring to the commissions paid to laymen who introduce Objective of the ‘No Discount’ Rule clients or refer work to the lawyers. These laymen often The underlying objective of the ‘no discount’ rule hold positions of authority in institutions which either appears to be one which is laudable. It seeks to encourage have frequent occasions to instruct lawyers or whose competition among lawyers, in particular conveyancing customers routinely require legal services. lawyers, based on competence and expertise, rather than price strategies. There is nothing wrong, from a purely business point of view, in paying a commission in order to The logic is simple. If the scale fees are adhered procure business. After all, ‘there is no such thing as a to, lawyers handling conveyancing matters will not be free lunch’. The agents who procure business for an allowed to compete by undercutting one another’s fees. enterprise need to be rewarded. The problem is, it is an They will hence be compelled to attract clients by their infringement of Rule 52 and goes against the skills, competence and knowledge. philosophy of competition by skills, expertise and knowledge. There is no guarantee that the clients get It is then hoped that meritocracy will be achieved: the best services since they are referred to the practitioners the best and most lucrative jobs (and the accompanying who pay the highest kick-backs and who may not be fees) will go to the solicitors who are the best. These the best lawyers. lawyers in turn will provide the best services to their clients, and the public, and society at large, will benefit A further complication is that the recipients of as a whole. Clients will be satisfied. Lawyers will be the kick-backs owe a duty to report such profits to the dignified. In other words, the cliched ‘win-win’ situation organisation that they belong to otherwise the same will be attained. would be secret profits, liable to be disgorged. Stripped of its euphemism, unreported kick-backs are nothing It is easy for one to support the rule, as the more than a form of corruption in the private sector. meritocracy philosophy should be embraced by lawyers who, by definition, are interested in fairness and justice. Another tempting way of securing noncontentious business would be for the solicitors to The question: is this simple logic reality? Does engage agents, or touts as they are sometimes called, to meritocracy follow the ‘no discount’ rule, as night fish for potential clients. Such agents are, of course, follows the day? If not, why? rewarded financially. Touting is, needless to say, frowned upon inter alia, by Rule 52. Other Ethical Rules
There are, in addition to the ‘no discount’ rule, a number of other ethical rules which seek to promote the dignity of the members of the Bar and meritocracy in the form of fair competition.
Breach of the Law or Other Duties
Conveyancing lawyers are often entrusted with stakeholder sums, invariably so when they act in ‘Schedule G’ sale and purchase agreements, i.e. the standard developers’ contracts with purchasers, where One such rule which comes to mind is Rule 52 of a 5% retention sum is statutorily prescribed. OCT / NOV / DEC_2004
Comment The opportunity to act in these kinds of transactions is considered by a large segment of the practitioners as being unusually lucrative. This perception, whether correct or not, has the direct effect of increasing tremendously the bargaining powers of developers opposite whom the purchasers’ solicitors act in the said Schedule G contracts as, more often than not, their clients are referred to them by the self-same developers. As stated earlier, the law requires the last 5% of the purchase price of the subject properties to be held by these purchasers’ solicitors during the 18-month defect liability period and the solicitors are not allowed to part with the moneys until the full expiration of the period. Bearing in mind the tremendous hold the developers have on the poor stakeholders and the fact that this cash flow is their lifeblood, an awkward situation arises when they wish to have some early gratification and request premature release of the stakeholder sums. Are the lawyers formidable enough to resist such illegal release risking no future reference of work? Or would they be willing to comply by way of a breach of their duty as stakeholder, and the trust of their clients, while aiding and abetting the breach of contract by the developers?
The Effect of the Enforcement Rules
in the act of giving discount, every lawyer ceases to do so. Would the less competitive members of the profession who now cease to give discounts concede defeat to their superior counterparts and quit the market, or would they begin to commit or continue the other breaches discussed above to fortify their positions? If the ‘inferior’ members do not wish to give up their market share, a most worrying scenario of ‘the most unethical survives’ might emerge. Those who are willing to breach the other rules -the breach of which, it is submitted, lowers the dignity of the profession more and causes more prejudice to the clients - will prosper, at the expense of the more superior and dignified members of this honourable profession. Should this scenario materialise, the Bar Council’s Utopian dream turns into a nightmare for those who cherish meritocracy and fairness.
It will be sad to see this well-intentioned scheme, inspired as it is by the hope for more perfect competition, turn into a catalyst to expedite the disillusionment of the more dignified members of the profession who may be compelled to even quit the profession due to their unwillingness to compromise their integrity and their being rendered, ironically and paradoxically, less able to compete for clients in noncontentious business. Indeed, the bad always drives away the good.
It is safe to assume that the desired effect of the Bar Council of a successful implementation of the Enforcement Rules is to eradicate the unhealthy practice of the undercutting of fees by the giving of discounts Let us not live in self-delusion and combat the in the supermarket manner and, in the process attaining, unethical practice of discount giving as if it were the a Conveyancing Lawyers’ Utopia where fair-play only evil threatening to lower our dignity in the eyes prevails. of the public.
In economics jargon, it is hoped that the ‘perfect Fight to stamp out discounts with all your might, market’ will be created. The incompetent, weak players if you wish. But please, on the other hand, do not lose - meaning those ill-equipped to compete by expertise sight of the other threats to the integrity and dignity of and merits - get eliminated from the market so that the profession as a whole. the fittest survive and the best are preserved to serve the existing pool of clientele. Let’s not just strain out the gnat of discount giving but swallow the camels of kick-backs giving and However, the fear is this. Given the various premature stakeholder fund release. possible ‘market imperfections’ -breach of other ethical rules or statutory duty - would the less skilful Lastly, I wish to dedicate this article to my late practitioners surrender so easily to the competent ones? wife and partner in legal practice, Tan Yuen Fui, who Assuming for a moment that due to the fear of the during her practice stood firm to resist the temptations Enforcement Rules and the eventual penalty if caught to procure clients by unethical means. INFOLINE 36
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Title Author Publisher
: by Trial ‘n Terror : Cecil Rajendra : Bogle L’ouverture Press, London.
The Rubaiyat of Busblar Saddam (The poems of Cecil Rajendra: from ‘Bones & Feathers’ to ‘by Trial ‘n Terror’) IN 1978 Heinmann Educational Books (Asia) published a collection of poems by a young unknown - Cecil Rajendra. The introduction by Lloyd Fernando was one of rejection and condescension. The abrasive protest poet was ‘expatriate’ - a strange choice of language if Shirley Geok-lin Lim is considered a Malacca native; his type of poetry could not escape ‘shallowness of thought’ and suffered from a ‘glibness of utterance’. Nor was the returned student one who deigned to cultivate popularity. He rudely signalled his posture with ‘Art for Art’s Sake’ which began with Let us rescue poetry from from the babarians Those who would reduce it to a flag, a slogan a vehicle for propaganda The brash poet has come a long way since then. Amnesty International, National Geographic, UNDP, UNESCO, WWF, OXFAM, Third World First and the World Council of Churches have not hesitated to use his stirring language to publicise their work. His poems have been reproduced in Time, The Literary Review (US), New Statesman and Society (UK), Focus (Ireland) and the Skoob Anthology (UK). And much or it has been translated into German, Japanese, Chinese, Bengali, French, Malay, Tamil, Urdu, Danish and Tagalog. That Edwin Thumboo in a commentary on a collection of Ghulam-Sarwar Yousof ’s poems finally listed him among the poets must have been satisfying recompense for his past isolation. More appreciation was to come from Linda Jaivin who, in Asiaweek, describes him as ‘one or the finest poets writing in South Asia today.’ The London-based poet Sundra in a tribute told the press that Cecil Rajendra was one of those she had drawn upon for inspiration. Poetry to Cecil Rajendra is not a private inner world. His lyrical impulse speaks for the oppressed and the downtrodden of the earth and in ‘the process he draws,
in the words of W H Auden, ‘beauty and truth out of dark places’. Perhaps one of the best examples of his restless agitation against oppressive laws is ‘The Animal and Insect Act’, a work which has inspired many human rights activists and had the distinction of being attached to railings at Trafalgar Square during a rally in London against the ISA called for by UK Solidarity Action Against Malaysian ISA. All his work, however, is not confined to cantos or rage against tyranny. ‘Postcripts’ (1984), published by an appreciative Prai Malaysia Rattan and Wood Industries SB, ‘Lovers Lunatics & Lallang’ (1989) and the private collection ‘25’ reveal a sensitive touch of seductive tenderness and sublime beauty. In the 60s and 70s, as local poets furtively emerged from their shy enclaves they agonised over their ‘colonial’ language and moaned over discovered concepts such as ‘Engmalchin.’ But the ‘expatriate’s’ ‘Nite of the Iguana’ must surely earn him a foremost place in the Pantheon of native poets; a pioneer work which gives voice to the pungent local dialect and displays the vigorous and sparkling effects of its language and tone. ‘by Trial ‘n Terror’ is the latest volume which collects the poems under chapters headed by Kali (destruction), Varuna (moral law), Kamesvari (desire), Durga (an aspect of Sakti) and Bhutamata (goblins). The volume contains the long poem ‘The Rubaiyat of Busblar Saddam’ in the style of ‘Omar Khayyam’ which damns the US illegal war and invasion of Iraq and bombing of civilians. Lim Kean Chye (* ‘by Trial ‘n Terror’ is available to members of the Malaysian Bar at the Bar Council Secretariat Human Rights Desk)
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Need for Assignment in Favour of Sub-Purchaser? Seah Choon Chye Advocate & Solicitor
he financing of properties without individual titles appears to be subjected to double standards, judging from the following scenario– if a purchaser (‘first purchaser’) acquires the property directly from the developer, the financiers of the first purchaser would readily accept as security for the loan granted, an assignment of the relevant sale purchase agreement;
The need to defer the adjudication process and to obtain the various consents and approvals would make it virtually impossible to complete the sub-sale within the usual time-frame of three to four months from the date of the relevant agreement applicable to sale of properties with individual titles. Certain measures could be implemented to reduce red-tape and to enable the sub-sale of properties without individual titles to be completed without undue delay:-
if a purchaser (‘the sub-purchaser’) purchases the the Collector of Stamp Duty could relax the same property from the first purchaser, the financiers adjudication ruling and allow the assignment in of the sub-purchaser requires not only an assignment favour of the sub-purchaser to be stamped forthwith of the agreement between the first purchaser and according to its declared value or consideration. the sub-purchaser, but also a ‘duly stamped’ assignment by the first purchaser in favour of the This concession would not cause any loss of revenue sub-purchaser. for the Government because the subsequent transfer of the property to be effected upon issue of individual ‘Duly stamped’ in accordance with the current practice title has to undergo adjudication to satisfy the condition requires the assignment in favour of the sub-purchaser set out in Section 301(e) of the National Land Code, to be submitted for adjudication pursuant to Section i.e. that it has been duly stamped in accordance with 36 of the Stamp Act 1949 and stamped according to the provisions of the Stamp Act 1949, and any shortfall the market value, as assessed by the Collector of Stamp in the duty has to be made good before the Collector Duty, based on the report of the Valuation Department, can endorse the adjudication certificate. and, upon payment of the appropriate duty, to be endorsed by the Collector with an adjudication It may be argued that an assignment without an certificate under Section 37 of the Act. adjudication certificate may not be deemed to be ‘duly stamped’ in law and hence not admissible in evidence Ordinarily, where the property has been issued in proceedings instituted by the financiers to enforce with an individual title, the adjudication process may the security. commence immediately after the relevant sale purchase agreement has been executed. However where no This technical objection may be prempted by individual title has been issued, it is not advisable to submitting the assignment for adjudication prior to submit the assignment in favour of the sub-purchaser instituting proceedings. for adjudication until the first purchaser’s financiers have been paid the redemption sum and delivered a Receipt the financiers of the sub-purchaser should dispense and Re-assignment in favour of the first purchaser. with the need for a duly stamped assignment in favour of the sub-purchaser since the first purchaser’s This is on account of the so-called ‘cart before the financiers did not require the developer to execute a horse’ rule, i.e. the first purchaser, having assigned the similar assignment in favour of the first purchaser. property to his financiers, is not legally competent to assign the same to the sub-purchaser until the property Financiers of properties without titles should appreciate has first been re-assigned to him (the first purchaser). that the existing practice of securing loans by assignment and various other documents will not provide an INFOLINE 38
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adequate security until a legal charge has been registered obtained before disbursement of the loan) and to run under the Code pursuant to the issue of individual title. the risk of further jeopardising their interests by acceding to the developers’ request not to caveat the Master Title, Whether the individual title will be available it would not be unreasonable for a sub-purchaser to within a reasonable time or at all depends largely on expect his financiers to adopt a more consumer friendly the corporate governance of the developer concerned. stance by making another commercial decision, i.e. agreeing to waive the requirement of a duly stamped Given their willingness to make a commercial assignment by the first purchaser in favour of the subdecision to accept undertakings, without any specified purchaser, provided the assignment by the sub-purchaser time-frame, from developers (even in instances where in favour of the financiers has been duly consented to the Master Title is subject to a restriction in interest by the developer as well as the first purchaser and and no prior consent of the State Authority has been stamped after the Receipt and Re-assignment has been received.
Call for Contributors
Decision of High Court on Tax Status of Malaysian Bar
IN ORDER THAT Infoline may better serve you, we would like to publish what you consider to be relevant to us as lawyers. These could be in the form of letters to the editor, your views and comments on issues affecting the legal profession, news items relating to the legal profession, articles of suitable length, poems or jokes that may be of interest to the legal profession and legal updates including a summary of cases of interest.
The Malaysian Bar is pleased to inform its members that an appeal by the Inland Revenue Board (‘the IRB’) against the decision of the Special Commissioners of Income Tax (‘the SCIT’) was dismissed with costs on 10 December 2004.
We also welcome news and articles relating to Human Rights for the ‘Human Writes’ pull out, so that we may be able to update the legal profession in this area of law.
the Malaysian Bar is not a trade association within the meaning of s 53(3) of the Income Tax Act 1967
We would prefer these to be submitted by email to the Editor, Infoline,
Alternatively, they can be sent to the Editor, Infoline, Nos 13, 15 & 17 Leboh Pasar Besar 50050 Kuala Lumpur Fax: 03-2026 1313. Contributions may be declined or edited for reasons of space and clarity.
In upholding the unanimous decision of the SCIT, we are advised that the High Court held, inter alia, that the Malaysian Bar is exempt from income tax by operation of s 142(2) of the LPA from the time of passage of the LPA, notwithstanding the drafting errors contained in the said LPA
interest derived from the Compensation Fund is exempt from tax under s 80(13) of the LPA; and the Malaysian Bar is entitled to claim all capital allowances in full in the event the Malaysian Bar is judicially determined to be a trade association within the meaning of s 50(13) of the Income Tax Act The IRB has intimated to us that they may file an appeal, in which case they will be giving us notice within one month of the date of the decision. The Malaysian Bar takes this opportunity to thank Counsel, Nik Saghir b Mohd Noor, Anand Raj and Irene Yong both of Shearn Delamore & Co who appeared for us both before the SCIT and at the High Court. The Malaysian Bar OCY / NOV / DEC_2004
Is there still hope after Boonsom Boonyanit? Seah Choon Chye Advocate & Solicitor
roprietors of valuable real estate have good reasons to be concerned following the refusal of the Federal Court to review and reverse the the proprietor through a forged memorandum of controversial judgment of the former Chief Justice transfer. Eusoff Chin on the right of a proprietor to recover his It would appear, as a result of the Federal Court property taken from him through an act of forgery. judgment, that honesty is not necessarily the best policy The effect of the Federal Court judgment delivered under the Code because Boonsom’s indefeasible title, by the former Chief Justice in Adorna Properties Sdn acquired honestly, became defeasible whereas Adorna Bhd v Boonsom Boonyanit (2001) 1 MLJ 241 overruling Properties’ defeasible title, acquired through forgery, is the decision of the Court of Appeal (1997) 2 MLJ 62 now indefeasible. would mean that under the provisions of Section 340 of the National Land Code an innocent proprietor can be wrongfully deprived of his title, through no fault of his own, and cannot recover his property from the person who acquires same, from an imposter, on the grounds the acquirer is a bona fide purchaser protected under the proviso to Section 340(3).
One peculiar aspect of the evidence adduced at the trial at the High Court which should have attracted adverse comments was the fact that although the ‘vendor’ was represented by solicitors in the transaction involving close to RM2.0 Million way back in 1988, yet the transfer was executed by the ‘vendor’ and attested by a Penolong Pentadbir Tanah, Sebarang Prai Tengah.
Initially, the writer was also of the view that it is As there was no evidence that the land was under only fair and reasonable that bona fide purchasers should Malay Reservation, there was no reason why the solicitor be protected under the Code. for the ‘vendor’ could not attest his client’s signature in But if Adorna Properties, the current proprietor the instrument. is a bona fide purchaser despite the forged transfer, it Until the decision in Boonsom is overruled by should be pointed out that Boonsom, the previous proprietor, too is also a bona fide purchaser within the another Federal Court panel, preferably a larger one, or proviso to Section 340(3), perhaps even more so since the authorities take immediate action to rectify the confusion caused by the proviso to Section 340(3) and she was not registered pursuant to a forged transfer. replace the whole of Section 340 with the plain and Therefore Boonsom’s title should be indefeasible simple English wordings of Section 42 of the preceding and fully protected under Section 340(1) and/or Section F.M.S. Land Code (Cap 138), proprietors can only keep their fingers crossed and pray they will not become 340(3). the next victim of the syndicate responsible for the Boonsom’s plight deserves public sympathy and current crisis of confidence in the indefeasibility of title support as she was registered as a proprietor through a under Section 340 of the Code. genuine instrument whereas Adorna Properties became
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Demise of Deferred Indefeasibility under the Malaysian Torrens System? Assoc Prof Teo Keang Sood*
The highest court in Malaysia, the Federal Court, has ruled in favour of immediate indefeasibility for the Malaysian Torrens system on the issue of forgery in Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng 1. There has been no previous decision of the Federal Court on the subject-matter of indefeasibility involving forgery. The pertinent question which arises is whether this decision is correct in light of the legislative framework laid down in section 340 of the Malaysian National Land Code 1965. If so, it would certainly bring about the demise of the doctrine of deferred indefeasibility under the Malaysian Torrens system.
purchaser in good faith and for value. The relevant provisions of section 340, in so far as fraud and forgery are concerned, read as follows: (1)
The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.
The title or interest of any such person or body shall not be indefeasible – (a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or (b) where registration was obtained by forgery,… (c) …
Some jurisdictions (such as Australia and New (3) Where the title or interest of any person or body is Zealand) provide for immediate indefeasibility, while defeasible by reason of any of the circumstances others (such as Malaysia) provide for deferred specified in sub-s (2) – (a) it shall be liable to be set aside in the hands of indefeasibility by way of statute. In the case of any person or body to whom it may subsequently immediate indefeasibility,2 in the absence of fraud, be transferred; and registration of a forged or void instrument confers an (b) any interest subsequently granted thereout shall indefeasible title or interest (see Frazer v Walker3 and be liable to be set aside in the hands of any person Breskvar v Wall4). On the other hand, for deferred or body in whom it is for the time being vested: indefeasibility, even in the absence of fraud, registration Provided that nothing in this sub-section shall of a forged or void instrument will not confer affect any title or interest acquired by any indefeasibility. purchaser in good faith and for valuable II.
consideration, or by any person or body claiming through or under such a purchaser.
The Legislative Framework
The Malaysian National Land Code 1965 provides in section 340 for deferred indefeasibility. Except for fraud to which the person or body who has obtained registration must be a party or privy so as to defeat the registered title or interest, the other vitiating circumstances (including forgery) which will render a registered title or interest defeasible thereunder apply notwithstanding that the registered proprietor is a
III. The Factual Matrix and Decisions
In Adorna Properties, the respondent was the registered proprietor of the lands in question. Another person bearing her name, Boonsom Boonyanit, had forged her signature on the documents of transfer and sold
* LLM (Malaya); LLM (Harv); Advocate & Solicitor, Malaya; Associate Professor, Faculty of Law, National University of Singapore. This article is the copyright property of the Singapore Journal of Legal Studies and was previously published as SJLS  403-408. It is reproduced here with their kind permission 1  1 MLJ 241 (‘Adorna Properties’). 2 For the advantages of immediate indefeasibility, see generally Edwards and O’Reilly, ‘The Duel between Immediate and Deferred Indefeasibility’  SJLS 82 and Smith, ‘Forgeries and Land Registration’ (1985) 101 LQR 79. 3  1 AC 569, at 584. 4 (1971) 126 CLR 376, at 386. OCY / NOV / DEC_2004
the lands to the appellant, Adorna Properties Sdn Bhd. The appellant had no knowledge that the transfer documents were forged and had no reason to suspect that they were forged. It was not disputed that the sale was an arm’s length transaction with the parties represented by different solicitors. The respondent brought an action for, inter alia, an order that she be restored as the registered owner of the lands. The High Court5 gave judgment in favour of the appellant, being a purchaser in good faith and for value, and thus coming within the proviso to section 340(3). The Court of Appeal6, in reversing the order of the High Court, held that the appellant’s registered title was defeasible under section 340(2) and that the proviso to section 340(3) had no application. On appeal to the Federal Court, their Lordships agreed with the decision of the High Court on the issue of indefeasibility, holding that the proviso to section 340(3) conferred on the appellant an indefeasible title on the facts of the case. IV. Reasoning of the Federal Court
In a short four-page judgment, Eusoff Chin CJ (as he then was), in delivering the judgment of the Federal Court, ruled in favour of immediate indefeasibility. He elaborated on the approach adopted by their Lordships in dealing with the issue of indefeasibility: We are aware that any sovereign country may adopt and apply the Torrens system, but in adopting the system, it may modify the system to suit its own needs. Our Parliament did not slavishly follow the wordings of ss 62, 182 and 183 of the Land Transfer Act 1952 of New Zealand, nor the wordings of s 42 of the [then] Federated Malay States Land Code. Therefore, to follow the arguments in earlier decisions not based on s 340 of the NLC would only lead to utter confusion. We would therefore proceed to interpret s 340 NLC as it stands, and find what the real intention of Parliament was when enacting it, for the object of interpretation is to discover the intention of Parliament, and the intention of Parliament must be deduced from the language used.7 Unfortunately, in deducing the intention of Parliament, their Lordships, it is respectfully submitted, lacked clarity in their reasoning when construing the provisions contained in section 340 of the National Land Code. In fact, the proviso to section 340(3) was misconstrued. Their Lordships dealt with section 340 in the following 5 6 7 8
 2 MLJ 863.  2 MLJ 62. Supra, note 1, at 244. Ibid, at 246.
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manner. The effect of section 340(1) is to confer on a registered proprietor an indefeasible title or interest so long as his name is on the land register unless the title or interest was obtained in the circumstances set out in sub-sections (2) and (3) to section 340. One of the circumstances in section 340(2) which renders the title or interest of a registered proprietor defeasible is where the registration has been obtained by forgery. Such a defeasible title or interest if acquired by and transferred to a subsequent registered proprietor is liable to be set aside as provided in section 340(3). However, there is a proviso to sub-section (3). Their Lordships explained the effect of the proviso as follows: The proviso says that any purchaser in good faith and for valuable consideration or any person or body claiming through or under him are excluded from the application of the substantive provision of sub-s (3). For this category of registered proprietors, they obtained immediate indefeasibility notwithstanding that they acquired their titles under a forged document.8 In the result, their Lordships held that the appellant, a purchaser in good faith and for value, obtained an indefeasible title to the lands in question notwithstanding that the instruments of transfer were forged. Their Lordships, in effect, ruled that, on the facts of the case, the appellant came within section 340(3) and was saved by the proviso thereto. V.
Analysis and Critique
There is no quarrel with their Lordships’ interpretation of section 340(1). However, they were less than clear in their explanation of section 340(2). Having said that the sub-section has the effect of rendering a registered title or interest defeasible in the circumstances specified therein, including where registration has been obtained by forgery with which they were concerned with, their Lordship should have further stated that, in the case of forgery, the registered title or interest acquired will remain defeasible notwithstanding that the registered proprietor was not a party or privy to the forgery. In other words, even if the registered proprietor acted in good faith and provided value for the title or interest and was not a party to the forgery, his title or interest will remain defeasible. This is the material difference between the vitiating factor of fraud and the other vitiating factors spelt out in section 340(2) which render a registered title or
interest defeasible. For fraud, the registered proprietor or his agent must be a party or privy thereto before the registered title or interest is rendered defeasible. This is not the case for the other vitiating circumstances (including forgery) provided in section 340(2). This explains the different position obtained under the New Zealand Land Transfer Act 1952 and the Australian Torrens legislation (such as the Queensland Real Property Act 1861 and the New South Wales Real Property Act 1900) which provide for immediate indefeasibility on the one hand, and under the Malaysian National Land Code 1965 which provides for deferred indefeasibility on the other.
by the opening words in the proviso itself which read: ‘Provided that nothing in this sub-section…’, the subsection referred to being sub-section (3) to section 340.9 Similarly, the words ‘any purchaser’ in the proviso must refer to a purchaser coming within section 340(3) ie, a subsequent purchaser, and not one coming within sub-section (2) as well. This is consistent with the language of the proviso. Accordingly, a purchaser in good faith and for value who falls within section 340(3) (but not one who is caught by section 340(2)) will obtain an indefeasible title or interest pursuant to the proviso thereto. In other words, statutory protection is granted by the proviso to this category of purchasers. Thus, it is not just any purchaser in good faith and for value who will obtain the benefit of indefeasibility conferred under the proviso mentioned. To construe otherwise would bring about the demise of the concept of deferred indefeasibility provided for in the Malaysian National Land Code and which is against the intention of Parliament.
Given that the person who committed the forgery did not register the lands in her own name but sold them straight to the appellant, the latter was the immediate purchaser from the respondent. In other words, the appellant was a purchaser immediately to the forgery. That being the case, the appellant came within section 340(2)(b) and its title was rendered defeasible thereunder as the title was obtained by forgery. Their Lordships’ statement, noted above, that the As noted above, it matters not that the appellant was a proviso to section 340(3) confers immediate purchaser in good faith and for value. The appellant, indefeasibility on registered proprietors who act in good accordingly, did not come within section 340(3). faith and for value notwithstanding that registration was obtained by forgery, is erroneous and misconceived. It is important to note that section 340(3) does As explained above, the legislative framework in section not apply until and unless a registered title or interest is 340 provides for the concept of deferred indefeasibility. found to be defeasible under section 340(2). Even then, While the quality of indefeasibility does not attach to it will apply only to a purchaser (in the context of a the title or interest acquired by a purchaser immediately sale and purchase transaction) who subsequently buys to a forgery notwithstanding that he acted in good faith from a registered proprietor whose title or interest is and gave valuable consideration, statutory protection already rendered defeasible under section 340(2). As is, nevertheless, granted to those who subsequently provided in section 340(3), the registered title of such acquire, in good faith and for value, the title or interest a subsequent purchaser, and any interest subsequently from the immediate purchaser. Seen in this manner, granted thereout, such as a lease or mortgage, is liable the proviso to section 340(3) is part of the legislative to be set aside unless such a purchaser or any person or framework which gives effect to the concept of deferred, body claiming through or under him, comes within and not immediate, indefeasibility under the Malaysian the proviso to section 340(3). It can, thus, be seen that Torrens system. the title rendered defeasible under section 340(2) can operate as the root of a good title in favour of a Having misconstrued the legislative intent as subsequent purchaser who comes within the proviso embodied in section 340, the case of Adorna Properties to section 340(3). On the facts in Adorna Properties, is clearly wrongly decided on the issue of indefeasibility there was no room for section 340(3) to operate as involving forgery and should not be followed. there was no such subsequent purchaser involved, the Whatever may be the advantages of immediate appellant coming within section 340(2) instead. indefeasibility, it is for Parliament to change the law, and until that is done, it is for the courts to interpret As for the proviso to section 340(3), the first thing correctly the law as it stands. to note is that it qualifies only section 340(3), and not sub-section (2) as well. This is made abundantly clear 9
Cf Chu Choon Moi v Ngan Sew Tin  1 MLJ 34 at 38; Ali bin Ibrahim & Ors v TML Mohd Ibrahim  1 CLJ 294 and Lai Soon Cheong v Kien Loong Housing Development Sdn Bhd  2 CLJ 199. See also Teo and Khaw, Land Law in Malaysia, 2nd ed (Butterworths, 1995), at 168-169 and 191, cited with approval by the Malaysian Court of Appeal in OCBC Bank (M) Bhd v Pendaftar Hakmilik, Negeri Johor Darul Takzim  2 MLJ 511 at 514, 517 and 524. OCY / NOV / DEC_2004
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Crisis in the Judiciary - Part 4 & 5 The suspension of the Supreme Court The sacking of five Supreme Court judges, along with the Lord President, was tantamount to the suspension of the entire court Datuk George Seah
his Part will deal with the suspension of the five judges of the Supreme Court by the Yang Di-Pertuan Agong on the recommendation of the Prime Minister, Dato Seri Mahathir Mohamad following a complaint by the acting Lord President, Tan Sri Abdul Hamid. The comments made here represent the personal views of the writer and are bona fide in the interest of justice. Article 125(1) of the Federal Constitution provides that a Judge of the Supreme Court shall hold office until he attains the age of 65 years or such later time, not exceeding six months, as the Yang Di-Pertuan Agong may approve. According to Article 125(2) a Judge of the Supreme Court may resign his office in writing under his hand addressed to the Yang Di-Pertuan Agong, but he shall not be removed from office except in accordance with the following provisions of the Article, namely: (3) If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang Di-Pertuan Agong that a Judge of the Supreme Court ought to be removed on the grounds of misbehaviour or of inability, from infirmity of body or mind or any other cause, to properly discharge the functions of his office, the Yang Di-Pertuan Agong shall appoint a tribunal in accordance with Clause 4 and refer the representation to it; and may on the recommendation of the tribunal remove the Judge from office. (4) The said tribunal shall consist of not less than five persons who hold or have held office as judge of the Supreme Court, the Court of Appeal or a High Court, or, if it appears to the Yang DiPertuan Agong expedient to make such
appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely the Lord President of the Supreme Court, the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date). (5) Pending any reference and report under Clause 3 the Yang Di-Pertuan Agong may, on the recommendation of the Prime Minister and, in the case of any other judge, after consulting the Lord President, suspend a Judge of the Supreme Court from the exercise of his function.
