Saturday, December 22, 2007

Acting without fear or favour

ON Oct 29, Prime Minister Datuk Seri Abdullah Ahmad Badawi hosted a dinner for about 600 delegates of the 14th Malaysian Law Conference.

In her welcoming speech, president of the Malaysian Bar, Ambiga Sreenevasan, said: “The Bar extends to the prime minister the honour and friendship you have extended us. When you Mr Prime Minister declared war on corruption, the Bar was with you. When you opened up the democratic space and asked civil society to be your eyes and ears, the Bar was with you. When you said it is important to make sure that justice is at all times maintained, the bar was with you. When you said corruption undermines development by compromising the rule of law and weakening the institutional foundations upon which economic growth depends, the Bar was with you.

“If we are to encourage foreign investment, the rule of law and a strong judiciary are critical. What drives the Bar ultimately is the cause of justice. We want to see the scourge of corruption eradicated from our midst. We want to see truth triumph over falsehood, justice over injustice, integrity over dishonesty. What we want is what you want, Mr Prime Minister.

“Recently, we spoke up a little louder than usual and that is because we have some serious concerns about the institution of the judiciary. For us, silence in this situation was not an option. We believe that change must take place and it must take place now. We must seize this moment as we believe that with you Mr Prime Minister at the helm, positive change can take place. Therefore, we make our appeal directly to you.”

In the introduction to his reply, the prime minister said: “I must apologise to you and I am very embarrassed that I am your host for tonight’s dinner and yet I am late and I kept you waiting despite the fact that I rushed all the way from Kelantan to keep this date with you — our first date. I was in Terengganu in the morning and Kelantan in the afternoon to launch the East Coast Development Corridor and tomorrow I will be in Kuantan early in the morning.

“I am thrilled and happy to have discovered certain things. I was admiring this tie you have given me. I really thank you because you like the design. Take a look at it, ladies and gentlemen, it is Barisan Nasional! Thank you, the bar is supporting Barisan! (Applause and laughter) I am delighted to hear for the first time that as president of the Bar, you have said that you are supporting me for the many things that I have said. Ambiga, I am still committed to what I have said for which you support me.” (Applause)

Then two days later on Nov 1, the prime minister announced the retirement of the former chief justice Tun Ahmad Fairuz Sheikh Abdul Halim and the appointment of Datuk Abdul Hamid Mohamad as the acting chief justice. Hamid was appointed chief justice on Dec 5.

On Nov 16, the prime minister also announced the setting up of a royal commission of inquiry on the controversial Lingam video clip.

Then on Nov 22, the Bar held its extraordinary general meeting (EGM) and unanimously passed a resolution calling for wide terms of reference for the royal commission, including “investigating and making recommendations for judicial reform and on any aspect of the administration of justice in Malaysia".

The Bar would like to think that the prime minister is listening to its calls since their “first date” on Oct 29. In fact, one must honestly acknowledge that things would have been different if the Abdullah administration was not in government. The Bar’s Nov 22 EGM could also possibly have been stopped by a court injunction.

As a responsible professional and apolitical body, the Bar will give credit where it is due. It will trust that the prime minister will seize this opportunity to reform the judiciary and restore public confidence in this institution which has been eroded since the 1988 judicial crisis.

If the Bar can engage the non-governmental organisations and civil society on various issues, all the more so it will have to engage the government. It does not subscribe to the view that to be popular, it is trendy to be anti-establishment.

It follows that when the Bar Council decided to cancel the Human Rights Day Walk, planned for today in conjunction with the International Human Rights Day tomorrow, the Bar Council has acted responsibly, taking into account “the present circumstances that surround this event, particularly the interests of the public and the Malaysian Bar".

Contrary to what some may say, the walk was called off obviously not because of undue pressure from the authorities. The history of the Bar speaks for itself, in that the Bar is always intrepid to further the cause of justice without regard to its interests or that of its members, uninfluenced by fear or favour.

The decision not to walk was one which council members spent days debating. In arriving at it, the council considered two opposing views rationally and thoroughly.

It was ventilated that Section 27(2) of the Police Act 1967, which gives the district police chief discretion to approve the application for a licence to convene an assembly if “it is not likely to be prejudicial to the interest of the security of Malaysia” is unjustified and against human rights principles. Suhakam as well as the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police have expressed their opinion that this section may be challenged as unconstitutional.

It was also argued that even though many, including opposition parties, have applied for a permit, applications to the police have been frequently turned down and appeals have also been to no avail. By the time the matter is taken to court, the purpose of the application would be academic.

Further, Suhakam has opined that lack of definition of the phrase “prejudice to the interest of the security of Malaysia” effectively negates the right to the freedom of assembly enshrined in Article 10 of the Constitution.

Similarly, the authorities have often interpreted the provision to frustrate or deny such rights. In addition, as Section 27(2) is couched in the negative, that is, it assumes that assemblies are not permitted unless it is shown, or that the police are satisfied, that the assembly is not likely to be prejudicial to the security of Malaysia, this has shifted the presumption of a constitutional right in a substantive manner such as to be contrary to the purport and intent of Article 10.

Most of all, it was strongly argued that to apply for a police permit would be inconsistent with the stand which the Bar has publicly taken on numerous occasions — that no permit should be applied for and the law ought to be repealed, the most recent example being the Sept 26 Walk for Justice.

It was also persuasively argued that we are on the cusp of real change and the Bar is at the forefront of this, and that people are looking to the Bar to lead the way. Not to walk, it was argued, would therefore be a disservice to many and would affect the credibility of the Bar.

However, the majority of council members felt otherwise and that the Sept 26 walk was an exception. It was an extraordinary walk for an extraordinary cause, and it was an act of civil disobedience which was absolutely necessary and the Bar would not hesitate to repeat it if severity and magnitude of the cause justify it.

That said, the walk today is only a celebratory walk. It is not a case which warrants an act of civil disobedience. Regrettably, it has also been politicised and the council had to take into account the tension created by the latest Hindraf rally just in case the walk is used as a shield or pretext by some parties to turn it into a protest rally.

In fact, without the knowledge of the council, its Human Rights Committee, then chaired by Cecil Rajendra, did apply and obtain a police permit for the last two annual Festival of Rights walks.

It was also strongly put forward that the Bar should uphold the rule of law. Fidelity to law is pivotal to a democratic society; otherwise it will lead to anarchy.

Until and unless Section 27 has been declared unconstitutional, it is still a valid law passed by a democratically- elected government.

If one can disobey a law just because he feels it is unjust, then there is no end to it, including affording our members a natural right to disobey rules made by the council because they feel that such rules are unfair and unjust.

However, it is the safety of women and children who may take part in the walk which is of paramount importance. With the existence of a proviso to Article 10 of the Federal Constitution, this constitutional right may not be an absolute right. While recognising the freedom of one group to assemble peaceably, we must also recognise the freedom of the rest of society to have quiet enjoyment of life and property. As the event is organised by the Bar Council, it is also mindful of possible suits that may lie against the Malaysian Bar for any personal injury or damage to property.

Weighing the pros and cons of this issue, the council then decided to cancel the walk. We do not observe Human Rights Day just by looking at a person’s right to assemble peaceably when he should have a greater right to live in peace. The council is confident that its decision will have the support of our members and Malaysians.

When we walked on Sept 26, lawyers were branded as crazy and pro-opposition. We have to accept that our decision to cancel the walk today may now be criticised by civil society and some human rights groups.

But this only goes to show the independence of the Bar Council whose members will not be afraid to make any decision no matter how unpopular it is if we think it is the right thing to do in the best interests of the Bar and the country.

Monday, November 26, 2007

Protect those who own land

The Star
by Roger Tan

I REFER to the report 'E-Tanah more efficient', (The Star, Nov 21) where it was reported that amendments to the National Land Code would be tabled at the next Parliament session.

