Tuesday, December 23, 2008

Action better than talk

Property Times, New Straits Times
By Ivy Chang

It has been a fortnight since the devastating Bukit Antarabangsa landslide in Ampang, Kuala Lumpur, on Dec 6.

Pending investigations into the incident, certain quarters have claimed that the disaster was an act of God, others alleged it was due to an abandoned housing project, and still others asserted the cause of the landslide is purely the negligence of maintenance.

Bukit Antarabangsa residents have announced they are planning to sue and claim compensation.

Lawyers said that will be an uphill task for the claimants.

House Buyers Association secretary- general Chang Kim Loong, noting the high emotions and a lot of anger in the air at present, urged all parties to "stop the blame game" as "it's premature until the results of whatever findings, which should then be made public for the people to judge".

"The focus now should be on remedial measures to strengthen the slope, seek alternative accommodation for those affected, ensure safety to the existing neighbouring houses and call a moratorium on all hillside developments until the respective local councils are able to review and audit their respective geotechnical report, environment impact assessment report and soil treatment report by the experts," Chang said.

"Don't let the anger get the best of us. The affected owners should not be provoked to sue the related parties until the findings are made known. Suing should always be the last resort," he advised.

In the meantime, the legal fraternity opined that the claimants would have to overcome several hurdles, not least the immunity under section 95(2) of the Street, Drainage and Building Act 1974 (the Act).

The Federal Court unanimously decided on Feb 17, 2006 that the local government council was legally protected against legal action even though they were found to be negligent and partly responsible for the collapse of the Highland Towers on Dec 11, 1993 after a landslide in which 48 people were killed and another 73 affected when the two remaining blocks were later found to be unsafe and condemned.

On residents affected by the Dec 6 incident, lawyer Derek Fernandez advised they can file a negligence case against the local authority provided they can prove that the local authority had been derelict in its duties and had failed to act on the residents' complaints.

The 2006 Federal Court decision, he said, only applied in relation to earthworks and planning approvals.

He said claimants should bring their action outside the Act by arguing that the local authority did not act in good faith while carrying out its duties.

"Evidence of bad faith would be where the local authority wilfully disregarded guidelines, rules and regulations in relation to hillslope development. Furthermore, if dangers were pointed out to them and they did nothing then the immunity cannot apply," he explained.

Fernandez said residents may also have a cause of action against the local authority under nuisance or under the Local Government Act or the Town and Country Planning Act under which there is no similar statutory immunity.

He disclosed that in a 2005 unreported case, Abdul Ghapoor and 82 others successfully sued Majlis Perbandaran Petaling Jaya for improper planning permission and were granted damages.

He reiterated that if the local authority had specific knowledge of the dangers and did nothing to rectify them, then the immunity would not apply.

Meanwhile, the Ampang Jaya Municipal Council refuted claims that it had failed to respond positively to complaints by residents in Bukit Antarabangsa on numerous issues ranging from soil erosion to tree pruning in the area a few days before the tragedy.

Fernandez said residents could seek compensation for loss of use of home, rebuilding of homes, dependency claims, relocation expenses and loss of personal properties, but he cautioned that the residents should ascertain the cause of the tragedy before embarking on a legal suit.

Another lawyer, Roger Tan, also opined it would be difficult for residents to sue the local authority as it enjoyed immunity under Section 95 of the Act.

However, he said it was against public interest to insulate local authorities from any suit if they failed in their statutory duties.

Both Tan and Fernandez are part of the task force set up by the Bar Council to monitor hillslope developments.

Tan and Bar Council president Datuk Ambiga Sreenevasan have both urged for the repeal of the statutory immunity.

Meanwhile, Pahang, Penang and Perak have stopped highland developments following the Bukit Antarabangsa landslide. The state governments said the guidelines on hillslope developments will be stepped up.

Wednesday, December 10, 2008

It'll be a difficult case, say lawyers

New Straits Times

KUALA LUMPUR: Residents affected by the Bukit Antarabangsa landslide can file a negligence suit against the local authority.

Lawyer Derek Fernandez said the residents have a case as long as they could prove that the local authority had been derelict in its duties and had failed to act on the residents' complaints.

He said although the 2006 Federal Court decision on the Highland Towers set a precedent when the Ampang Jaya Municipal Council (MPAJ) was cleared of any wrongdoing, the decision only applied in relation to earthworks and planning approvals.

"Residents can file a negligence suit or a breach of statutory duties as long as they can prove that the local authority had failed to rectify a problem when it was brought to its attention."

He said residents could seek compensation for loss of use of home, death, rebuilding of homes, dependency claims, relocation expenses and loss of personal properties.

However, Fernandez cautioned that the residents should find out the causes of the tragedy before embarking on a legal suit.

Asked on their chances, Fernandez said at the moment, it appeared to be tough due to the precedent set by Highland Towers.

"This is why residents should consider legal action against other relevant parties as well."

If filed, he expects the case to take a minimum of five to six years, as the Highland Towers case took almost 10 years to settle.

Another lawyer, Roger Tan, said it would be difficult for residents to sue the local authority as MPAJ enjoyed immunity under Section 95 of the Street, Drainage and Building Act 1974.

"I have been calling for the repeal for Section 95 for 15 years as the section breeds a lackadaisical attitude rather than professionalism in our authorities in the manner they approve building plans and later supervise the progress of the construction works."

He said it was against public interest to insulate local authorities from any suit if they failed in their statutory duties.

"If we expect first-class engineers, surveyors and architects when they perform their professional duties, the public, too, expect a first-class local authority when it comes to the granting of approvals and supervision of development projects," he said.

However, Fernandez said residents stood a better chance in filing their suits either under the Town and Country Planning Act 1976 or the Local Government Act.

Sunday, December 7, 2008

Taking politics out of education

JERLUN member of parliament Datuk Mukhriz Mahathir's suggestion that the government creates a single school system in the country is not new.

Not surprisingly, his statement drew protests from non-Malay politicians and educationists.

Such reaction is expected because since independence, educational issues in this country have always been and sadly looked at from the political rather than the educational point of view.

In fact, the first call to have one educational system based solely on the Malay medium of instruction was made by the British administrators before independence in the 1951 Report of the Committee on Malay Education, Federation of Malaya, or better known as the Barnes Report.

The Barnes Report 1951 recommended this: "Chinese and Indians are being asked to give up gradually their own vernacular schools, and to send their children to schools where Malay is the only Oriental language taught. In principle, we recommend the end of the separate vernacular schools for several racial communities and the replacement by a single type of primary school common to all."