PM cannot suspend highest court
It should be pointed out that Article 125 regulates the suspension and removal of a Judge of the Supreme Court. The Article does not provide for suspension and removal of more than one Judge of the Supreme Court. This is understandable because the Prime Minister has not been vested with power under the Federal Constitution to suspend the Supreme Court, which is the third pillar of a parliamentary democracy. Similarly, the King can remove the Prime Minister on constitutional grounds but, with great respect, has no power under the Federal Constitution to suspend Parliament. A fortiori, the Yang Di-Pertuan Agong has no vested power even under Article 150 of the Federal Constitution to suspend Parliament. In my opinion, the subsequent suspension of the five Judges of the Supreme Court following the suspension of the incumbent Lord President, Tun Salleh Abas, was tantamount to the suspension of the Supreme Court. Nobody seems to have questioned the OCY / NOV / DEC_2004
legality of the suspension of the five Judges of the Supreme Court at the material time and this constitutional point was not determined by the Tribunal set up to investigate the charges against the five Judges of the Supreme Court. One of the charges relates to the interpretation of section 9(1) of the Courts of Judicature Act 1964 and Article 131A of the Federal Constitution. All the five Judges of the Supreme Court were unanimous in their interpretation of section 9(1) of the 1964 Act in that the acting LP, Tan Sri Abdul Hamid, could not exercise the powers or perform the duties of his office (including his functions under the Constitution) by virtue of being appointed Chairman of the Tribunal set up under Article 125(4) of the Federal Constitution to investigate the charges against the incumbent LP, Tun Salleh Abas. A fortiori, the acting LP should distance himself from being involved, directly or indirectly, in any court proceedings brought by Tun Salleh Abas.
consisted of: Tun Salleh Abas (Presiding), Tan Sri Wan Sulaiman and Tan Sri Hashim Yeop Sani. Following the suspension of Tun Salleh Abas, the new coram was made up of: Tan Sri Wan Sulaiman (Presiding), Tan Sri Hashim Yeop Sani and Dato Harun Hashim (newly appointed from the High Court to the Supreme Court in 1988). When Tan Sri Hashim Yeop Sani was unable to go to Kota Bharu, the acting LP asked whether I could take Tan Sri Hashim Yeop Sani’s place, as a member of the Supreme Court.
It should be remembered that I did not go to Kota Bharu to be the presiding judge of the Supreme Court. A fortiori, and with respect, the acting LP had no jurisdiction/power to direct me to be the presiding judge WITHOUT MY CONSENT. The acting LP cannot invoke the provisions of section 38(2) of the Courts of Judicature Act 1964 because the sub-section postulates that the incumbent Lord President was the presiding judge in a 3-member panel. In the absence of To hold otherwise, would rightly make a mockery the LP, the senior member of the Court shall preside of the independence and impartiality of the Judiciary, and the senior member must be deemed to know the in the eyes of the general public. Acting LP Tan Sri provisions of Section 38(2) and must also be deemed Abdul Hamid seemed to think that he could continue to have consented. to give directions pertaining to the civil suit filed by the suspended incumbent LP, Tun Salleh Abas, even Every member of the Supreme Court is of equal status while Tan Sri Abdul Hamid, was presiding over the and the LP is only the Head of the Court. As head, the Tribunal to investigate the charges against Tun Salleh LP has no power to direct another member of the Abas. The record would tend to show that the acting Supreme Court to do anything without consent. When LP was keeping a keen eye on the development of the a coram of the Supreme Court is fixed, whether High Court application before Dato Ajaib Singh J when consisting of three, five, seven or nine judges, every he was Chairman of the tribunal investigating Tun member is deemed to have given his consent when he Salleh Abas. agrees to be a member of the panel.
Acting LP needed my consent
Why I rejected the acting LP’s requests
The charge against me was that I preferred to accept the direction of the presiding judge, Tan Sri Wan Sulaiman and return to Kuala Lumpur to that of acting LP Tan Sri Abdul Hamid, who directed me to remain in Kota Bharu and act as the new presiding judge, with Dato Harun as the third member. I was thus found guilty of ignoring the directive of the acting LP, Tan Sri Abdul Hamid.
In this instance, I only agreed to fly to Kota Bharu to be a member of the coram to be presided over by Tan Sri Wan Sulaiman, a senior judge. When Tan Sri Wan Sulaiman failed to turn up, the acting LP cannot invoke section 38(2) of the 1964 Act because it did not apply. This subsection can only apply in the absence of the LP in that coram — only then the senior member of the court shall preside. The presiding judge of the Supreme Court carries a certain heavy responsibility and his consent must be sought before making the appointment.
I think in order to understand the charge, it is important to recapitulate the material background facts: Firstly, I was not in the original coram of the Kota Bharu Supreme Court in July 1988 which INFOLINE 46
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I rejected the request of the acting LP to remain
in Kota Bharu and act as the new presiding judge for History will be my judge From a historical point of view I think I should the following reasons: mention: Firstly, I held and still hold the view that the acting a) (i) A Judge of the Superior Court has never ever been dismissed from High Office on the LP had no constitutional power to direct me to be the grounds that he ignored the directions of the presiding judge of the Kota Bharu sitting of the Chief Justice. Supreme Court in July 1988 without my consent as I had only agreed to go there to take the place of Tan Sri (ii) But I do remember a Chief Justice of England Hashim Yeop Sani. I had never agreed to be the was executed when he failed to obey the orders presiding judge with the most junior judge of the of the King. In modern times a Chief Justice Supreme Court, Dato Harun and another junior High was reported to have disappeared when General Court Judge to be appointed by the Acting LP, i.e. the Idi Amin became President of Uganda, resident Judge of the Kota Bharu High Court, in order following a military coup. to make up a 3-member panel. Secondly, in my view, the laws of master and b) I do not recall a Judge of the Supreme Court having been dismissed when his interpretations of the law servant do not apply to judges of the Supreme Court differed from that of his Chief Justice. and to hold otherwise, would impinge on the independence and impartiality of the Supreme Court c) I do not recall the President of any country having Judges. ever acted to suspend the Supreme Court. This could only happen following a revolution. Thirdly, the Kota Bharu Supreme Court cannot i) I think King George III tried to suspend sit in session because the two of us, Datuk Harun and Parliament and lost his throne instead. myself, did not and could not constitute the coram under Section 38(1) of the Courts of Judicature Act ii) After a coup d’ etat, a military leader may 1964: suspend all forms of government arbitrarily and “Subject as hereinafter provided every proceeding unlawfully. in the Supreme Court shall be heard and disposed of by three Judges or such greater uneven number Having said that, let me stress that history will be the of Judges as the Lord President may in any judge whether or not I was guilty of misbehaviour as particular case determine ... charged for faithfully discharging the functions of a Fourthly, I held — and still hold the view — that Tan Judge of the Supreme Court of Malaysia conscientiously Sri Wan Sulaiman’s interpretation of section 9(1) of and with the highest regard for the preservation of an the Courts of Judicature Act 1964 was correct. Four independent Judiciary. other members of the Supreme Court — namely During critical and crucial times in the history of myself, Tan Sri Mohamed Azmi, Tan Sri Abdoolcader and Tan Sri Wan Hamzah — concurred with this view. a nation, judges are expected to be the standard-bearers of justice. This is a moral obligation and under the All of them were later suspended. circumstance they are expected to act positively and Lastly, I think history will exonerate me for taking with a clear conscience. a stand and making the right decision in rejecting the request of the Acting LP to remain in Kota Bharu and The five of us who were embroiled in this difficult preside over the sitting of the Supreme Court there episode of the 1988 judicial crisis did not rally around the suspended LP but rather responded to the call of without first obtaining my consent. duty in the interest of justice. It is interesting to observe that during the whole episode, the acting LP did not at any time try to speak No matter how facts are twisted, in the eyes of God, to Tan Sri Wan Sulaiman. All or almost all the requests Truth will prevail from the 1988 Judicial Crisis. had been directed to me in Kota Bharu.
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the Supreme Court and High Court and presided over by Tan Sri Hamid?
Colonels judging the generals?
Firstly, the aftermath of the suspension of the Lord President, Tun Salleh Abas, unfortunately prevented the learned judge from being the first LP to preside over a historic coram of nine judges of the Supreme Court to hear the long-awaited UMNO 11 appeal. Indirectly, the full bench of the Supreme Court was stopped from hearing and determining the validity and legality of the controversial 1987 UMNO Presidential election. The outcome of that decision would have decided who would have become the legitimate Prime Minister of Malaysia. By convention, the Yang DiPertuan Agong would invite the President of UMNO to form the Executive Branch of the Government. It is therefore clear to every member of UMNO that in order to be eligible to be Prime Minister of the Government of Malaysia, he had to be legitimately elected the President of the Party.
Supreme Court suspended
The suspension of the five judges of the Supreme Court had effectively prevented/barred these Judges from hearing and determining the constitutionality, legality and validity of the Tribunal that was set up to investigate the charges brought against the incumbent LP, Tun Salleh Abas. If these Judges of the Supreme Court were to rule that the Tribunal investigating the LP had not been constitutionally, legally, validly and properly constituted — a high probability considering the fact that a majority of the members who made up the said Tribunal were not eligible and qualified to sit — the effect of such a Ruling would have been horrendous for the Government.
I have already touched on the constitutionality, legality and validity of the suspension of five Judges of the Supreme Court. I had pointed out that the Federal Two corams Constitution only provides for the suspension and Following the suspension of the LP, the UMNO 11 removal of a Judge of the Supreme Court on the appeal was subsequently heard and disposed of by grounds of misbehaviour or of inability, from infirmity another panel of the Supreme Court consisting of both of body or mind or any other reason, properly to Supreme Court and High Court judges and presided discharge the functions of his office. It is my considered over by Tan Sri Hamid Omar. The panel of judges opinion that the suspension of the five Supreme Court comprised: Judges, coupled with the suspension of the incumbent · Tan Sri Hamid, acting LP and Chairman of the First LP, Tun Salleh Abas — which amounted to 6 out of Tribunal set up to investigate the charges against Tun 10 members or 60 per cent of the Supreme Court — Salleh. was tantamount to the suspension of the entire · Tan Sri Lee Hun Hoe Supreme Court. · Tan Sri Hashim Yeop Sani · Datuk Mohamad Yusof The Federal Constitution does not, directly or · Datuk Gunn Chit Tuan indirectly, contain any provision whatsoever for the suspension of the Supreme Court. It must be The appeal was dismissed on 9 August 1988, one day remembered that the Supreme Court is the third branch after Tun Salleh was officially removed from office. I of the Government based on parliamentary democracy will have something to say later about the High Court with its inherent rights. Britain’s King George III tried judges who were appointed to hear this UMNO 11 to interfere with the Judiciary and was subsequently appeal. dethroned. The general public would be interested to know which of the two corams of the Supreme Court, should actually have heard and determined the UMNO 11 appeal, which would have indirectly decided the destiny of the country: · the one that was to be presided by the LP, Tun Salleh Abas, and made up of a full bench of nine judges of the Supreme Court, or · the second panel consisting of both the judges of
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Some 20 days after the Supreme Court of five Judges issued an Interlocutory Order restraining the Tun Salleh Abas Tribunal from presenting its recommendations to the Yang Di Pertuan Agong — pending the hearing and disposal of the civil suit that had been filed in the Kuala Lumpur High Court challenging the constitutionality, legality and validity of the composition of the said Tribunal — another Supreme Court was hurriedly convened. This comprised two Judges of the Supreme Court, namely
Tan Sri Hashim Yeop A Sani and Datuk Harun Hashim and three High Court Judges, (namely Dato Mohd Yusof, Anuar and Datuk Gunn Chit Tuan). This hurriedly assembled Supreme Court set aside the Interlocutory Order issued by the 5-member Supreme Court made up of 1. Tan Sri Wan Sulaiman (presiding), 2. Datuk George Seah, 3. Tan Sri Mohd Azmi, 4. Tan Sri Abdoolcader, and 5. Tan Sri Wan Hamzah.
of the acting Lord President, Tan Sri Abdul Hamid. It also ruled that such conduct reflected an irresponsible and improper attitude and tarnished the image of the judiciary and it was unbecoming of a person holding the office of a Supreme Court Judge.
“Staging a revolution”?
There were 26 Judges of the High Court in Malaya in 1988 and according to the list of High Court in Malaya published by the MLJ Vol 1, it would appear that Datuk Edgar Joseph Jr was ranked No. 13, Dato Mohd Eusoff Chin ranked No. 14, and Dato Lamin ranked No. 25
I will pause to recall that Tan Sri Wan Sulaiman invited Tan Sri Hashim Yeop Sani to be one of the members of the Supreme Court in the belief that there was strength in numbers. The latter declined, saying, “We would be staging a revolution” — a preposterous statement, according to the late Tan Sri Abdoolcader. Based on the number of Judges of the Supreme Court sitting in the two corams — five in the first Supreme Court and two in the second Supreme Court — it was clearly established there were five Judges who were of the unanimous opinion that Tan Sri Wan Sulaiman had the power to act under section 9(1) of the Courts of Judicature Act 1964 read with Article 131A of the Federal Constitution. In contrast only two Supreme Court Judges and three High Court Judges in Malaya were of the view that Tan Sri Wan Sulaiman did not have such power when he convened the Special Sitting of the Supreme Court on 2 July 1988, which issued the Interlocutory Order restraining the Tun Salleh Abas’s Tribunal from “submitting any recommendation report or advice” to His Majesty the Yang Di-Pertuan Agong.
“Colonels” sitting in judgment
It is pertinent to point out that the majority judgment of the Tribunal was signed by Datuk Edgar Joseph Jr, Dato Mohd Eusoff Chin and Dato Lamin, all Judges of the High Court in Malaya.
To use military jargon, young colonels were appointed to sit in judgment against generals. It is a very apt description of this sad episode in our judicial history. It was an episode which plunged the judiciary into depths of despair. I think it needs to be pointed out that there were at least 10 Judges of the High Courts in Malaya and Borneo then who were more senior than the three Judges in the second Tribunal. Ranks were ignored and apparently bypassed with scant respect for justice.
I leave it to the general public to judge for themselves the rationale for such appointments to the second Tribunal. When seniority did not count, when It is now up to the general public to judge which merit was of no consequence, what then was the criteria? panel of the Supreme Court was right in the legal interpretations of section 9(1) of the Courts of High Court judges elevated Judicature Act 1964 and the provisions of Article 131A Unsurprisingly, all the High Court Judges who were of the Federal Constitution: the one presided by Tan involved in the UMNO 11 appeal, in the Tun Salleh Sri Wan Sulaiman or the one presided by Tan Sri Abas’ civil suit and the Interlocutory Order and those Hashim Yeop Sani. It is up to the citizens of this nation in the Second Tribunal set up to deal with the charges to conclude which Supreme Court acted in the best against the five Judges of the Supreme Court were interest of justice. eventually elevated to the Supreme Court. Three of It is true that the second Tribunal which was set up to deal with the charges against the five Judges of the Supreme Court later ruled that Tan Sri Wan Sulaiman intentionally convened the 2 July 1988 sitting of the Supreme Court in contravention of sections 38(1) and 39(1) of the Courts of Judicature Act 1964 and without the permission or knowledge
them were later appointed Chief Justices of the High Court in Malaya. The three Malaysian High Court Judges in the Second Tribunal who delivered the majority decision recommending the dismissal of Tan Sri Wan Sulaiman and Datuk George Seah were all appointed to the Supreme Court. One of them was subsequently OCY / NOV / DEC_2004
appointed Chief Justice of the Federal Court (the Supreme Court of Malaya was later renamed the Federal Court) and another promoted as President of the Court of Appeal.
in recent years. As a consequence of this, the British government has enacted a law setting up a Judicial Commission with plenary powers to appoint Judges in the higher judiciary in England.
Even Dato Ajaib Singh, who first heard and refused a temporary stay in the High Court in Kuala Lumpur, was later elevated to the Supreme Court.
I think the first Commonwealth country to remove the power of appointments of the higher judiciary by the Prime Minister was Sri Lanka.
There is yet another matter that needs to be mentioned. There was even a very serious allegation by the acting Lord President in his representation to the Yang Di-Pertuan Agong that he was informed that the five Judges of the Supreme Court “took the Seal from the Supreme Court registry even though the office was closed and the officers had gone home”. But the Tribunal held that the acting Lord President was without doubt misinformed about this preposterous matter. It is, however, pertinent to note that no disciplinary action was instituted against the officer who supplied him with this false information.
Serious consideration ought to be given to amending the Federal Constitution to transfer the power of appointments of Judges in the higher judiciary from the Prime Minister (as is the present practice) to an independent Judicial Commission to be set up by Parliament. This is aimed at avoiding a repetition of the 1988 Judicial Crisis and to ensure that the appointments to the Supreme Court and the High Courts in Malaysia are transparent and fair. Opposition leader should head commission
Time for a judicial commission
I come to the most important constitutional issue arising from the aftermath of the 1988 Judicial Crisis. The Federal Constitution is modelled along the lines of a parliamentary democracy, and the government is made up of the · Executive, Parliament, and Judiciary. Each branch holds equal status and each branch has been assigned specific functions to perform their respective duties. In terms of protocol, the Prime Minister is the first among equals followed by the Speaker of the House of Parliament and the Lord President of the Supreme Court (now known as the Chief Justice of the Federal Court of Malaysia). Since the Prime Minister and the Chief Justice hold equal rank constitutionally but bearing in mind that the Prime Minister is only the first amongst the three equals (the other being the Speaker of Parliament) I think, it is illogical to vest in the Prime Minister alone, the sole power to recommend to the Agong the appointments of the Chief Justice, Judges of the Supreme Court and High Courts in Malaysia. This power to make such recommendations should rest with the Judicial Commission. This anomaly appears to have been recognised and accepted by the British government INFOLINE 50
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I think I should give my personal views on the composition of members of the proposed Judicial Commission. In the first place, the Prime Minister must not be involved, directly or indirectly, in these appointments. It follows that I am not in favour of the Prime Minister being appointed Chairman of the Judicial Commission. A fortiori, I am also against the Prime Minister nominating a person to be Chairman of the Judicial Commission. In my view, the Chairman of the Judicial Commission which is meant to be an independent and impartial body, should be the leader of the Opposition in Parliament, with the Chairman of the Bar Council of Malaysia, as his deputy. As regards the other members of the Judicial Commission, the details can be worked out after hearing the views of the people of Malaysia, if the proposal is acceptable in principle. If the Federal Constitution is to be amended to cater for this change, perhaps opportunities should be given to the people to put forward suggestions to amend the Constitution to prevent the Prime Minister from holding more than one portfolio in the Cabinet at any time. This would be in line with the principles of parliamentary democracy.
apologising? I would like to take this opportunity to relate a conversation I had with the late Tan Sri Abdul Kadir, “Hamid had no right to give me any order” the former Attorney-General of the Federation of I would like to end this series with a reference to the Malaysia. great and famous Socrates: When I was appointed a Judge of the High Court On one occasion, Socrates refused to obey orders in Borneo in 1969 I was under 38 years of age. that were given him because he believed that such According to the Judges’ Remuneration Act, I would obedience would involve him in doing what he thought be eligible to a Judge’s pension after completing 15 to be wrong. In a very inspiring way he stood his years of service and the pension would be equivalent to ground, “I did not care a straw for death; but that I did one-half of the last drawn salary. care very much indeed about doing wrong”. Experienced judges needed
I told the late Tan Sri jokingly that after the year Socrates believed fervently that if a man knew a 1984 I would theoretically be working on half-pay. thing was wrong he should not do it and that those He replied: “George, that is true but we need who knew what was right should always do it. experienced judges in the higher judiciary ... ” The greatest misfortune that could befall a man I recalled this conversation with the late Tan Sri was to do a wrong deliberately and the greatest crime a Abdul Kadir when I was in Kota Baru, Kelantan, man could commit against his state was to break the vacillating whether to obey Tan Sri Wan Sulaiman’s laws knowingly. request to return to Kuala Lumpur or the directive of the acting Lord President, Tan Sri Abdul Hamid, to Socrates was speaking about obeying orders. It is stay put in Kota Baru. Yes, we need experienced judges equally applicable to all the Judges of the Supreme in the higher judiciary who can think independently Court who are of equal rank and status, and the LP or and remain upright without betraying their conscience the acting LP, for that matter, is merely the first amongst or sacrificing justice for personal aggrandisement. equals. Tan Sri Abdul Hamid, with great respect, had no right to give me any order without my consent, because For the purpose of posterity I think I should mention to do so would impinge on the independence of the that prior to the hearing by the Second Tribunal of the Judges of the Supreme Court. charges against the five suspended Judges of the Supreme Court of Malaysia, there was an attempt to That was the concluding instalment of a 5-part series. ask all the Judges concerned to admit that they were wrong in convening and attending the special session We also received the following 'Letter to the Editor': of the Supreme Court of 2 July 1988 without the permission or the knowledge of the acting LP, Tan Sri I think you are doing a good job with the Infoline and Abdul Hamid, (in contravention of the provisions of the Insaf publications. I have always enjoyed reading them sections 38(1) and 39(1) of the Courts of Judicature especially the latest issue of the Infoline. Act 1964) and that they should apologise to the acting Datuk George Seah’s series of articles on the 1988 Judicial LP. Crisis were long overdue. Given their importance, I would Tan Sri Abdoolcader furious
This suggestion was unanimously shot down by all the five Judges (having regard to our judicial interpretations of section 9(1) of the 1964 Act read with Article 131A of the Federal Constitution). As a matter of fact, the late Tan Sri Abdoolcader was furious with such a preposterous idea as all the five Judges of the Supreme Court were of the same opinion that Tan Sri Wan Sulaiman had acted correctly and properly pursuant to section 9(1). When you have committed no wrong and your conduct is in keeping with the law, where is the justification for pleading guilty and
like to suggest that the Bar Council publishes all the 6part series in a Special Issue of the INSAF for distribution to all members of the Bar and other interested parties.. Please also encourage the other 2 surviving former Supreme Court judges, namely Tan Sri Azmi and Tan Sri Hamzah to pen their experiences so that future generations of Malaysians would not forget this dark episode of our judicial history. Regards Lim Meng Sue, Alan OCY / NOV / DEC_2004
The Transfer of Judges Rajeev Dhavan*
Transfer of High Court judges without their consent undermines judicial independence. Errant judges must be dealt with by a judicial commission with due process.
Court judge, Arun Madan. In 2003, the Chief Justice of India appointed a panel of High Court judges to assess the credibility of charges against some High Court judges in Karnataka and Punjab. In 2004, a major crisis NDIA’S HIGHER judiciary is possibly the most occurred in Punjab as a large number of judges abstained powerful national judiciary in the world. from work to protest certain actions taken by their Internationally respected for its inventive creativity, Chief Justice. The crisis was defused by Chief Justice V it is beset with problems. Apart from the huge backlog N Khare and his colleagues in the Supreme Court. But of cases pending disposal, there is the increasing problem when it was suggested that the Punjab judges be sent of corruption. India simply does not possess the to the Northeast, the Bar of those regions asked effective means to deal with corrupt judges. The lower incredulously why they should be asked to accept judiciary comes under the superintendence of the High allegedly tainted judges. Courts which discipline subordinate judges — not always fairly. But at least some kind of system is in But using the weapon of transferring judges from place, along with the corrective of a writ petition to one High Court to another as a disciplinary measure is the disciplining High Court and an appeal to the back in vogue. Contained in Article 222 of the Supreme Court. Constitution of India, the power to transfer High Court judges has an awkward history. The States But how is judicial indiscipline, unbecoming Reorganisation Committee (1955) felt that one-third conduct and corruption in the higher judiciary, of the judges of a High Court should be recruited from comprising the High Court and Supreme Court judges, outside the State to arrest parochialism. This principle to be dealt with? Supreme Court judges are subject was accepted by the 14th Report of the Law only to peer pressure or impeachment. When Justice V Commission (1958) to support national integration Ramaswamy’s case was being processed for but not as a punitive measure. But the proposal of impeachment, a small committee of Supreme Court transferring judges for national integration did not have judges reported on November 6, 1990, that it was not general acceptance. In 1965, eight of the 15 High necessary that Justice Ramaswamy desist from work. Courts were against this proposal. An important letter The impeachment failed. The statutory examining of Chief Justice Subba Rao of October 6, 1966, added committee’s finding against the judge was politically the important caveat that judges should be brought defeated by Parliament in 1992. from the outside at the time of initial recruitment. The theme of national integration was echoed by a study High Court judges can also be removed from team for the Administrative Reforms Commission in office only by impeachment. However new internal 1967. Meanwhile, many transfers were effected from methods and mechanisms have been evolved to deal one High Court to another. Many distinguished Chief with errant judges. This is a veiled procedure. In the Justices of India had the benefit of serving in many Bombay Complaint case (1994), the Supreme Court High Courts. But the important element in all these cautioned the Bar and the public against airing pre-Emergency transfers was that both the appointment allegations in public and to use informal processes of and transfer of High Court judges from another State informing the Chief Justice of India. Irrespective of were invariably made with the consent of the judges whether the charges were true, there have been cases in concerned. which High Court judges have resigned, including the Chief Justice of the Bombay High Court, A M During the Emergency (1975-77), the principle Bhattacharjee, the additional judge of the Delhi High of transfer by consent was given the go-by. High Court Court, Shamit Mukherjee, and the Rajasthan High judges critical of the Emergency or who ruled against
*This article appeared in the 29 October 2004 issue of The Hindu and was brought to our attention by a reader. © Copyright 2000 - 2004 The Hindu. INFOLINE 52
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arbitrary preventive detention were transferred as a punishment. Those were difficult days. Justice H.R. Khanna resigned because the Government superseded him in the appointment of the Chief Justice of India because of his dissenting judgment in the Preventive Detention case (1976). After the Emergency, judges were re-transferred or elevated to the Supreme Court. The principle of transfer by consent was momentarily restored.
complaints against the High Court and Supreme Court judges. But one of the ‘punitive’ actions which such a proposed commission could take is it to transfer a High Court judge to some other court for ‘deviant behaviour not amounting to misbehaviour.’
In the last decade or so, transfer of judges for errant behaviour has become a way of disciplining High Court judges. No doubt under the Judges cases (1993, 1994 and 1998), transfers can be challenged — eventually But, the majority led by Justice V R Krishna Iyer before the Supreme Court. But this remedy is not in the Sheth case (1979) kept the idea of a compulsory regarded as a sufficient corrective. transfer without consent legally alive — over the spirited On September 18, 2004 at a seminar on dissent of Justice P N Bhagwati. Soon after the ‘Envisioning Justice in the 21st Century’, Chief Justice Congress returned to power on 18 March 1981, a policy R C Lahoti expressed his determination to deal with of transferring one-third of High Court judges to some judicial corruption. Prime Minister Manmohan Singh other State was re-promulgated in the name of national felt that a ‘mechanism of accountability (should be) integration. This policy was approved in the First Judges conceived and implemented by the judiciary.’ How is case (1981) but once again over the strong dissent of this going to be done? Since 1973, there have been Justice Bhagwati who approved of initial appointments proposals to create a National Judicial Commission for to other High Courts (which naturally require consent), both appointments and disciplining of the higher but rightly took the view that a transfer of a High Court judiciary. In 1990, The Constitution (67th) judge against his wishes would compromise the Amendment Bill for this purpose was tabled but it independence of the judiciary. From 1981, the onelapsed. Time and again, such proposals have been made third policy (with or without consent) was followed — including by the Constitution Commission (2002) unevenly — neither fulfilling the quota of one-third and through the lapsed Bill No. 41 of 2003. There are or any national purpose. A semblance of consent was always some defects in the Bills; and there is an obtained by asking the preferences of High Court judges inevitable lack of consensus. about where they would like to be transferred. But, preferences were not always honoured with consent. But are transfers without consent the answer? On By the 1990s, the formal policy of transferring one- October 20, 2004, many appointments and transfers third of the judges from each High Court was of High Court Chief Justices were reported. It is abandoned. But the policy to bring in a Chief Justice predicted that other transfers will follow — especially from outside the State was continued. Even so, the of the Punjab judges who protested against their Chief transfer of other judges who were not Chief Justices Justice. Transfers are monitored by a collegium of continued. In most cases, appointment of out-of-State Supreme Court judges. On transfer, no imputation is Chief Justices proceeded without too much demur. But made or alleged. All transfers are for administrative there were instances in which both the transfer of the convenience. But in the media and elsewhere, Chief Justice and other judges were seen as punitive. speculation continues over the reason for transfers. This Nothing was said. No reasons were given. But the is not good for either the judges or the High Court or transfer was perceived as a reprimand if not the rule of law. As long as there is a transfer policy, punishment. lobbying in respect of transfers will follow. As between High Courts, the policy of transfer neither blesses them The protest against the transfer-without-consent that give or them that takes. policy can be found in the Law Commission Report of 1958 and the Justice Satish Chandra Committee We are left with a huge lacuna in our system. Justice report of 1986. A Consultative Paper to the Bhagwati was right. While peer pressure will continue, Constitution Commission of 2001 heaved a sigh of the transfer of High Court judges without their consent relief that the general policy of transferring judges had undermines judicial independence. To protect the rule ‘mercifully’ been abandoned. The Constitution of law, errant judges must be dealt with by a judicial Commission (2002) rightly recommended that a commission with due process. national commission be set up to examine the OCY / NOV / DEC_2004
In Pursuit of Rights & Commonalities: UIA Congress 2004 Yeo Yang Poh
The organisation, the place, the ceremony
ounded in 1927, UIA (Union Internationale des Avocats) is the oldest international organisation for lawyers worldwide. UIA was born of the belief that the role of lawyers in societies everywhere has a great deal in common, whatever the political or social structure may be, or the type of legal system currently in place, or the language spoken.