The report quoted Deputy Prime Minister Datuk Seri Najib Tun Razak as saying, after chairing the National Land Council meeting, that one of the amendments would include extending the e-Tanah system to the entire peninsula, following its successful implementation in Penang last month.

On July 24 ‘Government to review land code Bar Council calls for amendment’, (The Star, July 25), the Bar Council handed over a memorandum titled Prevention and Protection against Fraudulent Land Transactions, to the Natural Resources and Environment Minister, Datuk Seri Azmi Khalid. A copy of the memorandum was also later extended to the Attorney-General’s Chambers.

In the memorandum, the Bar Council has proposed amendments to section 340(3) and (4) and section 187B of the National Land Code. These amendments, if passed, would legislatively reverse the unjust decision of Adorna Properties v Boonsom Boonyanit delivered by the Federal Court in 2000.

For the past six years, the Adorna Properties decision has “wreaked havoc” on every landowner in this country. It not only puts a landowner at risk of losing his property to fraudsters and forgers, but also when the landowner loses his land to these crooks, he loses everything without any compensation or remedy.

The Government, therefore, owes every citizen an immediate duty to protect and preserve his property from deprivation.

The Bar Council calls on the Government to ensure that the coming amendments to the National Land Code will contain provisions to come to grips with these serious ramifications of the Adorna Properties decision in order to undo the injustices perpetuated by this case for the last six years.

Land titles: Amendments should undo injustices

New Straits Times
by Roger Tan

I REFER to the report "Stiffer penalties against squatters" (NST, Nov 21) wherein Deputy Prime Minister Datuk Seri Najib Razak was quoted as saying, after chairing the National Land Council meeting, that the National Land Code would be amended soon to extend the implementation of the e-Tanah online land database system to the entire country.

On July 24, the Bar Council handed over a memorandum titled "Prevention and Protection against Fraudulent Land Transactions" to Natural Resources and Environment Minister Datuk Seri Azmi Khalid.

A copy of the memorandum was also later extended to the Attorney-General's Chambers.

In the memorandum, the Bar Council has proposed amendments to Section 340(3) and (4) and Section 187B of the National Land Code.

These amendments, if passed, would legislatively reverse the unjust decision of Adorna Properties v Boonsom Boonyanit delivered by the Federal Court in 2000.

For the past six years, Adorna Properties has not only put a landowner at risk of losing his property to fraudsters and forgers but also when the landowner loses his land to these crooks, he loses everything without any compensation or remedy.

The Bar Council calls on the government to ensure that the amendments to the National Land Code will also include provisions to come to grips with these serious ramifications of Adorna Properties to undo the injustices perpetuated by this case for the last six years.

Sunday, November 25, 2007

Café Latte Chat: Shrinking Chinese votes

The Sunday Star

The Café Latte Chat is a regular series that aims to stimulate discussion and opinion on current issues. It begins this week with the spotlight on Chinese votes in the context of the next general election.

IN his preamble, The Star's acting group chief editor Datuk Wong Chun Wai pointed out that power sharing in this country has been a numbers game. The Chinese now comprise only 25% of the total population compared to some 35% a decade ago. Only about 30 of the 219 parliamentary seats are still predominantly Chinese.

What are the possible impact and implications of the shrinking Chinese votes on the power-sharing model? Can the community afford a weaker representation in the ruling Barisan Nasional?

Café Latte Chat: Shrinking Chinese votes

Healthy debate: The panel including (from left) Liew, Soong, Khoo, Wong and Roger airing their views during the first Cafe Latte Chat at Menara Star recently.

How can the Chinese community rediscover their political influence in the governance process?

Are the grouses and sentiments real and legitimate?

What is the way forward?

The participants in this session are corporate lawyer Roger Tan, Insap research director Fui K. Soong, DAP election strategy advisor Liew Chin Tong, Sedar Institute director Gavin Khoo Khay Peng and The Star's associate editor Joceline Tan.

Below are excerpts from the discussion chaired by Wong.

Urban And Restless

Wong: Let's start with the perception that urban voters especially the Chinese are in an anti-establishment mood.

Joceline: There is clearly unhappiness mainly among the intelligentsia, people who read newspapers, watch TV, (and) follow current events about a variety of issues. They are also mainly urban-based and middle class so areas like the Klang Valley and also Penang would be areas to watch. But sometimes as a reporter, I get the sense that when people tell me something, like the Chinese are unhappy, I tell someone else, and he or she tells others and after a week, it comes back to me. So you wonder how much is hearsay and how much is real. We don't have a polling system to provide us with more scientific feedback.

Soong: Much like marketing, understanding voters, how they behave – these are all behavioural patterns. They are important factors for all political parties including the MCA. But talking about communal politics, this is where a lot of people fail to understand the issue of ethnicity. The West is beginning to reject this issue in politics. But we can't run away from the issue of multi-ethnicity in Malaysia.

Where Malays are concerned, religion is one line that you don't touch. For the Chinese, it's language. In Sabah and Sarawak, when we talk about the indigenous groups, we do not refer to them just as Bumiputra because for them it's about tribal identity. But from our studies we find we can't take away how Malaysians view themselves in terms of ethnicity. But they are proud of being Malaysians and, as I always say, traffic lights don't just break down just for the Chinese or if the drains are stuck, it affects everyone.

Liew: As of April 15, there were four million Malays still unregistered as voters. For now, the Government can still segregate urban and rural votes on the assumption that urban areas are still Chinese dominated and that most Malays vote in their kampung. But DAP would not only have to appeal to the Chinese if the four million urban Malays were to enter the electoral roll. Maybe it can transform itself into a party that champions all urban Malaysians. Umno's Malay hegemony is because it controls most of the seats in the rural areas. Once you have Malays who live and work in urban areas, the issues will change; the articulation of ideas would be different.

Pendulum Votes

Wong: What are your views on the urban Chinese vote swing in the next elections?

Liew: There is a large number of swing voters in urban politics, even in Australia and the United States. In Malaysia, maybe DAP will get more votes this time around, but not necessarily more seats. I don't think we will win many more seats in the next election because of the way the electoral system structures the seats. Besides, there aren’t many urban seats available. From what we hear, we may get an increase in popular votes but it would not be as great as in 1986. But even in 1990, the dynamics were different: there were hopes for a change of government, at least for a majority of Chinese. You don't see it this time around because Umno is so strong.

Roger: A Chinese vote swing in favour of DAP would be quite a disaster for the community's representation in government where the MCA is concerned. The Chinese in the rural and urban areas have a different way of thinking. They are still inclined towards the MCA because the majority are grateful for the new villages created during the Emergency.

The MCA grassroots and connectivity are stronger when dealing with rural Chinese who generally still think along Chinese representation.

This is not the case in the urban areas where issues and educational backgrounds are different. They think in terms of national interest, national issues and also the importance of a strong opposition. So we see a lot of Chinese turning towards the DAP and other opposition parties.

But when you talk about shrinking Chinese votes and representation in the government, the Chinese-based parties should unite.

This may be a near impossibility, but there was talk of MCA and Gerakan getting together in the last elections. I thought that was a good idea.

Soong: Once in a while – I don't know why – the Chinese community has this self-destruct mechanism. But the machinery, the infrastructure, is there whenever there are issues in rural areas. In urban areas, however, I believe MCA has not handled urban issues or maybe even urban Chinese issues in a way that meets their needs, which are very different. Their outreach, particularly to the professional groups, has been difficult because of the economic advances. There has to be more direct involvement with the population, to make them see that the very same economic advances were possible because of the stability provided by the Barisan framework.

Wong: When people have a problem they go to (Datuk) Michael Chong but some feel MCA is not “shouting” enough and they use DAP for that. They want the best of both worlds, so they vote DAP for Parliament and Barisan for state. Is this a Chinese dilemma?

Soong: If everyone thought that way, it would be koyak (finish) for us. I mean it's a selfish thought because it's as if they are saying they are interested only in the progress of their kawasan while hoping that others would vote the opposition into parliament for a voice.

