Sunday, March 29, 2015

Mourning a great leader

The Sunday Star
Legally Speaking by Roger Tan 

IN MEMORY: Sunday Star columnist Roger Tan paying tribute to the late Singapore founding father Lee Kuan Yew in the condolence book at the Singapore High Commission in Kuala Lumpur.
Spontaneous and emotional outpouring of grief by Singaporeans is indeed a testament to Lee Kuan Yew’s extraordinary achievement in creating a united nation out of a divided, polyglot, multi-racial and multi-religious population.

THE fact that today our Yang di-Pertuan Agong will represent Malaysia at Lee Kuan Yew’s funeral – an epochal event in the history of Singapore – speaks volumes of the island’s founding father as the greatest statesman in South-East Asia. 

In fact, President Richard Nixon held him up as a leader of similar stature as Winston Churchill. Most importantly, Lee was also instrumental in the formation of Malaysia and hence he and a generation of Singaporeans were once, albeit briefly, Malaysians between 1963 and 1965. 

Born on Sept 16, 1923, Lee read law at Cambridge University and obtained a starred double first and started practising as a lawyer in 1950 for almost a decade. As a legal assistant, he took up cases for trade unions, often on a pro bono basis. This undoubtedly helped him later to generate mass support for him when he became prime minister in 1959. 

Almost half a million Singaporeans have already turned up at Parliament House and the 18 community tribute sites to pay their last respects to the nonagenarian. Thousands more did not mind queuing for up to 10 hours the night before in order to reach the Parliament House where the body is lying in state. 

This spontaneous and emotional outpouring of grief by Singaporeans is indeed a testament to Lee’s extraordinary achievement in creating a united nation out of a divided, polyglot, multi-racial and multi-religious population. It is ironic that someone who had believed in Machiavelli, making him the most feared person in Singapore, is now someone who is most loved by his people. It is understandable that Singaporeans’ biggest regret is that their founding father would not be there on Aug 9 for their 50th national day celebrations. 

Lee was indeed a great leader in every sense of the word. He was humble enough to say sorry if he was wrong and if it was in the best interest of his county to do so. Hence, he had apologised to Malaysia a few times for some of his acerbic comments. 

He was also a first-class diplomat whose advice was often sought by leaders of superpowers even though he was just the head of “a little red dot” on the world map. 

Monday, February 9, 2015

Moderation is the key, says lawyer

The Star 
by Adrian Chan 
One for the album: Liow (right) posing with speakers at the forum (from left) Dr Tan Chong Tin, Datuk Dr Hou Kok Chung, Tan, Tan Sri Dr Ghauth Jasmon, Prof Mohamad and Dr Chandra (front).
KUALA LUMPUR: Moderation is the key that opened the door to the formation of our Federal Constitution, says lawyer Roger Tan Kor Mee. 

“Our Constitution is moderate and balances the competing interests of the country’s various communities.

“If not for moderation, we would not have been able to put together a written constitution,” said Tan, who is also a columnist for The Star.

He said while the Constitution guaranteed many rights for the citizens, it also demanded that moderation be exercised with self-restraint, self-control and self-discipline.

“The thought of resorting to violence should never even cross the mind of anyone,” he said.

Tan added that in a moderate society, a person should be able to hold a rational discourse with his peers even on sensitive issues affecting his community.

Sunday, November 23, 2014

Case for judicial review

The Sunday Star 
Legally Speaking by Roger Tan
Landmark judgment: In the Nov 7 decision of the Court of Appeal in Muhamad Juzaili Bin Mohd Khamis & Ors v Negri Sembilan State Government, 2014, the court struck down section 66 of the Syariah Criminal Enactment (Negeri Sembilan), 1992 which criminalises Muslim men for cross-dressing, as unconstitutional.
Is judicial review the correct procedure to challenge the validity of a statute? 

IN the last two weeks, two interesting cases relating to homosexual and cross-dressing men were dealt with by the appeals courts in Singapore and Malaysia. However, the manner in which the two courts interpreted the equipollent provisions of our respective Constitution, described as consanguineous with one another as well as that of the United States and India, differed sharply.

