Sunday, July 27, 2014

Justice at all cost for MH17


The Sunday Star
Legally Speaking by Roger Tan



Malaysia Airlines' special multi faith prayer service for the tragic and senseless loss of passengers and crew of MH17, at the Malaysia Airlines Academy in Kelana Jaya. - Filepic
States whose citizens perished in the tragedy can pursue the perpetrators in their domestic courts if their criminal laws have extra-territorial jurisdiction. 

SINCE Thursday, I have been thinking how horrible it must have been, the final moments of their lives, when they knew the plane was going down.

“Did they lock hands with their loved ones, did they hold their children close to their hearts? Did they look each other in the eye, one final time, in a wordless goodbye? We will never know.

“In the last couple of days we have received very disturbing reports, of bodies being moved about, being looted of their possessions.

“Just for one minute, I want to say that I am not addressing you as representatives of your countries, but as husbands and wives, fathers and mothers. Just imagine you first get the news that your husband has been killed, and within two or three days, you see images of some thug removing the wedding band from their hands. Just imagine that this could be your spouse.

“To my dying day, I will not understand that it took so long for rescue workers to be allowed to do their difficult jobs. For human remains to be used in a political game?”

Those were the sad words of the Dutch Foreign Minister, Frans Timmermans, when he delivered his heart-rending speech at the UN Security Council (UNSC) on July 21 on the downing of MH17. More than two thirds of MH17 victims were Dutch.

Almost at the same time, our Prime Minister Datuk Seri Najib Tun Razak managed to pull off a major diplomatic coup by quietly arriving at an agreement with the leader of the pro-Russian separatist group, Alexander Borodai, that finally broke the impasse and secured the release of the black boxes and remains of the victims of MH17.

“In recent days, there were times I wanted to give greater voice to the anger and grief that the Malaysian people feel. And that I feel. But sometimes, we must work quietly in the service of a better outcome,” said Najib.

In this sense, Malaysia’s foreign policy, which is based on non-alignment and neutrality, may have just paid off.

Be that as it may, Malaysia must still register our absolute outrage, in the strongest possible terms, over the shooting down of MH17. At the time of writing this, investigators still do not have unimpeded access to the crash site and remains of some of the victims are reportedly still on the site.

But as the Australian Foreign Minister Julie Bishop put it aptly: “We must have answers, we must have justice, we owe it to the victims and their families to determine what happened and who was responsible.” 

Also, the UNSC Resolution 2166 on MH17 has demanded that “those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability”.

But sadly, men’s greatest sin is always forgetting about tragedies and not learning from them.

On Sept 1, 1983, Korean Airlines Flight 007 was shot down by a Soviet fighter jet near Moneron Island, west of Sakhalin Island over the Sea of Japan. All 269 passengers and crew on board were killed. General Anatoly Kornukov, who was then commander of Dolinsk-Sokol Air Base, Sakhalin, gave the order to shoot down KAL007 without verifying that it was a civilian aircraft.

In 1998, Russia’s president, Boris Yeltsin, even made him chief of the Russian Air Force. The Ukrainian-born Kornukov remained unrepentant throughout. He died early this month. Russia had neither apologised nor made any compensation.

On July 3, 1988, US navy missile cruiser USS Vincennes shot down Iran Air Flight 655 in the Persian Gulf after mistaking it for an Iranian fighter jet. All 290 on board died. President Ronald Reagan and his deputy George Bush Senior refused to apologise. It was not until 1996 that President Bill Clinton’s administration finally expressed “deep regret” over the tragedy and paid the Iranian government US$131.8mil, of which US$61.8mil went to the victim’s families.

Sunday, January 12, 2014

Religion and the law

The Sunday Star
Legally Speaking by Roger Tan



The Jais raid on the premises of the Bible Society of Malaysia has put into focus the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of SelangorThe Jais raid on the premises of the Bible Society of Malaysia has put into focus the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor.

THE Jan 2 raid by the Selangor Islamic Affairs Department (Jais) on the premises of the Bible Society of Malaysia (BSM), in which 331 copies of Malay and Iban Bibles were seized, has brought to national attention a piece of state legislation hitherto unknown to many Malaysians – the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor (Selangor Enactment).