Khoo: We have to look at the psyche of political parties. Gerakan, for example, has the same rhetoric chant as MCA – it does not want open confrontation. It keeps saying that we do things quietly; we serve the society and community in our own way by cooperating with the government. They believe in closed-door negotiations.

About the inability to connect with urban voters, it's not so much about urban or rural voters but more of the generation gap, the inability to connect with the new generation of Chinese Malaysians. Failure to integrate comes from two main reasons. One is that race-based political parties are still working at the post independence mindset. At that time, it was necessary for race-based parties to be formed.

These political parties fail to realise that there must be an evolutionary process. There should be a timeframe to work together and integrate so that a real Malaysian political party can emerge. The second reason is that political parties claim to represent certain communities by their names and, for that matter, Gerakan has also become very “Chinese-centric” because of this.

Roger: I would equate the relationship of MCA, Umno and MIC as a marriage of 50 years. So imagine that in this married situation, if Umno and MCA continued to shout at each other, the marriage would be broken. But there are a lot of Chinese who would love MCA to be more vocal and raise issues in a more open way so that MCA is seen as a party that will not be bullied.

But once we do that, we are going to have a reaction. If you look at our 50-year history, there have been instances where MCA has spoken up and each time, there was strong reaction from Umno.

Chinese Votes Crucial In Malay Areas

Wong: When the Chinese supported the opposition in 1969, there was a loss of representation in government. They know they can never be “king” but they can be the king-maker in close-fought seats. Given the shrinking Chinese population, would that mean they would face less and less political clout?

Liew: I prefer the analogy of the 1990 election when the majority of Chinese voted opposition and this prompted the government to announce Vision 2020 four months after the elections. It was the recipe to address Chinese discontent and because they knew the Malay ground was very weak at that time. The Chinese were the king-maker in 1990, so they decided to sustain their support by addressing the issues.

MCA will not face serious consequences in the next elections because half of their seats are Malay-majority and Umno is relatively strong at the moment. In addition, many urban voters face a dilemma in the sense that services and amenities are linked to patronage. Many Chinese Malaysians feel it's their right.

Soong: About 65% of Umno seats are multi-racial seats. When the candidate or constituency is dicey, the Chinese tend to vote for the opposition. They are leveraging against each other.

Roger: From my observation, if Umno and PAS vie for a seat, the Chinese would vote for Umno. As for those seats that are for MCA and DAP, the Malays go for MCA. So it's not quite correct to say that MCA relies on Malay votes in order to survive. The Chinese were the king-maker when there was trouble in Umno in 1999.

Wong: In a contest between two Chinese parties, how would the DAP win the Malay vote?

Liew: The press is restricted and DAP has no free access to mainstream media. It is difficult for the opposition to preach the national message. For the Malays, DAP is a Chinese chauvinist party. For the Chinese, PAS is given the same view. There's no chance for DAP to make a national conciliatory step. We are forced to go on the ground and that's challenging.

In addition, the electoral system is structured in such a way that it gives Barisan the advantage. As such PAS has won in purely Malay seats and DAP, unfortunately, has also won only in purely Chinese seats.

Khoo: It's simplistic to think that anyone can just form political parties to replace MCA, Gerakan or even DAP because history has shown that parties such as Parti Negara and Pekemas have not achieved any effect. The multi-racial system is inevitably what our system must include and there must be evolution.

We cannot just base it on the post-independence model and say we are going to use it for the next 50 years. If the dominant party tells you we will still be using the same model in 2057, then something is wrong. That's why I think it's very pertinent for political parties within the system to see what they can do to influence the dominant partner to change the system.

Roger: But in the urban areas, the Malays would still vote for Umno simply because Umno is seen as the protector of Malay rights and the Constitution. Also, many Malays vote for them out of gratitude for what they have done.

Urban Voice

Liew: About half of the Malay electorate voted PAS and Keadilan in 1990, so for Malays not to vote for Umno is possible. But Abdullah is still very strong and seen as a champion of the Malays. Things might change in the years ahead because we may no longer assume that Chinese are urban and Malays are rural, as more Malays move to urban areas.

The current administration has not addressed this issue and the disappointment will show in the next election. But there is no way Umno will change unless and until they have to face the swing voters in urban areas. When it has to face younger Malays who have different ideas about the world, then it would have to adapt.

Joceline: The critical group in the next elections would be the urban voters, a large proportion of them being Chinese. Their access to information, the media and the Internet shapes their worldview about politics, democracy, or what is due to them. They see things differently from those outside the urban centres.

Any party that serves this urban grouping will have to come around to their way of thinking and to address the issues. Even Umno will face a similar situation as urban Malays grow in size. They can still raise the keris and it works for the rural crowd but they'll have to start rethinking the urban vote because there's going to be a critical mass of urban voters.

Khoo: Many issues cut across racial lines in urban areas. The government focuses too much on politics, too little on governance. People want this to be addressed – imbalances, abuses, corruption and poor public delivery system. They're also concerned about the inability of the government to control economic opportunities, which lead to escalating costs. When high prices hit the Chinese, it also hits the Malays and Indians.

In his concluding remarks, Wong said: “There seems to be several streams of thought here. We agree the Chinese community is shrinking and some of us are concerned the community will lose political clout if the trend continues.

“But others take comfort that as the political sphere changes, especially in urban areas, the Chinese voters – as a minority – would remain a key factor. The urban voters, it has also been pointed out, also share many commonalities regardless of their ethnic background. Malaysians would be able to see a clearer perspective of this in the next general election. –Transcribed by PAUL CHOO and M. KRISHNAMOORTHY

Wednesday, November 7, 2007

The best place to be on earth

New Straits Times
by Roger Tan

Roger Tan, Head Prefect of his school in  1978 Yong Peng is my hometown and I am always proud to be associated with this town in which I grew up.

In 1800, there were only five Malay houses standing on the banks of Sungai Bekok and on Bukit Jambu. The town was then then known to the Malays as Sri Bertam, named after a tree called ‘Bertam Tree’ in Kampong Bukit Jambu.

In November 1847, four Teochews from China, led by Boo Koh Lak Loo @ Ah Loh, came to Sri Bertam by boat after paddling up Sungai Bekok . They then built three houses on the site of the present government clinic and later, with the help of their Malay friends, began to clear some thick forests at the river banks.

When this small settlement prospered and progressed, Boo named the place Yong Peng or “everlasting peace” in Chinese.

The present Jalan Ah Loh was named after Boo, who died in 1907.

But the peace in Yong Peng was shattered when hundreds of Chinese were tortured and killed during the Japanese occupation.

During the emergency Yong Peng was the second most notorious ‘black area’ after Sungai Siput in Perak.

Today, Yong Peng is a bustling district which has two main interchanges on the North-South Expressway. It was also made a State constituency seat in the last general election.

Yong Peng is now known as a ‘Foohow town’ and is a favourite stop-over for highway travellers for its Foochow fried noodles, red rice wine chicken and Foochow biscuits.

With the current soaring prices of commodities, the majority of the town folk, who are rubber smallholders, and oil palm plantations are doing well.

As for me, I will never hesitate to promote Yong Peng.

I remember one day when I was in Form 2, the students were asked to speak on this topic “How to pass your examinations?” in an oratorical contest in class.

I remembered standing up and arguing that students would pass their examinations if teachers did not ask them to help mark the examination papers.

Obviously, I came last in the contest, but not without receiving thunderous applause from my class, much to the annoyance of my culprit teacher.

But then there were many hardworking teachers who had taught me from 1973-1978. Among them were Yap Teong Hoon, Rose Anne Easaw, Lau Yen Fung, Abdullah Hamid and Low Ah Tee.

Despite it being a rural school with poor amenities, the relationship between teachers and students was very good. We hardly had any serious school disciplinary problem.

I still remember during my time, the school premises were shared by students from both the English and Malay mediums. We mixed freely together and there was no such thing as racial polarisation at that time.