In the Singapore case of Lim Meng Suang vs Attorney General, 2014, the highest court in Singapore, the Court of Appeal, ruled in a 101-page judgment on Oct 29 that section 377A of the Penal Code, which criminalises physical intimacy and sex between men, was not unconstitutional.

The appeals were brought by gay couple Lim Meng Suang and Kenneth Chee Mun-Leon who have been in a romantic and sexual relationship for the past 15 years, and Tan Eng Hong who had been arrested for engaging in oral sex with another man in a public toilet cubicle in 2010.

In a nutshell, the appellants had questioned the constitutionality of section 377A on the following grounds:

> that it infringed Article 9 of the Singapore Constitution (SC) that “no person shall be deprived of his life or personal liberty save in accordance with law”;

> that it infringed Article 12 SC in that “all persons are equal before the law and entitled to the equal protection of the law”; and

> that section 377A was a colonial legislation incorporated into the Singapore Penal Code in 1938 when she was a British colony and prior to the promulgation of SC.

Senior Counsel Deborah Barker (daughter of Singapore’s first post-Independence Minister of Law, EW Barker) argued for the gay couple that the right to life and personal liberty under Article 9 should also include a limited right of privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being.

Delivering the judgment of the court, Justice Andrew Phang Boon Leong ruled that the phrase “life or personal liberty” in Article 9 when read in entirety refers only to a person’s freedom from an unlawful deprivation of life and unlawful detention or incarceration. Period.

He went on to caution that foreign cases (with particular references to those decided by the Indian Supreme Court) that have conferred an expansive constitutional right to life and liberty should be approached with circumspection because they were decided in the context of their unique social, political and legal circumstances.

As regards Article 12 SC, the court applied the Malaysian case of Malaysian Bar v Government of Malaysia, 1987 in that to determine the constitutionality of a statute under Article 12 SC, the test is one of reasonable or permissible classification. It is a two-stage test which is applied only if the impugned statute is discriminatory in nature.

In other words, any law that treats people differently can still be held as constitutional if it passes this test.

Sunday, August 17, 2014

Keep it colour blind

The Sunday Star 
Legally Speaking by Roger Tan
 
Respected figure: The writer with Sultan Azlan.
Our judges, regardless of their race and religion, must always be mindful that they have taken an oath to preserve, protect and defend our Constitution not for some but for all Malaysians.

I HAVE wanted to write this for some time – my tribute to the late Sultan Azlan Shah who passed away on May 28, 2014. Not so much because he had been reading my column, but rather on two occasions which I had the honour of meeting him, he had encouraged me to keep on writing.

I was also troubled that when he passed away, he had not been accorded the appropriate recognition by leaders of our legal profession of his contribution to the administration of justice in this country.

This could be due to some differences with the Sultan’s decision not to call for fresh state elections when Pakatan Rakyat lost the majority control of the Perak state assembly in February, 2009. I had at that time written extensively that the Sultan’s decision was constitutionally correct.

Interestingly, the Federal Court’s judgment which subsequently endorsed the correctness of his royal decision is now being relied upon by his then most vociferous and sometimes insolent critics in Pakatan Rakyat to justify replacement of the embattled Selangor Mentri Besar, Tan Sri Khalid Ibrahim without the need for a state assembly sitting or the dissolution of the assembly.

Sultan Azlan belonged to the generation of great Malaysian jurists including the likes of Tun Mohamed Suffian Hashim and Tan Sri Eusoffe Abdoolcader. He was, after all, the youngest ever appointed High Court Judge and Lord President.

Not many knew that whenever the Malaysian Bar stood up for the independence of the judiciary, he was always there with and for us.

I still remember the keynote address he gave at the 14th Malaysian Law Conference on October 29, 2007; of which I was the organising chairman.

The conference was held one month after 2,000 or so lawyers walked for justice from the Palace of Justice to the Prime Minister’s office to hand over a memorandum asking the government to set up a royal commission of inquiry to investigate the V.K. Lingam video tape which implicated the then chief justice, Tun Ahmad Fairuz Sheikh Abdul Halim.

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.”