So far, Jais has argued they were empowered to do so under Section 9 (1) of the Selangor Enactment, which prohibits any non-Muslim to use in writing or speech any of 25 words or any of their derivatives and variations, as stated in Part 1 of the Schedule, pertaining to a non-Islamic religion.

The 25 words are Allah, Firman Allah, Ulama, Hadith, Ibadah, Kaabah, Kadi, Ilahi, Wahyu, Mubaligh, Syariah, Qiblat, Haj, Mufti, Rasul, Iman, Dakwah, Injil, Salat, Khalifah, Wali, Fatwa, Imam, Nabi andSheikh.

Section 9 (2) also prohibits a non-Muslim to use 10 expressions of Islamic origin set out in Part II of the Schedule, including Alhamdulillah and Insyallah.

Non-Muslims can, however, use the words and expressions by way of quotation or reference.

Jais contended that Section 9 (1) had been contravened because the Malay and Iban Bibles contain the word “Allah”. Further, they were entitled to arrest without warrant the BSM chairman, lawyer Lee Min Choon, and manager Sinclair Wong as section 11 provides that all offences and cases under the Selangor Enactment are deemed to be seizable offences and cases under the Criminal Procedure Code (CPC), that is, offenders of seizable offences can be arrested without any warrant of arrest.

A fortiori, as this is a law passed by a state legislature, it has the force of law and quite rightly it can, therefore, override the 10-point solution decided by the Federal Cabinet and communicated via the Prime Minister’s letter dated April 11, 2011 to the Christian Federation of Malaysia.

Sunday, December 22, 2013

Freedom from hate speech


The Sunday Star
Legally Speaking by Roger Tan

The debate currently raging in Australia about amending or repealing section 18C of its Racial Discrimination Act, 1975 is rather interesting.

DURING the recent election, Prime Minister Tony Abbott and Attorney-General George Brandis had pledged to repeal section 18C.

It all started after journalist Richard Bolt was found to have contravened the RDA in two of his articles written in 2009 and published in The Herald Sun and on its online site, titled “White fellas in the black” and “White is the new black”.

As reported in the case of Eatock v Bolt, 2011, Eatock had complained that Bolt’s two articles had conveyed offensive messages about her and people like her (that is high profile and fair-skinned Aboriginal people) in that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could avail to the benefits meant for Aboriginal people.

Justice Bromberg ruled that the defences and exemptions allowed under section 18D of the RDA, such as if the act was done reasonably and in good faith for purposes of artistic work or public interest or making a fair comment, had no application because the articles contained factual errors.

Hence, this has now appeared to be the first task of the Abbott government, that is to remove this racial vilification law. In Brandis’ view, repealing section 18C would, in fact, strengthen and restore freedom of speech in Australia.

“You cannot have a situation in a liberal democracy in which the expression of an opinion is rendered unlawful because somebody else ... finds it offensive or insulting,” said Brandis in The Australian recently.

In other words, free speech is about allowing other people to say or write bad and rude things about you which you do not like.

That was exactly what Abbott said in August when he was the Opposition Leader: “If free speech is to mean anything, it’s others’ right to say what you don’t like, not just what you do. It’s the freedom to write badly and rudely. It’s the freedom to be obnoxious and objectionable.”

Sunday, November 10, 2013

Have uniform laws

Cleaning up: A contractor raking the litter trapped in a floating boom installed in Sungai Batu near Kampung Simpang Batu, Kuala Lumpur. Malaysians must realise that whatever we throw into the drain will eventually flow into the river.
The Sunday Star
Legally Speaking by Roger Tan

There should be a law to deal with all matters relating to our water resources, including management and preservation of rivers. 

THERE is a saying that if you follow the river, you will find the sea. But these days, this may not literally be the case any more. The old river may have already turned into a stream or its path has been severely obstructed by waste. 

Yet, whenever there is a flash flood, we would blame nature for causing the river to burst its banks. Take the Gombak River, for example. The flood problem has been there ever since the beginning of the century. 