United States by the President of UIA). The resolution voices strong condemnation of the detention without trial of the detainees at Guantánamo Bay, of their treatment, and of the failure of the United States to even distinguish between civilians and combatants. The disregard of human rights laws and international humanitarian laws is denounced in very strong terms.
UIA was also born in the environment of the aftermath of the First World War, alongside the birth It is interesting to note that the position taken by of the League of Nations. The latter vanished without international jurists on issues of executive detention has much success (later replaced by the United Nations), striking similarities with the position that has been while UIA remains a relevant international body. consistently taken by the Malaysian Bar with regard to our laws permitting detention without trial. This is UIA holds an annual congress. This year’s was held telling in at least 2 ways. Firstly, it reinforces the justness from 1st to 5th September 2004, in Geneva. Being the of the stand of the Malaysian Bar in this important birthplace of Voltaire, Rousseau and, more recently, the regard. Secondly, it reveals the untenableness of our International Red Cross; Geneva has added qualification government’s position in vehemently condemning the as a venue of significance for an international forum Guantánamo detentions (notwithstanding the USA’s focussing on topics of human rights. The choice of contention of reasons of internal security post-9/11) venue for the opening ceremony of the 2004 UIA while in the same breath justifying our own laws Congress carried another symbolic significance, for it allowing executive detention without trial (citing reasons was held in the United Nations Assembly Hall, which of internal security). is the same building that used to house the League of Nations. Main themes of the Congress
The following is a report of my experience at the 2004 UIA Congress, incorporating some of my thoughts on the various issues discussed and debated thereat, that I formed with the help of that experience.
This year’s Congress carried 3 main themes:(1) the Right to Health as the first of human rights?; (2) international regulation of national legal practices; and (3) humanitarian rights in the 21st century.
The General Assembly
In addition, there were parallel sessions on various topics going on most of the time.
In line with tradition, the annual General Assembly of the UIA took place in the afternoon before the opening ceremony. In addition to the usual matters dealt with at an AGM, an important resolution was unanimously passed concerning the imprisonment without trial of detainees at Guantánamo Bay (in keeping with an earlier letter that had been sent to the President of the INFOLINE 54
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The Right to Health as the first of human rights? : the first main theme
Taking the general population of the world collectively, the state of health of our world is described as
‘scandalous’, and is worsening.
lobbying for improvements are made by international and non-governmental organisations such as the WHO, In absolute terms, there are around 2.5 billion the International Red Cross and Medecins Sans people in the world without access to health care. A Frontieres. worrying figure. Forty million are currently HIV carriers, and another 25 million have already died from Sadly, and despite the best of intentions, these it. These figures are rising by the day. efforts do not seem to be able to arrest the worsening global trend. In comparative terms, 72% of the world population has access to a mere 7% of the available Diseases and natural disasters are not always the healthcare services. While the wealthy (28%) can afford culprit for the declining state of health of a community. to be healthy by consuming 93% of the world’s medical Famine and illnesses are often the result of political services, the poor suffer a vastly different fate. The violence (wars and armed conflicts). Man does not only general ‘North-South’ divide is a wide abyss indeed. need to struggle against nature, but also to overcome Man himself. Scarcity, and distribution, of resources are obviously two major problems. The fight against AIDS has necessitated a review of the strict adherence to and enforcement of intellectual There are currently not enough resources to property and commercial rights. The TRIPS Agreement provide healthcare for all who need it. The poor rely (Agreement on Trade Related Aspects of Intellectual on aid, which is not easy to come by. Once procured, Property Rights) was given a pro-public health however, the fulfilment of such promises are often interpretation by the Doha Declaration. More delayed, and sometimes put off completely. Hopes are flexibility is demanded of its implementation, and constantly dashed. limitations and exceptions to intellectual property rights are created (e.g. in relation to domestic production). On the other hand, rich nations and All these are necessary to make treatment drugs more pharmaceutical giants invested an estimated 50 billion affordable by the millions of sufferers in US Dollars in medical research last year, the fruit of underdeveloped countries. At the same time, important which will benefit mostly the wealthy. One is left to non-medical issues have to be adequately addressed, such ponder on the number of poor lives that could be saved as issues of confidentiality, stigmatisation and if the same amount of money is made available to discrimination. Widespread violation of the right provide existing medical services to the most vulnerable against discrimination results in added hardship for sectors of the human family. AIDS sufferers who are unnecessarily isolated in prison, or deported to their home countries without sufficient Generally speaking, the rich not only get richer medical care. It also brings social problems to a class of but also healthier, while the poor become poorer and persons ‘assumed infected’ with AIDS simply by virtue less healthy. of their association with known sufferers. The calls for governments to cease criminalising drug users are getting This is not to say that there has not been any louder. positive development or increasing effort by the United Nations and the international community. There is an The fight against SARS has made inroads into increasing awareness of the nature and scale of the other areas of human rights, influencing for example problem. Access to healthcare in underdeveloped the right to information and affecting freedom of countries is more and more perceived as a basic human movement. States that have traditionally been less right, rather than something dependent on charity. In transparent (such as China) are forced to be open and 2002, the office of the UN Special Rapporteur on transparent about the way they deal with SARS, to be Health was established. The right to health is now more truthful about the actual situations rather than mentioned in more than 70 international conventions. revealing only what the authorities would like to The obligation of member states is to achieve the disseminate, and to cooperate with the international ‘highest standard of healthcare attainable’. Sustained community in ways that had not been thought desirable
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or possible before. SARS has necessitated the finding of a global solution.
of which will depend on their respective domestic circumstances and stages of development.
(3) Bars all over the world must be resonant in stressing and illustrating that, unlike other professions of greater propensity to uniformity and commerciality, the legal profession (while having its commercial aspects) is indeed unique as it possesses other ‘intangible core values’ that cannot be simply relegated to the rules of international trade in services. These core values concern the upholding of justice and promotion of human rights, commodities upon which commerce The right to health is definitely one of the most cannot be allowed to put a price. While accepting the inevitability of globalisation, the Bars should important human rights. But it is hardly beneficial to indulge in an argument as to whether it is the first of resist any negative aspect of globalisation that may attempt to impinge upon these sacred objectives. all human rights. Instead, it is much more helpful to The public interest requirements of a nation must bear in mind that essential human rights are inevitably not be sold to commerce. interlinked with one another. The availability, and exercise, of one right is more often than not dependent (4) The independence of the Bar is sacrosanct, and upon the availability and exercise of other rights. must not be sacrificed in any process of liberalisation or globalisation. One interesting suggestion made at the Conference for the improvement of the global state of health was for creditor nations to channel debt-repayments by underdeveloped nations to the provision of better healthcare for the most vulnerable people in those nations. The UIA was also urged to form a follow-up committee to keep track of the implementation of international and national policies and programmes that are aimed at promoting better access to healthcare.
International regulation of national legal practices : the second main theme
Globalisation, the WTO and GATS are topics which never fail to attract the keen attention of any forum of international professionals nowadays. The various presentations at the UIA Congress 2004 (including a paper presented by the President of the Brazilian Bar Association) struck me as to how similar the issues faced by developing countries are, in relation to the liberalisation of their legal sectors sought by more developed countries.
Liberalisation of legal services brings problems to the Bars of developed countries too. The Finnish Bar recounted its bad experience with non-qualified lawyers now allowed to practise in Finland due to unregulated liberalisation. The French Bar reported the existence of foreign-funded French law firms in Paris. So let us not think that the Malaysian scene is unique. We should learn from the experience of others, and anticipate the road ahead.
There now seems to be greater consensus (though The current rules and practices of globalisation not unanimity) among international Bars that multiare far from fair, yet no one can afford to ignore them, disciplinary practice (‘MDP’) is undesirable. Some because no one doubts the certainty of rapid European countries used to favour MDPs, while the globalisation. Bars of other developing countries are American Bar has always been strongly against it. The adopting positions similar to the Malaysian Bar’s, sorry sagas of Enron and WorldCom have largely won underscored by the following common threads:the argument for the latter. (1) As increasing globalisation is not a process that any Bar or Bars can (individually or collectively) Domestic regulatory issues of national bars were resist or ignore, getting prepared for it and having also discussed. There appears to be a trend in developed a say in how it evolves are the more appropriate countries to move away from total self regulation. courses of action. Examples are found in the United Kingdom and the USA, caused mainly by laxity in the regulatory efforts (2) National Bars should strive to retain and maintain of the Bars and the development in their societies as much say or margin of discretion as possible in making them ready for a shift from self regulation. It the process of globalisation, the desirable degree is my view that the current environment in Malaysia
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does not suit a move away from self regulation. (3) Modern forms of terrorism. Though terrorism has However, we must constantly remind ourselves to be always existed in history, its horror has become more intensely felt because of the methods used vigilant in providing adequate and efficient self and the worldwide visual publicity made possible regulation, in order that the present regime be by modern telecommunication technology. maintained. Terrorism raises difficult questions and issues. When Humanitarian Rights in the 21 Century : the the perpetrator (or group of perpetrators) is unknown, third main theme or professes independence from any country or The progress of human civilisation has not managed government; will the act be an act of armed conflict, to reduce the violence brought by men upon other men; or merely an ordinary (though heinous) crime? through wars, armed conflicts, and terrorism. The horrific suffering resulted from the two world wars has Resting on a balance between humanitarian and not become the ultimate unforgettable and effective military interests, much of international humanitarian lesson to Mankind. law is dependent on the expectation of reciprocity. This reciprocity is absent in 21st century terrorism, for a Until human beings decide to reverse the trend of suicide bomber does not expect nor provide reciprocity. self-destruction, international humanitarian laws remain as relevant as ever. The main sources of these The traditional distinction between combatants laws are:and civilians is not only discarded by terrorists, but may (1) The Hague Convention 1907 and the regulations also be systematically used for the purpose of placing attached to it. These deal with the norms and the the adversary at a disadvantage. conduct of acts of hostility. Does that however ‘justify’ a reciprocal disregard (2) The Geneva Conventions 1949, in particular the of the distinction between combatants and civilians? 4th Convention which governs the protection of Tempting it may be as an act of revenge, it is perhaps enemy civilians. The 1st Protocol deals with one of the reasons why Guantánamo Bay happened international armed conflicts and the 2nd Protocol the way it did. Fortunately, the Supreme Court of the deals with civil wars. United States in the Hamdi case corrected such a misguided response. (3) Customary international law. Concepts such as crimes against humanity and crimes against the International humanitarian laws do not subscribe international community (war crimes) were born to the ‘an eye for an eye’ method. They put a ban on out of customary international law. such form of ‘reciprocity’. This is codified in the Vienna Convention on the Law of Treaties. Thus, the (4) Human Rights laws. It is important to bear in response to torture cannot be torture, and terrorist acts mind that human rights laws apply at all times, in cannot be answered in kind. times of peace as well as war. These laws are extremely useful in supplementing other Things are getting increasingly difficult on the conventions and laws. ground. Recent attacks on humanitarian organisations, such as the ICRC, and kidnapping of humanitarian The modern world has to contend with the following workers in Afghanistan and Iraq, indicate that modern phenomena (and the concomitant need to humanitarian efforts may be contrary to the objectives develop laws to deal with them):of the belligerents. (1) The advent of modern weapons such as chemical and biological weapons. The 21st century does indeed present difficult challenges to international humanitarian laws and (2) Wars between nations are getting rare, replaced by humanitarian organisations. internal civil wars. Thus some of the norms of war are outdated. st
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PRESS STATEMENTS All statements were issued by Haji Kuthubul Zaman Bukhari, Chairman, Bar Council 2004/2005 unless stated otherwise
A Change to an Inquisitorial System 13 October 2004
he Bar Council views with concern the suggestion by the Chief Justice as reported in The Star, 13th October 2004 to change the Malaysian justice system from that of a common law system to an inquisitorial system as exists in some other countries. The basis for this drastic move appears to be so-called ‘hiccups’ experienced in recent high profile cases. The Bar Council must caution that a move to dismantle a system tried and tested in this country and in other jurisdictions for hundreds of years should not be resorted to easily and is in the view of the Bar Council wholly unnecessary. The common law system has no problem adapting to modern times as it has proven over the years and its very strength lies in its flexibility and ability to adapt. It should also not be forgotten that the most basic tenet of the common law system is that justice is done. That the reason and basis for the revamp are recent decisions in high profile cases is an over-reaction and a misapprehension of the protection provided by the law to litigants and in particular accused persons which must exist in any legal system. The Bar Council is supportive of any improvements to be made to the present system of justice and has in fact submitted several memoranda to this effect. However it sees as a first step in this process, a proper system for the appointment of judges that ensures that judges who possess the best skills are appointed to the Bench. It is not the common law system that needs changing, for whatever system is in place, it is the people that administer it and who dispense justice who make it work. If it works as it should, without interference from any quarter and if the judiciary acts without fear or favour, then truth and justice will prevail. The Bar Council is further concerned at the comments in the same article attributed to the Menteri Besar of Pahang that ‘if [the law] continued to thrive on technicalities, then rapists and murderers may go free’, and his further comment that judges should be more sensitive to the interests of the nation and how some of their judgments could affect the stability of the country politically and socially. This and similar outpourings reflect an unhealthy state of mind that the law and the judiciary exist to serve a political agenda. The Bar Council INFOLINE 58
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must caution against such a mindset which runs counter to all assurances that there will be no political interference in the independence of the judiciary. It must be realised that the independence of institutions like the judiciary is not a sign of weakness of the government but a sign of its strength. The independence demonstrated by the judiciary in some of these so-called high profile cases has only enhanced its image here and internationally. Rather than changing and criticising this justice system that is once again demonstrating such independence, we should be building on it and seeking to improve it.
The Right of CrossExamination 4 November 2004
ssues concerning the right, and value, of crossexamination of witnesses in a trial have been the subjects of discussion in the media in the last two days. The right to cross-examine a witness called by another party in a proceeding has existed in the common law adversarial system from time immemorial. This right is also prescribed in the Evidence Act 1950, which likewise prescribes the right of re-examination. The value and importance of cross-examination in our system of justice, both in criminal and civil trials, are time-tested. In the process of discovery of the truth, oral and documentary evidence must be put to careful scrutiny. Cross examination is one of the powerful and indispensable tools employed in this process. It is never safe to come to a final conclusion based on what one party has said or presented, without granting the other party or parties the right to vigorously question its veracity. However much it may at first blush seem possible or tempting to come to a quicker decision without the benefit of cross examination, experience has shown how unreliable this method proves to be. Thus, the need and importance of cross examination has been aptly expressed by a prominent judge, Justice Megarry (who later became Vice Chancellor), in the following manner:‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’
This sound reasoning has been adopted by our Federal Court two decades ago, in the Mokhtar Hashim case. The Federal Court held that to deny counsel the right to cross examine a witness was ‘clearly wrong’. In the words of Abdoolcader F.J., ‘it cannot be a matter of speculation as to what the effect of cross examination might well have been’; and that ‘to say therefore that cross examination would have been a waste of time is not a proposition we can in any way consider acceptable or entertain’. A justice system deserves and requires constant improvement. Increasing efficiency and shortening the legal process are important aspects; but these have to be achieved without sacrificing fundamental and useful features which have served the system well.
The Tak Bai Tragedy 5 November 2004
he Bar Council is saddened to learn of the death of scores of demonstrators in Tak Bai, in the province of Narathiwat in southern Thailand. It is reported that 6 persons were shot dead outside the Tak Bai police station, and 78 died of suffocation while in detention, as a result of having been packed inside police or army trucks during transportation. According to reports, these persons were part of the thousands of demonstrators who turned up outside the Tak Bai police station to protest against the arrest of 6 village defence volunteers. The Bar Council joins the many quarters in Malaysia (both governmental and non-governmental) in expressing concern and outrage over the inhumane treatment of demonstrators in that incident. The Thai military’s claim that they acted against the protesters ‘because the protest was illegal’ is no excuse at all. Peaceful demonstration is a civil right, not a crime punishable with death. Crowd control is a duty to be performed by the police in a professional manner, not a convenient reason for violent reactions. The exercise of the right to arrest and detain a person cannot be divorced from the corresponding duty to adequately ensure the safety of the detainee. Hence, the Bar Council urges the Thai government to demonstrate full commitment to the practice of true democracy, by ensuring that there will be no more unjustified use of force by its police and security forces. An independent judicial inquiry into the October 25th incident must be promptly held, and its findings made public. Those found responsible for the use of excessive force, or for the failure of duty to ensure the safety and well-being of detainees, must be made to answer in accordance with the law. The Bar Council also deplores all acts of vengeance or violent retaliation, such as the beheading of a deputy village chief in an apparent revenge killing. The culprit(s) must be brought to justice. The Bar Council urges all quarters concerned to exercise restraint and mutual tolerance, and work towards finding a peaceful reconciliation and long-term solution to the problem, by addressing its root causes. Neither senseless violence nor vengeance can be helpful to the process. There are valuable lessons to be learned from this tragedy, not only for Thailand, but for Malaysia as well. The vocal and open reaction by our government to the incident will only make sense if it signifies our government’s recognition of the right of participation in peaceful demonstrations (be it in Malaysia or elsewhere). This is a welcomed development, which should, it is hoped, clear the way for the authorities to allow all peaceful demonstrations in the future. OCT / NOV / DEC_2004
ARAHAN AMALAN KETUA HAKIM NEGARA BIL 1/2004 PENANGGUHAN KES YAA Ketua Hakim Negara yang juga menjalankan kuasa-kuasa Presiden Mahkamah Rayuan setelah berunding dengan YAA Hakim Besar Malaya dan YAA Hakim Besar Sabah dan Sarawak dengan ini mengarahkan seperti berikut: Arahan ini dikeluarkan semata-mata untuk menjadi garis panduan mengenai bagaimana mahkamah patut menggunakan budibicaranya dalam menimbang sesuatu permohonan untuk penangguhan kes. 1.
Perbicaraan Jenayah Di bawah seksyen 259(1) Kanun Prosedur Jenayah. mahkamah mempunyai kuasa untuk menangguh mana-mana perbicaraan dengan sebab ketidakhadiran saksi atau apa-apa sebab lain yang munasabah. Walaupun seksyen ini memberi kuasa yang luas, mahkamah hendaklah memberi perhatian kepada perkara-perkara berikut:i)
Seseorang tertuduh/defendan itu adalah berhak diwakili oleh peguam yang dipilihnya jika peguam itu sanggup dan mampu mewakilinya;
d) Kes sivil yang lebih awal didaftarkan hendaklah diberi keutamaan. Pertimbangan yang sama hendaklah terpakai mutatis mutandis bagi permohonan untuk penangguhan oleh Timbalan Pendakwa Raya atau Pegawai Pendakwa. 2.
ii) Di bawah Aturan 28 Kaedah 2(1) KaedahKaedah Mahkamah Rendah 1980, Mahkamah Rendah juga mempunyai kuasa untuk menangguhkan perbicaraan sesuatu kes. Garis panduan di perenggan 1(i) - (v) adalah terpakai mutatis matandis bagi perbicaraan sivil di Mahkamah Tinggi dan Rendah. 3.
Penangguhan Oleh Mahkamah Seseorang Hakim/Pesuruhjaya Kehakiman Mahkamah Tinggi, Hakim Mahkamah Sesyen, Timbalan Pendaftar, Penolon.g Kanan Pendaftar dan Majistret hendaklah mengelak daripada menangguh kes-kes yang telah ditetapkan. Sehubungan dengan itu Hakim/Pesuruhjaya Kehakiman Mahkamah Tinggi dan pegawai-pegawai yang tersebut hendaklah merancang cuti rehat dan juga merancang untuk menghadiri kursus atau seminar. Jika cuti terpaksa diambil dalam keadaan kes-kes telah ditetapkan, persediaan hendaklah dibuat, jika boleh, agar seseorang lain dapat mengambil alih tugas pada tarikh-tarikh berkenaan atau tarikh baru yang singkat dapat ditetapkan.
Penangguhan Keputusan Jika kes ditangguh untuk keputusan, tarikh bila mana suatu keputusan itu akan diberi hendaklah ditetapkan tidak lewat daripada empat (4) minggu dari tarikh kes itu ditangguhkan.
Pembatalan Arahan Amalan Bil 1/2003 adalah dibatalkan.
ii) Bahawa peguam itu sedang bercuti atau menghadiri kursus atau seminar tanpa memberitahu mahkamah dalam masa yang mencukupi, bukanlah suatu sebab untuk membenarkan penangguhan; iii) Bahawa peguam itu tiba-tiba jatuh sakit adalah alasan yang mencukupi dengan syarat perakuan sakit dikemukakan kepada mahkamah; iv) Bahawa sesuatu kes itu telah banyak kali ditangguhkan atau kes itu telah lama didaftarkan adalah alasan yang mencukupi untuk tidak membenarkan penangguhan; atau v) Apabila permohonan untuk penangguhan dibuat atas alasan peguam terlibat di mahkamah lain atau mahkamah yang lebih tinggi pertimbangan hendaklah diberi kepada garis panduan berikut:a) Kes keutamaan seperti diperuntukkan dalam Arahan Ketua Hakim Negara Bil. 2/2004 diberi keutamaan berbanding kes-kes lain di semua peringkat mahkamah. b) Kes jenayah hendakah diberi keutamaan berbanding kes sivil. c) Kes jenayah yang lebih awal didaftarkan hendaklah diutamakan. INFOLINE 60
OCT / NOV / DEC_2004
Perbicaraan Sivil i) Di bawah Aturan 35 Kaedah 3 Kaedah-Kaedah Mahkamah Tinggi 1980, Mahkamah Tinggi juga mempunyai kuasa sedia ada untuk menangguhkan perbicaraan kes demi kepentingan keadilan kedua- dua pihak,
Tan Sri Dato’ Sri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim Ketua Hakim Negara Mahkamah Persekutuan Malaysia Putrajaya
ARAHAN AMALAN KETUA HAKIM NEGARA BIL 2/2004 KES-KES KEUTAMAAN
YAA Ketua Hakim Negara yang juga menjalankan kuasa-kuasa Presiden Mahkamah Rayuan setelah berunding dengan YAA Hakim Besar Malaya dan YAA Hakim Besar Sabah dan Sarawak dengan ini mengarahkan seperti berikut:-
Rayuan Dari Mahkamah Tinggi Rekod rayuan dari Mahkamah Tinggi hendaklah disediakan dan dihantar ke Mahkamah Rayuan/ Mahkamah Persekutuan dalam tempoh tiga bulan daripada tarikh rayuan difailkan.
1. PERBICARAAN KES Dalam menjalankan perbicaraan kes-kes di mahkamah, keutamaan hendaklah diberi mengikut susunan yang berikut:(i) kes reman;
(ii) kes anggota kerajaan termasuk badan berkanun; (iii) kes kanak-kanak, dan (iv) kes-kes lain yang diarahkan oleh YAA Ketua Hakim Negara/YAA Hakim Besar Malaya/ YAA Hakim Besar Sabah & Sarawak untuk segera dibicarakan . Perbicaraan bagi kes-kes di atas hendaklah dijalankan dalam tempoh dua bulan dari tarikh seseorang itu mula dituduh di mahkamah dan perbicaraan hendaklah dijalankan dari hari ke hari sehingga selesai. Jika atas sebab-sebab yang tidak dapat dielakkan, perbicaraan terpaksa ditangguhkan, maka sambungn perbicaraan hendaklah ditetapkan ke suatu tarikh tidak lewat daripada satu bulan dari tarikh penangguhan dibuat. Sesuatu perbicaraan hendaklah diselesaikan dalam tempoh tidak lewat daripada tiga bulan dari tarikh seseorang itu dituduh. 2.
TINDAKAN SELEPAS PERBICARAAN TAMAT PENYEDIAN REKOD RAYUAN Rayuan ke Mahkamah Tinggi (a) Jika rayuan dibuat ke atas hukuman sahaja, salinan fotostat nota keterangan adalah memadai. Bagaimanapun alasan penghakiman mestilah ditaip. Rekod rayuan tersebut hendaklah djsediakan dan dihantar ke Mahkamah Tinggi dalam tempoh satu bulan daripada tarikh rayuan difailkan. (b) Jika rayuan dibuat terhadap keseluruhan keputusan, nota keterangan dan alasan penghakiman hendaklah ditaip dan rekod rayuan hendaklah disiapkan dan dihantar ke Mahkamah Tinggi dalam tempoh dua bulan daripada tarikh rayuan difailkan.
PERBICARAAN RAYUAN (a) Bagi rayuan ke Mahkamah Tinggi, apabila rekod rayuan telah difailkan di Mahkamah Tinggi, Penolong Kanan Pendaftar hendaklah dengan segera memberitahu YA Hakim/Pesuruhjaya Kehakiman bagi menetapkan tarikh perbicaraan dalam tempoh dua bulan daripada tarikh pemfailan rekod rayuan tersebut. (b) Bagi rayuan ke Mahkamah Rayuan, apabila rekod rayuan diterima daripada Mahkamah Tinggi dan petisyen rayuan difailkan, Pendaftar Mahkamah Rayuan hendaklah dengan segera memberitahu Presiden Mahkamah Rayuan bagi menetapkan tarikh perbicaraan rayuan itu. (c) Bagi rayuan ke Mahkamah Persekutuan pula, apabila rekod rayuan diterima dan petisyen rayuan difailkan, Timbalan Pendaftar Mahkamah Persekutuan hendaklah segera memberitahu Ketua Hakim Negara untuk menetapkan tarikh perbicaraan rayuan itu.
4. PENYEDIAAN LAPORAN Bagi kes yang melibatkan anggota kerajaan sepertjmana yang diperuntukkan di bawah Perintah-Perintah Am Bab D Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993, Majistret / Pendaftar Mahkamah Rendah / Penolong Kanan Pendaftar hendaklah menghantar laporan berkenaan kes tersebut kepada Ketua Pendaftar Mahkamah Persekutuan serta Ketua Jabatan anggota Kerajaan berkenaan sebaik sahaja kes tersebut didaftarkan dan selesai dengan menggunakan borang seperti di Lampiran A dan B. 5. PEMBATALAN Pekeliling Pendaftar 2/2003 adalah dibatalkan. 6. Arahan Amalan ini berkuatkuasa mulai tarikh surat ini. Tan Sri Dato’ Sri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim Ketua Hakim Negara Mahkamah Persekutuan Malaysia Putrajaya OCT / NOV / DEC_2004
OTICES LAMPIRAN ‘A’
Kepada : (Ketua Jabatan Tertuduh)
Kepada : (Ketua Jabatan Tertuduh)
Tuan, LAPORAN MENGENAI PEGAWAI KERAJAAN YANGDITUDUH MELAKUKAN KES JENAYAH
Tuan, Kes No: Pendakwa Raya lwn
Pendakwa Raya Iwn Dengan segala hormatnya saya merujuk kepada perkara di atas. Dengan segala hormatnya saya merujuk kepada perkara di atas. 2. Adalah dimaklumkan bahawa seorang pegawai / kakitangan di telah dituduh pada kerana melakukan kes jenayah.
Adalah dimaklumkan bahawa kes / rayuan yang disebut di atas telah tamat dibicarakan pada dan keputusannya ialah
# Walau bagaimanapun Timbalan Pendakwa Raya / Tertuduh telah memfailkan rayuan ke Mahkamah Tinggi / Mahkamah Rayuan / Mahkamah Persekutuan pada /
Butir-butir berikut untuk makluman dan tindakan tuan: (i) Tarikh tertuduh ditangkap : (ii)
Tarikh tertuduh dituduh di Mahkamah :
(iii) Tuduhan di bawah seksyen
(iv) Kes ditetapkan untuk bicara pada
# Tarikh memfailkan rayuan telah luput pada dan tidak ada rayuan difailkan. Sekian, terima kasih. ‘BERKHIDMAT UNTUK NEGARA’
Sekian, terima kasih. Saya yang menurut perintah ‘BERKHIDMAT UNTUK NEGARA’ Saya yang menurut perintah,
( Hakim Mahkamah Sesyen, Penolong Kanan Pendaftar, Mahkamah Tinggi, Majistret, atau Pendaftar Mahkamah Sesyen yang berkenaan.
s.k: 1. Ketua Pendaftar Mahkamah Persekutuan Malaysia, Putrajaya *2.
Ketua Pengarah Perkhidmatan Awam Jabatan Perkhidmatan Awam Malaysia, Bahagian Perkhidmatan dan Kerjaya, (Unit Tatatertib) Blok B, Kompleks JPA Jalan Tun Ismail 50510 Kuala Lumpur Setiausaha Kerajaan Negeri (Bahagian Tatatertib)
* Bergantung samada tertuduh adalah pegawai Kerajaan Persekutuan atau Negeri.
OCT / NOV / DEC_2004
( ) Hakim Mahkamah Sesyen Penolong Kanan Pendaftar, Mahkamah Tinggi, Majistret, Atau Pendaftar Mahkamah Sesyen yang berkenaan. s.k. 1. Ketua Pendaftar Mahkamah Persekutuan, Kuala Lumpur. *2.