Being someone who was more interested in arts subjects, I stayed behind to do my Form 4 and Form 5 whilst students undertaking Science subjects had to continue their studies in Batu Pahat.

In the school, I was also the president of Interact Club, chief pupil librarian, secretary of the Scouts Movement and vice-captain of our Green House sports team.

In 1978, a new school, now known as Sekolah Menengah Dato’ Seth was also built beside the river.

It was under the same school management, and I am proud that I was then the Head Prefect of both the English and Malay streams as well as of the two schools.

If the students of these two schools are reading this article, I hope they will continue to work hard and excel so that they can make a name for our school and our hometown, Yong Peng.

Most of all, may Yong Peng continue to shine in everlasting peace as a fine example of unity in diversity since its founding days.

Note: The writer is a prominent Malaysian lawyer. He is a member of the Malaysian Bar Council.

Wednesday, October 31, 2007

Judging the judges

The Star
Comment by Wong Chun Wai

Prominent guest: Bar Council president Ambiga Sreenevasan (left) and organising chairman Roger Tan (right) escorting Sultan Azlan Shah to the opening of the 14th Malaysian Law Conference at the KL Convention Centre on Monday.
SULTAN Azlan Shah chose to call it a disquiet about the judiciary but among many Malaysians, it has been a very loud grumble for the past few years and in the more recent past.

Only the ignorant and those who chose to do so, presumably for political expediency, have failed to take notice of the allegations that our judiciary has been tainted.

Allegations of judges on holiday with business tycoons to a prominent lawyer brokering appointments of top judicial positions have seriously harmed the image of the judiciary.

Some have even questioned the integrity of our system in certain murder trials, claiming serious irregularities.

These allegations may have no basis and in some instances, may have come about due to the lack of legal knowledge of the public.

Nevertheless, they have tarnished the image of the judiciary and could lead to the erosion of public confidence in the institution.

On Monday, the Sultan of Perak addressed the 14th Malaysian Law Conference and said such allegations had “grieved” him as he was once a member of the judiciary, adding that “recently, there have even been more disturbing events relating to the judiciary reported in the press.”

There was more plain talk from him – he pointed out the unprecedented act of a former Court of Appeal judge writing in his post-retirement book about erroneous and questionable judgments delivered by the higher courts.

He also cited a case of medical negligence involving the death of a lawyer which took 23 years to reach the Court of Appeal, saying there have also been reports that some judges had taken years to write their grounds of judgment involving accused persons who had been convicted and were languishing in death row.

We have a serious problem, as Sultan Azlan said – there are perceptions that our judges are not independent and worse, incompetent.

He has correctly stated that “nothing destroys more the confidence the general public, or the business community has in the judiciary, than the belief that the judge was biased when he decided a case, or that the judge would not be independent where powerful individuals or corporations are the litigants before him.”

In short, the public must never perceive that there are two sets of law – one for the powerful and one for the ordinary people.

The average Malaysian must never assume that the odds are against him in court because the judge would favour those with political or business influence. Impartiality, in a nutshell, is the core of any judiciary.

Some of us may not like to hear this but more and more we keep hearing this, with many cynically predicting the court decisions of certain cases, even before the verdicts are delivered.

There have been one or two surprising judgments over the past few years but they are not enough to restore public confidence, even if our politicians are quick to cite these cases to point out that the independence of the judiciary is intact.

Malaysians do not want our judges to be anti-establishment to be deemed independent. Far from it.

What they are seeking are fair and just judges. If we may add, sound and competent ones too, who also take time to back their written judgments with proper citations.

It is important to note that Datuk Seri Abdullah Ahmad Badawi has responded positively to the call by the Bar Council and Malaysians, in general, to reform the judiciary.

The Prime Minister said the Government and the Bar Council were “on the same side and fighting for the same issues but with different style.”

His amicable approach is in sharp contrast to the statements made by one or two ministers, which seem to smack of arrogance with their quick defensive, but often simplistic, dismissal of any proposal to reform the judiciary.

The “I know better than you, so shut up” line only works against the Government as many of these calls are genuine.

Many are made by lawyers and voters who support the leadership. Malaysia would have a competitive edge over other countries if businessmen and investors believe that our legal system, which has been well established, is impartial. But when they start turning to arbitration, then it is something we need to pay serious attention to and ask ourselves why they prefer this route.

It is a blow to read that a recent World Bank survey on resolution of commercial disputes ranked Malaysia poorly, 63rd amongst 178 countries. Hong Kong is placed first and Singapore ranks fourth. Ironically, both inherited the British legal system like Malaysia.

Sultan Azlan has also pointed out that judges must be mindful that they are appointed judges of all Malaysians and must be sensitive to the feelings of all Malaysians regardless of their race, religion and culture.

There is a perception that some judges may put their religion or race first when hearing cases involving religion or that they are seen to pass the buck by refusing to make a decision, preferring to pass that responsibility to another court.

The Bench has to realise that, more than ever, judges would also be judged when they deliver their judgments.

Tuesday, October 30, 2007

Organisers sad over poor judge turnout

New Straits Times

KUALA LUMPUR: Many judges were noticeably missing at the 14th edition of the Malaysian law conference opened by the Sultan of Perak Sultan Azlan Shah.

At past conferences, held once in two years, there was always good representation of judges, including those from outside the Klang Valley, at the opening ceremony.

At yesterday’s opening, only about 15 judges were present.

Among them were Federal Court judges Tan Sri Zaki Azmi and Datuk Abdul Hamid Mohamad, who is also Court of Appeal president.

There were also six Court of Appeal judges while the rest were judicial officers stationed at the High Court in Kuala Lumpur.

Conspicuously absent were Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim and Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum.

There are 12 judges in the Federal Court, 22 in the Court of Appeal and about 50 at the High Courts in the peninsula, Sabah and Sarawak.

A High Court judge serving outside the Klang Valley was slotted to speak yesterday, but told the organisers last Wednesday he was unable to attend.

The Bar Council, which is the organiser, had also invited 20 judicial officers to participate in the three-day conference held at the Kuala Lumpur Convention Centre.

Council president Ambiga Sreenevasan said an invitation was sent to Ahmad Fairuz quite some time back but there was no reply.

Conference organising committee chairman Roger Tan, however, admitted there was no follow-up to find out whether the top judge would be attending.

Ahmad Fairuz will retire on Thursday, the day he turns 66 which is the mandatory age for judges to leave office.

Tan said invitations were also sent to all judges, including those serving in Sabah and Sarawak.

He said the government had approved a grant to partly finance the meeting attended by about 600 foreign and local participants.

He said the organisers had extended invitations two weeks ago to 20 participants each from the judiciary and the Attorney-General’s Chambers, 10 from the Industrial Court and 15 from the police.

“Sadly, we did not get the expected response from the judiciary,” Tan said, adding that a letter from the Chief Judge of Malaya’s office on Thursday informed the organising committee that they were unable to send judges to the conference “due to unforeseen circumstances".

Chief Judge of Malaya Datuk Alauddin Mohd Sheriff is on a month’s leave and is expected to return from abroad next month.

PM: We can still talk

The Star
by Shalia Koshy

PM: We can still talk

‘Claims of impropriety in judiciary have not reached an impasse’

KUALA LUMPUR: The recent allegations of impropriety in the judiciary have not reached an impasse and there is still time to talk, said the Prime Minister.

“With regard to the recent Putrajaya march, I would take the view that a public demonstration is not like any other public social event. A demonstration gives the impression that a problem has reached an intractable impasse, even when, in reality, it has not. I believe it has not. We still have time to sit and talk,” said Datuk Seri Abdullah Ahmad Badawi in his keynote address at the 14th Malaysian Law Conference.