Then came the Abdul Razak Report which was released on May 6, 1956.

The 1956 Report recommended that "the ultimate objective of education policy in this country must be to bring together children of all races under a national education system in which the national language is the main medium of instruction".

Both the Barnes Report 1951 and the Abdul Razak Report 1956 were met with strong protests from various ethnic communities, particularly with the proposal of "the ultimate objective".

As a result, this proposal was dropped and the 1956 Report recommended to establish "a national system of education acceptable to the people of the federation as a whole which will satisfy the needs to promote their cultural, social, economic and political development as a nation, having regard to the intention of making Malay the national language of the country while preserving and sustaining the growth of the language and culture of other communities living in the country".

The same words were incorporated in their entirety into Section 3 of the Education Ordinance 1957 which came into force on June 15, 1957 just as we were about to achieve our Independence.

Hence, the vernacular schools were saved and non-Malay educationists had argued that section 3 therefore represented the original social contract of the communities.

However, when Abdul Rahman Talib became the education minister, he decided to review the education policy as declared before Merdeka in Section 3 of the 1957 Ordinance.

The Rahman Talib Report 1960 reintroduced the "ultimate objective" for the sake of national unity.

Section 3 was accordingly amended to read: "The education policy of the federation is to establish a national system of education which will satisfy the needs to promote the cultural, social, economic and political development as a nation, with the intention of making the Malay language the national language of the country."

On Jan 1, 1962, the new Education Act 1961 also came into force. With this, Chinese schools which did not convert to national-type (Chinese) secondary schools became the Chinese independent high schools which continue to use the Chinese language as the main medium of instruction without any financial aid from the government.

The 1961 Education Act also contained an infamous Section 21(2) which empowered the minister to convert any national-type (Chinese and Tamil) primary school to a national primary school.

Today, the law relating to education in this country is governed by the Education Act 1996.

There is no provision similar to Section 21(2) of the 1961 Act in the 1996 Act, and the non-Malay communities had much to thank the then education minister, Datuk Seri Najib Razak.

Section 17 of the 1996 Act now provides that the national language shall be the main medium of instruction in all educational institutions except for a national-type school or any other educational institution exempted by the minister of education.

There are still some who have argued that without any amendment to Section 17, the switch to teaching Mathematics and Science in English in 2002 has infringed it.

Be that as it may, I feel our education policy requires an overhaul to address racial polarisation among our young today.

Where our children have their primary and secondary school education is nowadays so predictable according to their race.

In the days before the medium of instruction switched from English to Bahasa Malaysia in national schools, the majority of non-Malay parents, especially the Chinese, would send their children to national (English) schools.

As a result, there are Chinese children like me who would grow up not being able to read or write much Mandarin.

Today, the Chinese in this country can best be categorised as those who are English-educated and Chinese-educated.

The manner in which they were educated when they were young would show up later in the way they looked at certain issues and approached a particular problem.

This is evident today in the rivalry between the two groups in Chinese-based political parties.

In fact, not all Chinese were in favour of an English education in the 1960s.

I remember that when my father sent us to English schools (in those days they called it tak ang moh chek in Hokkien), he was advised against it by his relatives who said we would grow up embracing Western values and mores, discarding Chinese ones like filial piety.

They were wrong.

Though I may not read or write much in Chinese, I do speak some Mandarin and the Chinese Foochow dialect.

My primary school education in English has not made me feel any less Chinese or fail to love my parents any less than a Chinese-educated person.

However, for those who study in national-type Chinese primary schools, the majority still opt for the national secondary school, probably because education is free and in order to enter local universities. But the sad part is, every year there are thousands of drop-outs among the Chinese students simply because they are not able to cope with the change in the medium of instruction from Chinese to English in the 1960s and 1970s and thereafter to Bahasa Malaysia.

Many ended up as labourers, farmers, plumbers, mechanics, VCD pedlars and unskilled workers.

In this sense, while it may be well and good to preserve one's mother tongue, it remains a social issue whether the current system is in fact in the interests of non-Malay students with such a high drop-out rate among them?

This is a serious problem affecting especially the Chinese in rural areas and those in lower-income groups.

As a temporary teacher in a rural Chinese independent high school for six months before I left to read law in England, it saddened me to see close to 90 per cent of my students drop out after their Senior Middle Three education.

Only a handful managed to further their studies in Taiwan after having sat for the Chinese Unified Examination.

Of course, the students also registered to sit for Sijil Rendah Pelajaran and Sijil Pelajaran Menengah examinations but many did not do well.

Today, the future of the students in Chinese independent high schools is perhaps brighter as the Unified Examination Certificate is now recognised by Universiti Tunku Abdul Rahman and many foreign universities in Singapore, Australia, Britain and the United States.

In fact, the English taught in Chinese independent high schools is even more advanced than the syllabus taught in national secondary schools. But sadly, the standard of the English language among our students is still not good enough according to international standards.

Having associated with many secondary school students in youth activities, my observation is that our secondary school students today may find it difficult even to answer the English language paper in the Singapore Primary School Leaving Examinations (PSLE).

In this respect, we have much to learn from Singapore and its education system is perhaps one of the best in the world.

The Singapore government abolished vernacular schools and the Nanyang University long ago.

The main medium of instruction in all its schools is now English. But every child is required to take up a mother tongue language, be it Malay, Chinese or Tamil as a second language.

Most of them will be promoted to express stream in secondary schools where they will sit for the GCE "O" Levels at Secondary 4 which is equivalent to our Form 4.

Starting from next year, a secondary school student has an option to learn a third language. Hence, a Malaysian Chinese who studies in Singapore will end up being trilingual -- in English, Malay and Chinese.

All in all, the ultimate objective is that Singaporeans of all races get to mix together right from the pre-school stage to their tertiary level.

Here, most of our children only get to mix with other races when they converge in national secondary schools.

The problem is compounded with the rise of religious fervour in national secondary schools.

I fear if our national secondary schools are not run based on a secular concept, one day more Chinese will opt for the Chinese independent high schools because they are producing more competitive students.

This will only worsen racial polarisation among our young people.

In fact, racial polarisation was particularly bad when Datuk Seri Anwar Ibrahim was education minister.

He not only required all schools to call Bahasa Malaysia as Bahasa Melayu, but also sent Malay administrators to national-type primary schools.

The non-Malays should not, therefore, be blamed if they regard Bahasa Malaysia as the mother tongue of the Malays.

We should, therefore, seriously look at the Singapore model.

Of course, not everything is good about Singapore but it cannot be denied that its education system is top class.