As someone related to me, during the great flood of 1920 when Kuala Lumpur was inundated with a metre of water, workers had to paddle to work in sampans! When the water receded, the Chartered Bank, located at Benteng, actually spread millions of soggy bank notes to dry on the Selangor Club’s field (now Dataran Merdeka)! 

In another big flood a few years later, even the body of a tiger was swept through the city from upstream!

Hence, Malaysians must realise, if not begin to realise, that whatever you throw into the drain will eventually flow into the river. Waste must be properly disposed of, otherwise it will clog the drains and rivers. Similarly, if you discharge any environmentally hazardous substance into the river, it will cause pollution. 

Thursday, October 10, 2013

Adult and baby diapers now 12.14% of waste disposed in Malaysia


The Star
by Isabelle Lai

PETALING JAYA: Malaysians are throwing away more diapers each year, as the population ages and more elderly people have started using diapers, aside from babies, said the Urban Wellbeing, Housing and Local Government Ministry.

Its secretary-general Datuk Seri Arpah Abdul Razak said on Tuesday that diapers now formed 12.14% of the total waste disposed in the country.

“This shows that we have an ageing population as more senior citizens are using diapers, too,” she said in her presentation entitled “Solid Waste Management in Malaysia: A Way Forward” at the International Solid Waste Association (ISWA) Congress 2013 in Austria.

AFP reported that Arpah shared Malaysia’s experience in transforming its solid waste management through three approaches.

The approaches are federalisation of solid waste management, privatisation of household solid waste collection services and treatment and disposal of solid waste.

Tuesday, September 17, 2013

Lawyers want Sabah and Sarawak to ease restrictions

The Star

PETALING JAYA: Senior lawyers have suggested peninsula lawyers to be allowed to practise in Sabah and Sarawak without a work permit to enhance national integration.

Lawyer Roger Tan said legal professionals in Sabah and Sarawak should adopt a progressive stance as integrating the legal systems and profession would ultimately benefit the nation. 

Lawyer Datuk V. Sithambaram said for a start, conditions for an ad hoc admission to the High Court of Borneo – if a lawyer from the peninsula were to work in the two states – should be eased. 

“It will be good in the long run to encourage lawyers in the two states and peninsula to learn from each other and stand together,” he said. 

Sunday, July 28, 2013

Ex-judges must remain ethical


The Sunday Star
Legally Speaking by Roger Tan

Who a former judge later associates with and what he subsequently does or says will still be closely scrutinised by the public.


THE morning after I retired, a Rolls Royce arrived at my house with a message that I was required to attend a very important board meeting. Without further ceremony, I was taken to the penthouse of the Chartered Bank. Here, I was appointed chairman and required to call the meeting to order.

“There were only three items on the agenda. Caviar, champagne and any other matters arising therefrom. At noon, we adjourned to a private room in the Shangri-La for a sumptuous lunch. When I was driven back home at 3pm, I greatly regretted I had not retired years earlier!”

Those were the bantering words of one of Malaysia’s most celebrated judges, Tun Mohamed Suffian, at a dinner given in his honour shortly after his retirement as Lord President on Nov 12, 1982. At first glance, these may well be facetious remarks, but it does go to show that a retired judge can be commercially marketable and become an asset for any organisation to be associated with.

Needless to say, who an ex-judge later associates with and what subsequently he does or says will still be closely scrutinised by the public. His judicial conduct during his pre-retirement or resignation days may even be called into question if he later exhibits strong inclinations or preferences whether politically, socially or morally.

However, currently, the Judges’ Code of Ethics 2009, made pursuant to Article 125(3B) of the Federal Constitution, does not deal with the conduct of judges after their retirement or resignation. Hence, an ex-judge will have to be guided by his own conscience when he embarks on any post-retirement activities. Most of them will become an arbitrator or join a legal firm as its consultant or a statutory body as its chairman. To date, only three are said to have returned to the court as counsel – Tun Mohamed Salleh Abas, Datuk Kamalanathan Ratnam (better known as R.K. Nathan) and Datuk Gopal Sri Ram.