“Above and beyond this, it also sends negative vibes to domestic and foreign investors, undermining tireless efforts of industry and government in attracting investments and subsequently, in creating employment and providing new economic opportunities”

On Sept 26, some 2,000 lawyers and activists walked from the Palace of Justice to the Prime Minister’s Department to hand over two memoranda - one calling for a Royal Commission to verify the authenticity of the video clip showing a senior lawyer apparently brokering the appointment of judges with a senior judge, and another for the establishment of a permanent judicial appointment commission for appointing judges.

On taking positions and advocating measures on various issues, Abdullah said the Bar, quite often took positions seemingly divergent from that of the Government.

“We are on the same side and fighting for the same issues but with different style”.

Stressing that his Government was not averse to criticism, Abdullah said it recognised the role and contribution of civil society in enabling and ensuring the success of its development plans.

He disagreed with the stand of some that the Government was suppressing public opinion, citing the “very public reports that have questioned the efficiency of the government, such as wastage in the civil service” as an example.

Abdullah said the Government took the Bar Council’s views seriously and suggested that a more constructive way to resolve differences was to work together without being suspicious of each other.

He called on the legal fraternity to work more closely with the Government for the further development of Malaysia’s economy.

Thursday, October 25, 2007

Region’s young lawyers to meet

The Star

KUALA LUMPUR: Young lawyers from the region will gather here to discuss the setting up of an alliance and issues affecting them at the South-East Asian Young Lawyers Convention.

The convention will be held on the final day of the Bar Council’s 14th Malaysia Law Conference from Oct 29-31. (Please click here to download the Programme and the Registration form for the Malaysian Law Conference.)

“This is the first time young lawyers – defined as having fewer than seven years of working experience – from Indonesia, Singapore, the Philippines, Thailand, Brunei and Malaysia, will meet to exchange ideas and look into issues that affect them such as pay and practice specialisation,” said conference organising chairman Roger Tan.

Topics for discussion at the convention include Constitutional Law, Trade and Globalisation, Islamic Commercial Law, Local Government, Housing and Land laws, Intellectual Property and Protection of Heritage laws.

“The topics at the forum are aimed at examining the development of our laws after 50 years of independence as well as reflecting our achievements.

“It will also generate discussions for the way forward in the next 50 years,” a statement from the Bar said.

Sultan of Perak Sultan Azlan Shah will open the biennial conference.

Prime Minister Datuk Seri Abdullah Ahmad Badawi will deliver a keynote address.

“It is perhaps the first time in the 60-year history of the Bar Council that its event is graced by a Ruler and the Head of the Executive,” the statement read.

Eminent speakers, both local and foreign from the Bar, Bench, Attorney-General’s Chambers, Judicial and Legal Services, corporate sectors, local universities, non-governmental organisations and foreign Bar associations are expected to participate.

For more details, visit or contact Syirin at 20313003, ext 160.

Sunday, October 21, 2007

Raising the Bar

Badge of Honour©The Sunday Star
by Martin Vengadesan
• The turning point
• All for independence
• Significant moments

The state of judiciary is very much in the news today and in the forefront calling for reform is the Bar Council. The country's governing body for lawyers was set up under the 1947 statute that charged it to uphold the cause of justice without fear or favour. Sixty years on, despite difficulties, it remains true to its cause.

TWENTY-SIX YEARS ago, on April 7, 1981, about 200 lawyers gathered at Parliament House. Their aim: distribute two memoranda protesting the amendments to the Societies Act and the Constitution.

They braved a drizzle and an unfriendly Home Minister who refused to accept their memoranda. A year later, 42 of the lawyers were charged with unlawful assembly and found guilty in January 1983.

That protest, organised by the Malaysian Bar Council and led by its then president G.T.S. Sidhu, was hailed by one of country's most admired parliamentarians, Tan Sri Dr Tan Chee Khoon, in his column, Without Fear or Favour, in The Star.

Dr Tan wrote: “Congratulations to the Bar Council for getting out of their air-conditioned rooms and descending from their ivory tower to demonstrate for fundamental liberties and human rights in this country.

“In my wildest dreams I would never have thought of the day when our lawyers would participate in a demonstration.”

 Walk for Justice

When more than 2,000 lawyers took a Walk for Justice last month, it made headlines because of the strong point they wanted to make.

On Sept 26, 2007, to the amazement of their fellow citizens, 2,000 lawyers led by Bar Council president Ambiga Sreenevasan went on a “Walk of Justice” to the Prime Minister's Office in Putrajaya. 

Their purpose: To hand over two memoranda asking for a royal commission to investigate the now notorious video clip showing a prominent lawyer purportedly brokering the appointment of judges and the establishment of a permanent judicial commission.

This time, the reception was friendlier with the memoranda being accepted by the Prime Minister’s political secretary, Datuk Wan Farid Wan Salleh.

The lawyers’ “walk”, in a heavy downpour, was generally hailed as a positive action and drove home a very serious point. In Ambiga’s words, “When lawyers walk, something is wrong.”

The 1981 demonstration was against a very specific issue – amendments to a law that would severely curb civil liberties. In contrast, the Bar Council this time, while ostensibly asking for two specific things, was after “change, change, change”, as the lawyers chanted on the 3.5km walk, to address what is perceived to be growing corruption affecting the judiciary.

On the 60th anniversary of its establishment, the Bar Council is suddenly very much in the news again and in forefront of what it was set up to do: To uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour, as stated under Section 42(i) of the Legal Profession Act 1976.


The legal system that would evolve to what it is today began when Sir Francis Light introduced the Charter of Justice in 1807 in Penang The first “law agent” was registered in 1808. The first Bar Association was set up under the Advocates and Solicitors Ordinance in 1914 but a modern independent and self-governing Bar Council was established under a 1947 Ordinance. This ordinance was eventually replaced by the Legal Profession Act of 1976.

In the years since, the Bar Council has grown with the nation, steadily at first, and then exponentially over the last two decades to a point where its membership numbers over 12,500.
Sulaiman Abdullah
Haji Sulaiman Abdullah says the Bar’s international reputation is ‘exceedingly high’.

In the last several months, various legal cases and events have led to a growing sense of unease that all is not well with the judiciary, leading to calls for change. Respected former judges Datuk Shaik Daud Ismail, Datuk K.C. Vohrah and Datuk V.C. George (also a former Bar Council president) have also echoed the calls for a review and the setting up a judicial commission to appoint judges (Weighing state of the judiciary, Sunday Star, Sept 30).

If there is increasing public cynicism towards the judiciary, former Bar Council president Haji Sulaiman Abdullah (who served from 2000-2001) sees it as a “healthy attitude”.

“I view it as a positive development. If people are outraged by the bias shown in certain cases and are sceptical of decisions, it shows that society at large recognises the importance of fair judges. A just society needs judges that can stand up without cringing and deviating from their purpose of upholding justice,” he says. In light of all this, it’s tempting to think of those years from the 1950s to 1980s as Malaysian judiciary’s golden age.  

That came to end, by most accounts, in 1988, following the judicial crisis which saw the sacking of the Lord President and two Supreme Court judges. (See ‘The turning point’)

Respected judge, the late Tun Mohamed Suffian Hashim, wrote in Justice Through Law, a book commemorating the Bar’s 50th anniversary:

“During those days, relations between Bench and Bar were correct and not at all hostile. Bench and Bar were engaged in a common purpose: to see that justice was done.”

Sulaiman Abdullah (who served from 2000-2001) has been active in legal circles for four decades and recalls, too, those early days with fondness.

“Malaysia produced many extraordinary judges like George Seah and the Vohrah brothers (Datuk K.C. and his older brother Tan Sri Lal C. Vohrah), and the relationship between the Bar and the Bench was one based on mutual respect.


While the Bar has sometimes been embarrassed by incidents that made lawyers appear self-serving or indifferent (such the lack of quorum at its AGM), Amiga feels the body has not swerved from its original objective.

“It is my honour to lead the Malaysian Bar which has stayed true to its duty by standing up for what is right and in the public interest without fear or favour and without regard for its own interests,” she says.