Had the Singapore government governed along racial lines and made the Chinese language as the main medium of instruction in its schools, Singapore Chinese today would not have been more competitive than the Chinese in Hong Kong, Taiwan and China due to a poor grasp of the English language.

If English language is the main medium of instruction in our schools, no one can claim that it is the mother tongue of any race in this country because it is the international language.

But we can stipulate a requirement akin to those days when we had English schools whereby students must have at least a credit in Bahasa Malaysia before they can be promoted to Form Six or secure a place in public universities.

Our children must also be required to study their mother tongue in addition to Bahasa Malaysia at the primary and secondary levels.

To those who say that having the English language as the main medium of instruction will threaten national unity, I will say that we actually obtained our independence because of the joint efforts of a united group of English-educated elites.

If this is possible, I am confident more non-Malay and even Malay parents will send their children to national English schools.

Then the issue of abolishing the vernacular schools will not arise because more non-Malays will be attracted to study in English schools.

For this to materialise, this change must be built into the Constitution so that future leaders will not change our education system whenever they like by just amending the Education Act; thereby causing another generation of Malaysians to suffer.

Published in the New Sunday Times, 07 December 2008

Wednesday, November 26, 2008

Press Release: IBA condemns Fiji Government’s threat against high-level delegation

The International Bar Association (IBA) condemns the threat made by Fiji’s Attorney General, Aiyaz Sayed-Khaiyum, against a high level IBA-delegation scheduled to conduct an in-country review of the rule of law in Fiji . In a letter received by the IBA 24 November 2008, the Attorney-General of Fiji declared that ‘the Government of Fiji does not welcome or approve’ the delegation’s visit and would take ‘appropriate steps’ if the IBA attempts to visit Fiji . The letter was issued despite reports in the Fijian and Australian media that the Attorney General would now ‘most welcome’ a visit from the IBA.

The barred delegation included senior jurists from Australia and Malaysia who were scheduled to meet with judges and members of the legal profession for five days between 8 and 12 December 2008. The same delegation was prevented from entering the country in February of this year when the Fiji government issued an immigration stop order.

The IBA is disappointed that the Fijian Government is not supportive of independent reviews of the rule of law and independence of the judiciary. The IBA is also troubled by this latest attempt to thwart the efforts of a non-political professional association to assess the situation.

The IBA is not deterred, however, in carrying out its review. Using other avenues available, the IBA will continue its work to provide an independent assessment of the rule of law and independence of the judiciary in Fiji . A report will be issued in the near future.

The IBA regrets that the Fiji government will not meet with the delegation to present its own views on the rule of law in Fiji .

‘The Fijian Government has again indicated its lack of support for an independent review of the situation in Fiji . The threat made by the Attorney-General against the delegation is unacceptable in a free and democratic society and reflects badly on the state of affairs in Fiji ’, said Mark Ellis , IBA Executive Director.

Fernando Pombo, President of the IBA, stated: ‘The rescheduled visit had attracted the support of a variety of stakeholders including judges, lawyers and non-government organisations. It is deeply saddening to see that the Fijian Government wishes to prevent this visit from taking place in light of the manner in which it has been welcomed by the rest of the community.’

Thursday, November 13, 2008

Kedah’s housing policy should go by the law

THE Kedah Government should have ruled by law and not by administrative policies when it introduced a housing policy of setting aside 50% of every housing development for bumiputras even though land is a state matter.

In fact, such policy is not new as the state governments of Selangor and Malacca had previously even imposed bumiputra quotas of up to 70% in some town areas. Currently, the quotas differ from one state to the other.

These policies are also being implemented haphazardly throughout the country as bumiputras from Sabah and Sarawak have complained that they have been denied discounts when purchasing properties in the peninsula.

In implementing the policy, the state governments would impose and endorse the conditions unto the land titles such as endorsing the word “bumiputra” unto the land title and this means the property can only be owned by and conveyed to a bumiputra. However, the expression “bumiputra” has not been defined either in the Code (National Land Code, 1965) or the Constitution.

In this respect, it must be emphasised that even though section 120 of the National Land Code, 1965 allows the state authority to impose express conditions and restrictions in interest upon land alienation as it deems fit, this section also clearly states that they must be done “conformable to law”.

In other words, section 120 does not give a state authority the carte blanche to impose any condition it deems fit as the supreme law which must be conformed to is Article 8 of the Federal Constitution.

Article 8 provides, inter alia, that except as expressly authorised by the Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in matters such as the administration of any law relating to the “acquisition, holding or disposition of property”.

The express authorisation allowed in the Constitution is with respect to the exclusive rights of Malays to hold Malay reserved land in West Malaysia and such rights are entrenched in Article 89 of the Constitution. A “Malay” is properly defined in the relevant state’s Malay reserved land enactments.

The other express authorisation is contained in Article 161A of the Constitution which provides that Article 89 does not apply to Sabah and Sarawak and Article 8 shall not invalidate or prohibit any state law in Sabah or Sarawak which reserves land for natives of these states or gives them preferential treatment as regards the alienation of land by the states. For this purpose, a native of Sabah and Sarawak is defined in Article 161A(6) of the Constitution.

Hence, the Kedah government must conform to Article 8 of the Constitution and not administer by way of policies.

This is especially so when our courts have consistently ruled that unwarranted use of administrative measures is no substitute for principles of good governance which enjoins all authorities to implement laws and policies guided at all times exclusively by equitable and fair principles.

Published in the The Star, 13 November 2008

Tuesday, November 11, 2008

Renewed resolve on places of worship

New Straits Times
by Yong Huey Jiun

Since March 8, religious leaders have found more open doors in government offices. But, they tell YONG HUEY JIUN, they have a list of outstanding problems to address

THE Sri Maha Kaliamman Temple near Kampung Tasek Tambahan in Ampang has been demolished several times in its 19-year existence. Now it will be rebuilt for the third time -- once the Selangor government provides a new location.

Scores of non-Muslim places of worship have faced a similar fate, but with this issue swaying voters in the March 8 general election, both Barisan Nasional and Pakatan Rakyat members are speaking up for them.

In the mid-1990s, then prime minister Tun Dr Mahathir Mohamad ordered that the demolition of places of worship had to be approved by the respective menteri besar or chief minister, while he himself would decide on cases within the Federal Territory. But over the years, this directive has been ignored or forgotten.

Part of the problem is that many of these sites do not have land titles, notes Datuk A. Vaithilingam, president of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism.