Ketua Pengarah Perkhidmatan Awam Jabatan Perkhidmatan Awam Malaysia, Bahagian Perkhidmatan dan Kerjaya (Unit Tatatertib) Blok B, Kompleks JPA Jalan Tun Ismail 50510 Kuala Lumpur
Setiausaha Kerajaan Negeri (Bahagian Tatatertib )
# Potong yang mana tidak berkenaan. * Bergantung samada tertuduh pegawai Kerajaan Persekutuan atau Negeri.
ARAHAN AMALAN KETUA HAKIM NEGARA BIL 3/2004 Pendaftaran Kes-Kes Pasaran Modal di Bawah Akta Suruhanjaya Sekuriti 1993, Akta Perindustrian Sekuriti 1983, Akta Perindustrian Niaga Hadapan 1993, Akta Perindustrian Sekuriti (Depositori Pusat) 1991, Akta Bank Pusat Malaysia 1958, Akta Institusi Perbankan dan Kewangan 1989, Akta Syarikat 1965, Akta Suruhanjaya Syarikat Malaysia 2001 di Mahkamah Seysen Kuala Lumpur [Kod Pengkelasan] Selaras dengan perkembangan semasa berhubung Undang-undang pasaran modal/sekuriti maka mulai 1 Disember 2004, semua kes-kes pasaran modal/sekuriti di bawah Akta Suruhanjaya Sekuriti 1993, Akta Perindustrian Sekuriti 1983, Akta Perindustrian Niaga Hadapan 1993, Akta Perindustrian Sekuriti (Depositori Pusat) 1991, Akta Bank Pusat Malaysia 1958, Akta Institusi Perbankan dan Kewangan 1989, Akta Syarikat 1965, Akta Suruhanjaya Syarikat Malaysia 2001 hendaklah didaftar di Mahkamah Sesyen, Kuala Lumpur menurut kod pengklasan seperti berikut: Perkara a. Semua kes berhubung dengan perkara di atas hendaklah difailkan di Mahkamah Sesyen Kuala Lumpur
Kod 62 A
b. Rayuan Jenayah daripada Mahkamah Sesyen ke Mahkamah Tinggi
LAST WILL AND TESTAMENT OF MR LIM YEE HOH @ LIM AH JEE (NEW NRIC NO. 241020-10-5131 OLD NRIC NO. 4071065) We act for the Committee of the Estate of Mr Lim Yee Hoh @ Lim Ah Jee appointed by an Order of the Court dated 24th May, 2002 pursuant to the Mental Disorders Ordinance, 1952. NOTICE is hereby given that anyone or law firm in possession of a will or a copy thereof executed by Mr Lim Yee Hoh @ Lim Ah Jee or having any information and/or knowledge of one having been executed or the existence of the said will and/or having any other information regarding the same, kindly contact :MESSRS SOO THIEN MING & NASHRAH Advocates & Solicitors, Commissioner For Oaths, Notary Public Wisma Selangor Dredging 10th Floor, South Block 142-A Jalan Ampang 50450 Kuala Lumpur Tel: 2161 7668 Fax: 21611766 Attention: Mr Richard Kok
Penyemakan Tunggakan Cukai Taksiran Bagi Harta-Harta Di Wilayah Persekutuan Kuala Lumpur
2 Pengagihan Kes Kod 62 A di Mahkamah Sesyen Semua kes-kes di bawah Kod 62 A yang difailkan di Mahkamah Sesyen Kuala Lumpur hendaklah didaftarkan dan didengar di Mahkamah Sesyen Jenayah 1.
Dengan hormatnya perkara di atas adalah dirujuk.
3 Kes-Kes Semasa Yang Menunggu Perbicaraan Di Mahkamah Apabila sesuatu kes itu tiba giliran untuk di bicarakan atau untuk pengurusan kes, kod baru hendaklah dicatitkan kepada nombor kes yang sedia ada tanpa mengubah nombor asalnya, sebagai contoh bagi kes di Mahkamah Sesyen Kuala Lumpur 62-320-2002 dijadikan 62A - 320-2002.
Sehubungan dengan itu Pentadbiran DBKL memohon supaya pihak puan memaklumkan kepada ahli -ahli puan supaya membuat semakan tunggakan cukai taksiran semasa proses pemindahan milik ini secara menghubungi :-
4 Pendengaran Kes-kes Semasa Bagi kes-kes semasa yang didaftarkan di Mahkamah Sesyen seluruh negeri Semananjung Malaysia hendaklah diteruskan oleh Hakim-Hakim Mahkamah Sesyen berkenaan.
Seterusnya diminta maklumat mengenai tunggakan cukai taksiran ini dimaklumkan kepada bakal pemilik baru dan pemilik lama serta menentukan penyelesaian mengenai tunggakan tersebut.
Dimaklumkan bahawa Dewan Bandaraya Kuala Lumpur (DBKL) menghadapi masalah mengenai tuntutan cukai taksiran yang melibat proses pindah milik di antara pemilik lama dan pemilik baru. Amalan sekarang DBKL akan membuat tuntutan cukai taksiran dan tunggakan ke atas pemilik terkini.
Jabatan Kewangan, Bahagian Hasil Tingkat Bawah, Bangunan DBKL Jalan Raja Laut, 50350 Kuala Lumpur No Tel: 26179940 / 26179944 / 26989097 No Fax: 26983415
Dewan Bandaraya Kuala Lumpur mengucapkan ribuan terima kasih di atas kerjasama tuan / puan dalam perkara ini. Sekian, terima kasih.
Tan Sri Dato’ Seri Haidar bin Mohd Noor Hakim Besar Malaya
Lim Kay Siong Bendahari Bandaraya B/p. Datuk Bandar Kuala Lumpur OCT / NOV / DEC_2004
RULES MADE UNDER SECTION 57(a) OF THE LEGAL PROFESSION ACT
PEKELILING PENDAFTAR BIL 2/2004 TESTE KEPADAWRIT (PINDAAN)
On the recommendation of the Legal Profession Committee, the Bar Council makes the following Rule(s) pursuant to Section 57(a) of the Legal Profession Act 1976:-
Adalah saya diarah oleh YAA Ketua Hakim Negara, untuk memaklumkan bahawa mulai 9 November 2004 pengakusaksian untuk writ of Summons yang difailkan dalam Mahkamah Tinggi Malaya hendaklah dikeluarkan seperti berikut:-
BCR02/2004 : Services normally performed by an advocate and solicitor to be performed from within a law firm [w.e.f. 01/12/2004] No advocate and solicitor shall practise as or perform any service normally performed by an advocate and solicitor (including in the field of Syariah law) in any capacity other than as a partner, sole proprietor, consultant or employee of a firm of advocates and solicitors. Explanatory Notes:A. Headings of Rules are for convenience of reference only, and shall not affect their interpretation. B. Any Rule or Ruling previously made by the Bar Council which is inconsistent with any of the above Rule(s) shall be treated as having been superseded or replaced by the above Rule(s) to the extent of such inconsistency, as from the latter’s stipulated effective date(s).
‘YANG AMAT ARIF TAN SRI DATO’ SRI AHMAD FAIRUZ BIN DATO’ SHEIKH ABDUL HALIM, KETUA HAKIM NEGARA P.S.M., S.J.M.K., S.P.M.S., S.S.A.P., S.S.M.Z., S.S.D.K., S.P.M.T., D.S.M.T., D.S.D.K., S.M.J., S.M.S., B.C.K., P.I.S., MENJALANKAN KUASA-KUASA DAN TUGAS-TUGAS HAKIM BESAR MALAYA ATAS NAMA DAN BAGI PIHAK SERI PADUKA BAGINDA YANG DI-PERTUAN AGONG’.
Dengan ini Pekeliling Pendaftar Bil 1/2004 adalah dibatalkan. Sekian. Terima kasih, ‘BERKHIDMAT UNTUK NEGARA’ Saya yang menurut perintah, (AHMAD TERRIRUDIN BIN MOHD. SALLEH) b/p Pendftar Mahkamah Tinggi Malaya Palace of Justice PUTRAJAYA
Bar Council Guidelines on Waiver of Fees in Conveyancing Matters In response to enquiries from members, the Bar Council issues the following guidelines to assist members in their compliance with the Solicitors Remuneration Order (‘SRO’). 1 The SRO prohibits the giving of discount. Hence any waiver that in effect amounts to a discount is prohibited. Any device or method employed as a means to providing a discount (or which in effect provides a form of discount) is likewise prohibited. 2 Waiver of fees is therefore not permitted except where it is a bona fide waiver. For the purpose of this paragraph, a bona fide waiver includes a waiver that complies with all the following conditions, namely where: a) the waiver is a full waiver of all fees chargeable for all items of work done for a client in respect of a non-contentious business; and b) the waiver is given on the basis of a personal relationship between the solicitor and the client, or for charitable purposes; and c) a bill for the work done has been issued, that denotes the full fees chargeable, the fact of the waiver, and detailed particulars of the nature of the personal relationship or charitable purpose upon which the waiver is given. 3. For the purposes of these guidelines, a ‘personal relationship’ will include the relationship between immediate family members and that between members of the Bar, but will exclude friendship (unless exceptional and isolated circumstances are shown), and commercial or business relationship. INFOLINE 64
OCT / NOV / DEC_2004
4. Where it is unclear whether a qualified personal relationship or charitable purpose exists in a set of circumstances, the solicitor should seek the Bar Council’s prior approval before a waiver may be given. Likewise where a member requires or desires other guidance or clarification from the Bar Council. 5. As an illustration, a solicitor acting in relation to a property development (whether acting for the Developer or the purchasers) may NOT ‘waive’ fees in respect of a proportion of the cases he handles, except in isolated cases where all of the criteria stated in paragraph 2 above are satisfied. The same applies to a solicitor acting in relation to documentation concerning loans or facilities granted by a bank or finance company to its borrowers (whether the solicitor is acting for the financier or the borrowers). 6 As another illustration, a solicitor is NOT allowed to ‘waive’ disbursements in fact incurred (and thereby resulting in a discount in effect). 7 In amplification of paragraph 2(a) above, the practice of waiving fees for some of the items of work done within a transaction and charging fees for the other items (which has been found to have been abused as a means to giving discount) will no longer be allowed. In seeking submission of returns from all members, the Bar Council intends to do so in respect of bills and receipts of payment issued after 1/1/2005. Dated 8th December, 2004 Hj Kuthubul Zaman Bukhari Chairman, Bar Council
OTICES MAHKAMAH PERUSAHAAN MALAYSIA KUALA LUMPUR MEMO DARI KAMAR YANG Dl PERTUA
Ruj. Fail: YDP/042 PERKARA
Penglaksanaan Pengantaraan (Mediation)
Yussof bin Ahmad Yang Di Pertua Mahkamah Perusahaan
Pengerusi-Pengerusi Timbalan Pendaftar Penolong-Penolong Pendaftar
Y.Bhg. Dato’/Datin/Tuan/Puan, Saya merujuk kepada perkara di atas. Setelah mendengar pandangan Pengerusi-Pengerusi pada Mesyuarat Khas yang diadakan pada 14 Ogos 2004, saya membuat keputusan-keputusan yang berikut:Pengumuman 1. Jawatankuasa Praktis Majlis Peguam, Persekutuan MajikanMajikan Malaysia dan Kongres Kesatuan Sekerja Malaysia akan diberitahu berkenaan penglaksanaan pengantaraan secara sukarela sebelum perbicaraan. Pengerusi, Timbalan Pendaftar, Penolong Pendaftar yang terlibat 2. Pengerusi-Pengerusi, Timbalan Pendaftar dan PenolongPenolong Pendaftar yang telah menghadiri Bengkel Pengantaraan tempoh hari hendaklah menjalankan pengantaraan terhadap kes-kes yang telah dikenalpasti dan di mana pihak-pihak terlibat bersetuju kes-kes mereka dicuba penyelesaiannya melalui pengantaraan. Timbalan Pendaftar, Penolong Pendaftar berkenaan akan menjalankan pengantaraan di Mahkamah-Mahkamah di mana Pengerusinya tidak menghadiri Bengkel tersebut. Kes-kes yang sesuai untuk perantaraan 3. Kes-kes yang sesuai adalah kes-kes pembuangan kerja, pertikaian perusahaan dan mungkin Pengaduan Tidak Mematuhi Perjanjian Bersama atau award. Kekerapan 4. Sekurang-kurangnya 1 (satu) hari dalam seminggu bolehlah digunakan untuk menjalankan pengantaraan. Adalah digalakkan petang hari Jumaat dan pagi hari Sabtu hari bekerja digunakan juga untuk pengantaraan. Adalah juga digalakkan satu petang selepas waktu bekerja biasa digunakan untuk pengantaraan. Peraturan am 5. (a) Kes-kes yang telah didaftarkan sebelum 1 Jun 2004 (keskes lama) dan belum mula dibicarakan. Kes-kes ini hendaklah dipanggil untuk sebutan untuk tujuan menanyakan kepada pihak-pihak berkenaan sama ada mereka mahu kes mereka menjalani pengantaraan dan jika mereka bersetuju untuk menetapkan tarikh pengantaraan. (b) Kes-kes yang telah didaftar pada dan selepas 1 Jun 2004 (kes-kes baru) Pada sebutan pertama kedua-dua belah pihak diberitahu untuk menimbangkan sama ada mereka mahu kes mereka dicuba selesaikan melalui pengantaraan. Jika mereka bersetuju pengantaraan bolehlah dijalankan pada masa yang
Tarikh: 17 Ogos 2004
sesuai walaupun pliding belum difailkan. Mereka juga boleh membuat keputusan sama ada mahukan pengantaraan atau tidak selepas pliding telah ditutup. Sekiranya mereka tidak mahu pengantaraan tarikh bicara bolehlah ditetapkan. Sila ambil kira bahawa tahun 2005 akan digunakan untuk menyambung atau memulakan perbicaraan kes-kes yang telahpun didaftarkan pada tahun 2004 dan sebelumnya. (c) Selepas pengantaraan dijalankan, jika penyelesaian dicapai award dengan persetujuan (consent award) akan diturunkan. Sekiranya pengantaraan tidak mencapai penyelesaian, keskes tersebut hendaklah dihantarkan kepada Pendaftar untuk diagihkan kepada Pengerusi lain untuk dibicarakan. Kes-kes lain yang gagal diselesailkan melalui pengantaraan di Mahkamah lain akan diagih menggantikan kes-kes yang dihantarkan kepada Pendaftar. (d) Seberapa boleh pengantaraan seperti yang dianjurkan dalam Bengkel Mediation Theory and Practice tempoh hari mestilah digunakan dengan penyesuaian yang diperlukan untuk situasi Mahkamah Perusahaan. Sebagai contoh perjanjian bertulis untuk mengadakan pengantaraan adalah tidak perlu. (e) Kaji semula berkenaan pengantaraan secara percubaan ini akan dibuat dari masa ke semasa untuk memperbaiki lagi sistem atau untuk mengatasi masalah-masalah yang dihadapi. Adalah sangat diharapkan Pengerusi-Pengerusi, Timbalan Pendaftar dan Penolong-Penolong Pendaftar akan melaksanaan sistem pengantaraan ini seberapa segera yang boleh dan seberapa baik yang boleh untuk mencapai objektifnya di antara lain memendekkan masa untuk menyelesaikan pertikaian- pertikaian dan mengurangkan jumlah kes-kes tertunggak di Mahkamah Perusahaan. Sekian, terima kasih. (t.t.) Yussof bin Ahmad
NB: We have also been informed, in addition to the above, that Mentions at the Industrial Court will commence daily at 8.30 a.m.. These will be followed by Hearings fixed for the same day. Please be advised accordingly. The Bar Council Industrial Court Committee OCT / NOV / DEC_2004
Our Ref: LACLA/PRR(TYH)/59B/478/04 8 November 2004 The President Bar Council Malaysia No.13, 15 & 17 Leboh Pasar Besar 50050 Kuala Lumpur Tuan Haji AMENDMENTS TO CHAPTER 16 OF THE LISTING REQUIREMENTS FOR THE MAIN BOARD AND SECOND BOARD
The said Amendments, which took immediate effect, have been made to reflect the current arrangements with the Securities Commission in relation to enforcement actions taken by Bursa Securities pursuant to the LR. Additional information Please take note that the said Amendments are available for reference on Bursa Malaysia’s web-site at http:/ /www.bursamalaysia.com. For further information or enquiries on the above, kindly contact:-
Legal Advisory and Corporate Legal Affairs 9th Floor, Bursa Malaysia Berhad We write to inform that the Exchange had issued Exchange Square, Bukit Kewangan amendments to the Bursa Securities Malaysia Berhad 50200 Kuala Lumpur. Facsimile: 2732 0065 (Bursa Securities) Listing Requirements for the Main Tel No: 2034 7000 Board and Second Board (LR) as set out in Appendix Thank you. 1 (“the said Amendments”) in relation to Chapter 16 Yours faithfully, of the LR. SELVARANY RASIAH Chief Legal Officer We refer to the above matter.
APPENDIX 1 AMENDMENTS TO CHAPTER 16 OF THE LISTING REQUIREMENTS FOR MAIN BOARD AND SECOND BOARD EXISTING PROVISIONS
Para 16.01 Introduction
Para 16.01 Introduction
This Chapter sets out the following:(a) the requirements that must be complied with by a listed issuer in respect of voluntary suspension and withdrawal by the listed issuer from the Official List; and
This Chapter sets out the following:(a) the requirements that must be complied with by a listed issuer in respect of voluntary suspension and withdrawal by the listed issuer from the Official List; and
(b)the powers of the Exchange with regard to:(i) suspension and de-listing of a listed issuer by the Exchange; and (ii) enforcement of these Requirements.
(b)the powers of the Exchange with regard to:(i) suspension and de-listing of a listed issuer or any class of its listed securities by the Exchange; and (ii) enforcement of these Requirements.
16.02 Suspension or trading imposed by the Exchange
16.02 Suspension of trading imposed by the Exchange
The Exchange may at any time suspend the trading of the listed securities of a listed issuer in any of the following circumstances:
(1)The Exchange may at any time suspend the trading of any class of the listed securities of a listed issuer in any of the following circumstances:
(a) -(b) [As per existing provisions]
(a) -(b) [No change)
OCT / NOV / DEC_2004
(c) where, in the opinion of the Exchange, it is necessary or expedient in the interest of maintaining an orderly and fair market in securities traded on the Exchange (provided that the Exchange shall thereafter promptly notify the Commission in writing and give the reasons for the suspension); (d) [As per existing provisions] (e) upon consultation with the Commission, in the event of any breach of these Requirements by a listed issuer; (f) -(h) [As per existing provisions]
16.04 Withdrawal of listing The Exchange may, subject to consultation with the Commission, grant a listed issuer’s request for withdrawal from the Official List.
(c) where, in the opinion of the Exchange, it is necessary or expedient in the interest of maintaining an orderly and fair market in securities traded on the Exchange; (d)[No change] (e) in the event of any breach of these Requirements by a listed issuer; (f ) -(h) [No change] (2)The Exchange shall notify the Commission of any decision to suspend the trading of any class of the listed securities of a listed issuer pursuant to subparagraphs (1)(c) or (e) above. 16.04 Withdrawal of listing (1) The Exchange may grant a listed issuer’s request for withdrawal from the Official List. (2) The Exchange shall notify the Commission of any decision to approve a request for withdrawal from the Official List.
16.09 De-listing by the Exchange
16.09 De-listing by the Exchange
The Exchange may at any time de-list a listed issuer from the Official List in any of the following circumstances:-
The Exchange may at any time de-list a listed issuer or any class of its listed securities from the Official List in any of the following circumstances:-
(a) where the listed issuer fails to comply with these Requirements, subject to consultation with the Commission;
(a) where the listed issuer fails to comply with these Requirements, subject to consultation with the Commission;
(b) in other circumstances as provided under paragraphs 8.14, 8.15 or 8.16; or
(b) in circumstances as provided under paragraphs 8.14 or 8.16 subject to consultation with the Commission;
New provision (c) where in the opinion of the Exchange, circumstances exist which do not warrant the continued listing of a listed issuer, subject to consultation with the Commission.
16.16 Breach of these Requirements In the event of any breach of these Requirements by any applicant, listed issuer, management
(c) in circumstances provided under paragraph 8.15(5) whereupon the Exchange shall notify the Commission of the same; or (d) where in the opinion of the Exchange, circumstances exist which do not warrant the continued listing of a listed issuer or any class of its listed securities, subject to consultation with the Commission, except where the de-listing is due to the maturity or expiry of a class of securities. 16.16 Breach of these Requirements (1) In the event of any breach of these Requirements by any applicant, listed OCT / NOV / DEC_2004
company, trustee or its directors, officers or advisers or any other person to whom these Requirements are directed, the Exchange may, after consultation with the Commission, take or impose such actions or penalties as it considers appropriate.
issuer, management company, trustee or its directors, officers or advisers or any other person to whom these Requirements are directed, the Exchange may take or impose such actions or penalties as it considers appropriate. (2) The Exchange shall notify the Commission of any decision to take or impose any action or penalty referred to in paragraph 16.17 below except where the decision is made in consultation with the Commission.
16.17 Types of actions or penalties
16.17 Types of actions or penalties
(1) Without prejudice to any of the powers granted to the Exchange under any written law in relation to the enforcement of these Requirements, the types of action or penalty that the Exchange may take or impose for a breach of these Requirements include anyone or more of the following:-
(1) Without prejudice to any of the powers granted to the Exchange under any written law in relation to the enforcement of these Requirements, the types of action or penalty that the Exchange may take or impose for a breach of these Requirements include anyone or more of the following:-
(a) in relation to applicants, listed issuers, management companies or trustees:-
(a) in relation to applicants, listed issuers, management Paragraph companies or trustees:-
(i) -(vi) [As per existing provisions] (vii) non-acceptance of applications or submissions, with or without conditions imposed;
(i) -(vi) [No change] (vii) non-acceptance of applications or submissions, with or without conditions imposed (after consultation with the Commission);
(viii)-(ix) [As per existing provisions]
(viii) -(ix) [No change]
(x) de-listing; or
(x) de-listing of a listed issuer or any class of its listed securities (after consultation with the Commission); or
(xi) [As per existing provisions]
(xi) [No change]
(b) [As per existing provisions]
(b) [No change]
(c) in relation to advisers:-
(c) in relation to advisers:-
(i) -(vi) [As per existing provisions]
(i) - (vi)
(vii) non-acceptance of applications or submissions, with or without conditions imposed; or
(vii) snon-acceptance of applications or submissions, with or without conditions imposed (after consultation with the Commission); or
(viii) [As per existing provisions]
(viii) [No change]
OCT / NOV / DEC_2004
OCT / NOV / DEC_2004
Circular No: 66 / 2004 ENFORCEMENT OF THE SOLICITORS REMUNERATION ORDER (‘SRO’) 1. Dialogue with Bank Negara on the No Discount Rule
(a) On 29/10/2004, members of the Conveyancing Practice Committee (‘CPC’) met with representatives from Bank Negara (‘Bank Negara’) to inform Bank Negara of the Solicitors’ Remuneration (Enforcement) Rules 2004 (‘the SRO Enforcement Rules’) and to discuss how Bank Negara could assist the Bar Council to enforce the no discount rule. (b) Bank Negara acknowledged that although the SRO is a byelaw and has the force of law, it is up to the Bar Council to enforce the SRO and the no discount rule in respect of its members. (c) However, Bank Negara informed members of the CPC present at the dialogue that, if the Bar Council has evidence that banks are involved in any way in a breach of the SRO, then, such evidence should be referred to Bank Negara and they will take the appropriate action against the banks involved. (d) Bank Negara has also agreed to do their best to arrange for a meeting between the Bar Council and the Association of Banks in Malaysia (‘ABM’) on this and other matters, although Bank Negara had pointed out that they cannot compel ABM to attend.
for services rendered should be market driven. In respect of the SRO, REHDA maintains that they have ‘held the consistent view that the No Discount Rule under the SRO is not a progressive requirement and in the long term does not serve the interests of consumers or members of the legal profession well.’ (c) REHDA feels that for the above reasons, ‘the necessity for a dialogue on the issue does not arise.’
3. Press statement and advertisements
(a) On 01/10/2004, the President of the Malaysian Bar issued a press statement on the SRO Enforcement Rules and this was reported in the front page of the New Sunday Times on 03/ 10/2004. (b) After the SRO Enforcement Rules came into force, several newspaper advertisements on the no discount rule and the SRO Enforcement Rules have been taken out by the Bar Council. (c) Many State Bars have taken their own initiative to hold press conferences to give the Enforcement Rules greater publicity.
4. Solicitors returning instructions to a bank
(c) An agenda for the proposed dialogue with ABM has been forwarded to Bank Negara and the Bar Council hopes that a meeting with ABM will take place soon.
(a) A firm of solicitors (‘Messrs A’) were acting for a purchaser in a sale and purchase transaction and on 18/10/2004 were instructed by the purchaser’s bank (‘the Bank’) to act for the loan transaction in connection with the purchaser’s loan.
2. Dialogue with REHDA
(a) On 01/10/2004, the Bar Council wrote to the Real Estate and Housing Developers’ Association Malaysia (‘REHDA’) to request for a dialogue to discuss the SRO Enforcement Rules and the no discount rule under the SRO. (b) In its reply dated 30/10/2004, REHDA informed the Bar Council that REHDA had always adopted the position that fees charged INFOLINE 70
OCT / NOV / DEC_2004
(b) On 29/10/2004, Messrs A wrote to the Bank and noted that the loan offered was on the Bank’s ‘zero cost’ promotion and Messrs A stated that they understand that for such cases, professional fees are not calculated in accordance with the SRO. Messrs A also expressed to the Bank that whilst they treasure and appreciate their long standing relationship with the Bank, Messrs A are compelled to abide by the SRO. Messrs A
therefore returned the instructions to the Bank and extended a copy of their letter to the Bar Council. (c) On 22/11/2004, the Bar Council wrote to Messrs A and commended them for taking a firm stand on the matter and for upholding the no discount rule.
GPO Box 980 Brisbane, Qld, Australia Law Society House 179 Ann St, Brisbane, Qld, Australia www.lawasia.asn.au
(d) On the same day, the Bar Council wrote to the Bank to request for information on the legal firm currently handling the loan documentation. A copy of this request was extended to Bank Negara.
January 6, 2005 The president of LAWASIA has expressed his concern about the tsunami tragedy in the Asian region, and has articulated his deep condolences to the relatives and friends of all victims.
(e) On 06/12/2004, the Bank replied to the Bar Council and informed the Bar Council that they have on the 27/11/2004 written to Messrs A to instruct Messrs A to proceed with the loan documentation as the Bank will abide by the SRO and pay them the full scale fees.
LAWASIA is the Law Association for Asia and the Pacific, an organisation that represents the peak legal bodies of (23) countries of the Asia Pacific region.
5. Solicitors asked to furnish further information on an invoice
(a) A member of the Bar handed to the Bar Council a copy of an invoice purportedly issued by a legal firm. (b) The invoice showed that the solicitors’ fee payable on a transaction was 50% of the prescribed scale fee. (c) On 27/12/2004, the Bar Council gave a notice in writing to the legal firm, under Rule 4(1)(c) of the SRO Enforcement Rules, requiring the legal firm to provide information and particulars of the transaction within 14 days from the date of the notice.
6. Further Circulars
From time to time the Bar Council shall issue circulars to its members to inform them of the action taken by the Bar Council to enforce the no discount rule. Dated this 28th day of December 2004. Ambiga Sreenevasan Secretary, Malaysian Bar
Many of the organisation’s members are drawn from the countries affected by the disaster, particularly India, Sri Lanka, Thailand, Indonesia, Bangladesh and Malaysia. The president, Mr G L Sanghi of India, said that the tragedy placed many of the world’s daily conflicts - including those in which lawyers play an integral role - into context. ‘The enormity of this disaster transcends many of the daily issues that confront us in professional life. It makes us realise that many of the issues with which we deal are relatively trivial by comparison to the real experiences and real suffering of the wider population, Mr Sanghi said. Mr Sanghi praised the response of the international community in providing assistance - financial and otherwise - to the affected countries, and called on lawyers of the region to maintain this generosity of spirit. ‘Lawyers enjoy a privileged place in society. Some lawyers in particular, enjoy good incomes commensurate with this status. I call on all our members - and all lawyers with an interest in the region - to donate generously to an appropriate charity’, said Mr Sanghi. Mr Sanghi said that LAWASIA had decided not to set up its own specific tsunami disaster fund, simply because of the number of creditable charitable funds that had already been established. LAWASIA would, however, consider an appropriate donation from its own funds at its next meeting.” OCT / NOV / DEC_2004
D I S C I P L I N ARY O R D E R S Suspended Order under s 94(4)(c) Legal Profession Act 1976 1. Mohd Idris bin Haji Habib, M/s Mohd Idris & Assoc (immediate effect from 16 July 2004, until further notice) 2. Mohd Idris bin Haji Habib, M/s Mohd Idris & Assoc (immediate effect from 20 August 2004, until further notice) 3. Mohd Mazuar bin Mohd Noor, M/s Noorhelmee & Mazuar (immediate effect from 17 September 2004, until further notice)
8. 9. 10. 11. 12.