To her, the Walk for Justice makes a pretty strong case for this.
“There are those who try to brush it off and have sought to label it many things like an opposition event. Of course the problem with labelling is that one does not then have to deal with the facts or merits of the issues raised.

“But the facts are these: More than 2,000 lawyers cutting across racial lines, political affiliations, gender, age, and areas of practice gathered at Putrajaya on a working day to show their concern about the state of the Judiciary. Does that not speak volumes?
 Ambiga Sreenevasan
»We know what the problems are with the judiciary and we are genuinely concerned. We have been concerned for a long time«AMBIGA SREENEVASAN

“Label it anything you want, it would be wrong to ignore the voices of so many. And why were we all there? Because as lawyers, we know what the problems are with the judiciary and we are genuinely concerned. We have been concerned for a long time. We have also been consistent in what we have said and what we have sought. We have also been asking for transparency in the appointments and promotions process. A strong Judiciary will enhance the standing of Malaysia internationally.”  

Indeed, the issues confounding the profession and judiciary today, such as the perception of corruption, are not new.

As Mohamed Suffian said in Justice Through Law: “In my time, everybody who came to court knew that he would get a fair hearing and a 50:50 chance of winning (or losing). There was no need for parties and lawyers to scout around for a user-friendly judge. If a lawyer won more often than his fair share it was by merit; people did not suspect it was because he had influence.”

But what is happening today, according to lawyer Mak Lin Kum, is that the present Bar, led by Ambiga, is “really taking the problems by the horns and dealing with issues that past presidents have not been vocal about.”

“It is a demanding, thankless job, but the Bar is an important channel for a democratic Malaysia,” he says.

Bar services

Ambiga SreenevasanIt remains to be seen whether lawyers walking for justice will lead to any changes. But history so far has shown that, in a showdown, the executive has always held sway.

The 1981 Parliament House demonstration, for example, failed to stop the amendments from being passed.

But on its part, the Bar Council intends to keep growing to fulfil its charter's numerous objectives – the foremost being to serve justice without fear or favour – as well as maintaining and improving the standards of conduct and learning of its members and others and protecting and assisting the public in legal matters.

To do that, it has 30 committees and four ad-hoc committees on areas such as human rights, legal aid, orang asli rights, intellectual property, gender issues, study loans, best practices and numerous sub-divisions of the legal practice.

As Sulaiman says, “Towards that end (of serving justice) the Bar has set up more and more committees in order to cope with that over-arching mission.”

Ambiga's focus, however, is on human rights.

She explains why: “When I took over in March this year, one of my areas of focus was to step up our human rights agenda. Lawyers in all jurisdictions are at the forefront of human rights work. I believe the Human Rights Committee has its work cut out for them.

“I would like to add that the Malaysian Bar, at its own cost, provides free legal aid to those that qualify for it. This is our contribution to society. We have many volunteer lawyers who give of their time for this purpose. This is one aspect of our work that not many people know about.”

Sulaiman says, as a lawyer, he has always been interested in the way the nation is governed which was why he first stood for office in the Bar's executive committee shortly after the 1988 judicial crisis.

“I’ve always enjoyed committee work and found a lot of scope for that in the Bar Council. If you sit in committees, you manage to pick up a lot of knowledge and skills.”

It would appear that desire to serve the public and safeguard justice runs in the blood of younger lawyers too.

Edmund Bon, 33, chairs both the human rights committee and national young lawyers committee.

“We have a duty to assist the public and a wide scope within which to work,” he explains.

“Ambiga has brought in a whole new generation of lawyers and we have drafted a
blueprint for the workings of the Bar Council, which was launched in May.”

While Bon agrees that there was a time when the Bar was viewed as elitist and unable to connect with the public, it has since grown and changed.

“The law affects people from all walks of life so we feel we have to reach out,” he says.

Not everyone feels that the Bar Council has done enough, though.

“The Bar Council is a toothless tiger,” commented a law graduate who declined to be named. “The leaders are very eloquent in putting forward arguments, but for all their bluster, they have hardly made any difference to the way this country is run.”

The good guys. Really

Still, it is not for want of trying. One of the Bar’s means of communication is its extensive website ( which is maintained by Conveyancing Practice Committee chairman Roger Tan.

Tan says the Bar is constantly trying to educate the people on their legal rights and inform them about legal services and even the costs.

Despite all that, he laments the wide misconception about lawyers – hence, the numerous jokes about them as avaricious beasts feeding on the misfortunes of others.

“Lawyers are only appreciated when people's liberty or property is threatened or taken away!” he sighs.

Sulaiman feels that the Bar deserves all the credit it gets. “I’m sorry to sound arrogant but I don’t see any shortcomings. It is an organisation that is entirely voluntary. In fact, lawyers without vested interests invest a lot of personal time and money in their work with the Bar.

Lawyers say they walk the talk by providing free legal aid.

“Of course there are people who want to curry favour and get ahead but generally such people see more disadvantages in being associated with the Bar leadership and there are easier ways to achieve this goal.  

“It is a gift to be a lawyer, and I’m glad to say, based on my involvement in international Bar associations, that the reputation of the Malaysian Bar Council is exceedingly high. Not just for the stands we take, but others are struck by our lawyers' contributions towards legal aid, as all members are required to contribute towards a fund for that.”

Still, Tan agrees that with so many lawyers around, there are bound to be a few bad hats.

“I do agree that there is a surfeit of lawyers and we have to examine the quality of lawyers that we are now producing. Our membership doesn’t even include legal officers and law lecturers, not to mention those with law degrees who chose not to practice.

Roger Tan“Of course there have been outbreaks of discord within the organisation. But the beauty of the Bar is that when the unity is threatened, the members have never failed to rally together. When the AGM was declared null and void over the quorum issue, thousands turned up to show their support.”
Issues ahead

Despite this, there are many challenges ahead which will require firm action, says former Bar Council president Yeo Yang Poh who stepped down earlier this year.

“In terms of commerce, I think things will remain reasonably good, though the challenge is to be able to compete globally.

“In terms of the justice system, it is very bleak, unless the authorities wake up from their state of denial and put in place meaningful reforms such as the Judicial Appointment and Promotion Commission.”

One issue that could divide the Bar is syariah law. Is Malaysia to remain with two separate legal systems or will Islamic law one day apply to all citizens?

“This is one area where there is great public conflict and there is the danger of inciting division within the ranks of lawyers themselves,” says Sulaiman. “I’ve always felt we should tread very carefully. On the one hand, there is the passionate desire among many Muslims to be governed by the dictates of Islam. On the other, an equally passionate fear of Islam.

“As a Muslim, I feel that fear is unfounded, but as a realist, it would be foolish of me to pretend that it does not exist. I think it will be a very sad day if we allow this issue to divide the Bar.”

For Ambiga, the biggest challenge lies in improving the profession's standards and to enforce discipline.

“We need to demand the highest standards of professionalism and integrity from our lawyers. To this end, the Qualifying Board is looking at introducing a Common Bar Exam to ensure that only the best enter the profession.”

Whether the public really understands or appreciates lawyers, on the 60th anniversary of their representative body, Sulaiman makes this impressive declaration on their behalf:

“Lawyers are, by and large, very fine human beings and members of the Malaysian Bar have stood by its leadership and supported it. It is a joy to work with.”

And that’s no joke.
The Bar Council’s 60th Anniversary Dinner will be held at the KL Convention Centre on Oct 31 at 8pm.

Performers for the dinner include Francissca Peter, Comedy Court and ASK Dance Co.

For more details, call Sivanes at 03-2031 3003 (ext 174). (For more information, please visit

The turning point

There is scarcely a lawyer practising today who does not make reference to the Judicial Crisis that unfolded in May 1988. Beginning with the suspension of Lord President Tun Salleh Abas and five Supreme Court judges, it eventually led to the dismissal of Salleh as well as two of the five judges, Tan Sri Wan Suleiman Pawan Teh and Datuk George Seah.