The Malaysia Hindu Sangam, the country's umbrella body for Hindus, has been working to register an estimated 7,000 temples and 10,000 shrines. So far, they have been able to register only 2,000 because many are suspicious of the exercise.

Last year, the Hindu Sangam asked the Housing and Local Government Ministry to conduct the registration instead.

In some cases, places of worship are built "illegally" on land belonging to the government or private owners. The Sri Maha Kaliamman Temple, for example, was on Selangor forest reserve land.

As far as possible, religious leaders try to negotiate new sites with local authorities or developers before the bulldozers move in. But sometimes, they only find out about demolitions when it is too late.

The demolition of the 60-year-old Sri Maha Mariamman temple in Shah Alam on Oct 30 last year, just before Deepavali, may have cost BN the local non-Muslim vote in the polls.

When the Ampang Jaya Municipal Council (MPAJ) demolished the Sri Maha Kaliamman Temple last September, both BN and Pakatan leaders protested. MIC Youth chief T. Mohan pointed out that the new Pakatan-run state government had promised not to demolish any places of worship, while Kapar member of parliament S. Manickavasagam threatened to resign as Parti Keadilan Rakyat's Selangor liaison committee deputy chairman if no action was taken against MPAJ officials.

Selangor's state committee on non-religious affairs, set up after the elections, temporarily suspended MPAJ deputy president Hamid Hussain and investigated the incident.

One of the outcomes was that owners of 27 plots of state land approved for places of worship in Selangor were told they need only pay RM1,000 quit rent for the first year and then a nominal RM1 for the remainder of new 99-year leases.

But although authorities are now more open to talks, it will take time for change to take effect.

"The government may have changed in some states," says Loka Ng Sai Kai, coordinator of the Malaysian Buddhist Solidarity Group, "but the local government officials are still the same. These officials don't necessarily understand the structural and cultural issues involved."

Bar Council's Roger Tan has been calling for a department of non-Muslim affairs to be set up in every state, stressing that religious leaders should be involved in decision-making on issues affecting their communities.

"If an illegal non-Muslim place of worship is demolished by a department of non-Muslim affairs, the impact and reaction would not be as great as it might be if the task were performed by the land office or local authority," he says.

Religious leaders complain of having faced political and bureaucratic hurdles for years.

Vaithilingam says the difficulty of establishing non-Muslim houses of worship leads to "illegal" temples and shophouses being turned into churches.

It is not uncommon for a decade to pass between application and approval of a non-Muslim house of worship. The Vihara Samadhi Temple in Shah Alam is a case in point. In the early 1990s, the Buddhist Missionary Society Malaysia (BMSM) submitted a building plan to the Shah Alam municipal council for 1.3 acres bought from the Selangor State Development Corporation.

The application was rejected -- after some five years -- on grounds that there was a large Muslim population there. BMSM was compensated with another piece of land nearby, which took the Shah Alam municipal council another three years to approve. Finally, after more than 10 years, the layout plan was approved just before the March general election.

Datuk Chee Peck Kiat, BMSM's honorary secretary-general, says impractical restrictions on building dimensions are as much to blame as the bureaucracy that stalls approval.

At a meeting with various non-Muslim representatives to discuss new guidelines for non-Muslim places of worship, Pakatan decided that such restrictions should be dealt with "on a case-to-case basis", taking into account the needs of the communities.

Another major hurdle is funding. The Federal Government has earmarked RM8 million for building non-Muslim places of worship from 2005 to 2008, with RM428 million allocated for Muslim facilities. Non-Muslim leaders say the meagre allocations compel them to rely on their own financing.

In his Budget 2009 speech last month, Selangor Menteri Besar Tan Sri Abdul Khalid Ibrahim proposed RM6 million for non-Muslim places of worship and RM103.5 million for the state Islamic Religious Department to build, maintain and upgrade religious primary schools, offices and mosques.

Religious leaders urge that places of worship not be seen as flashpoints but as nation-building blocks. Such institutions can help promote consciousness of morality and service to others, says Reverend Dr Hermen Shastri, general secretary of the Council of Churches Malaysia.

"The religious community is a vital link in this process," he says. "If people want to learn more about their own faith and offer services beyond themselves, the authorities should facilitate them."

Monday, November 3, 2008

Only 23 in Bar Council elections

KUALA LUMPUR: Only 23 members entered for the Bar Council elections for the 2009/2010 term at the close of nominations last Friday, fewer than the usual number from the 12,600 lawyers of the Malaysian Bar.

Two current councillors -- Roger Tan and Yasmeen Muhamad Shariff -- will not be seeking re-election.

The elections had attracted more than 30 nominees in previous years.

Tan, who has been a council member since 2004, has served in various positions, notably the deputy chair of IT & Cyberlaws Committee, chairman of the Conveyancing Practice Committee, chairman of the Solicitors Remuneration Order Enforcement Committee and organising chairman of the 14th Malaysian Law Conference.

"I have already given my best in the last four years in serving the Bar.

"It's time to move on so that others will have an opportunity to do so," said Tan.

Sunday, October 12, 2008

Let Magna Carta be our beacon of justice

ABOUT 800 years ago, there lived a bad king in England. His name was King John.

King John was not only ruthless, but greedy as he extracted extortionate taxes from his people. He even killed his own nephew, Arthur, in 1206 and imprisoned Arthur’s sister, Eleanor to secure his throne, which he ascended on April 6, 1199.

Though he managed to quell the Welsh Uprising of 1211, his position was much weakened after he was excommunicated by Pope Innocent III in 1207 when he challenged the latter’s choice of Archbishop of Canterbury. When he lost in the 12-year War of Bouvines (1202-1214) with King Philip II Augustus of France while trying to reclaim Normandy in the Battle of Bouvines on July 27, 1214, his barons turned against him.

Today, John is perhaps better known as an enemy of the outlaws headed by the archetypical hero of English folklore, Robin Hood. But Winston Churchill best described John’s legacy as follows:

“When the long tally is added, it will be seen that the British nation and the English-speaking world owe far more to the vices of John than to the labours of virtuous sovereigns.”

How true indeed because we lawyers would always recall this date, June 15, 1215 — the day the barons and John met at Runnymede, near London, and there in a meadow, John attached his royal seal on an agreed document called the Great Charter of Liberty or better known as Magna Carta in Latin.

By divine intervention perhaps, John met an early death a year later on Oct 19 just as he was about to join forces with Pope Innocent III to renege on what he had signed. He was succeeded by his 9-year-old son Henry III who was too weak to take on the barons.