Order under s 103D Legal Profession Act 1976 1. Abdul Halim bin Mohd Noor, M/s Chuah Halim & Co (one year with effect from 27 November 2004) 2. Iskandar Dzulkurnain bin Abdullah Azizi, M/s Muhammad Dzul & Barakbah (three years from the date Sijil Annual issued) 3. Syed Ismail Barakbah bin Syed Abu Bakar Barakbah, M/s Muhammad Dzul & Barakbah (three years from the date Sijil Annual issued) Penalty Order under s 103 Legal Profession Act 1976 1. Chan Yiew Hock, M/s Chan & Co - 14 September 2004 (RM2,500) 2. Noor Adlan bin Mohd Noor, M/s Adlan & Co - 14 September 2004 (RM5,000) 3. Patwant Singh Sohanpal, M/s P S Sohanpal & Sidhu 2 November 2004 (RM500) 4. Harjeet Singh s/o Sardara Singh, M/s P S Sohanpal & Sidhu - 2 November 2004 (RM500) 5. Mohd Yamin bin Haji Ismail, M/s Mohd Yamin Ismail & Partners - 6 December 2004 (RM5,000) 6. Leong Wah Khong, M/s Ajmer Sandhu & Ong - 6 December 2004 (RM2,000) 7. Patrick Ong Yu Shek, M/s Y S Ong & Co - 6 December 2004 (RM2,000) 8. Ng Yoke Cheng, M/s Christina Chia, Ng & Partners - 6 December 2004 (RM2,000) 9. Dato' Haji Hamzah bin Mohd Kassim, M/s Hamzah Daud Daros & Siti Nor - 13 December 2004 (RM1,000) Order under s 103D Legal Profession Act 1976 1. Chan Yiew Hock, M/s Chan & Co - 14 September 2004 (RM15,000) 2. Lim Lek Yan, M/s Lek Yan & Co - 14 September 2004 (RM3,500) 3. Slamiah binti Alias, M/s Salmiah Alias & Co - 16 September 2004 (RM5,000) 4. Gunaseelan a/l Munusamy, M/s Seelan Malik & Assoc - 29 September 2004 (RM2,000) 5. Syed Ismail Barakbah, M/s Muhammad Dzul & Barakbah - 5 October 2004 (RM2,000) 6. Iskandar Dzulkarnain bin Abdullah Azizi, M/s Muhammad Dzul & Barakbah - 5 October 2004 (RM2,000)
OCT /NOV / DEC_2004
13. 14. 15. 16.
Adnan bin Abdul Rahim, M/s Adnan Rahim & Co 2 November 2004 (RM1,000 each in respect of 6 complaints) Joseph Au Kong Weng, M/s Omar & Joseph Au - 2 November 2004 (RM3,500) Kuldeep Singh s/o Hari Singh, M/s Hassan Kuldeep & Co - 2 November 2004 (RM5,000) Rajehgopal a/l Velu, M/s Rajehgopal Velu & Assoc - 2 November 2004 (RM5,000) Faridah bt Dato' Talib, M/s Faridah Talib & Co - 2 November 2004 (RM1,000) Gunapati s/o Suppiah, M/s Gunapati Suppiah & Co - 6 December 2004 (RM10,000) Wong Chim Yiam, M/s Chim Yiam & Associates - 6 December 2004 (RM2,000) Khalil bin Abdul Muin, M/s Khalil Samsuni & Co - 6 December 2004 (RM10,000) Azlin bt Ahmad Shaharbi, M/s Azlin Alahakone & Assoc - 13 December 2004 (RM3,000) Vignesvary Alahakone, M/s Azlin Alahakone & Assoc - 13 December 2004 (RM3,000)
Struck Off Order under s 103D Legal Profession Act 1976 1. Nachiappan Shanmugam, M/s Shan Selvam & Soogu (w.e.f. 21 days from 14 September 2004) 2. Mohamed Ridza bin Busu, M/s Ridza Ng & Co (w.e.f. 21 days from 14 September 2004) 3. Mohd Madzhar bin Mohd Sapuan, M/s Madzhar Mohd Sapuan (w.e.f. 21 days from 14 September 2004) 4. Noorhazlinda binti Mohd Noor, M/s Noorhazlinda & Co (w.e.f. 21 days from 14 September 2004) 5. Zulkifli bin Othman, M/s Zul & Co (w.e.f. 21 days from 14 September 2004) 6. Syed Alwi bin Idros, M/s Syed Alwi & Co (w.e.f. 21 days from 14 September 2004) 7. Kamaruddin bin Mahmood, M/s Nik Ismail & Partners (w.e.f. 21 days from 14 September 2004) 8. Slamiah binti Alias, M/s Salmiah Alias & Co (w.e.f. 21 days from 14 September 2004) 9. Che Husin bin Che Puteh, M/s Che Husin & Co (w.e.f. 21 days from 29 September 2004) 10. Muhammad 'Atfan bin Ahmad, M/s Rozali Ismail & Co (w.e.f. 21 days from 2 November 2004) 11. Awtar Singh s/o Surat Singh, M/s A Singh & Partners (w.e.f. 21 days from 2 November 2004) 12. Kuldeep Singh s/o Hari Singh, M/s Hassan Kuldeep & Co (w.e.f. 21 days from 2 November 2004) 13. Noor Adlan bin Mohd Noor, M/s Adlan & Assoc (w.e.f. 21 days from 17 November 2004) 14. Abdul Wahab bin Abdul Rahman, M/s Abdul Wahab & Assoc (w.e.f. 21 days from 6 December 2004) 15. Mahazir bin Abdul Majid, M/s Mahazir & Ng (w.e.f. 21 days from 6 December 2004) 16. Ng Chit Koon, M/s Mahazir & Ng (w.e.f. 21 days from 6 December 2004)
Conference Diary National Y oung Lawyers Young Convention 28-30 JANUARY 2005 The 2nd National Young Lawyers Convention will be held at the Pangkor Bayview Beach Resort, Pangkor. The theme of the Convention will be ‘Young Lawyers and the Challenges Ahead’. For more details, please contact Lynette Tan at 20313003 ext 142 or email [email protected]
The Malaysian Equity Market 25-26 JANUARY 2005 CONFERENCE HALL 2, SECURITIES COMMISSION This two-day workshop on the Malaysian equity market aims to provide a broad but comprehensive understanding of the securities market in Malaysia including the legal and regulatory framework, roles of principal players and trading mechanics. Important aspects of financial statements analysis will be examined and participants will learn how financial statements are used to assess company performance. Basic concepts of asset valuation with specific focus on equity and bond valuation will be discussed to enable participants understand the significance of asset valuation in making rational investment decisions. For more details, please check our websites www.sc.com.my or www.min.com.my International Mediation Conference 24-25 FEBRUARY 2005 The Bar Council and the KLRCA (Kuala Lumpur Regional Centre for Arbitration) are jointly organising an International Mediation Conference with the theme ‘Mediation on the Move’ at the Equatorial Hotel. The Conference will also incorporate a Mock Mediation and a Mock Debate as part of the programme. For more details, please check our websites www.malaysianbar.org.my and www.rcakl.org.my or contact Kenneth Goh at 20313003 ext 147. Lawasia Down Under Conference 21 - 24 MARCH 2005 The LAWASIA 19th Biennial Conference will be held in March 2005 on the Gold Coast, Australia. LAWASIA downunder 2005 will be the major legal conference to be held in the Asia Pacific region in 2005 and incorporates the following conferences: • 19th Biennial LAWASIA Conference • 34th Australian Legal Convention • 44th Queensland Law Society Symposium • 11th Conference of the Chief Justices of Asia Pacific It is expected at that least 1000 delegates will partcipate in this prestigious event. Conference details are listed below: Name: LAWASIA down under 2005 Date: 21 - 24 March 2005 Venue: Gold Coast Convention and Exhibition Centre, Broadbeach, Queensland, Australia Website: www.lawasiadownunder.com
The Center for International Legal Studies, Salzburg, Austria is organizing the following conferences: Liability of Lawyers in Crossborder Transactions Kitzbühel, Australia 23 – 29 JANUARY 2005 New Laws in North America, Latin America, Europe and Asia impose greater responsibilities – and potential liability – on lawyers serving clients in cross-border transactions. Professional liability issues will be examined by speakers from each region International Commercial Arbitration Steamboat Springs, Colorado, USA 13-19 FEBRUARY 2005 Speakers from North America, Latin America, Europe and Asia will present the latest in developments and case studies dealing with the resolution of commercial disputes. Sessions for each conference will be conducted Monday to Friday from 7:30 am to 9:30 am and from 4:30 pm to 6:30 pm. All session and materials will be in English. CILS will certify up to 24 hours of CLE credit for each conference, where appropriate. The Future of Global Offshoring and Outsourcing Kitzbühel, Australia 13 – 19 MARCH 2005 This conference seeks to address the issues and sartegies underpinning outsourcing as a business model, the elements that lead t a successful outsourcingarrangement and how outsourcing will develop in the future. Lawyering in the International Market Whistler, British-Columbia, Canada 10 – 16 APRIL 2005 Speakers from North America, Latin America, Europe and Asia will examine the most common issues confronting lawyers engaged in cross-border matters: agency and distribution agreements, intellectual property, investment, franchising and licensing, taxation and dispute resolution. For further information, please contact the Center for International Legal Studies, Salzburg, Austria at email: [email protected]
or web: www.cils.org.
OCT JULY/ NOV / AUG/ DEC_2004 / SEPT_2004
LIBRARY LIBRARY UPDATE UPDATE
AMENDING ACTS 2004 ACT NO ACT A1226…
TITLE PESTICIDES (AMENDMENT) ACT 2004 An Act amend the Pesticides Act 1974 Notes:-Amends ss.2, 3, 6, 7, 8, 9, 10, 12, 13, 14, 15, 17, 20, 33, 35, 49, 50, 53, 56, 57, Sch 1, Inserts news ss.10A, 14A, 35A, 45A, 45B, 53A, and deletes s.44 w.e.f:-Not Yet in Force
PRINCIPAL ACT 2004 ACT NO ACT 636… ACT 637…
TITLE Diplomatic Privileges (Vienna Convention) Act 1966 (Revised-2004) w.e.f:-28.10.2004 Loan (Local) Act 1959 (Revised-2004) w.e.f:-5.11.2004
INDEX TO SELECTED P.U.(B) SERIES 2004 TITLE Sports Development Act 1997 [Act 576] APPOINTMENT OF DATE OF COMING INTO OPERATION Notes:-The Act comes into operation in the States of Sabah and Sarawak on 1.10.2004. w.e.f:-1.10.2004
P.U.(B) NO. 373/2004
NEW BAR LIBRARY NEW BOOKS BOOKSININTHE THEMALAYSIAN MALAYSIAN BAR LIBRARY 1.
Jones, Michael A. Medical Negligence (3rd.edition).London : Sweet & Maxwell and Thomson, 2003.
Gee, Steven. Commercial Injunctions (5th edition).London: Sweet & Maxwell, 2004.
Pawancheek Marican. Islamic Inheritance Laws in Malaysia. Kuala Lumpur: Malayan Law Journal, 2004.
Kanesh Sundrum. Administration of Estates Handbook. Kuala Lumpur: Malayan Law Journal, 2000.
Chan Shick Chin. Personal Injury Law,Practice and Precedents (2nd edition). Kuala Lumpur: Malayan Law Journal, 2004.
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W E B S I T E w w w. m a l a y s i a n b a r. o r g . m y A N D CLICK ON ‘RESOURCES’ and then ‘LIBRARY ’
OCT / NOV / DEC_2004
In Memoriam In Memoriam A/699 Azlina Hanif (LA) Hamzah Daud Daros & Siti Nor Padang Rengas, Kedah Passed Away 28-12-2002
P/108 Pritam Singh A/L Karam Singh (P) Hassanudin & Pritam Klang Selangor Passed Away 05-04-2003
B/032 Baharuddin Osman (P) Baharuddin & C K Lim Petaling Jaya, Selangor Passed Away 06-10-2003
R/253 Ramid Khan Rahman Khan (P) Tay & Partners Kuala Lumpur Passed Away 28.10.2002
C/076 Chin Kit Fung (SP) Chin Kit Fung Taiping, Perak Passed Away 8.2.2002
R/042 M C Ruthrapathy (LA) Naraendran & Suria Kuala Lumpur Passed Away 26.08.2002
C/189 Choo Katherine (SP) K S Choo & Co. Ipoh Perak, Passed Away 27-06-2002
S/027 Selvanathan S (Deceased 16.8.2003) (C) Thevin Chandran & Assoc. Kuala Lumpur Passed Away 16-08-2003
F/008 Fernandez Ligar (SP) L Fernandez & Co. Ipoh Perak, Passed Away 07-07-2002
T/100 Toh Theam Hock (P) Toh Theam Hock & Co. Taiping, Perak Passed Away 10.05.2002
F/014 Foo Sam Ming (P) Foo & Woon Johor Bahru Passed Away 19.03.2002
W/055 Wan Abd Majid Wan Hamid (P) Wan Majid Mano & Nada Kuala Lumpur Passed Away 12.07.2002
F/242 Foong Wing Kuan (P) A.J. Hakimi & Assoc Ampang, Selangor, Passed Away 24-09-2003
W/256 Wong Chek Fah (P) Gerald Wong & Co Passed Away 29-11-2003
H/344 Harcharan Singh A/L Assar Singh (P) Shaari Nor & Co. Kuala Lumpur Passed Away 16-09-2003 K/047 Krishnan R (LA) Tunku Amiruddin & K K Chew Melaka. Passed Away 09.09.2002 N/009 K K P Nathan (P) Nathan & Assoc Seremban, N S Passed Away 08.12.2002
Z/229 Zulkarnain Ahmad (P) Adri Zul & Hasnul Batu Caves Selangor Passed Away 03-12-2003 Key (C) Consultant (LA) Legal Assistant (P) Partner (SP) Sole Proprietor
These members of the Bar, we are informed, passed away in the last 2 years or so. We regret that we have been unable to get someone who knew them to pen a few words as a fitting obituary. We produce the list here in the hope that readers who knew these members, and are moved to offer a few words in tribute to these souls, will come forward. You may contact Siva Kumaran of the Bar Council at 03 –2032 4498 or [email protected]
OCT / NOV / DEC_2004
INFOLINE (OCT / NOV / DEC 2004 SUPPLEMENT) LAWYERS UPDATE LAWYERS UPDATE
Lawyers’ Change Of Address Andre Gan Siew Lim; Messrs Wong & Partners; Level 41- Suite A Menara Maxis of Kuala Lumpur City Centre 50088 Kuala Lumpur; Tel: 03-20551888; Fax: 0321612919; Ang Siew Bee; Messrs GH Tee & Co.; No.22A-3 Jalan PJU 8/3A, Perdana Business Centre, Bandar Damansara Perdana, 47820 Petaling Jaya, Selangor Darul Ehsan; Tel: 03-77264831; Fax: 03-77265251; Chen Wei Fong; Messrs Chen Wong & Co.; No.59 Jalan SS2/103, 47300 Petaling Jaya , Selangor Darul Ehsan; Chye Kwee Yeow; Messrs Chye Kwee Yeow & Co.; No.48-B, Lorong 24, Taman Petani Jaya, 08000 Sungai Petani, Kedah Darul Aman; Khairon Niza Binti Md Akhir; Messrs Fatimah Zainuddin & Associates at Lot No.11098, 1 st Floor Selangor Mansion, Jalan Masjid India, 50100 Kuala Lumpur; Tel:03-26925588/03-26981609; Fax:0326931177; Mohd Arif Bin Kamisan; Messrs Eeu, Kwok & Associates; No. 196A, 1 st Floor Jalan Besar, Taman Sembrong Baru, 83700 Johor Bahru; Tel:07-4678089; Fax:07-4676789; Mohd Badli Haryadai Bin Mohd Baharuddin; Chambers of Lee; 33A Jalan Pandan 3/3 55100 Kuala Lumpur; Tel:03-92879361; Fax: 03-92872361; Mohd Saridffudin Bin Ismail; Messrs Fisol Aziz Mohd Noor; No.31 2nd Floor Lorong Mayang Pasir 5 Taman Sri Tunas, 11950 Bayan Baru Penang; Tel: 04-6461242; Fax:04-6461244; Moong Lee Peng; Messrs Tee Bee Kim & Partners; No.25A 7 27A 1st Floor Jalan 52/1 Merdeka Square 46200 Petaling Jaya, Selangor Darul Ehsan; Tel:0379563868; Fax:03-79552617; Natasha Binti Badul Rahman; Messrs Tee Bee Kim & Partners; No.25A 7 27A 1st Floor Jalan 52/1 Merdeka Square 46200 Petaling Jaya, Selangor Darul Ehsan Tel:03-79563868; Fax:03-79552617;
Nik Aliena Salwanee Binti Nik Mohamed; Messrs Azmi & Associates; 14th Floor Menara Keck Seng 203 Jalan Bukit Bintang 55100 Kuala Lumpur; Tel:03-21456161; Fax:03-21457171; Philomena Nesamalar a/p M.N. Paulian; Messrs Azariah & Associates; No.115, Jalan Chenderai, Lucky Garden, Bangsar, 59100 Kuala Lumpur; Tel:0320946862,20947426; Fax:03-20947528; Prem Malani Ramuni; Messrs Tee Bee Kim & Partners; No.25A 7 27A 1st Floor Jalan 52/1 Merdeka Square 46200 Petaling Jaya, Selangor Darul Ehsan; Tel:0379563868; Fax:063-79552617; Sharudin Bin Ismail; Messrs Hayati Rashid & Partners; No.11-2-22, 2 nd Floor, Jalan Opera Fu2/7, TTDI, 40150 Shah Alam, Selangor Darul Ehsan; Tel: 0378456998, 78457998; Fax: 03-78452998; Yap Pian Wei; Messrs S N Fam & Co.; No.8-1-2, Jalan Radin Anum, Bandar Baru Sri Petaling, 57000 Kuala Lumpur; Yow Oi Lin, Lainah Abdullah; Messrs Ting & Partners; D-03-A-09 Plaza Mont Kiara No.2 Jalan Kiara 50480 Kuala Lumpur; Tel:03-62034050; Fax:03-62034051;
Change Of Firm’s Name P Y Tng, David Leow & Company (Formerly P Y Tng & Soo) Sumitha & Associates (Formerly Subahan Sumita & Associates) Neo & Soo (Formerly Neo & Associates) R Punitha, Rose Marinah & Associates (Formerly R Punitha Associates) Nor Fairoz Ali & Co. (Formerly Baharuddin Ali & Co.) Ganesan & Associates (Formerly Shahrin Ganesan & Associates)
Firms: Change Of Address, Tel, Fax Number Branches Azam – Malek & Soh; 8 Lorong Maarof Bangsar Park, 59000 Kuala Lumpur; Tel:03-22823898; Fax:03-22825898 Madi Hasan & Partners; 11A First Floor Jalan Sulaiman 3, Taman Putra Sulaiman, 68000 Ampang, Selangor Darul Ehsan; Tel:03-42512341; Fax:03-42514341; Mah Teck Chong & Co.; No.11A ,Jalan Malinja 2, Taman Bunga Raya, 53100 Kuala Lumpur Tel:03-41089054; Fax no: 03-41072268; Email: [email protected]
Ting & Partners; D-03-A-09 Plaza Mont Kiara No.2 Jalan Kiara 50480 Kuala Lumpur; Tel:03-62034050; Fax:03-62034051; W E Balasingam; 4 Tingkat Ipoh Satu Ipoh Garden
OCT / NOV / DEC_2004
Abd Gani Che Man & Co.; No.42A , 1st Floor Jalan Kemuja, Off Jalan Bangsar, 59000 Kuala Lumpur; Tel: 03-22848688; Fax: 03-22829688; Dasuki Jamal & Eiza Othman; Lot No. FF37 Phase 1, Langkawi Fair Shopping Mall Jalan Persiaran Putra, Kuah, 07000 Kuah Langkawi, Kedah Darul Aman; Tel:049664008; Fax:04-9665008; Fisol Aziz & Mohd Noor; No.31, 2nd Floor Lorong Mayang Pasir 5 , Taman Sri Tunas, Bayan Baru, 11950 Penang; Tel:04-6461242 / 04-6461244; Fax:046461248; Email: [email protected]
Salman Apandi Mizi & Azmi; No.16-1 Lorong PJ 1/1 Taman Pauh Jaya, 13700, Perai Pulau Pinang; Tel:043974148; Fax: 04-3988148; Wan Nadhri Tan; 98-2-33A, Prima Tanjung Business Centre, Jalan Tette’s Tanjung Tokong, 11200 Penang;
LAWYERS UPDATE LAWYERS UPDATE
Members who have ceased practice Kuala Lumpur A/613 Azlina Aisyah Khalid 27.9.2004 C/409 Charon Wardini b Mokhzani 31.7.2004 C/776 Chua Kook Yeow 1.9.2004 C/1107 Chan Heng Si 23.7.2004 F/318 Fauziah bt Ahmad 1.9.2004 G/316 Gan Lay Ping Grace 8.4.2004 H/177 Huzaifah Zainuddin Jan 2004 H/270 Ho Kee Loang 31.10.2004 H/382 Harman Faiz b Habib Muhammad 1.10.2004 H/560 Hong Swee Hoon 5.7.2004 H/594 Harminder Kaur a/p Hardial Singh 1.9.2004 H/511 Halizah bt Abdul Ghani 16.6.2003 H/603 Hishammuddin b Ab Hamid 4.10.2004 I/172 Izralizam b Sanusi 17.5.2004 K/262 Khuan Wai Shir 7.3. 2003 K/327 Kung Chin Woon 1.11.2004 K/559 Kan Siew Li 30.7.2004 L/763 Leong Bik Yoke 23.9.2004 L/1072 David Lee Kim Meng 16.9.2004 L/1298 Lim May Fong 5.5.2002 L/1411 Lim Boon Yan 10.9.2004 L/1517 Leow Fong Peng 9.9.2004 L/1541 Lau Ai Wee 1.10.2004 M/423 Muhamad Faris b Othman 15.9.2004 M/1165 Mohd Kamarulzaman b Mohamed Nor 1.9.2004 M/1175 Mohd Rashad Khan b Sadar Khan 30.4.2004 N/204 Nor Aishah bt Abdul Halim 15.10.2004 Q/26 Quat Li Huang Helen 1.9.2004 R/695 Rohizwan b Ahmad 15.12.2003 S/1099 Sharizal Azmin b Jaafar 1.11.2004 S/1495 Shazree Idzham b Wahab Abdul Rahman 1.11.2004 S/1531 Siti Syaheera bt Yusof 1.11.2004
T/660 T/943 T/942 W/529 Y/470
Tan Gim Boon Tan Ai Chin Teng Lih Ling Woo Poi Yen Yap Yoke Har
2.10.2004 15.9.2004 1.5.2004 30.9.2004 23.9.2004
Selangor C/312 Chow Hau Mun C/941 Chang Mei Leng L/1398 Lau Wan Chuen L/1528 Lee Chui Peng M/308 Manmeet Kaur a/p Teja Singh O/186 Ooi Suan Suan S/1208 Vivian Seow Yuen Wai S/1505 Seow Choy Kuan
Early 2002 6.7.2004 15.4.2004 30.9.2004 15.9.2004 1.9.2004 16.11.2004 1.11.2004
Johor K/745 R/637 S/1171
Khong Chen Thin Riny bt Mohd Rais Sumita a/p Balachandran
1.11.2003 5.9.2002 16.9.2004
Penang L/771 L/1544 N/151 N/1086 R/749
Lau Chow Ong Lee Su Lin Ng Siew Lan Nor Azura bt Che Amat Ravi Chandran a/l Subash Chandran
1.1.2004 1.11.2004 1.10.2004 1.9.2003 31.7.2004
Ong Chong Ghee
Shahmi b Awang
New Firms Amarjiet & Associates; Suite 5.01, 5th Floor, Wisma AMGM, No. 57, Jalan Hang Lekiu, 50100 Kuala Lumpur; Tel: 20786600; Fax: 03-20787700; Belinda & Associates; Block F, Tingkat 3A, 9, Pelangi Damansara, Persiaran Surian, PJU 6, 47200 Petaling Jaya, Selangor; C Sankaran & Co.; 43-02, Susur Larkin Perdana 1, Jalan Persiaran, Larkin Perdana, Taman Larkin Perdana, 80350 Johor Bahru, Johor; Tel: 07- 2341261/2; Fax: 07- 2341263; Farah Deba & Associates; 27-10, the Boulevard Mid valley City, Lingkaran Syed Putra G T Khoo & Associates; 1st Floor No.202-204, Lebuh Carnarvon, 10100 Penang; K C Ooi & Associates; No.8 1st Floor Jalan Rengas, Taman Selatan, 41200 Klang, Selangor Darul Ehsan; Tel: 03- 33727477; Fax: 03-33728225; Kuala Lumpur; Tel/Fax: 03- 22876990;
Lydia Wee & Co.; No.36-1-2 Cheras Business Centre Jalan 1/101C Batu 5 Jalan Cheras 56100 Kuala Lumpur; Rafidah & Co.; 11-20, Wisma Zelan, No.1 Jalan Sri Permaisuri 2, Bandar Tun Razak , 56000 Kuala Lumpur; Tel:03-91739122; Fax:03-91710122; Salman Apandi Mizi & Azmi; No.16-1, Lorong PJ1/1, Taman Pauh Jaya , 13700 Perai, Pulau Pinang; Tel:04-3974148; Fax:04-3988148; Shahir & Associates; B-11-12 Block B ,11th Floor Unit 12, Megan Avenue II 12 Jalan Yap Kwan Seng, 50450 Kuala Lumpur; Tel: 03-27155119; Fax:03-27157119; Tam & Associates; 8A (1st Floor) Jalan Enau 15, Taman Teratai, 81110 Johor Bahru; Tel:06-954544/ 9547731 Fax: 06-9545446 Zulfadhli & Co.; No.37, Tingkat 1B, Jalan Ibrahim, 84000 Muar Johor Darul Takzim;
OCT / NOV / DEC_2004
OCT / NOV / DEC 2004
Impact of Terrorism and Anti-Terrorism Measures in Asia: Malaysia by Edmund Bon* This is a country paper1 aimed at providing a brief overview of the impact of terrorism and anti-terrorism measures in Malaysia.
obligatory character. It is therefore not part of our municipal law. This argument has been accepted by the courts6.
Human rights Malaysia is a member of the United Nations and has ratified the Charter of the United Nations, Malaysia has not ratified the other principal 1945. human rights instruments – the International Covenant on Civil and Political Rights, 1976 In principle, Malaysia has consistently affirmed (‘ICCPR’) and the International Covenant on to the world its commitment to the Universal Economic, Social and Cultural Rights, 1976 Declaration of Human Rights, 1948 (‘UDHR’). This (‘ICESCR’). It is not expected that Malaysia will was evidenced again through the adoption of the do so in the near future as the political approach Bangkok Declaration3 and the Vienna Declaration to these instruments by the Government is one of and Programme of Action4. resistance. In practice, however, the rights guaranteed under the UDHR are not enforceable in the courts. Similarly, the utility of the UDHR as an aid to the interpretation or to the enlargement of rights and fundamental liberties set out in the Malaysian Constitution have not been accepted 5. The Government continually takes the position that the UDHR is not a legally binding instrument but merely a statement of principles devoid of any
Malaysia acceded to the Convention on the Rights of the Child, 1990 (‘CRC’) on March 19, 1995 and ratified the Convention on the Elimination of All Forms of Discrimination Against Women, 1981 on August 4, 1995. Reservations to certain fundamental clauses have been lodged. There has as yet been no reported legal jurisprudence on the applicability and value of these conventions in terms of enforcement in Malaysia.
Advocate & Solicitor, High Court in Malaya. This paper was prepared for, and delivered at, the Asian Consultation on the Impact of Terrorism and Anti-Terrorism Measures in Asia by Asian Forum for Human Rights and Development (Forum Asia) on 19-20 November 2004, Bangkok, Thailand. It is by no means exhaustive but merely to provide a general framework to facilitate the consultation. Where necessary, the relevant source materials and base documents should be referred to. 2 For a comprehensive analysis, see Suara Rakyat Malaysia (SUARAM), Malaysia : Human Rights Report, 2003 and Human Rights Commission of Malaysia (SUHAKAM), Annual Report, 2003. 3 Adopted in June 1993 by the Regional Meeting for Asia of the World Conference on Human Rights held on March 29 – April 2, 1993. 4 Adopted in June 1993 by the World Conference on Human Rights held on June 14 – 25, 1993. 5 See for example Dato’ Param Cumaraswamy v MBF Capital Bhd & Anor  3 MLJ 824. 6 See for example Mohamad Ezam Bin Mohd Noor v Ketua Polis Negara & other appeals  4 MLJ 449 and Merdeka University Berhad v Government of Malaysia  2 MLJ 356. 1
Human Writes Issue 12 Oct / Nov / Dec 2004
other words, the use or threat of use of force is made for the purpose of advancing a political, religious or ideological cause. It is generally thought that any such methods would be dealt with as a general criminal offence, such as assault to the person, possession of firearms or complicity to murder.
By the Human Rights Commission of Malaysia Act, 1999, Malaysia established the Human Rights Commission of Malaysia (‘SUHAKAM’). Its functions shall be, among others, to promote awareness of and provide education in relation to human rights, to advise and make recommendations on human rights issues to the Government and to inquire into complaints of human rights infringements. It has no enforcement powers.