The dismissals shocked the nation and raised questions about the independence of the judicial system. Nearly 20 years on, former Bar Council president Yeo Yang Poh (from 2005 to March 2007) is blunt when asked to explain the significance of the “confrontation” between the executive and the judiciary.

“Simply put, in 1988, the Government was worried that the outcome of certain court cases (involving Umno) was likely to be not what they desired. Hence (then Prime Minister) Tun Dr Mahathir Mohamad decided to put in place machinery to remove the top judge who would not do the Govern-ment’s bidding. It succeeded. From then on, the Government managed to have a more and more compliant judiciary. That year was indeed a sad turning point for the country.”

Damning words indeed, but even current de facto Law Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Aziz agrees that 1988 was a watershed year for the Malaysian legal system.

“We don’t want a repeat of the 1988 judicial crisis. It was the worst year for the Government in terms of its relationship with the judiciary and the Bar. As the Minister in charge of law, I don’t want to see it happen again.”

Indeed Nazri emphasizes that an independent judiciary is of paramount importance to Malaysia. (See below.)

Former Bar Council president (2000-2001) Haji Sulaiman Abdullah remembers the crisis as a tumultuous period that brought the organisation’s role into focus. “It made very clear that the administration’s perspective of any organisation/institution was that its primary purpose was to serve the government in power and that any perceived deviation was seen as something that needs to be corrected immediately. The more significant the institution, the stronger the reaction from the government if it strayed from its ‘limit’.

“Of course every government tries to get a judiciary that is favourable to itself, but in 1988, members of the Bar were confronted with a naked and absolute show of force. I think the common man has always recognised the necessity of a neutral umpire and any attack on a independent judiciary is an attack on the core of a civil society.”

“I am proud to say that irrespective of the personalities of the main actors, the bar chose overwhelmingly to stand by what was right rather than what was convenient. There were, of course, some very senior lawyers who were swayed by the seductive calls of convenience and tried to get the Bar to change its stand, but these efforts were repulsed.”

Indeed, Bar Council committee member Roger Tan recalls that some members were unable to withstand the pressures they faced.

“I actually remember that after the removal/suspension of the judges, the Bar Council passed a resolution not to recognise the new judicial leadership, but I’m afraid that for Malaysians, the rice bowl comes first, and as such, many lawyers did not follow through with this.”

“The Bar is known for ostracising judges who have gone astray, but it is also the first to defend and honour judges who have stayed steadfast to their oaths in preserving, protecting and defending the Constitution.”

Current Bar Council president Ambiga Sreenevasan feels that the situation is not beyond repair. “I believe the judiciary certainly needs looking into seriously. We have many good, honest and hardworking judges who are working with limited resources. We appreciate the work they do and the circumstances under which they function. They deserve to be in an institution that is scandal-free and above suspicion.

“I maintain that we are capable of a First World, first class judiciary and we are entitled to it. But confidence in an institution is a fragile commodity. Once this is damaged, it requires sincere and positive action to restore.

“But the first step towards restoring confidence is to recognise that there is a problem.”

 1988 Judicial Crisis
Tun Salleh Abas with Raja Aziz Raja Addruse who represented him at the tribunal hearings.

All for independence

Datuk Seri Nazri Aziz AN independent judiciary is crucial to the well-being of the country, says de facto Law Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz.

“It is true that Barisan Nasional is very dominant politically, but the administration under our current Prime Minister, Datuk Seri Abdullah Ahmad Badawi, has followed a policy of non-interference in the legal system. This government is in favour of an independent judiciary.

“We know that if the Prime Minister interferes, that’s it, the whole system becomes compromised. Pak Lah has moved towards openness and transparency and he recognises that an independent judiciary is crucial for the country’s development.

“And I think it could immediately be seen with the case of former Deputy Prime Minister Datuk Seri Anwar Ibrahim, who was released from prison soon after a change of leadership,” he says in an interview on Tuesday.

(On Sept 2, 2004, the Federal Court overturned Anwar’s 2000 sodomy conviction by 2 to 1, as it found contradictions in the prosecution’s case.)

Nazri also says the Government was aware of the public's scepticism towards many important trials: “We are now in an era of experimenting with liberalism and this means a freer press, which can lead to sensationalism. I don’t want to start gagging the press, but this means that there can be unfair speculation, (and) that leads to a mindset where the public might see a conspiracy behind every major case.”

Neither has he taken kindly to the Bar Council’s recent protest in Putrajaya. He had criticised the Walk for Justice, saying it was “unbecoming”, according to press reports.

He was quoted as saying that there was no crisis in the judiciary and therefore no need for a judicial commission.

Nazri, however, says that he has often been misunderstood on the issue.

“I never said I am against a cleaning-up of the judiciary, merely that I want to work not just with the Bar Council but with the Judiciary itself. There are many judges right now who are concerned with the image of the judiciary in the eyes of the public, and we should all work together. And I would rather we discuss these problems face to face.

“The Bar Council leaders can always see myself or the Prime Minister to raise their issues. I feel that such protests are not in keeping with the stature lawyers should have in the eyes of the public. I would like us to work hand in hand with the Bar Council to improve the legal system. That is why I was very surprised when the lawyers marched.

“As a former lawyer turned executive, I am very particular about the separation of the government from the judiciary.”

Significant moments

HERE are some key events in the 60-year history of the Bar Council.  

1947 – Founding of the Bar Council under E.D. Shearn. First executive committee contains notable lawyers like R. Ramani and Yong Shook Lin. 

1958 – Bar Council protests against the Public Order (preservation) Bill because of the extensive powers being given even to junior police officersto control riots. 

1965 – Government draws up Bill to limit the rights of appeal to the Privy Council in England, which is protested by the Bar. The Bill surfaces from time to time before this right is finally withdrawn in 1985. 

1971 – All non-resident lawyers are no longer allowed to practise which leads to an immediate exodus of 63 Singaporean lawyers. 

1974 – Former Prime Minister Tunku Abdul Rahman is called to the Bar. 

1975-77 – Repeated clash of wills between Bar Council and Government over Essential (Security Cases) Regulations (Escar). During this period, a 14-year-old boy is charged under the Internal Security Act for possession of a firearm and ammunition and tried under Escar. He is found guilty and sentenced to death because the law does not differentiate between a juvenile and an adult. Bar Council calls for a repeal of Escar and at an EGM resolves that members should not appear in trials involving Escar. The AG expresses regret over the resolution. In the following months, several lawyers withdraw as counsel for Escar cases. (The boy’s death sentence was eventually commuted to detention in a juvenile home and he was released some years later.)  

1978  Legal Profession (Amendment) Act 1977 is passed with provisions to allow the AG to issue certificates for foreign lawyers to practise in Malaysia, barred certain classes of lawyers from holding office in the Bar and raised the quorum to one-fifth of its membership. This amendment is regarded as the Government’s retaliation against the Bar’s opposition to Escar. 

1981 – 200 lawyers march to Parliament wearing black armbands to protest amendments to the Societies Act and the Constitution. Foty-two are later charged with and found guilty of unlawful assembly. 

1983 – Bar Council passes resolution to levy a compulsory subscription of RM100 per member per year towards its Legal Aid Centre Fund. 

1985 – Bar Council sets up a committee chaired by former Prime Minister Tun Hussein Onn to review provisions of the Legal Profession Act. 

1986 – Lawyer Karam Singh and then Bar Council vice-president Param Cumaraswamy are charged with sedition but is acquitted. The High Court ruling is hailed as a vindication for free speech in Malaysia. 

1987 – Government uses Internal Security Act to detain opposition and social activists under Operation Lalang 

1988 – Judicial crisis unfolds resulting in the sacking of Lord President Tun Salleh Abas and two senior judges. The Bar opposes the Executive’s actions. 

1990 – Bar AGM votes to introduce a mandatory professional indemnity insurance scheme to cover every law firm. 