Though Magna Carta was signed with the nobles, it sought not only to restrict the powers of the monarch but to protect the rights of “all free men”. It is a document of outstanding importance because it contributed to the early establishment of the constitutional principles of democracy and rule of law.

Even though 793 years have passed, three of its 63 original chapters still have the force of law in England, and two of them are:

“38. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

“39. To no one will we sell, to no one deny or delay right or justice.”

Hence, Magna Carta influenced the drafting of many constitutions around the world, including that of the United States. Its significance is best summed up by former British prime minister Anthony Eden as follows:

“June 15, 1215 is rightly regarded as one of the most notable days in the history of the world. Those who were at Runnymede that day could not know the consequences that were to flow from their proceedings. The granting of Magna Carta marked the road to individual freedom, to parliamentary democracy and to the supremacy of the law. The principles of Magna Carta, developed over the centuries by the common law, are the heritage now, not only of those who live in these islands, but in countless millions of all races and creeds throughout the world.”

In fact, Chapter 39 of Magna Carta also brought about the remedy against unlawful imprisonment by way of the great writ of habeas corpus when the Habeas Corpus Act was passed in 1679. Habeas corpus means ‘produce the body’ and is said to be the best safeguard of individual liberty because when a writ of habeas corpus is issued by a court of law, the prisoner or détenu (detainee) must be released. Judiciary is, therefore, said to be the bulwark of an Englishman’s freedoms and liberties.

In Malaysia, the right to habeas corpus is incorporated into Article 5(2) of the Federal Constitution.

However, it is ironic that when the British ruled Malaya from 1948 to 1957, Magna Carta was obviously not in their minds when they made Regulation 17 of the Emergency Regulations 1948 to allow the chief secretary to detain, by order, any person for a period not exceeding one year even though Section 4 of the Emergency Regulations Ordinance of 1948, which empowered the British high commissioner to make any regulations he considered desirable in the public interest, expressly stipulated the proviso that “no such regulation shall confer any right to punish by death, fine or imprisonment without trial…”

When the Emergency Regulations ceased after the proclamation of emergency ended on July 29, 1960, Regulation 17 was virtually transplanted into a new statute, called the Internal Security Act 1960 (ISA) which came into force two days later.

But the ISA is not the only preventive law in Malaysia. The other two laws are the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (POPO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA). POPO which came into force on May 16, 1969 after the May 13, 1969 riots allowed the minister to detain without trial any person for up to two years in the interest of public order or in order to suppress violence or prevent crime. Today, there are about 700 detainees under POPO. DDA which came into force on May 30, 1985 allowed the minister to detain without trial any person involved in drug trafficking for up to two years.

Interestingly, preventive laws are permitted under Articles 149 and 150 of the Constitution and such laws are valid notwithstanding that they are inconsistent with Article 5, 9, 10 or 13 of the Constitution or would be outside the legislative power of Parliament.

While it appears that our courts are prepared to order habeas corpus where the detention is made by the police under these laws (see Mohamad Ezam bin Mohd Noor v Ketua Polis Negara, 2002), our courts however will not review a detention order signed by the minister where such law contains a provision ousting the jurisdiction of the courts (see Kerajaan Malaysia & Ors v Nasharuddin bin Nasir, 2004 and Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & Another Appeal, 2002) notwithstanding Article 5(2) of the Constitution. Hence, depending on which side you are on, there will be arguments for and against such preventive laws.

For the government, it is the state’s responsibility to protect national security.

Preventive laws are like pre-emptive strikes against terrorists, gangsters and drug traffickers. Proponents of such laws, including the victims of terrorism and serious crimes, will ask — do we need to wait until the day when Malaysians have to wake up like the Americans did after Sept 11, 2001 to realise that the shock, horror and revulsion caused by these horrendous acts of terrorism indeed justify preventive detention? This is akin to one reading about accidents in newspapers every day. One may only feel sorry for the dead and injured when reading about it, but if the dead and injured are your loved ones, it is a totally different matter altogether.

The government will no doubt find support in the celebrated words of Lord Denning in R v Secretary of State for the Home Department, ex parte Hosenball, 1977 that “when the state itself is endangered, our cherished freedoms may have to take second place”.

Employing the same argument, if you or your loved ones are the incarcerated, you will cry to high heaven when access to courts and justice is denied. This is particularly so when they are innocent or these preventive laws are abused not for their original intention. And when the matter is taken to the courts, the courts will tell you that in the absence of any ambiguity, the preambles to such laws are of no help in interpreting their substantive provisions (see Re Tan Boon Liat, 1976).

Unless one or one’s loved ones are victims of such travesty of justice, one may not appreciate why the fundamental rights to life and justice as enunciated as far back as Magna Carta are sacred and cannot be overridden.

The right to habeas corpus under Article 5(2) is not a “mere rope of sand”. Perhaps the real threat to the life of a nation is not the detainee but the law itself because it undermines civil liberties as there can never be such a thing as 100 per cent security.

In fact, apart from blaming the judiciary for inaction, I am of the view that the role of the three-member advisory board is equally important because Article 151(2) of the Constitution provides that no citizen shall continue to be detained under any preventive laws unless an advisory board has considered the representations made by the detainee, and made the necessary recommendations to the Yang di-Pertuan Agong.

Article 152 provides that the board must be chaired by a judge or a person qualified to be one. Sadly, the strict rules of procedure and proof do not apply to hearings before the board, and the detainee’s counsel had been denied before the right to cross-examine witnesses.

While these oft-repeated arguments of balancing national security and cherished liberties rage on, my other concern with the use of these preventive laws is that it will only encourage and perpetuate poor police investigations when the state is not required to prove beyond reasonable doubt that a person has committed a crime. It is indeed an easy way out because the Penal Code already has the required provisions to deal with those who commit treason or offences against the state.

In the US and the UK, despite the governments there having passed laws after 9/11 to allow preventive detention, the US Supreme Court and the British House of Lords have fiercely stood their ground against any attempt to remove the right to habeas corpus, citing Magna Carta.

I can do no better by ending with the words of Lord Hoffman in the latter case: “Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.”

Therefore, let Magna Carta live on, that is, to no one shall we deny justice.

Published in the New Sunday Times, 12 October 2008

Sunday, September 14, 2008

When hope is gone, seek help

BANG! I was jolted out of my bed at 2.30am by this loud sound of glass shattering.

Thinking that somebody might be trying to break in, I rushed to the window to see if there was anything or somebody at the balcony. There was no one.

Then, to my horror, I spied sprawled on the ground a body clad in a white T-shirt and shorts in a pool of blood. It was a gory and yet poignant sight. The thought that immediately came to mind was that a man had jumped to his death.