Save for one exception, there were no specific penal law provisions dealing with terrorism or terrorism-related offences pre-9/11. The The context and political environment in which exception was the offences under Chapter VI SUHAKAM was formed must be understood. The ‘Offences Against the State’ in sections 121 – Malaysian deputy Prime Minister, Datuk Seri 130A of the Penal Code. In a nutshell, the offences Anwar Ibrahim, was sacked in late-1998 giving cover the act of waging war against the Yang dibirth to the Reformasi movement. During his Pertuan Agong (ie, the King as the constitutional detention, he was assaulted by the nation’s high head of the Government of Malaysia). It is ranking police officer, the Inspector-General of generally thought that terrorism offences fall Police, sparking outrage locally and around the under this category as terrorism is waging war world. Mass processions and assemblies in against the State and, at times, considered support of Anwar were held and ruthlessly quelled treason. by the authorities. International condemnation mounted to pressure the Government to stop the The elements to be proved for the offence of rapid deterioration in human rights and to halt waging war are as follows: the continued abuses against the people. The Government saw the need to improve its image 1. the purpose or intention of the accused is to stage an insurrection or to directly challenge internationally and deflect such criticisms. It then the Government’s authority; moved the establishment of SUHAKAM hoping that this would appease the international 2. the insurrection or the challenge to the community7. Government’s authority is by the use of force and violence; and, Since its inception, SUHAKAM has actively carried out its mandate culminating in no less than 15 reports. All of its annual reports have been 3. the purpose of such an insurrection or challenge to the Government’s authority is to submitted to Parliament but have neither been accomplish an object of a general public tabled nor debated. The Government appears to nature. be reluctant to discuss the matters contained in the reports. No formal reason has been given why This offence was successfully proved in the recent time has not been allocated for these reports. prosecution of the Al-Ma’unah group for the Grik incident 8 where the accused persons were II Pre-9/11 existing measures convicted of contriving to obtain possession of an arsenal of weapons and, when called upon to Criminal law surrender it, used the rifles and ammunitions so Terrorism is a generic term which encapsulates obtained against Government troops. It was found the method of causing harm based on certain that the purpose of their struggle was to overthrow motivations or ideologies fuelling such actions. In the Government by the force of arms and to 7
An indication of this, though not necessarily decisive, is the fact that when SUHAKAM was set-up, it was placed under the purview and portfolio of the Ministry of Foreign Affairs. 8 See Public Prosecutor v Mohd Amin Bin Mohd Razali & Ors  5 MLJ 406. 2
Human Writes Issue 12 Oct / Nov / Dec 2004
restrain the King from reigning according to law. It was also found that they were guided by the purported ‘jihad’ cause which was to strive to set up an Islamic State based on the Holy Quran. The trial judge found that the Grik incident was an offence which amounted to an act of terrorism.
i.e. whether there were sufficient admissible facts which merited the order, whether there were grounds to substantiate the order and that the order was not made in bad faith. A challenge on procedural grounds is practically ineffectual as it has been common practice that upon release of the detainee by the courts on procedural grounds, the Government would then re-arrest the detainee under a fresh section 8 order.
These provisions have not been repealed and are still valid law. There has been no other case after the Grik incident where these provisions have been invoked. Preventive detention laws Malaysia has enacted a wide range of preventive detention laws which allow the Government to detain persons without ever bringing them to trial. One of these laws is the Internal Security Act, 1960 (‘ISA’). The main provisions with regards to preventive detention are sections 73 and 8 of the ISA.
Since late August 2001, the Government used the ISA to detain people they termed ‘terror suspects’9. As at August 2004, 75 detainees were purported Jemaah Islamiah (‘JI’) members and 12 detainees were purported Kumpulan Militan Malaysia (‘KMM’) members10. To date, numerous detentions have been extended further after the expiry of the initial 2 year detention period. Those who appear to have ‘repented’ or ‘rehabilitated’ have been conditionally released. They are placed under restricted residence orders11. 10 KMM detainees were conditionally released, at different times, in 200412.
Section 73 of the ISA allows the police to detain any person for up to 60 days without bringing them before the courts. Thereafter, the detainee may be, and under normal circumstances usually are, detained under section 8 by the Home Minister for a period not exceeding 2 years. This detention period may be, and often is, renewed any number of times, for a period not exceeding 2 years at any one time. There is no fetter to the renewals.
To date, no criminal prosecution has been brought against any person for terrorist activities or terrorism-related offences. The terror suspects detained under the ISA have not been formally charged in an open court nor afforded a trial. They still hold the moral high ground vis-à-vis the Government in respect of their detention.
Further section 8B of the ISA bars judicial review in any form, be it a writ of habeas corpus to free the detainee or any other application, suit or legal action challenging the Minister’s order made under section 8, save for procedural requirements. The courts are precluded from examining and looking into the substance of the Minister’s order, 9
10 Reformasi activists were also detained under the ISA in 2001 on the grounds that they were planning to overthrow the Government by militant and violent means. The Federal Court in Mohamad Ezam Bin Mohd Noor v Ketua Polis Negara & other appeals  4 MLJ 449 found that the grounds were baseless and made in bad faith. 10 For a comprehensive account of the use of the ISA in the ‘war on terror’, see Human Rights Watch, In the Name of Security: Counterterrorism and Human Rights Abuses under Malaysia’s Internal Security Act, May 2004 and Nicole Fritz & Martin Flaherty, Unjust Order: Malaysia’s Internal Security Act, 2003. 11 Terror suspects under the ISA are instructed to undergo regular rehabilitation programmes run by Government authorities at the detention centre. Those who refuse to do so will be reported as being un-cooperative thus justifying further detention. Rule 95 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, 1955 does not allow measures to be taken to re-educate or rehabilitate persons not convicted of any criminal offence. 12 1 was released in March, 2004, 5 were released in July, 2004 and 4 were released on November 11, 2004. 1 suspected JI member was also released on November 11, 2004. 3
Human Writes Issue 12 Oct / Nov / Dec 2004
Post-9/11 new measures
services, utilities, transportation or other essential infrastructure;
Criminal law – Penal Code and Criminal Procedure Code Malaysia has recently amended the Penal Code by enacting new terrorism and terrorism-related offences. The following definitions of a ‘terrorist’ and ‘terrorist act’ have been brought in to classify the offences and are as follows:
(h) is designed or intended to disrupt, or seriously interfere with, the provision of essential emergency services such as police, civil defence or medical services; (i)
involves prejudice to national security or public safety; or
involves any combination of any of the acts specified in paragraphs (a) to (i),
‘terrorist’ means any person who— (a) commits, or attempts to commit any terrorist act; or
where the act or threat is intended or may reasonably be regarded as being intended to—
(b) participates in or facilitates the commission of any terrorist act, … (2) For the purposes of this Chapter, ‘terrorist act’ means an act or threat of action within or beyond Malaysia that—
(aa) intimidate the public or a section of the public; or (bb) influence or compel the Government of Malaysia or the Government of any State in Malaysia, any other government, or any international organization to do or refrain from doing any act,
(a) involves serious bodily injury to a person; (b) involves serious damage to property; (c) endangers a person’s life;
and includes any act or omission constituting an offence under the Aviation Offences Act 1984 [Act 307].
(d) creates a serious risk to the health or the safety of the public or a section of the public;
The main complaint of civil society groups has been that the definitions are too broad. They elevate simple offences to crimes of terrorism based solely on the intent of committing such offences – to intimidate the public or to influence the Government or any international organization from doing or refraining from doing any act. The yardstick to gauge that intent – where the act or threat is intended or may reasonably be regarded as being intended to – is ambiguous and vague.
(e) involves the use of firearms, explosives or other lethal devices; (f) involves releasing into the environment or any part of the environment or distributing or exposing the public or any part of the public to— (i) any dangerous, hazardous, radioactive or harmful substance; (ii) any toxic chemical; or (iii) any microbial or other biological agent or toxin;
The broad definitions couched in generous terms may lead to a clampdown of legitimate political dissent in the name of terrorism. It is easy to see how vigorous public protests and demonstrations, non-violent and peaceful civil disobedience, trade union strikes, political activists and organizations who use direct action such as election campaigning to further their agendas would be
(g) is designed or intended to disrupt or seriously interfere with, any computer system or the provision of any services’ directly related to communications infrastructure, banking or financial 4
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vulnerable to prosecution under the new law13.
law in the Penal Code, the police and the Public Prosecutor are also given a wide array of There is also a new provision in the Penal Code investigatory powers including the power to which makes it an offence for anyone to directly intercept communications. These take effect or indirectly provide or make available financial under the recent amendments to the Criminal or legal services or facilities for the purpose of Procedure Code. These powers may be invoked committing or facilitating the commission of a on a low standard of proof and without sufficient terrorist act or for the purpose of benefiting any human rights content-based safeguards. Based person who is committing or facilitating the on these unchecked definitions, investigations commission of a terrorist act or knowing or having into alleged terrorist activities, defined broadly reasonable grounds to believe that, in whole or in would be carte blanche for civil liberty part, the services or facilities will be used by or infringements. will benefit any terrorist, terrorist entity or terrorist group. The penalty, if the terrorist act results in Criminal law – Anti Money Laundering death, is death. In any other case, it is punishable Act, 2001 with imprisonment for a term of not less than 7 Malaysia has enacted the Anti Money Laundering years but not exceeding 30 years and a fine. Act, 2001 (‘AMLA’) which came into force on January 15, 2002. The AMLA makes money By its definition, this new section affects lawyers laundering an offence and defines the offence and accountants. However, the structure of the broadly. A guilty intention to commit such offence offence is loose and imprecise. When does the may be imputed if it can be inferred from objective knowledge of benefiting any person to commit or factual circumstances that the person knew, or facilitate a terrorist act come into play - at the time had reason to believe, that the property in the lawyer or accountant was retained or at some question are proceeds from any unlawful activity subsequent time? Does the offence now make it or the person, without reasonable excuse, fails to obligatory for lawyers search out and uncover, at take reasonable steps to ascertain whether or not the outset, whether there are any reasonable the property in question was the proceeds from grounds for believing that the services provided any unlawful activity. will end up benefiting a terrorist? It further requires certain institutions to report Do lawyers who defend suspected terrorists, in or transactions that exceed a certain limit out of court, fall within the offence? It must be where they have reason to believe the transaction noted that there is no legislated ‘escape clause’ involves the proceeds of an ‘unlawful activity’. An for lawyers defending their clients in court from ‘unlawful activity’ is defined broadly as an activity being exempt from the offence. Does it mean that related directly or indirectly to a serious offence suspected terrorists ought not be defended in or a foreign serious offence. The said offences are court? If suspected terrorists are found guilty of listed in the schedule to the Act and includes the acts of terrorism, does it mean, if they were attempt or abetment of such offences. The defended, that their legal counsels are liable for schedule contains more than 100 serious offences an offence under this section? under various legislations. Terrorism-related offences such as sections 121, 121A, 121B, 121C, Lawyers have a duty to uphold justice without fear 125 and 125A of the Penal Code are included. or favour and without regard to their own interests. This new offence erodes this jurisprudence and A lawyer is now considered a ‘reporting institution’ in particular, lawyer-client professional privilege. and it is mandatory for lawyers to promptly report any suspicious transaction encountered in the In line with the advent of the new anti-terrorism course of preparing for, or carrying out, 13
The fact that suspected KMM and JI terror suspects are still detained under the ISA bear testimony to the argument that a blanket detention order issued by the Home Minister on ‘national security grounds’ would be sufficient to disguise the inability of the Government to prosecute them for any offences. 5
Human Writes Issue 12 Oct / Nov / Dec 2004
transactions involving the following range of activities: 1. the buying and selling of immovable property; 2. the managing of clients’ money, securities and other property; 3. the managing of accounts, including savings and securities accounts; 4. organizing contributions for the creation, operation or management of companies; 5. the creation, operation or management of legal entities or the arrangement for and buying and selling of business entities.
shall decide the question on the civil balance of probabilities standard, and not on the criminal standard of beyond reasonable doubt. 2.2 This is a dilution of the burden of proof in matters involving a penal sanction. 3.
3.1 It is mandatory to report suspicious transactions. Legal professional privilege between counsel and client is not a defence. The courts may compel the disclosure of certain privileged information.
Failure to report a suspicious transaction is an offence which carries a maximum fine of RM250,000.00.
3.2 The saving provision in the AMLA that information ‘for the purposes of any pending proceedings’ is privileged is not sufficiently defined. It is unclear as to when and to what extent the provision may be invoked. Would any undisposed transaction between the client and a lawyer be a pending proceeding?
The AMLA is regressive and draconian because it dilutes, and in certain matters removes, fundamental human rights precepts. It undermines constitutional guarantees and the principles of a fair trial, thereby increasing the risk of unsafe convictions, as follows: 1.
The right to silence 4. 1.1 There is no longer the right to remain silent when investigated or examined by the authorities. Every person is legally bound to answer all questions. All answers shall be admissible as evidence in any proceeding notwithstanding any written law or rule of law to the contrary.
Secrecy 4.1 Reporting institutions and in particular, lawyers, are now under the onerous duty to scrutinize and examine, with a finetooth comb, the transactions they undertake on behalf of their clients. They would need to make further enquiries than were previously necessary. This will in the long-term ultimately lead to a climate of mutual distrust between lawyers and their clients.
1.2 The failure of any person arrested to state any fact on which he intends to rely on his defence at his trial may result in inferences drawn which may then be treated as corroboration of any evidence against him. This amounts to the drawing of adverse inferences from the silence of the accused. 2.
Legal professional privilege
4.2 Lawyers will have to make commercial and moral decisions as to whether or not to report a transaction. The uncertainty as to whether the transaction is a suspicious transaction may lead to overreporting or under-reporting. Either way, the costs of providing legal services will rise and continue to be a burden to the ordinary layperson.
The burden of proof 2.1 On a question of fact pertaining to all matters such as the seizure or forfeiture of property but save for a criminal prosecution under the AMLA, the courts 6
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The amendments to include anti-terrorism financing provisions into the AMLA (such as to extend the power to freeze, seize and forfeit the property of persons deemed terrorists or terrorist groups and other ancillary powers to dispose of property used in the commission of terrorism financing offences) are not in force yet, but the provisions operate on similar lines as those highlighted above. The same complaint about the 2. broad definitions of who is a terrorist and what is a terrorist act, as discussed above, are relevant here. To date, there has been only one prosecution for money laundering under the AMLA but it appears that it was not terrorism-related laundering. The prosecution is still pending in court14.
IV Specific legal case studies The Government has taken the approach of detaining terror suspects in Malaysia under the ISA, and of not prosecuting them. As part of the campaign strategy against the ISA in Malaysia15, civil society groups such as Suara Rakyat Malaysia (‘SUARAM’) and the Abolish ISA Movement (‘AIM’)16 have mobilized grassroot and family 3. support to lead legal test cases to challenge these detentions. Some of the cases are as follows17: 1.
Nasharuddin bin Nasir v Kerajaan Malaysia & Ors  6 MLJ 65 Nasharuddin was detained for being a purported JI member. He filed an application for habeas corpus which was allowed by the High Court on the main point that the grounds to detain him were not properly considered. Before he was physically released to his family, he was served with a fresh detention order under section 8 and re- 4.
arrested. He is still serving his detention. The Federal Court subsequently overturned the High Court decision on the purely technical ground that the High Court had no jurisdiction to make such an order in view of section 8B which ousts the jurisdiction of the courts save as to procedural matters. Sejahratul Dursina @ Chomel binti Mohamad v Kerajaan Malaysia  4 AMR 66 Chomel is the wife of Yazid Sufaat18, himself an ISA detainee and purportedly a JI member. She was detained by the police under section 73 and was the first woman detained under the ISA on terror charges. Her application for habeas corpus was filed and heard. Just hours before the High Court was to deliver the decision, Chomel was released on a restricted residence order under the ISA. Arguably, this was to render her habeas corpus application academic. The High Court was requested to still deliver its decision. The court dismissed the application and her appeal is pending in the Federal Court. Ahmad Yani bin Ismail & Anor v Ketua Polis Negara & 2 ors  5 AMR 571 Both applicants were detained for being purported JI members. Their applications for habeas corpus were filed and challenged on substantive constitutional grounds. The main argument was that the grounds of detention did not state and do not show any future threat to the security of Malaysia, an element which was required under the ISA. It was hoped that, should this argument prevail, it would apply to all terror suspects held under the ISA. This argument was rejected. Their appeals are pending in the Federal Court. Abdul Razak bin Baharudin & 7 Ors v Ketua
It is an opportunity to test the constitutionality of certain provisions of the AMLA. International humanitarian organizations such as Amnesty International and Human Rights Watch have supported the lobby against the ISA and taken the issue as part of their international agendas. 16 A coalition of 83 NGOs and civil society groups. 17 There are other cases involving ISA detainees as litigants which deal with other fundamental issues liberties such as the right to vote, the right to free speech and expression, prison conditions and treatment of detainees. 18 He is alleged to have provided his apartment as the meeting place for the perpetrators of the subsequent 9/11 attack. 15
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Polis Negara & 2 Ors [High Court Application No. 44-66-2003]
release from police detention. In their affidavits, both students strenuously denied any involvement with JI and AQ and challenged the police and Government to adduce evidence in open court to substantiate their allegations. The hearing of the applications were fixed for December 11, 2003.
8 ISA detainees filed their applications for habeas corpus. They were detained for being purported JI members. Aside from the arguments taken in Ahmad Yani, the other main argument put forth was the fact that the grounds for detention by the Home Minister were only made after the detention orders were signed. It was argued this clearly showed that the Home Minister did not apply his mind properly before signing the detention orders because the detention orders had to be made on the basis of the grounds for detention, and not before the said grounds existed. The High Court dismissed the applications and their appeals are pending in the Federal Court19. 5.
On December 8, 2003, 3 days before the hearing, the Home Minister issued detention orders pursuant to section 8 against Muhammad Radzi Bin Abdul Razak, Mohd Akil Bin Abdul Raof and 3 other students directing that they be held for 2 years from December 9, 2003 at the Taiping Detention Centre, Kamunting. As a result of the Home Minister’s orders, the habeas corpus applications had been overtaken by events and been rendered academic. The hearing of the applications could not proceed and on December 11, 2003, the applications were withdrawn. Arguably, the issuance of the section 8 orders was a step taken to subvert the applications and to avoid judicial scrutiny of the police detentions.
Muhammad Radzi bin Abdul Razak v Ketua Polis Negara & 2 Ors [High Court Application No. 44-102-2003] and Mohd Akil Bin Abdul Raof v Ketua Polis Negara & 2 Ors [High Court Application No. 44-103-2003] On September 20, 2003, 13 students from Malaysia studying in Karachi, Pakistan were detained for alleged links with JI and for training at Al-Qaeda (‘AQ’) camps. They were then interrogated by authorities from Pakistan and the USA. They were deported to Malaysia and, immediately on arrival, on November 10, 2003, they were detained by the police pursuant to section 7320.
The 5 students have to date not been sent to Taiping Detention Centre, Kamunting and the whereabouts of their detention are unknown21. 6.
On December 5, 2003, 2 of the students namely Muhammad Radzi Bin Abdul Razak and Mohd Akil Bin Abdul Raof filed their habeas corpus applications seeking their
Nik Adli bin Nik Abdul Aziz & 12 Ors v Ketua Polis Negara & 3 Ors [High Court Application No. 44-41-2004] The 13 applicants were purported to be KMM members. Their detentions were extended
Interestingly, after the appeals were filed in the Federal Court, Abdul Razak bin Baharudin instructed the withdrawal of his appeal. No reasons were given. He was one of the four subsequently released on November 11, 2004 and placed under restricted residence. He is to date one of only two suspected JI members released from section 8 ISA detention, the other being Mohamad Iqbal bin A Rahman. 20 Three of the students were below the age of 18 years and thus, protected by the provisions of the CRC which bars arbitrary detention without trial. The ISA was nevertheless used to detain them, whilst the provisions of the Child Act, 2001 relating to detention pending investigations, and enacted by Malaysia in line with the principles of the CRC, were ignored. 21 In Opinion No. 10/2004 adopted on May 28, 2004, the United Nations Working Group on Arbitrary Detention, after having given the Government of Malaysia an opportunity to respond and contest the complaint, but which the Government did not do, came to the opinion that the continued detention of the 5 students was arbitrary. This has been communicated to the Government. 8
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after the initial detention period of 2 years lapsed. The main grounds for their challenge was that the Home Minister mechanically extended their detentions without properly considering the facts and allegations based on the evidence presented by the Government before the High Court. The High Court dismissed their applications on September 1, 2004 and their appeals are pending before the Federal Court. 7.
deported that morning and therefore the application was academic. When asked by the court as to the Government’s position with regards to the declaration and deportation order, the Government conceded that the same were defective and invalid. The High Court proceeded to rule that the detention of Iqbal had been unlawful but, because Iqbal had already been deported, the application was academic.
Mohamad Iqbal bin A Rahman v Ketua Pengarah Imigresen & Anor [High Court 8. Application No. 44-90-2003] Iqbal was a popular Indonesian Islamic preacher who had permanent resident status in Malaysia. He was detained under section 8 for 2 years from August 22, 2001 for being a purported JI member. He was due to be released on August 22, 2003. On August 18, 2003, he was declared a prohibited immigrant and an undesirable person by the Immigration Department and Government of Malaysia. Based on this, he was ordered to be deported from Malaysia back to Indonesia. Pending the deportation, he was detained by the Immigration authorities.
Mohamad Iqbal bin A Rahman & Anor v Ketua Pengarah Imigresen & 2 Ors [High Court Judicial Review Application No. R2-25179-2003] Iqbal directly challenged the declaration made that he was a prohibited immigrant and an undesirable person. The High Court granted leave to proceed with the substantive application for judicial review and directed written submissions to be filed. Iqbal’s lawyers filed their written submissions but the Government did not. Instead, and after Iqbal was deported on May 14, 2004, the Government requested an appointment with the court. The Government asked that the case be dismissed as there was no longer any live issue before the court in view of Iqbal’s deportation. Any judgment in the case was academic. Iqbal’s lawyers maintained that the case was not academic and any judgment of the court would be relevant and applicable. This was strenuously argued by way of oral and written submissions.
On February 9, 2004, he filed a habeas corpus application for his release. The application was heard on May 7, 2004 after several postponements. Iqbal’s lawyers commenced arguments showing how and why the declaration made was wrong in law; and further, that the deportation order and detention of Iqbal were not valid. The Government requested a postponement for a new hearing date in order to mount a reply. Further hearing was fixed on May 14, 2004 at 2.45pm.
The High Court accepted the Government’s submissions and dismissed the case with no order as to costs. Iqbal’s appeal is pending in the Court of Appeal.
On the morning of May 14, 2004, just hours before the scheduled hearing, Iqbal was deported. He was not served any fresh deportation order. This was done without the knowledge of Iqbal’s lawyers. When the case was called at 2.45pm, the Government informed the High Court that Iqbal had been
V Advocacy campaign The advocacy campaign in Malaysia is equally important. AIM has engaged with the Government, SUHAKAM and the people on issues relating to the ISA including, among others: 9
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Mobilizing, educating and empowering family members of ISA detainees to articulate their issues and fight their causes both through the courts and extra-judicially.
Providing humanitarian support to the families of ISA detainees.
Leading delegations to SUHAKAM to raise issues and lodge complaints of abuses by the police and Government under the ISA.
Leading a delegation to the Special Commission to Enhance the Operations and Management of the Royal Malaysia Police Force to present a memorandum on the torture of ISA detainees by the police during the section 73 detentions.
Leading delegations to the Internal Security Ministry to engage the Government on ISArelated issues and the detainees.
Strategizing and working with the media to publicize and release ISA-related news and stories, as well as to highlight the plight of the ISA detainees and their families.
Educating the public and creating awareness of issues relating to the ISA by organizing public events and programmes.
Networking and linking with international organizations and lobby groups such as Human Rights Watch, Amnesty International, International Commission of Jurists and the United Nations to raise awareness of ISArelated issues worldwide and to lobby international pressure on the Government.
AIM’s persistent campaigning and strategies has been met with some achievements such as the release of numerous ISA detainees and in increased public awareness and articulation of ISA-related issues. The result of AIM’s constant pressure is also borne out in SUHAKAM’s recommendation in its comprehensive report22
that the ISA should be repealed on the basis that it violates fundamental human rights.
VI Impact on civil society The new anti-terrorism measures introduce further layers to an already repressive regime in Malaysia without concomitant civil and political rights protections ascribed to the people of Malaysia as set forth in the International Bill of Rights23. The climate of fear that has prevailed in Malaysia by the existence and the use of laws such as the ISA continue to dominate the minds and grip the lives of the people. The emphasis on terrorism and national security as one of the focal points of the Government’s recent election campaign through the media, which it controls, perpetuates this culture of fear among the people. It was said that a vote for the Government is a vote for security24. Within this environment, the ruling coalition is returned to power with ease. This was evident in the last general elections where it won by an overwhelming 90% majority in Parliament. The Government then represents that its policies and laws such as the ISA is a blueprint for the world. It is able to quell public opinion on a widerange of issues by a combination of media control, institutionalized culture of fear and the apparent legitimacy given it by the people. New antiterrorism measures are not challenged by the people but accepted, quite wrongly, in the name of national security. The desire to have security is manipulated by the Government to give a false sense of security. The scope of public debate is further restricted by the lack of true democratic space and of a flow of critical information. It has been evaluated that human rights has now been ‘pushed to the brink’ and any advancement or gains over the many years have been reversed25. This is true especially on the issue of counterterrorism measures. The challenge today for human rights advocates is to move away from
Review of the Internal Security Act, 1960, 2003. Consisting of the UDHR, ICCPR and ICESCR. 24 This simplistic and misleading slogan was used with resounding success in the George Bush campaign at the recent US Presidential elections. 25 See Forum Asia, Human Rights in Asia: Pushed to the Brink, Annual Human Rights Report, 2003. 23
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failure to advance the human rights story progressively.
traditional methods of advocacy and to articulate our causes from a different perspective. It does not mean we compromise our positions or principles. It means we can no longer act or react as we have so comfortably done in the past.
Once we accept this, the question left to be answered is how human rights advocates are able to successfully ensure rights-based safeguards are supplanted to check and balance counterterrorism measures. Both safeguards and laws are now part of the human rights agenda of providing protection mechanisms rather than being pitched27 in conflict with each other.
The first step is to view anti-terrorism measures not as a complete affront to human rights norms but rather as part of the human rights agenda of protection. The emphasis of human rights protection has merely shifted. Once we accept that there may be new measures which have to be put in place to enhance the protection of the rights of potential victims of terrorist activities, we will be able to articulate human rights safeguards in a more effective way with counter-terrorism agencies and governments26. A failure to recognize this is a
When this view is taken as a starting point, it is anticipated that engagement with counterterrorism agencies and governments will be taken to a higher level and our advocacy would result in more meaningful results.
This is not to say that all new counter-terrorism measures are unobjectionable in toto. There are certain measures which are unnecessary as resort may be had to existing laws and policies. There are also some measures which can never be accepted on principle. 27 Governments tend to misleadingly allege that we can only have security or rights and not both.
UK Probe into death of Iraqi civilian in British military custody Tue, 14 Dec 2004 LONDON - The British government should hold an inquiry into the case of an Iraqi civilian who was allegedly beaten to death by British troops, a court ruled Tuesday.
But Britain’s High Court gave the green light for an independent inquiry. It said the investigation by the British military police into Mousa’s death was not ‘timely, open or effective.’ ‘It’s a historic day for human rights and the rule of law, and we are very pleased,’ said Phil Shiner, a lawyer for the family.
Baha Mousa, a father of two who Baha Mousa worked as a receptionist in a hotel in Basra, was arrested in September 2003 during a raid by British soldiers. He was taken to a military base. It’s alleged he was beaten to death while in custody.
The court rejected applications from the families of five other Iraqis allegedly killed by British soldiers. The judges ruled that those deaths did not occur while the Iraqis were in British custody.
Lawyers for the family argued that because Mousa died while being detained by the British Army, the European Human Right Convention applies to his case and an independent inquiry is needed to determine whether he was unlawfully killed.
The Ministry of Defence is considering whether to appeal the court’s decision. Written by CBC News Online staff [NB: This story is highlighted to underscore the Bar Council’s stand – in relation to the Tak Bai incident – that any death, howsoever caused, occurring while the person is in the enforced custody of any governing authority must be the responsibility of the authority concerned. - Ed.]
Government lawyers argued that British troops serving in Iraq weren’t subject to human rights laws because they were outside European jurisdiction. Allegations of mistreatment by British forces are investigated by the military, officials say.
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Unprecedented Amicus Brief filed in Guantánamo Bay detention cases In January 2004 counsel for 175 Members of the Houses of the UK Parliament filed a brief in an American Court, seeking to obtain due process for prisoners detained in Guantánamo Bay, Cuba, a territory within the US’s sphere of influence, albeit not sovereign US land or territory. The Supreme Court of the United States apparently permits any person to submit a Written Brief on any matter before the Court. This Brief was submitted by British Parliamentarians. What is of significance is that it includes one former Lord Chancellor, (Lord Mackay), 4 retired law lords (Lord Browne-Wilkinson, Lord Goff, Lord Lloyd and Lord Mustill) and 1 former Master of the Rolls (Lord Donaldson). The principal authors of the brief were two of England’s leading public law silks: Anthony Lester QC and David Pannick QC. The brief can be viewed at: h t t p : / / w w w. l a w ye r s a g a i n s t t h ew a r. o r g / legalaction/pcamicusbrief.pdf or at http://www.law.uc.edu/archives/butlerdata/ liberty/gitmo/175members.pdf. (There are slight, inconsequential, variations in the two versions of the brief which we viewed. For the sake of accuracy, those paragraphs are underlined in this presentation.) While the Parliamentarians arguably presented the brief on the grounds that British nationals and residents were among those detained by the US authorities, they argued that all detainees had the inherent right to due process, a feature argued for, by the Americans, over British objections, at the end of the Second World War. This is the first time members of the UK Parliament have filed an amicus brief with the US Supreme Court. The Parliamentarians make no assertions as to the truth or otherwise of the allegations of the US government, or the counterallegations of the detainees. Rather, the brief explores the US judiciary’s constitutional duty to accept jurisdiction of the cases and to safeguard fundamental due process rights of all detainees.