1995  Hendon Mohamed, the first Malay woman lawyer, is also the first woman elected Bar president. 

1996 – Poison-pen letter causes a scandal resulting in resignation of a High Court Judge. 

1998 – Perceived inconsistencies in sodomy and corruption cases involving former Deputy Prime Minister Datuk Seri Anwar Ibrahim lead to renewed momentum in Bar’s activism. 

2000  The Bar moves a motion calling on the Prime Minister to make representations to the King for the appointment of a tribunal to investigate the conduct of Chief Justice Tun Eusoff Chin. 

2005 – Former Bar Council president Datuk Param Cumaraswamy and several other prominent members walk out of AGM that is allowed to carry on despite the lack of a quorum after the Bar takes the view of several lawyers who feel that a quorum is not required.
2007 – Walk for Justice sees 2,000 lawyers calling for judicial reform.  

Source: Justice Through Law; Staric

Wednesday, October 17, 2007

Spoilt for choice at 3-day law conference

New Straits Times

KUALA LUMPUR: If ever there is a time when a person needs a clone, the Malaysian Law Conference would be it.

The conference, organised by the Malaysian Bar Council, is less than two weeks away.

It is so packed with discussions running concurrently that to sit in just one would mean missing other equally interesting fora.

One series of Day Two sessions is an example. While "Freedom of Religion" is discussed in one room, the "Role of the Bar in Upholding the Constitution" and "Dealing with Electronic Evidence" is available in two other rooms; all at the same time.

This is the 14th biennial conference and, in observance of the 50th anniversary of Merdeka, its theme "50 Years of Merdeka" will focus on the Federal Constitution.

"This is a good time to learn something about the Constitution, not only because this is the 50th year of our independence, but also because it's not easy to get such eminent speakers gathered at this one function," conference chairman Roger Tan said.

The conference will be held from Oct 29-31 at the Kuala Lumpur Convention Centre. It is expected to be the largest in the history of the Malaysian Law Conference, with more than 500 participants, Tan said.

Already, the conference has the confirmed participation of lawyers from Indonesia, Singapore, Thailand, Philippines and Brunei, as well as three judges from the Maldives, and there have been enquiries from the Mumbai Bar and Sri Lanka.

The organisers are hoping to see good participation from the Attorney-General's Chambers, judiciary and the police.

Malaysian legal luminaries will speak on the various aspects of justice and the constitution.

Sarawak Attorney-General Datuk J.C. Fong, for instance, will discuss the continued practice of not allowing peninsula lawyers to work in Sabah and Sarawak in his talk "The Constitution - A Framework for a Sound Federal-State Relationship".

Constitutional law lecturer Professor Shad Saleem Faruqi and Datuk Dr Cyrus Das will speak on "Contributions of the Judiciary to the Malaysian Constitution", while lawyer Tommy Thomas will discuss the 1957 Social Contract in his talk "The Politics and Economics of Malaysia's Constitution 1957-2007".

The conference, which will be opened by Sultan of Perak Sultan Azlan Shah, will include a keynote address by Prime Minister Datuk Seri Abdullah Ahmad Badawi, a special address on gender by Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil and will be closed by de facto law minister Datuk Seri Nazri Aziz.

The Inspector-General of Police Tan Sri Musa Hassan will speak on "200 Years of Policing and 50 Years of Independence - The Royal Malaysian Police Experience, The Way Forward".

Lawyers, students, academics and the public may go to for further information on the conference.

Monday, October 1, 2007

Lawyers' march reflects Bar's sacred duty

Woe betide the day an individual or a body of persons is capable of controlling the head of the judiciary and the head of the Bar.”

“LAWYERS don't walk every day. They don't walk every month. They don't even walk every year. This is the third time lawyers are walking,” said Ambiga Sreenevasan, chair of the Malaysian Bar Council before the start of the “Walk for Justice” last Wednesday.

How true.

There were only two other occasions when lawyers walked in the 60 years of the Malaysian Bar's history.

On April 7, 1981, about 200 lawyers marched from the Lake Club to Parliament House to protest the tabling of the Societies (Amendment) Bill 1981.

Then on Dec 4, 1998, about 100 Kuala Lumpur-based lawyers marched on the Court of Appeal in support of lawyer Zainur Zakaria who was appealing against a three-month jail sentence for contempt in the trial of Datuk Seri Anwar Ibrahim.

On Sept 26, about 2,000 lawyers walked in the spirit of camaraderie for 3.5 kilometres from the Palace of Justice to the Prime Minister's Department, and then stood in the rain in support of their leaders who later submitted two memoranda to the Prime Minister's Office, urging the government to set up a Royal Commission of Inquiry to probe the state of judiciary and a commission on judicial appointments and promotions.

In fact, it was unwise earlier on for the police to stop seven buses ferrying lawyers from entering Putrajaya. By making these 200 stranded lawyers - who are mainly younger ones who hitherto had hardly experienced any deprivation of rights - walk an extra five kilometres or so from the highway to the Palace of Justice, this long march will now surely ignite a spark in their hearts to take up issues affecting the citizens’ rights.

The Sept 26 “Walk for Justice” was peaceful, symbolic and meaningful. Lawyers, regardless of age, race, religion (including Muslim lawyers despite their fasting) and gender, had come out from the comforts of their air-conditioned rooms on a working day to make a statement - obviously not a political one, for otherwise they would have donned their black robes walking down the boulevard, comparing themselves with the red-robed monks marching in the streets of Yangon.

While the walk by members of this noble profession may have warmed the cockles of many hearts, the idea to walk has also appeared to be anathema to some.

Immediately, de facto Law Minister Datuk Seri Nazri Aziz described the conduct of the lawyers as “unbecoming". The Sin Chew Daily even reported the lawyer-turned-politician going as far as to describe those who participated in the walk as having the brains of an opposition party when in fact many of the brains who took part are members of Barisan Nasional component parties.

Then Bernama quoted Information Minister Datuk Seri Zainuddin Maidin calling on members of the Bar to set up a commission to investigate the “unprofessional conduct of their leaders".

Well, it is hoped that by now, the minister has cooled down a little. In fact, Nazri is correct to say that currently the Bar and the government enjoy an excellent working relationship. This is, in no small measure, attributable to the minister and the Bar Council appreciates it. It cannot be gainsaid too that “Walk for Justice” had been possible because of the openness practised by the Abdullah administration.

In fact, both the minister and the Bar are on the same track in protecting the judiciary, except that each is looking at the issue from a different angle. The minister is concerned that the lawyers’ action would undermine public confidence in the judiciary. The lawyers, on the other hand, being stakeholders in the administration of justice, are concerned with what they saw and heard in the video clip. They now find themselves in the vanguard against bad judges when the video clip has threatened the independence of the judiciary.

As former lord president Tun Mohamed Suffian said: “The two essentials of the rule of the law are the independence of the Bar and the independence of the judiciary.”

Woe betide the day an individual or a body of persons is capable of controlling the head of the judiciary and the head of the Bar.

In fact, to lawyers, this episode which is more important than the nude-squat incident, affords the Abdullah administration an opportunity to set up a Royal Commission of Inquiry to restore public confidence in the judiciary which has been severely eroded since the 1988 judicial crisis.

In any event, the Bar Council has postponed the extraordinary general meeting fixed for Saturday, maybe to a date after the independent panel's report. Members of the investigation panel can expect the Bar to go through its report with a fine-toothed comb.

The oft-misunderstood role of the Bar is best explained by former prime minister, Tun Hussein Onn: “It is the duty of the legal profession to uphold the cause of justice without fear or favour. To effectively discharge this role, the profession must remain independent and be seen to be so. The Bar has a duty to speak up on matters of public interest affecting citizens’ rights and comment on proposed legislation affecting such rights.

“In doing so, the Bar must be constructive and must conduct itself with decorum. The government must appreciate the role of the Bar and be respectful of its comments - even when it differs with the profession's views.”