Looking back now at this sad incident, which happened two months ago, I am amazed at how I plucked up the courage to run around in the middle of the night, with the body lying within sight, to look for the guards and other residents for help.

It turned out that it was actually a young woman who had fallen from the 12th floor. She was still alive because she fell through a glassed walkway without hitting the ground directly. But her hips and legs were broken with some bones protruding out. Her mother, when she rushed to the scene, wailed loudly and her cries broke the stillness of the night. It was heart-wrenching.

The ambulance arrived in 20 minutes but she died two hours later in the hospital.

I was rather traumatised by the incident: this ghastly scene kept flashing through my mind for a few weeks. I guess the experience could have been worse had it taken place during the just-concluded Hungry Ghost month.

Suicide is the antithesis of life and I find it ironic that a person who had no courage to face life had the courage to face a painful death.

It is said that for every person who commits suicide, at least five other people will suffer as they try to come to terms with the suicide of their loved ones. Studies have shown that children whose parents committed suicide could grow up to be depressed and, sometimes, suicidal adults if they do not receive proper care.

This explains why the wails of that grief-stricken mother still reverberate through my mind.

It is, therefore, disappointing to note that Sept 10, World Suicide Prevention Day, went past without any mention in our local media about suicide when it is a serious public health problem that is fast becoming our country's number two killer after heart disease.

Each year, nearly a million people around the globe commit suicide while 10 to 20 million attempt suicide at the same time.

Most religions do not approve of suicide as they view suicide as a sinful act of taking one's life which only God can take away.

It is interesting to note that only by this December will Malaysia know for the first time how prevalent suicides are when the first official data consisting of all suicide cases reported since July last year will be released by the National Suicide Registry of Malaysia.

However, from the little research I did, I discovered some disturbing facts about suicide in Malaysia and elsewhere:

- Between 1990 and 1995, about 400 people were admitted annually to University Hospital for injuries sustained in suicide attempts.

- In 2000, 53 children under the age of 11 and 1,837 people above the age of 12 attempted suicide and the youth suicide rate in Malaysia was estimated to be three in every 100,000.

- According to a Ministry of Health booklet published in 2004 entitled "Guidelines in the Management of Psychiatric Disorders", between 10 and 15 per cent of suicide bidders eventually succeeded in killing themselves and males were twice as likely to try again as females. The risk was particularly high in the first year after a failed attempt.

It also recorded that suicide rates increased with age with the highest among the elderly. Among men aged 65 and above, the suicide rate was 40 per 100,000, two to four times higher than the rate among women.

Among women, the findings revealed that most attempted suicides were in the 15-24 age group (283 per 100,000) and among men, the 25-34 age group (199 per 100,000). ("Unemployment driving men to attempt suicide" -- NST, Oct 31, 2004.)

- According to a 2006 estimate, 13 Malaysians in 100,000 kill themselves as opposed to eight in the 1980s. Of these, the suicide rate in the Indian community is the highest with 30 to 35 attempting suicide compared with 15 Chinese and six Malays in every 100,000.

However, the rates could even be higher as some cases were either unreported or under-reported due either to stigma and shame attached to suicide or because the deceased's life insurance would normally contain a clause denying payments on the ground of self-inflicted death.

- In Singapore, the total number of suicides in 2003 was 346. This went up to 419 in 2006 but it came down to 374 in 2007. Among those aged 65 years and above, suicides increased from 69 in 2006 to 87 last year. There, the suicide rate was 10.3 per 100,000 in 2006 and 9.15 per 100,000 last year.

- Kuwait and Iran have the lowest suicide rates in the world at two per 100,000 residents. Lithuania has the highest at 43 per 100,000 residents.

- In 2002, 18 out of every 100,000 Koreans committed suicide.

- In Japan, 30,000 people take their lives annually. This is about 90 suicides a day, which is the highest among developed countries.

It is said that the suicide rate is usually higher during an economic recession. Other common factors include stress, mental disorders, anxiety, depression, ailments, relationship problems, divorce, physical abuse, unemployment, drugs, bankruptcy and ageing.

The vast majority of those who committed suicide took poisons such as pesticides, jumped from high-rise buildings or hanged themselves.

Nevertheless, suicide is, in fact, a preventable death. Suicide is essentially due to a total loss of hope, which drives people wanting to rather die than live. Some experts have also described suicide happening when pain exceeds the resources of coping with it.

At the same time, many experts have advised that if we can get those who have suicidal thoughts to talk about their problems, there is still hope of preventing death.

Here, I find the information on the website of the Befrienders (www.befrienders.org.my) rather informative. According to the website, two of the many fallacies of suicide need to be debunked:

Firstly, persons who talk about suicide do not commit suicide. The fact is, of any 10 persons who will commit it, eight have given definite warnings of their suicidal intentions.

The second myth is that suicide happens without warning. Studies have revealed that suicidal persons give many clues and warnings regarding their suicidal intentions.

In this respect, it is good for the public to know the warning signs. The San Francisco Suicide Prevention Crisis Line has listed the following as possible warning signs:

- Talking about dying -- any mention of dying, disappearing, jumping, shooting oneself or other types of self harm.

- Recent loss -- through death, divorce, separation, broken relationship; loss of job, money, status, self-confidence, self-esteem, religious faith; and loss of interest in friends, sex, hobbies or activities previously enjoyed.

- Change in personality -- sad, withdrawn, irritable, anxious, tired, indecisive or apathetic.

- Change in behaviour -- can't concentrate at school, work or on routine tasks.

- Change in sleep patterns -- insomnia, often with early waking or oversleeping, or nightmares.

- Change in eating habits -- loss of appetite and weight, or overeating.

- Diminished sexual interest -- impotence or menstrual abnormalities (often missed periods).

- Fear of losing control -- going crazy, harming self or others.

- Low self esteem -- feeling worthless, shame, overwhelming guilt, self-hatred, or "everyone would be better off without me".

- No hope for the future -- believing things will never get better; that nothing will ever change.

- Other things to watch for -- suicidal impulses, statements, plans; giving away favourite things; and previous suicide attempts, substance abuse, making out wills, arranging for the care of pets, extravagant spending, agitation, hyperactivity, restlessness or lethargy.

It follows that our professional counsellors and rescuers must be well equipped and trained to prevent suicide attempts, especially those wanting to jump from high rise buildings.

I remember in 2001, a 32-year-old woman plunged to her death from her 16th floor apartment at Plaza DNP, Johor Baru, after she was allegedly taunted by a member of the public to jump as he thought the woman could be frightened off from jumping.