The cases before the Supreme Court, Rasul, et al., v Bush, and Al Odah, et al, v United States (Docket Nos. 03-334, 03-343). are on appeal from the DC Circuit Court of Appeal, which held, inter alia, that the US domestic courts have no jurisdiction over foreign nationals detained in Guantánamo and thus declined to adjudicate their claims. As a result of this and numerous other briefs filed in these actions, the US Supreme Court held , inter alia, that the United States courts do have the jurisdiction to consider challenges to the legality of the detention of foreign nationals, captured abroad in connection with hostilities, and incarcerated at Guantanamo Bay, Cuba. This report was possible only as a result of the resources available, inter alia, from the website of the Legal Information Institute of the Cornell Law School. The head-note or syllabus of the opinion (as the decisions are called) can be viewed at http://supct.law.cornell.edu/supct/ html/03-334.ZS.html. The full decision of the majority, delivered by Stevens J, and in which O’Connor, Souter, Ginsburg, and Breyer JJ joined can viewed at: http://supct.law.cornell.edu/supct/html/03334.ZO.html A concurring opinion by Kennedy J can be viewed at: http:// supct.law.cornell.edu/supct/html/03-334.ZC.html A dissenting opinion, by Scalia J, in which Rehnquist CJ, and Thomas J, joined, can be viewed at: http://supct.law.cornell.edu/supct/html/03-334.ZD.html
For the full effect of this decision, it must be contrasted with the opinion in Hamidi v Rumsfeld et al (03-6696) which can be viewed at http:// s u p c t . l aw . c o r n e l l . e d u / s u p c t / h t m l / 0 3 6696.ZS.html See also the recent decision of the House of Lords the Belmarsh prison (‘Britain’s Guantanamo Bay’) case where Lord Nicholls said “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law”. The full decision can be viewed at: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/ 16_12_04_detainees.pdf 12
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Nos. 03-343, 03-334
Supreme Court of the United States Shafiq RASUL, et al., Petitioners, v George W BUSH, et al., Respondents Fawzi Khalid Abdullah Fahad AL ODAH, et al., Petitioners, v UNITED STATES OF AMERICA, et al., Respondents On Writs of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Brief of 175 Members of Both Houses of the Parliament of the United Kingdom of Great Britain and Northern Ireland * as Amici Curiae in Support of Petitioners
Members of the House of Lords: Lord Ahmed, Lord Alderdice, Lord Alexander of Weedon QC, Lord Alli, Lord Archer of Sandwell QC, Lord Avebury, Lord Berkeley, Lord Bhatia, Lord Bowness, Lord Brennan QC, Lord Brittan of Spennithorne QC, Lord Brooke of Sutton Lord Lester of Herne Mandeville, Lord Browne Wilkinson, Lord Campbell of Alloway QC, Lord Donaldson of Hill QC David Pannick QC Blackstone Lymington, Lord Dubs, Lord Elton, Viscount of Chambers Blackstone Falkland, Lord Faulkner of Worcester, Lord House Temple London Freyberg, Lord Goff of Chieveley, Lord Goodhart EC4Z 9BW 44-20QC, Lord Grabiner QC, Lord Greaves, Lord Grenfell, Lord Hannay of Chiswick, Lord Haskins, Baroness Peter Carter QC 18 7583-1770 Red Lion Court Hayman, Lord Holme of Cheltenham, Earl of Home, London EC4A 3EB 44Lord Hylton, Baroness Jay of Paddington, Lord 20-7520-6000 Joffe, Lord Judd, Baroness Kennedy of the Shaws QC, Lord Lloyd of Berwick, Baroness Ludford, Lord Attorneys for 175 Members of both Houses of the Mackay of Drumadoon, Lord Maclellan of Rogart, Parliament of the United Kingdom of Great Britain Baroness Maddock, Lord Methuen, Baroness Miller of Chilthorne Domer, Lord Morgan, Lord and Northern Ireland Mustill, Baroness Northover, Lord Ouseley, Lord January 14, 2004A Bishop of Oxford, Lord Phillips of Sudbury, Lord *Amici Curiae listed on the Reverse Plant of Highfield, Lord Puttnam, Lord Razzall, Lord Rea, Lord Redesdale, Baroness Rendell of Babergh, Lord Renton QC, Baroness Richardson of Calow, Lord Roper, Lady Saltoun of Abernethy, Earl of Sandwich, Baroness Sharp of Guildford, Lord Sheldon, Lord Shutt of Greetland, Lord Skidelsky, Lord Steel of Aikwood, Lord Stoddart Edwin S Matthews, Jr Counsel of Record Edward H Tillinghast, III Damion K L Stodola Andrea G Lauletta * Rachel Wrightson* Coudert Brothers LLP 1114 Avenue of the Americas New York, New York 10036 212626-4400
Jeremy Carver, CBE Clifford Chance LLP 10 Upper Bank Street London E14 5JJ 44-207006-1000
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Doughty, Julia Drown, Angela Eagle, Huw Edwards, Annabelle Ewing, Mark Fisher, Edward Garnier QC, Roger Godsiff, John Gummer, Mike Hancock, Evan Harris, Dai Havard, David Heath, David Heyes, Paul Holmes, Simon Hughes, Eric Illsley, Helen Jackson, Paul Keetch, David Kidney, Peter Kilfoyle, Jim Knight, Norman Lamb, Anthony Lloyd, Ian Lucas, Calum MacDonald, Judy Mallaber, Rob Marris, Robert Marshall- Andrews, Ann McKechin, Kevin Members of the House of Commons: James Arbuthnot, John Austin, Vera Baird QC, McNamara, Michael Moore, Julie Morgan, Diana Harry Barnes, John Barrett, Anne Begg, Roger Organ, Joan Ruddock, Bob Russell, Mohammed Berry, Harold Best, Crispin Blunt, Peter Bottomley, Sarwar, Malcolm Savidge, Brian Sedgemore, Virginia Bottomley, Tom Brake, Kevin Brennan, Jonathan Shaw, Richard Shepherd, Clare Short, Annette Brooke, Malcolm Bruce, Richard Burden, Siôn Simon, Alan Simpson, Chris Smith, Llewellyn Patsy Calton, Anne Campbell, Sir Menzies Smith, Paul Stinchcombe, Andrew Stunell, Sir Campbell QC, Martin Caton, Ian Cawsey, David Teddy Taylor, Simon Thomas, John Thurso, Jenny Chidgey, Ann Clywd, Harry Cohen, Robin Cook, Tonge, Jon Trickett, Paul Tyler, Brian White, Betty Jeremy Corbyn, Jean Corston, Brian Cotter, Tom Williams, Hywel Williams, Phil Willis, Tony Cox, Ross Cranston QC, Edward Davey, Terry Davis, Worthington, Shaun Woodward, Derek Wyatt, and Janet Dean, Andrew Dismore, Jim Dobbin, Sue Richard Younger-Ross of Swindon, Lord Taverne QC, Lord Thomas of Gresford QC, Baroness Thomas of Walliswood, Lord Tope, Baroness Uddin, Lord Wallace of Saltaire, Baroness Walmsley, Baroness Whitaker, Baroness Wilkins, Baroness Williams of Crosby, Lord Bishop of Winchester, Lord Bishop of Worcester, and Lord Wright of Richmond
INTEREST OF AMICI CURIAE 1 Each of the amici curiae is a serving member of one of the two Houses of Parliament of the United Kingdom of Great Britain and Northern Ireland: the House of Commons and the House of Lords. 2 Each regards the question before the Court 3 as an issue of fundamental importance to the individual rights not only of British nationals, residents, and refugees, but of all detainees in Guantánamo.
proceedings. Amici submit only that, under the rule of law, the detainees should be granted the due process safeguard of independent judicial review, and do not speculate as to the outcome of any such proceedings. As members of the Parliament of Westminster, amici have a duty to protect human rights and fundamental freedoms against the misuse of public power. They have a significant, legitimate interest in seeking to ensure that their fellow citizens and others be accorded the due process of law deeply rooted in AngloAmerican legal and political heritage. 4
Amici assert neither the guilt nor innocence of those detained at Guantánamo Bay, and do not ask this Court to rule one way or another on any Amici recognize the concern expressed in Rule claim or charge that may be raised in future 37(1) that unnecessary amicus curiae briefs are 1
Letters of consent have been filed with the Clerk. Pursuant to Rule 37.6, amici state that no counsel for any party authored this brief in whole or in part, nor did any party to the action before the Court, or any person or entity other than the undersigned amici, make a monetary contribution to the preparation or submission of this brief. 2 All amici participate in this brief as parliamentarians, and not as former cabinet members, senior judges, serving bishops, or any other capacity they may occupy or have occupied. 3 FN3. The question presented before the Court is: whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Bay Naval Base, Cuba. 4 Amici do not believe it is appropriate for them to opine on the measures taken or not taken by the executive branch of the United States government. They acknowledge the constitutional authority generally of the executive branch to issue executive orders — a power similar to that of the British government to act under the Royal Prerogative. The Houses of Parliament scrutinize the manner in which the government exercises such powers, and Britain’s courts review the lawfulness of government conduct under an increasing variety of circumstances, even when that conduct takes place under prerogative powers. 14
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a burden. Upon belief, this is the first time members of the Parliament of Westminster have submitted a brief to this Court. This brief reflects the profound concern they share for the central question before the Court. 5
public record. If complete and compelling information about the detainees is not available and before this Court, it is because the U S administration and military have kept this information secret for the past two years and excluded all detainees from the benefit of due process. 7
Their concern is not limited to the twelve individuals entitled to the international protection of the United Kingdom or to the nationals of other states detained without recourse to even the most basic legal rights. The exercise of executive power without possibility of judicial review jeopardizes the keystone of our existence as nations — namely, the rule of law — as well as the effective protection of human rights as a matter of international obligation. Accordingly, amici curiae submit this brief in support of the petitioners Shafiq Rasul, et al., and Fawzi Khalid Abdullah Fahad Al-0dah, et al.
In early January 2002, U S Armed Forces began transferring individuals held as prisoners overseas to the U S naval base at Guantánamo Bay, an area within the complete control and jurisdiction of the United States. 8 It is reported that approximately 660 prisoners from 42 countries are being held at Guantámamo. 9 Throughout this time, they have not been charged, have not been allowed to challenge their confinement, have not been permitted to consult with legal counsel of their choice and, most importantly, have not been able to have the legality of their detention reviewed by any impartial tribunal.
CIRCUMSTANCES OF UNITED KINGDOM NATIONALS DETAINED IN GUANTÁNAMO
The British Detainees 10 The U S military is believed to hold the following ten British nationals, one British resident and one British refugee among the prisoners at Guantánamo.
The Factual Context Amici submit the following facts to this Court to underscore the need for independent judicial examination of the factual and legal bases justifying the indefinite confinement, without trial, of the detainees in Guantánamo.6 These untested Shafiq Rasul, Asif Iqbal, and Rhuhel Ahmed facts are the only facts that have reached the Of the 12 British detainees, two, Shafiq Rasul and
Members of Parliament have repeatedly articulated these sentiments to Her Majesty’s Government, which has committed diplomatic effort and resources to protect the due process rights of the detainees. Prime Minister Tony Blair assured the House of Commons that”[w]e will make active representations to the United States … to make absolutely sure that any such trial will take place in accordance with proper international law.” 408 PARL. DEB., H C (6th ser.) (2003) 1151-51. Minister of State, Foreign and Commonwealth Office, Baroness Symons of Vernham Dean, assured the House of Lords that it is the Government’s objective to “ensure that if any British nationals are detained in Guantánamo Bay and prosecuted, a fair trial takes place in accordance with generally recognized principles.” 653 PARL. DEB. H L (5th ser.) (2003) 938. Members of Parliament have employed every potential avenue to voice concern for the British detainees and turn now to this Court as an alternative, independent route to ensure that due process is provided. 6 On this Court’s consideration of facts and opinions, see, e.g., Atkins v Virginia, 536 U S 304, 316 n.19-21 (2002) (acknowledging websites, newspaper articles, and polling data); Groppi v Wisconsin, 400 U S 505, 510-12 (1971) (finding error in trial court’s failure to take requested judicial notice of prejudicial pretrial publicity in misdemeanor case); Muller v Oregon, 208 U S 412, 419-20 (1908) (recognizing Brandeis Brief on nonjudicial sources of opinion). 7 The British detainees are fortunate to come from a country which, like the United States, is committed to openness. Amici note that we may never know even the identity of those detainees who are nationals of less democratic societies. 8 Agreement between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U S -Cuba, art. III, T.S. No. 418. 9 See, e.g., Mark Bowden, The Persuaders, Observer (London), Oct. 19, 2003, available at LEXIS, News Library, OBSRVR File; David Rohde, Threats and Responses: The Detainees, N. Y. Times, Oct. 29, 2002, available at LEXIS, News Library, NYT File. 10 Note that, for simplicity’s sake, amici refer to the following prisoners as British based on their ties to the United Kingdom and regardless of whether they are technically British citizens or residents. 15
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Asif Iqbal, are petitioners in Rasul v Bush, No. 03-343. Together with Rhuhel Ahmed, they share common circumstances: all deny ever being in Afghanistan as combatants. British media sources suggest that they were seized in Pakistan in December 2001 and turned over to U S forces at Shebergan, northern Afghanistan, by Northern Alliance fighters seeking rewards from U S authorities, 11 The three are friends from Tipton, in the West Midlands in England.
2002, his family learned he was being held in Guantánamo Bay. 16
Shafiq Rasul was 24 in 2001, and was another of Iqbal and Ahmed’s friends from Tipton. 17 Rasul had briefly studied law, 18 and was thinking of going to Pakistan to visit relatives, learn Punjabi, and benefit from a computer course there that was less costly than in England. 19 In midSeptember 2001, Rasul went to Lahore, Pakistan. 20 He contacted his family in October 2001 but Asif Iqbal was 20 years old in 2001. Both of Iqbal’s was not heard from again. parents are of Pakistani heritage—his father moved to England 41 years ago and his mother Jamal Udeen 25 years ago. His parents traveled to Pakistan in Jamal Udeen is a 35 year old web designer from July 2001 to find a bride for him. Iqbal first Manchester, England, and the son of Jamaican traveled to Pakistan in September 2001 to join parents. 21 He was away from home only three his father in his family’s home town near Karachi. weeks when U S forces came across him in a 12 In early October, after arranging the marriage, prison in Kandahar, Afghanistan. 22 Iqbal told his father that he was traveling to Karachi to meet friends and would return in a Udeen told reporters in December 2001 that he week. 13 The last time Iqbal spoke with his family, was passing through Afghanistan on his way to he telephoned his father from Karachi to inform Iran but was detained near the Afghan border by Taliban soldiers who saw his British passport and him of his safe arrival. 14 accused him of being a spy. 23 He was taken to Rhuhel Ahmed, who was 20 at the time of his Kandahar Central Prison and tortured by Taliban capture, was a friend of Iqbal at Alexandra High forces. 24 The British Foreign and Commonwealth School in Tipton. 15 In early October 2001, Ahmed Office informed Udeen’s sister that he would traveled to Pakistan to help with Iqbal’s wedding. return to England once his passport was located. Three and a half months later, on January 26, 25 His family discovered, through media reports, 11
Tania Branigan & Vikram Dodd, The Bitterest Betrayal, Guardian, July 19, 2003, available at LEXIS, News Library, GUARDN File. There is no doubt that the United States offered “substantial monetary rewards” for “bad folks” captured in Afghanistan at this time—Secretary of State Donald H. Rumsfeld stated that leaflets announcing the rewards were “dropping like snowflakes ... in December in Chicago.” Donald H. Rumsfeld, News Briefing, (Nov. 19, 2001), available at United States Department of Defense, http:// www.defenselink.mil/news/. 12 Rajeev Syal, Families of Camp X-Ray Detainees Living in Fear of a Racist Backlash, Daily Telegraph (London), Feb. 2, 2002, available at LEXIS, News Library, TELEGR File. 13 Branigan & Dodd, supra, note 11. 14 Id. 15 Id. 16 Id. 17 Id. 18 Ian Burrell, Britons at Camp Delta Make a Sorry Bunch of Warriors, Independent (London), Aug. 3, 2002, available at LEXIS, News Library, INDPNT File. 19 Branigan & Dodd, supra, note 11. 20 Syal, supra, note 12. 21 Burrell, supra, note 18. 22 Scott Johnson, Trapped in Prison: Foreigners Jailed by the Taliban Still Waiting for Safe Passage Out of Afghanistan, Newsweek Web Exclusive, Dec. 18, 2001, at http://www.msnbc.msn.com/Default.aspx?id=3067352&p1=0 (Jan. 11, 2004); Branigan & Dodd, supra, note 11. 23 Branigan & Dodd, supra, note 11; Briton Among Thousands of Taliban Prisoners, Guardian, May 12, 2002, available at LEXIS, News Library, GUARDN File. 24 Branigan & Dodd, supra, note 11. 25 Id. 16
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that he was transported to Guantánamo in February 2002. 26
Moazzem Begg Moazzem Begg is a language teacher, law student and devout Muslim who lived in Birmingham, England. 32 He moved his family to Afghanistan Bisher Al-Rawi and Jamil Al-Banna Al-Rawi and Al-Banna are British residents who in 2000 to conduct charity work and help were never close to any zone of military operations. establish an Islamic school. 33 In the fall of 2001, They were originally arrested and accused of as U S and U K forces entered Afghanistan, Begg associating with terrorist groups upon arrival at fled with his wife and family to Pakistan. 34 He Banjul Airport, Gambia in November 2002 by the was kidnapped in February 2002 by unknown Gambian National Intelligence Agency. 27 Al-Rawi, persons, bundled into a car and smuggled back an Iraqi citizen, had been a U K resident for 19 over the border into Afghanistan, first to Kandahar years, 28 and Al-Banna, a Jordanian refugee and then to Bagram. 35 His wife immediately resident in England, 29 were among a group of four informed relatives in England, who sought men, all based in the United Kingdom, who were assistance from the British government and filed in Gambia in connection with a peanut-oil a habeas corpus petition in a Pakistani court. 36 processing venture. 30 The Pakistani government denied that Begg was in their custody. Begg was held by U S forces in Al-Rawi and Al-Banna were held incommunicado Afghanistan for a year after his kidnapping and in Banjul for approximately two months. They prior to his transportation to Guantánamo Bay in were reportedly questioned by U S investigators the spring of 2003. 37 into whose custody they were delivered without judicial process or extradition proceedings. 31 They Tarek Dergoul were transferred to Bagram Air Base, Afghanistan, Tarek Dergoul is a 25 year old care worker from in early January 2003—and from there to East London. 38 Unlike the other British prisoners, Guantánamo Bay—despite a habeas corpus unconfirmed reports indicate that he may have been involved in hostilities, and was captured in petition pending in the Gambian courts. the Tora Bora mountain complex in Afghanistan to which retreating Al-Qaida forces had fled. 39
British Broad. Corp., At-a-Glance: Guantánamo Bay Britons (July 23, 2003), http://news.bbc.co.uk/1/hi/uk/3089395.stm. David Rose, Guantánamo Bay on Trial, Vanity Fair, Jan. 2004, at 88, 134. 28 Id.; Patrick Wintour, Frantic efforts to bring home Britons held in Cuba as Blair’s US trip looms, Guardian, July 12, 2003, available at LEXIS, News Library, GUARDN File. Al-Rawi and his family fled Iraq to escape the regime of Saddam Hussein. The rest of the family took out British nationality, but Al- Rawi retained his Iraqi nationality in order to preserve his claim to property stolen from him upon the long-anticipated fall of Hussein. Clearly he could not depend upon then-President Hussein to assert his interests to the United States between the time of his arrest and the moment of Hussein’s fall. 29 Id. To obtain refugee status in the United Kingdom, Al-Banna would have had to demonstrate that he had a well-founded fear of persecution in his country of origin, Jordan. See Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 150; Protocol Relating to the Status of Refugees, Oct. 4, 1967, 606 U.N.T.S. 267. Like Al-Rawi, Al- Banna cannot depend on his government to defend his interests. 30 Rose, supra, note 28. 31 Id. 32 Paul Harris & Burhan Wazir, Briton tells of Ordeal in Bush’s Torture Jail, Observer (London), Dec. 29, 2002, available at LEXIS, News Library, OBSRVR File. 33 Id. 34 Id. 35 Id. 36 Audrey Gillan, Pakistani intelligence and Americans ‘abduct’ Briton, Guardian, Mar. 9, 2002, available at LEXIS, News Library, GUARDN File. 37 Sandra Laville, Father Appeals for Son Held in Guantánamo, Daily Telegraph (London), Nov. 19, 2003, available at LEXIS, News Library, TELGR File. 38 Burrell, supra, note 18. 39 Id. 27
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Dergoul, who was born in Britain and is the son of a retired Moroccan baker, had told his family in May or June 2001 that he was flying to Pakistan to learn Arabic. 40 His whereabouts were a mystery for many months. 41 In May 2002, his family learned that he was held in Guantánamo Bay. 42
Feroz Abbasi Feroz Abbasi was born in Uganda and moved to Britain with his parents at the age of eight. 48 The family settled in the London suburb of Croydon, where Abbasi attended high school. 49 He subsequently took a two-year computing course at Nescot College in Epsom, England and was known as a courteous, well-behaved student. 50 Tariq Mahmud Tariq Mahmud is a taxi driver from Birmingham, Abbasi turned to the study of the Koran and the where his wife and two children continue to live. Muslim faith after he was mugged in Switzerland. Mahmud is believed to hold dual British and 51 He traveled to Afghanistan in December 2000, Pakistani citizenship.43 Mahmud reportedly left apparently for religious reasons. Britain several years ago, moving to Islamabad after spending time in Afghanistan. Thought to Abbasi was taken into custody by U S forces in be in his 30s, Mahmud is understood to have been northern Afghanistan in December 2001. 52 His arrested near Islamabad, Pakistan as part of an movements prior to being seized are not known, international operation orchestrated by American nor is it known how or where he was surrendered and Pakistani officials. 44 Sources suggest that to U S forces by the Northern Alliance. Mahmud was kidnapped from Pakistan — picked Subsequently, he was flown — hooded and up by the Americans to gather evidence against shackled — to what was then Camp X-Ray at another Birmingham man, Moazzam Begg, whose Guantánamo Bay. 53 Abbasi’s mother has stopped receiving correspondence from him, 54 and he was arrest mirrors that of Mahmud’s. 45 reportedly diagnosed by a U S military forensic Mahmud is included by amici because his name psychiatrist as suffering from depression. 55 News has been linked to Guantánamo Bay. 46 Such is reports reveal that while in Guantánamo he tried the lack of due process in this case that his to hang himself with a towel — one of the few parents, who live in Birmingham, do not know the possessions allowed in the detention center. 56 whereabouts of their son. 47
Id. Branigan & Dodd, supra, note 11. 42 Id. 43 British Broad. Corp., Briton ‘Arrested Over Terror Links’ (Oct. 30, 2003), available at http://news.bbc.co.uk/1/hi/england/ west_ midlands/3226315.stm. 44 Id. 45 Id.; Kim Segupta, Briton Held in Pakistan on Terror Charges, Independent (London), Oct. 30, 2003, available at LEXIS, News Library, INDPNT File. 46 Lisa McCarthy, Release Hopes ,for Terror Suspects, Birmingham Evening Mail, Jan. 9, 2004, available at LEXIS, News Library, BEMAIL File. 47 Segupta, supra, note 45. 48 British Broad. Corp., From Student to Terror Suspect (Jan. 21, 2002), http://news.bbc.co.uk/1/hi/uk-politics/1773477.stm. 49 Id. 50 Id. 51 Id. 52 Sean O’Neill, Feroz Abbasi, Daily Telegraph (London), May 5, 2003, available at LEXIS, News Library, TELEGR File. 53 Id. 54 Julian Borger & Vikram Dodd, Cuba Britons ‘admit war crimes’, Guardian, Aug. 12, 2003, available at LEXIS, News Library, GUARDN File. 55 Vikram Dodd, Guantánamo Bay Detainee Suffers From Depression, Guardian, Nov. 18, 2003, available at LEXIS, News Library, GUARDN File. 56 Suicide Bid By Brit Held in Cuba, Daily Record, July 12, 2003, available at LEXIS, News Library, RECORD File. See also Rose, supra, note 27 at 91. 41
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Martin Mubanga Martin Mubanga is a 29 year old motorcycle courier from North London. 57 He is the son of a former Zambian government official whose family moved to Britain in the 1970s. He was taken into custody in Zambia by local authorities in March 2002. It is thought that he was held by the Zambian authorities for some time before being handed over to U S authorities. A Foreign and Commonwealth Office official stated that consular access and information were requested while Mubanga was detained in Zambia, but that request was refused. 58 He was subsequently surrendered to U S officials and transported to Guantánamo Bay. 59
when the justification for detention is contested or uncertain. Independent judicial review is the product of over three centuries of constitutional development in both of our countries, beginning with the struggle between the monarchy and Parliament in Civil War England and embodied in the U S Constitution. The international rule of law is anchored in the treaties by which both nations are bound.
Richard Belmar Richard Belmar is a former post office worker from north London. 60 He became a Muslim during his teenage years, following the lead of his elder brother. In June 2001 Belmar traveled to Pakistan on a six-week study trip. 61 He called his family twice from Pakistan, telling them that he enjoyed the culture and intended to extend his stay. 62 Belmar’s parents received a letter from him in October 2002, saying that he had been arrested in Pakistan eight months prior for over-staying his visa. 63 He was apparently never in Afghanistan. Between October and December of 2002, the British Foreign and Commonwealth Office informed Belmar’s parents that Belmar had been taken to Guantánamo Bay where he had been seen by British officials. 64
Our nations share a unique historical bond, one that was forged in the Parliamentary achievements of the English Civil War and articulated in the Petition of Right and the English Bill of Rights. In its early years, America relied on that legal inheritance, rather than on abstract principles of natural law, in defining the scope of its laws. The Framers created a government of laws rather than of men, manifesting their intent to place the principle of legality above all others. Amici urge this Court to assert its constitutional role to ensure that the division of powers so carefully crafted by the Framers is not altered in a way prejudicial to the present, proud commitment to the rule of law.
Amici respectfully submit that this Court should preserve the judiciary’s vital role to insure that executive actions violate neither the Constitution of the United States of America nor the international rule of law and human rights.
SUMMARY OF ARGUMENT The United Kingdom and the United States share an unshakeable commitment to the rule of law. Recourse to an independent and impartial tribunal is required by the rule of law, especially
‘Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law’ Lord Nicholls, THURSDAY 16 DECEMBER 2004
News24, Sixth Briton Held at Guantánamo, (Dec. 5, 2002), at http:// www.news24.com/News24/USAttack/0,,21195_1183374,00.html (Jan. 11, 2004). 58 Id. 59 Id. 60 Hala Jaber & Gareth Walsh, Former Catholic Schoolboy in Al-Qaeda Camp, Times (London), Dec. 29, 2002, available at LEXIS, News Library, TIMES File. 61 Id. 62 Id. 63 Id. 64 Id. 19
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THE DETAINEES’ CASES PRESENT DISPUTES WHICH CAN ONLY BE FAIRLY DETERMINED BY AN IMPARTIAL AND INDEPENDENT COURT
A. The Circumstances Justifying Detention Are Unproven And Subject To Dispute There is no mechanism in place or being followed to ensure that the circumstances of these detentions meet even the most basic standards of due process or human rights. The rule of law requires reasonable due process to ascertain the bases asserted in support of prolonged detention as well as the veracity of the facts that support those bases. Indefinite detention without charge represents a violent departure from principles underlying our common legal heritage. 65 The detention center at Guantánamo was designed, according to the U S Administration, to house “the worst of the worst” and “hardest of the hardcore.” 66 Yet, other statements by the administration suggest that Guantánamo holds no high ranking terrorist of any significance. 67
On the face of the facts as they are known, there is nothing to indicate any basis for detaining any of the British detainees. Some of the detainees appear to have been innocently caught up in the Afghan conflict. 68 In addition, many were seized in foreign countries, some far from the Afghan hostilities. 69 Amici know nothing more about the various detainees than is summarized above because U S authorities assert the power to detain them with no outside scrutiny whatsoever, whether by the 42 States from which they hale, or the U S courts. 70 These circumstances require an objective judicial determination to safeguard minimal levels of due process and human rights.