A fireman from the Larkin Fire and Rescue Department managed to grab her hand but lost his grip due to a struggle.

The rescue operation was hampered as the department did not have any airbags or safety net to break her fall. Four airbags were immediately purchased after that.

All in all, if any reader reading this is feeling suicidal, I pray you will seek help or talk to someone. You owe it to yourself and family to do so.

Always remember that no one on this earth is devoid of stress or personal problems. There are many secular bodies out there that are waiting to help you.

Otherwise, in your quiet moments, you can also turn to God for God loves you. There is nothing impossible or insurmountable with God and I am sure when you seek Him, He will grant you spiritual healing.

Always remember too that where there is life, there is hope. So do not give up hope and the precious life that God has given you.

Published in the New Sunday Times, 14 September 2008

Thursday, September 11, 2008

The Bar joins Qualifying Board's evaluation team to UUM and MMU

KUALA LUMPUR: The Malaysian Bar joined the evaluation team which visited Universiti Utara Malaysia (UUM) at Sintok, Kedah and Multimedia University (MMU) in Malacca recently to determine if UUM and MMU law graduates should be exempted from the Certificate in Legal Practice (CLP) examination, said Bar Councillor Roger Tan who led the team from the Bar.

Referring to the news report in The Star today, CLP needed for UUM law grads, says Bar Council, Tan clarified that the decision on exemption is to be made by the Legal Profession Qualifying Board (LPQB) and not by the Bar Council pursuant to the Legal Profession Act, 1976.

The evaluation committee headed by the Chief Registrar of the Federal Court, Datuk Halijah Abbas and set up by the LPQB also comprised the Treasury Solicitor, Puan Khadijah Idris, Professor Zita Mohd Fahmi of  the Malaysian Qualifications Agency, the CLP Director, Muniandy Kannyappan and Tan, on behalf of the Malaysian Bar.

The Committee was assisted by two legal teams in their visits to UUM on August 24-25 and MMU on September 3-4. 

The Committee and team members were tasked to determine whether, by comparing the law syllabus taught by the two universities and the 10 areas of law covered by the CLP course, namely Criminal Procedure, Evidence, Tort (General Paper), Contract (General Paper), Advocacy and Duties of Counsel (Professional Practice), Ethics of the Legal Profession (Professional Practice), Land Law and Land Dealings (Professional Practice), Bankruptcy & Winding Up (Professional Practice), Probate & Administration of Estates (Professional Practice) and Civil Procedure, the law graduates of these two universities should be exempted from the CLP exam.

During their visits, the teams attended lectures, tutorials and moots; and examined and interviewed graduated students, existing students and their lecturers and tutors. Copies of the syllabus, examination questions, students' assignments and examination answers (categorised from poor to good), marking schemes, external examiners' comments, teaching materials and other relevant materials had also been extended to the teams during and prior to their visits. 

The team members are currently in the process of filing their respective reports to the Evaluation Committee which will make the necessary recommendations to the LPQB.

At the visit to UUM, the following were responsible for the respective areas of law:

Criminal Procedure: Muniandy and Hisyam Teh Poh Teik who is a Bar Councillor and Chairman of Bar Council's Criminal Law Committee.
Evidence: Prof. Zita and Tuan Roslan bin Hanid who is the Butterworth Sessions Court Judge.
Tort: Puan Khadijah and Yeo Yang Poh who is a former Malaysian Bar President and now a Bar Councillor.
Contract: Prof. Zita and lawyer Megat Adbul Munir.
Advocacy and Duties of Counsel, Ethics: Roger Tan and Puan Hendon Mohamed, a former Malaysian Bar President and now a Bar Councillor.
Land Law and Land Dealings: Roger Tan and Andrew Wong Fook Hin, a former Bar Councillor and now the Chairman of Bar Council's Conveyancing Practice Committee.
Bankruptcy: Datuk Halijah and Teh Yoke Hooi who is a member of the Advocates & Solicitors Disciplinary Board.
Winding Up: Datuk Halijah and Puan Balqisaini bte Mohd Ali who is the Petaling Jaya Sessions Court Judge.
Probate & Administration of Estates: Puan Khadijah, Tuan Meor Sulaiman bin Ahmad Tarmizi who is the Taiping Sessions Court Judge and lawyer Lee Chooi Peng.
Civil Procedure: Muniandy and Nahendran Navaratnam who is a member of the Advocates & Solicitors Disciplinary Board.

At the visit to MMU, the following were responsible for the respective areas of law:

Criminal Procedure: Muniandy and Hisyam Teh Poh Teik.
Evidence: Prof. Zita and Tuan Roslan bin Mat Nor who is the Head of General & Sexual Crimes, Prosecution Division of the Attorney General's Chambers.
Tort: Puan Khadijah and Tuan Amarjeet Singh a/l Serjit Singh, who is the Head of Tort and Statutory Duties Unit of the Attorney General's Chambers.
Contract: Prof. Zita and Datuk Kuthubul Zaman b Bukhari, a former Malaysian Bar President and now a Bar Councillor.
Advocacy and Duties of Counsel, Ethics: Roger Tan and Puan Hendon Mohamed.
Land Law and Land Dealings: Roger Tan and Andrew Wong Fook Hin.
Bankruptcy: Datuk Halijah and Teh Yoke Hooi.
Winding Up: Datuk Halijah and Puan Balqisaini bte Mohd Ali.
Probate & Administration of Estates: Puan Khadijah, Tuan Ahmad Kamar bin Jamaludin who is the Senior Sessions Court Judge in Malacca and lawyer Lee Chooi Peng.
Civil Procedure: Muniandy and Nahendran Navaratnam.

Sunday, August 24, 2008

The mind games we can do without

ON Aug 9, I was not able to attend the monthly meeting of the Bar Council as my mother and mother-in-law were unwell. A forum entitled "Conversion to Islam: Article 121(1A) of the Federal Constitution, Subashini and Shamala Revisited" was held on the same day in the Bar Council's secretariat building.

A day later, my mother-in-law died peacefully at her home in Yong Peng at the age of 89.

For the last year, my mother-in-law was patiently attended to by a local doctor, Dr Mutalib Mohamed. Dr Mutalib had been going to the house a few times a week after she became bedridden to clean and dress her wounds arising from bed sores.

Each time, he had to painstakingly incise the dead cells and dress the sores, some of which were the size of a small crater. He did not charge much even though the job was distasteful. But he did it. Alas, my mother-in-law lapsed into a semi-comatose state three months ago after a stroke, but Dr Mutalib continued to monitor her. He also had to change the Ryle's tube regularly so that she could be fed. There were also a few emergency occasions when his services were willingly rendered.