B. The Legal Justifications For Detention Are Ambiguous And Also Subject To Dispute Similarly, the reported facts raise serious legal issues deserving judicial scrutiny. If, as reported, several U K nationals detained in Guantánamo were seized in foreign countries in return for favors by the United States or in violation of due process, they are potentially held in Guantánamo in violation of local and international law. An initial
Notwithstanding the situation in Guantánamo, the U S Administration recognizes the need to act in conformity with the rule of law and with international law: “It is the policy of the United States Government to pursue human rights and the rule of law as a central element of foreign policy. The U S approach to countering terrorism does not conflict with or violate this policy.” Amnesty Int’l, United States of America — The Threat of a Bad Example 1 (Aug. 2003), at http:// web.amnesty.org/aidoc/ aidoc_pdf.nsf/Index/AMR511142003ENGLISH/ $File/AMR5111403.pdf, quoting Letter to Amnesty Int’l Sec’y Gen. Irene Khan, dated 11 July 2003, from Lorne W. Craner, Ass’t Sec’y for Democracy, Human Rights and Labor, U S Dep’t of State (July 11, 2003). Commenting on the United States’ efforts in the war on terrorism, the Pentagon General Counsel noted that the administration will not “compromise its commitment to human rights in accordance with the law” in “the conduct of this war against a ruthless and unprincipled foe.” Letter from William J. Haynes II, Gen. Counsel, Pentagon, to Sen. Patrick Leahy (June 25, 2003), at http:// www.hrw.org/press/2003/06/letter-to-leahy.pdf. 66 Secretary Rumsfeld Roundtable with Radio Media (Jan. 15, 2002), available at United States Department of Defense, http:// www.defenselink.mil/transcripts/2002/t01152002_t0115sdr.html (last visited Jan. 9, 2004). White House Press Report: Argentina, Philippines, Guantánamo, South Asia (Jan. 16, 2002), available at United States Department of State http:// usinfo.state.gov/regional/nea/sasia/afghan/text/0116wthsrpt.htm (last visited Jan. 9, 2004). 67 See Bob Drogin, No Leaders of Al Qaeda Found at Guantánamo, L.A. Times, Aug. 18, 2002 available at LEXIS, News Library, LAT File (quoting anonymous U S intelligence official’s statement that inmates at Guantánamo “are mostly ‘low and middlelevel’ fighters ... not ‘the big- time guys’ “). 68 For example, Jamel Udeen was attempting to travel across Afghanistan in September 2001 when he was arrested and tortured by the Taliban as a British spy, then abandoned in a Kandahar jail where U S forces found him some months later. 69 Richard Belmar, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, Bisher Al- Rawi, Jamily Al-Banna, Moazzem Begg, Tariq Mahmud, and Martin Mubanga. 70 Justice Anthony M. Kennedy has stated that “[a]s a profession, and as a people, we should know what happens after the prisoner is taken away” in recommending that prison reform was a proper concern for the entire legal profession, and not only for its criminal law practitioners. Justice Anthony M. Kennedy, Speech at the American Bar Association Annual Meeting (Aug. 9, 2003) (transcript available at http:// www.supremecourtus.gov/publicinfo/speeches/sp_08-0903.html). Amici believe that the situation in Guantánamo is equally deserving of our interest because affirming the court below would deny this Court’s constitutional role. 20
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the complete dominion of the U S government. 75
breach of international law by one state in relation to a foreign national does not relieve a second state of its international obligations in respect of those same nationals. Furthermore, no state’s domestic legislation can excuse that state or another from strict compliance with its own international obligations. 71
Ironically, U S courts have jurisdiction to adjudicate claims of defendants arrested abroad and forcibly brought to the United States for purposes of prosecution. See, e.g., United States v Rezaq, 134 F.3d 1121, 1132 (D C Cir. 1998); United States v Yunis, 924 F.2d 1086, 1091 (D C Martin Mubanga, a U K citizen and the son of a Cir. 1991) (examining “norms of customary former Zambian government official, was detained international law” and upholding extraterritorial by the Zambian government and summarily jurisdiction under Federal Hostage Taking and Air surrendered to U S authorities before the Piracy statutes). circumstances of his original detention were established or tested. Al- Banna and Al-Rawi were both detained by the Gambian government and II. INDEFINITE EXECUTIVE DETENTION turned over to the U S , despite a habeas corpus WITHOUT JUDICIAL REVIEW IS INIMICAL petition pending on their behalf. Tariq Mahmud TO THE UNITED STATES’ COMMITMENT and Moazzem Begg were apparently kidnapped TO THE RULE OF LAW AND ITS in Pakistan in violation of Pakistan’s domestic INTERNATIONAL OBLIGATIONS laws and Pakistan’s international legal obligations to the U K The circumstances of Shafiq Rasul and A. The United Kingdom And The United Asif Iqbal are set forth in other briefs to this Court, States Share A Common History And Tradition Of Judicial Review Of but it merits noting that they and detainee Rhuhel Ahmed were apparently first seized by Northern Executive Power Alliance fighters eager to earn favors from U S In establishing a tripartite separation of powers and a truly independent judiciary, the Framers authorities. 72 were aware of, and could look to, Parliament’s prior The court below noted that the situation of achievements to subject the will of the Sovereign prisoners of war detained by armed forces in the to the rule of law. 76 In 1627, Charles I, who had middle of hostilities limits the rights available to been collecting forced loans from his subjects, those detained. 73 However, even if some of the imprisoned five knights in the Tower of London British prisoners were detained in the theatre of who refused to comply with the royal “request.” military operations, and beyond the protection of They sought release through writs of habeas constitutional due process, 74 the grounds for corpus. When the King returned the writ, he did denying them due process must have long ago not state that the knights had refused to loan him expired two years later and six thousand miles funds, but instead stated that they were each held away in an area under no military threat and under “by special command of his majesty (per speciale 71
See Ian Brownlie, Principles of Public International Law, 451-52 (5th ed. 1998); Restatement (Third) of Foreign Relations Law § 320 (1987). 72 Rose, supra, note 27 at 134. 73 Al Odah v United States, 321 F.3d 1134, 1139-40 (D.C. Cir. 2003). 74 Even those captured in the course of military operations are entitled to the protections set out in the Geneva Conventions. See 1949 Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U S T. 3114, T.I.A.S. 3365; 1949 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U S T. 3516, T.I.A.S. 3365; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, adopted June 8, 1977, 1125 U.N.T.S. 3. 75 See Ex Parte Milligan, 71 U S 2 (1866) (holding that “[a]s necessity creates the rule, so it limits its duration ... Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”). 76 “For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ “ The Federalist No. 78 (Alexander Hamilton) (quoting Charles de Montesquieu, The Spirit of the Laws). 21
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mandatum regis).” 77 The court affirmed the King’s Orange were crowned King and Queen after absolute prerogative and denied the knights’ swearing obedience to the laws of Parliament and petitions. reading the Bill of Rights as part of their oaths. 80 As a precursor to the American Bill of Rights, the See also Marbury v Madison for the proposition English Bill of Rights established strict limits on that constitutional limitations on government the Sovereign’s legal prerogatives, including a authority can be safeguarded only by the judiciary. prohibition against arbitrary suspension of 5 U S 137 (1803). Parliament’s laws. 81 It also established the fundamental constitutional principle of Parliament responded by forcing the King to sign Parliamentary supremacy and made the executive the Petition of Right of 1628, which referenced fully accountable to Parliament and the courts, the Magna Carta and asserted that no person often referred to as the rule of law. Among other should be subject to arbitrary arrest or things, under the rule of law the existence or imprisonment.78 The King ultimately accepted the nonexistence of a power or duty is a matter of law, Petition and it thereby became part of the law and it is for the courts to determine whether a inherited by the American colonies. particular power exists, define its ambit, and provide an effective remedy for its unlawful Almost 40 years later, Parliament again acted to exercise. 82 The English Bill of Rights also added secure the freedom of the individual from arbitrary other rights: the King was forbidden from detention. During the English Civil War, the British establishing his own courts or acting as a judge, created their own version of Guantánamo Bay and and the courts were forbidden from imposing dispatched undesirable prisoners to garrisons off excessive bail or fines, or cruel and unusual the mainland, beyond the reach of habeas corpus punishments. relief. In 1667, Edward Hyde, First Earl of Clarendon, was impeached, in part for his role in The Framers built on this common tradition and procuring the illegal imprisonment of political drafted a Constitution that institutionalized the offenders in remote and unknown places. 79 In separation of powers and subjected the 1679, Parliament passed the Habeas Corpus Act Legislature and the Executive to the rule of law. 83 This Court has repeatedly acknowledged that the foreclosing that potential for abuse. English Bill of Rights inspired many of the central In April 1689, almost a century before the Framers provisions of the Constitution. 84 These historical gathered in Philadelphia, William and Mary of limits on arbitrary executive power in England, the 77
Bernard Schwartz, The Roots of Freedom: A Constitutional History of England 133 (1967). Petition of Right, 1628, art. III. 79 Thomas Pitt Taswell-Langmead, English Constitutional History from the Teutonic Conquest to the Present Time 594 (10th ed. 1946). 80 English Bill of Rights, 1689. 81 English Bill of Rights, 1689, art. I. 82 8(2) Halsbury’s Laws of England (4th ed., 1996), Constitutional Law and Human Rights ¶ 6. 83 Even before the U S declared its independence, Maryland’s General Assembly passed an Act for the Liberties of Peoples (1639). In 1641, the Massachusetts Body of Liberties was adopted and arguably became the first “American attempt” to enumerate “fundamental rights ... in a written instrument enacted by the people’s representatives.” Bernard Schwartz, The Bill of Rights: A Documentary History 71 (1971). 84 “The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history.” Hurtado v California, 110 U S 516, 530 (1884). See also Duncan v Louisiana, 391 U S 145, 15152 (1968) (noting that a jury trial, expressed in the English Bill of Rights to protect against arbitrary rule, came to America with English colonists); United States v Johnson, 383 U S 169, 178 (1966) (“Since the Glorious Revolution in Britain ... the privilege [of the Speech and Debate Clause] has been recognized as an important protection of the independence and integrity of the legislature”); Republic Steel Corp. v Maddox, 379 U S 650, 669 (1965) (Black, J., dissenting) (“It was in Magna Carta, the English Bill of Rights, and other such charters of liberty, that there originally was expressed in the English-speaking world a deep desire of people to be able to settle differences according to standard, well-known procedures ...”); In re Groban, 352 U S 330, 351 n.32 (1957) (Black, Warren, Douglas & Brennan, JJ., dissenting) (surveying British law to clarify the right to counsel during an investigatory procedure). 78
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Rights (“UDHR”) and the International Covenant on Civil and Political Rights (“ICCPR”). 86 The governments of both nations signed and ratified the ICCPR, the Convention Against Torture, 87 and the Geneva Conventions, as well as regional international human rights treaties. 88 These international treaties not only reflect many of the constitutional laws of the United States and the United Kingdom, but also general international law and the values of our shared political and legal tradition. 89 The human rights and fundamental freedoms they protect are also inherent in our common humanity and our democratic systems of government under law. The judiciary must protect from an abuse of executive power even those interests which arise under international law — as noted by the Framers of the Constitution.
development of American constitutional law, and the corresponding growth of individual liberty on both sides of the Atlantic, have, since those early days, inspired impressive contributions by the U S to the development of international human rights and freedoms.
B. Both Countries Have Played Seminal Roles In The Development Of The International Rule Of Law And Human Rights In the wake of the First World War, the United States played a prominent role in drafting the Statute and Protocol of the Permanent Court of International Justice (“PCIJ”), foreshadowing a pattern of international participation in the creation and formulation of international law. 85 90 The governments of the United States and of the United Kingdom also contributed significantly to Should the judiciary fail to fulfill its responsibility the drafting of the Universal Declaration of Human to determine the legality of the British prisoners’
Notwithstanding the fact that the Senate failed to endorse the PCIJ’S terms, American participation in the formulation of international law was not hampered: a Judge of U S citizenship served on the bench of the PCIJ throughout its lifetime. Rosalyn Higgins, The ICJ, the ECJ, and the Integrity of International Law, Int’l & Comp. L.Q. 52.1(1) (2003). 86 The United States signed the ICCPR in 1977, ratified it in 1992, and made reservations that Articles 1 through 27 were not self-executing. ICCPR, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368. Notwithstanding those reservations, the United States, which includes the judiciary, has an obligation under the ICCPR itself and customary international law, as reflected in Article 18 of the Vienna Convention on the Law of Treaties (“VCLT”), to “refrain from acts which would defeat the object and purpose of a treaty.” VCLT, 8 I.L.M. 679 (1969); Restatement of the Foreign Relations Law of the United States (Revised) § 314 (Tentative Draft No. 1, 1980); Michael J. Glennon, The Senate Role In Treaty Ratification, 77 Am. J. Int’l L. 257 (1983). See also Sarei v Rio Tinto, 221 F. Supp. 2d 1116, 1161-62 (C.D. Cal. 2002) (referring to an un-ratified treaty as evidence of the content of customary international law). 87 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984). 88 See, e.g., Inter-American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673 (“American Convention”); European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (“ECHR”). 89 These values include the obligation undertaken by States to ensure that: (i) no one is subject to arbitrary arrest, detention or exile. See, e.g., UDHR, Dec. 10, 1948, art. 9, G.A. Res. 217A, 3 U.N. GAOR, U.N. Doc. A/810; American Declaration of the Rights and Duties of Man, May 2, 1948, art. XXV, reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System, OEA/Ser.L.V/II.82 doc. 6 rev.1 (1992) (“American Declaration”); (ii) anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. See, e.g., American Convention, art. 7; ICCPR, art. 14; (iii) anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. See, e.g., American Convention, art. 7; ICCPR, art. 9; (iv) all persons are equal before the law and entitled without any discrimination to the equal protection of the law. See, e.g., UDHR, art. 7; ICCPR, art. 26; and (v) every accused person is presumed to be innocent until proved guilty. See, e.g., UDHR, art. 11; American Declaration, art. XXVI; ICCPR, art. 14. 90 Alexander Hamilton commented on the proper scope of judicial review and the importance of international law: As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquility .... But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. The Federalist No. 80 (Alexander Hamilton). 23
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detention, there would exist a prison for indefinite detention functioning in total secret, under the unchallenged exclusive control of the executive branch of the U S government. That result offends the United States’ domestic and international commitment to basic due process and human rights.
C. Past Deviations From The Rule Of Law And International Obligations In Times Of National Crises Are Embarrassing Episodes In Our Respective Histories Courts have a duty to vindicate the rule of law when it is circumvented or abused by legislative or executive fiat. History harshly judges attempts to detain individuals beyond the reach of the rule of law even in times of crisis. Japanese- American internment during the Second World War has become the paradigm for the pitfalls of judicial deference to arbitrary executive detention. The U K had its regrettable equivalent to the military order used to imprison Fred Korematsu. Under the auspices of Section 18B of the Wartime Defence Regulation, approximately 27,000 persons were detained between 1939 and 1945 in the U.K without charge, trial, or set term. 91 This abuse of executive power allowed arrest and detention on the Home Secretary’s “reasonable belief” that an individual posed a threat to the nation — judicial deference was presumed. The most conspicuous case thereunder, Liversidge v Anderson, also provides the most vigorous and insightful dissent. 1942 A C 206 (1941). Expressing his deep concern to safeguard the role of the judiciary in the scheme of the government, Lord Atkin stated, “in this country, amid the clash of arms, the laws are not
silent. They may be changed, but they speak the same language in war as in peace.” Id. at 244. Lord Atkin’s comments, largely disfavored by his fellow Law Lords, are now universally viewed as an accurate reflection of the rule of law even in times of war. 92 The U K ‘s recent experience with terrorism is equally instructive. In answering charges that it violated the human rights of Irish citizens held in the U K because of suspected involvement in terrorism, the U K government claimed that it was compelled to take severe measures. However, the powers of detention exercised over suspected Irish terrorists were eventually criticized by the European Court of Human Rights as disproportionate violations of human rights. 93 Such examples stand out “as a caution that in times of distress the shield of military necessity and national security must not be used to protect government institutions from close scrutiny and accountability.” 94 Moreover, these examples from both the U S and U K are no more shocking than the situation in Guantánamo, where detainees have been precluded from even being informed of the grounds for their detention or having their rights brought before any court of law. 95 ATCSA provides for judicial review of executive determinations that a person is a suspected terrorist and provides detainees with their counsel of choice. It cannot be sufficient for the Respondent to argue that the actions of U S authorities in Guantánamo are non-reviewable by any U S court
Numbers cannot be confirmed because authorities refuse access to many papers. Alfred W. B. Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain 422 (1992). 92 Brannigan & McBride v United Kingdom, 258 Euro. Ct. H.R. (ser. A) (1993); Brogan, et al. v United Kingdom, 11 Eur. H.R. Rep. 117 (1989). The Good Friday Agreement of 1998 sought to redress those violations by providing for a specialized tribunal to deal with human rights reforms, and for changes in policing and the courts. Agreement Reached in the Multi- Party Negotiations, Apr. 10, 1998, 37 I.L.M. 751 (1998). 93 Brannigan & McBride v United Kingdom, 258 Euro. Ct. H.R. (ser. A) (1993); Brogan, et al. v United Kingdom, 11 Eur. H.R. Rep. 117 (1989). The Good Friday Agreement of 1998 sought to redress those violations by providing for a specialized tribunal to deal with human rights reforms, and for changes in policing and the courts. Agreement Reached in the Multi- Party Negotiations, Apr. 10, 1998, 37 I.L.M. 751 (1998). 94 Korematsu v United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984). 95 The U K has its own anti-terrorism measures: the Anti-terrorism, Crime and Security Act 2001 (ATCSA). The ATCSA was enacted on December 14, 2001 and provides for detention of only non-U K nationals. As harsh as the law and the executive decisions made thereunder may be, neither evade judicial scrutiny. 24
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international law and custom. 98 In fact, members of this Court have recognized the importance of international human rights law to constitutional adjudication as a yardstick of the principles generally shared by the United States with other civilized nations. 99 Likewise, the senior constitutional courts in the United Kingdom and other commonwealth countries refer to and use provisions of the generally recognized international human rights instruments — both incorporated and unincorporated — to interpret and apply domestic common law, 100 legislation, 101 and legal doctrines. 102
because these actions took place outside the area of technical U S political sovereignty. 96 The detainees have been brought under duress by those same authorities and are within their exclusive control. In so arguing, the Respondent is in fact asserting that the checks and balances of the Constitution, so carefully constructed by the Framers and preserved for more than two centuries, can be set aside and denied to prisoners solely on the basis of a Presidential determination which is not subject to judicial review. Unchecked power always begets the greater exercise, and probable abuse, of that power. Courts have a duty to ensure that today’s response to military crises cannot subsequently be used to justify an attack on human rights and due process. 97
See, e.g., Justice Sandra Day O’Connor, Federalism of Free Nations, 28 N Y U J Int’l L & Pol. 35 (1996). Justice Stephen Breyer, Changing Relationships Among European Constitutional Courts, 21 Cardozo L Rev. 1045, 1060 (2000) (“the nations we visited, like our own, attach great importance to the rule of law .... we can learn from their structural efforts.... I am certain that comparative constitutional study of substance and of structure
D. United States Courts Consistently Seek To Act In Harmony With International Law This Court has long recognized that it is appropriate for U S law to be consistent with 96
The United States’ total and absolute control over those detained as enemy combatants at Guantánamo renders it responsible pursuant to its obligations at international law. The concept of jurisdiction under the ICCPR, for example, is essentially territorial, but where, exceptionally, a State exercises effective control of foreign territory, that territory falls within Article 2(1) of the ICCPR and has extraterritorial application. The same is true under Article 1 of the ECHR. See, e.g., Loizidou v Turkey, 23 Eur. H.R. Rep. 513 (1996); Loizidou v Turkey (Preliminary Objections), 20 Eur. H.R. Rep. 99 (1995). 97 Amici recall a distinguished foreigner whose comments on the potential for executive abuse at the Republic’s infancy ring true today: I think that liberty is endangered when this power [of the majority] is checked by no obstacles which may retard its course, and force it to moderate its own vehemence. Unlimited power is in itself a bad and dangerous thing; human beings are not competent to exercise it with discretion; and God alone can be omnipotent, because his wisdom and his justice are always equal to his power. But no power upon earth is so worthy of honor for itself, or of reverential obedience to the rights which it represents, that I would consent to admit its uncontrolled and all-predominant authority. Alexis de Tocqueville, Democracy in America 306 (Henry Reeve trans., Schocken 1961) (1835). 98 Subject to the Constitution, customary international law and treaties are the law of the United States, U S Const. art. VI, § 2; Hurd v Hodge, 334 U S 24, 35 (1948) (striking down racially restrictive legislation as violative of public policy manifested in, inter alia, treaties); Oyama v California, 332 U S 633, 649-50, 673 (1948) (relying on provisions of the United Nations Charter as a source of legal obligations and finding Alien Land Law invalid as inconsistent with the “high ideals” therein) (Black, Douglas, Murphy & Rutledge, JJ., concurring); The Paquete Habana, 175 U S 677 (1900); Murray v Schooner Charming Betsy, 6 U S 64 (1804). 99 Lawrence v Texas, 123 S. Ct. 2472 (2003). Members of this Court have remarked on the value of comparative perspective in judicial interpretation. 100 Derbyshire County Council v Times Newspapers,  Q.B. 770, 812 (Eng.) (noting that, although Article 10 of the European Convention on Human Rights is not incorporated into English law, “it may be resorted to in order to help resolve some uncertainty or ambiguity in municipal law”); Attorney-General v Guardian Newspapers (No. 2),  1 A.C. 109, 134 (Eng.) (observing that the common law duty of confidence comported with Article 10 of the European Convention on Human Rights). 101 See Waddington v Miah,  1 W.L.R. 692, 694 (Eng.) (observing that British immigration laws comport with Article 11(2) of the UDHR and the ECHR). 102 Australian, Canadian, English, and New Zealand courts look to international standards when applying the “legitimate expectations” principle to administrative decisions regarding compliance with unincorporated conventions. See, e.g., Minister Immigration & Ethnic Affairs v Teoh, 128 A.L.R. 353 (Austl. 1995); Baker v Minister of Citizenship,  2 S.C.R. 817 (Can.); R v Sec’y State, ex parte Ahmed & Others,  Imm. A.R. 22 (Eng. C.A.); R v State Home Dep’t, ex parte Behluli,  IAR 407 (Eng. C.A.) (Dublin Convention); Tavita v Minister Immigration, 2 N.Z.L.R. 257 (N. Z. 1994). 25
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is part of that task.”). Justice Ruth Bader Ginsberg has made a similar observation: A prominent jurist put it this way 14 years ago: ‘For nearly a century and a half, courts in the United States exercising the power of judicial review [for constitutionality] had no precedents to look to save their own, because our courts alone exercised this sort of authority. When many new constitutional courts were created after the Second World War, these courts naturally looked to decisions of the Supreme Court of the United States, among other sources, for developing their own law.
Garland v British Rail,  2 A C 751 (Eng. H L) (finding that nothing short of an “express positive statement” in an Act of Parliament justified a court to construe a provision “in a manner inconsistent with a Community treaty obligation of the United Kingdom”).
While courts must take into account the exigencies of war and national emergency, a country’s courts must never abdicate their constitutional role. It was an American Supreme Court Justice who reminded the British of this essential principle in the aftermath of the Second But now that constitutional law is solidly World War. Sir Winston Churchill argued that Nazi grounded in so many countries, it is time that the leaders should be shot upon their capture, 103 an United States courts begin looking to the outcome averted largely by the United States decisions of other constitutional courts to aid in lobbying for the creation of the International their own deliberative process.’ Justice Ruth Military Tribunal at Nürnberg. Justice Jackson, Bader Ginsburg, Remarks for the American then Chief of Counsel for the United States, noted Constitutional Society (Aug. 2, 2003), quoting in his opening remarks to the court: “That four William H Rehnquist, Constitutional Courts- great nations flushed with victory and stung with Comparative Remarks (1989), reprinted in injury, stay the hand of vengeance and voluntarily Germany And Its Basic Law: Past, Present and submit their captive enemies to the judgment of Future — A German-American Symposium 411, the law is one of the most significant tributes that 412 (Paul Kirchhof & Donald P Kommers eds., Power has ever paid to reason.” 104 1993). The United States and its allies then faced a great See also R v Sec’y State Home Dep’t, ex parte enemy and had suffered appalling losses. In Simms,  2 A C 115, 130, 131-32 (Eng. H L) discussing what to do with war criminals, the (noting that even when public powers are United States’ official position was premised on conferred by clear and unambiguous words, there the rule of law: we could execute or otherwise punish them is a presumption that the legislation conforms without a hearing. But undiscriminating with the human rights treaties by which the U K executions or punishments without definite is bound; legislature and executive are presumed findings of guilt, fairly arrived at, would to further, rather than to frustrate, international violate pledges repeatedly given, and would treaty obligations); R v Sec’y State, ex parte Brind, not set easily on the American conscience  1 A C 696 (Eng. H L) (“It is already well or be remembered by our children with settled that, in construing any provisions in pride. The only other course is to determine domestic legislation which is ambiguous in the the innocence or guilt of the accused after a sense that it is capable of a meaning which either hearing as dispassionate as the times and conforms to or conflicts with the [European horrors we deal with will permit, and upon Convention for the Protection of Human Rights], the courts will presume that Parliament intended to legislate in conformity with the convention”); Continued on page 28 103
7 Martin Gilbert, Winston S. Churchill: Road to Victory 1941-1945, 1201-02 (1986). See also, Chief Justice William H. Rehnquist, Dedication of the Robert H. Jackson Center (May 16, 2003) (“the Nuremberg Trials were surely superior to the summary court martial proceedings favored by some members of the administration and the summary executions initially favored by the British.”). 104 Robert H. Jackson, Opening Statement Before the International Military Tribunal (Nov. 21, 1945). 26
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Festival of Rights 2004 Theme: Rights of The Child Tn Hj Kuthubul Zaman Bukhari President Malaysian Bar
A very good morning to all of you. It is wonderful for us to be able to gather here as a community to celebrate this Festival of Rights in conjunction with World Human Rights Day which falls on the 10th of December every year.
Attributes and attitudes ought to be taught from the outset when a child is born. Thus parents who are not well-versed in child development should themselves be educated. As a child psychologist, Jean Piajet once said ‘ the starting point of a childs intellectual growth is his our her own action. As the child actively engages with the people and objects around her, she begins to form mental constructs about what the world is like’
The Universal Declaration of Human Rights was passed, in 1948, as a direct result of the suffering of mankind during the Second World War. On this, the occasion of the fifty-sixth anniversary of the passage of the Universal Declaration of Human Rights, the Festival of Rights today focuses exclusively on the Rights of the Child, with special emphasis on the rights of the dispossessed and disabled child.
We must also acknowledge that the present Education does not care for children with disability and for a better term children with special needs. The Bar Council in 2001 had prepared a Memorandum on proposed Legislation for Education of Individuals with Special Needs. The Memorandum was based on a public forum jointly organized by the Bar Council and several NGO’s. The Memorandum was forwarded to the Honourable Minister of National Unity and Community Development on 13th June 2001.
Article 3 of the Convention of the Rights of the Child places great emphasis on the interests of the Child. Far too often these days, we hear of children being victimized, abused neglected and abandoned. We adults tend to sometimes forget that children too have inalienable rights. To its credit, Malaysia is a signatory to, and has ratified, the Convention of the Rights of the Child. However, many of us still remain ignorant of the rights of children.
Although there has been some development pursuant to the said Memorandum, in that the Honourable Minister of National Unity and Community Development has come up with a proposed Disabled Persons Act, there are still many aspects relating to the education for those with special needs, disabled persons, which are lacking. The Bar Council proposes to have a follow up seminar in February 2005.
Children are our future and the nation’s resource for tomorrow. Hence a significant investment must be made on our children to achieve that. Without the proper framework in place to foster the development of our children, economic progress will be stifled; poverty and crime will become greater issues than they are today.
In the interim the Bar Council has launched a signature campaign seeking support for our Memorandum. We have launched a Guest Book on our website for individuals to register their support. Members of the public who are interested in supporting the Memorandum can do so by entering their details in the guest book. Our website address is www.malaysianbar.org.my and, with your support, we hope the objective of Liberating the Disabled Through Education can be achieved.
We must realize and acknowledge that children today are more sophisticated than we adults were at that age. Fashions, trends, IT and the media influence our children much more readily without adults realising so. Therefore our education system must be able to ensure that our children are able to develop mentally, physically and psychologically, to adapt to the growing needs of the future. Over and above this, moral education must also be instilled in our children to achieve greater success, to inculcate in them the tenets of respect, responsibility and love for their fellow human beings.
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Continued from page 27
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The Bar Council is also very much concerned on issues of child abuse. The old adage ‘spare the rod and spoil the child ‘ has been used as a license for many instances of the abuse of children. Emphasis should be on communication and counselling and this should be encouraged among family members.
a record that will leave our reasons and motives clear. 105
The Nürnberg trials were established between the victorious Allies and thus did not afford domestic constitutional protection. The United States, however, clearly understood that at a minimum, There is a common perception that a child is never a trial and a public record were required – if not OUR child. A child born to our family is but a trust, by the letter of the law, then by principles upon which God lends to us, for a brief time, for the child’s which the Republic was created. training and upliftment. If we fail the child, we have failed God himself. More importantly, we have failed humanity. CONCLUSION This case provides the Court with an opportunity This is a poem that, I believe best conveys this to vindicate the rule of law under the Constitution perception: and preserve the role of the courts in ensuring I’ll lend you for a little time, a child of mind, He said. that the exercise of executive power over the For you to love while he lives, and mourn when he is dead. It may be six or seven years, twenty-two or three. detainees in Guantánamo will not be above the But will you, till I call him back, take care of him for me? law. He’ll bring his charms to gladden you, and should his stay be brief, You’ll have his lovely memories as solace for your grief. I cannot promise he will stay, since all from earth return. But there are lessons taught down there I want child to learn. I’ve looked the wide world over in my search for teachers true, And from the throngs that crowd life’s lane, I have selected you. Now will you give him all of your love, nor think the labour vain, Nor hate me when I come to call, to take him back again? I fancied that I heard them say, Dear Lord, thy will be done. For all the joy thy child shall bring, the risk of grief we’ll run. We’ll shelter him with tenderness, we’ll love him while we may, And for the happiness we’ve known, we’ll ever grateful stay. But shall the angels call for him much sooner than we planned, We’ll brave the bitter grief that comes and try to understand.
I fervently hope that today’s events will bring us a better understanding of the Convention of the Rights of the Child, and will drive home the point that a child’s development is foremost a prerequisite in the advancement of humanity.
Petitioners’ writs should be granted. Respectfully submitted, Edwin S Matthews, Jr Counsel of Record Edward H Tillinghast, III Damion K L Stodola Andrea G Lauletta * Rachel Wrightson* Coudert Brothers LLP 1114 Avenue of the Americas New York, New York 10036 212-6264400 Peter Carter QC 18 Red Lion Court London EC4A 3EB 44-20-7520-6000 Jeremy Carver, CBE Clifford Chance LLP 10 Upper Bank Street London E14 5JJ 4420-7006-1000
I therefore, encourage you, the prime movers of your community, to participate in the events we have lined for you, with vigour and awareness. I also fervently hope and pray that each of you will gain a better understanding of the Rights of the Child and will bring home this awareness with you, to be practiced and shared with loves ones and within your families and friends. ‘The Festival of Rights 2004 with Rights of the Child’
Lord Lester of Herne Hill QC David Pannick QC Blackstone Chambers Blackstone House Temple London EC4Z 9BW 44-207583-1770 *
Admission pending in New York Attorneys for 175 Members of both Houses of the Parliament of the United Kingdom of Great Britain and Northern Ireland
Report of Robert H. Jackson To the President, June 7, 1945, Dep’t St. Bull., June 10, 1945, at 1071, 1073. The report was released to the press by the White House with Presidential approval and was accepted by other governments as the official statement of the United States. It was subsequently placed before all of the delegations at the London Conference. The Nürnberg trials were established between the victorious Allies and thus did not afford domestic constitutional protection. The United States, however, clearly understood that at a minimum, a trial and a public record were required — if not by the letter of the law, then by principles upon which the Republic was created. 28