By going around this predominantly Chinese community to attend to other aged patients like my mother-in-law, the urbane and good-looking Dr Mutalib no doubt earned the respect and admiration of many.

Little did he know that his simple service has gone a long way to project the good side of the religion he professes -- Islam. In fact, it was almost unthinkable for a non-Malay in Yong Peng to visit and consult a Malay doctor a few decades ago. Of course, he and his wife also took the trouble to pay their last respects to his departed patient.

But the Malays are not only polite and forgiving. They are a grateful people, too. I remember in 2004, I represented for free Al-Yatama Bhd which runs orphanages in Johor in a four-year court battle.

When we successfully obtained a court order to compensate Al-Yatama for RM65 million and to repossess their 1,092ha of land after entering into a failed joint venture in 1996 ( "Charity firm recovers land in suit" -- NST, Feb 3, 2004), two septuagenarian directors of its board, Abdul Rahman Abbas and Sulaiman Hassan, were ever so grateful.

They cried with joy and hugged me outside the courtroom. Grabbing my hands, they cried in Malay: "Mr Roger, Allah will bless you!" I was touched by their kind words.

While it cannot be denied that religion occupies a central place in the lives of the Malays, I thought what the protesters did on Aug 9 did not fairly and kindly portray the amiable side of the ordinary Malay folk. I was rather alarmed by what I saw in the videos taken of the incident.

One of their leaders, Zulkifli Nordin, a former one-term Bar Council member himself, allegedly urged the already agitated protesters to storm the building if he and a few others did not re-emerge to inform the rest that they had stopped the forum. Two kerosene-filled bottles were also left outside.

Zulklifi's explanation that he was there to defend his religion was wholly misplaced. Islam was never challenged let alone attacked in this multiracial forum. Some of the speakers and participants who took part in the forum were Muslims, and quite correctly, they took to the floor to speak for Islam in a mature, respectable and civilised manner.

One of them was Professor Mehrun Siraj, wife of former Bar Council chairman Sulaiman Abdullah. Though small in build, she was obviously not a pusillanimous lady when she stood up to the imperious Zulklifi and gang, saying: "Muslims must act based on the Quran and Sunnah. We must behave well. Muslims must not be rude. I am ashamed of your behaviour. Islam does not condone this."

Sadly, by stoking racial sentiments and hurling racist remarks, the raucous protesters had only tarnished the good name of Islam. Zulklifi's actions have also opened the eyes of the people to see how Parti Keadilan Rakyat could govern this country when their members hold divergent views on race and religion.

Zulklifi's other oft-repeated statement that the Quran is more important than the Federal Constitution also runs contrary to the views held even by the many human rights activists within his own party, PKR. This gave rise to the impression, wrongly or correctly, that Zulklifi advocates a government based on syariah.

Of course, the Bar Council will not lodge any police report against them for holding an illegal assembly or for the seditious words that they had uttered. Neither will the Bar Council seek an apology from PKR, Pas or Umno. To do so would be against the stand taken by the Bar all this while on freedom of expression and assembly and the Sedition Act.

In a way, Aug 9 should be celebrated as a day in which democracy flourished in this country if not for the protesters who, when exercising their right to object to the forum, had also sought to prevent others from expressing their similar right to hold it, even though their views differed on the matter.

It is now apposite to stress that the Bar Council is not anti-Islam or any religion at all. Like the cabinet, members of the Bar Council are bound by the principle of collective responsibility.

When the Bar Council gave the green light to its Family Committee to hold the forum, little did we realise that it would be so grossly misinterpreted. After all, this was not the first time the council had organised a forum on this vexed issue.

The council had innocuously thought the composition of the panellists was rather balanced as two of the original speakers were former syariah judge Dr Mohd Naim Mokhtar, and Institut Kefahaman Islam Malaysia (Ikim) Syariah Law Centre director Dr Wan Azhar Wan Ahmad.

In hindsight, we could have titled the forum more appropriately. In this sense, I personally acknowledge that we could have been more sensitive. Perhaps a title like "Conflict of civil and syariah laws after Subashini and Shamala" would have been more apt.

Unfortunately, in these days, we are caught in the mind game that perception is more important than practice and fact.

The fact is that the Malaysian Bar has spoken up for Muslims, too. We are a loud critic of the Iraq war as well as the mistreatment of suspected terrorists in Guantanamo Bay, Cuba. Further, the only religious event organised by the Bar committees is the buka puasa.

Similarly, the police are caught in this problem with perception. No doubt, their actions on Aug 9 will be compared with the efforts they took to break up the Bersih and Hindraf demonstrations.

But the fact is after the March 8 general election, there appeared to be a more tolerant approach in the way in which the authorities viewed public demonstrations. What the authorities must always bear in mind is that their response to any similar event must be consistent when upholding the rule of law.

Having said that, as we approach yet another Merdeka, I believe we Malaysians can progress further and learn to look at sensitive issues in a civilised and mature manner. It may take time, but the Bar Council, being entrusted to uphold the cause of justice without fear or favour, will continue to promote this practice of civil dialogue.

Published in the New Straits Times, 24 August 2008

Saturday, August 16, 2008

Hundreds turn up to bid farewell to Teo

The Star
by Beh Yuen Hui

Loved by all: Family, relatives and friends bade farewell to Teo at her funeral service on Thursday.
YONG PENG: Throughout her life, Teo Guat Kwee had reached out to help churches, schools and the underprivileged.

And on her death, her children did the same.

They gave away the contributions collected at Teo’s funeral to charity.

A total of RM5,000 was donated to the Yong Peng High School to help poor students, while the remaining RM2,000 was donated to various churches, charity organisations, Chinese schools and associations.

“Everyone is equal and deserves the same love, respect and grace,” was the motto of Teo, 89, who came to Malaya from China with her brother Chang Ming Zoo in 1932.

Teo died on Sunday. On Thursday, the 80-year-old Chang, Teo’s 11 children, 50 grandchildren and 17 great-grandchildren were joined by dozens of friends and relatives, bade farewell to her.

“She loved to help people and has never turned anyone away,” said her son-in-law Low Ah Tee.

Low said Teo had changed his perception on equality between man and women.

“I was born in a traditional family where men are given a higher status than the women.

“But after meeting my mother-in-law, I totally agreed with her that both are equal and should be treated the same,” said the 64-year-old retired teacher.

Teo’s daughter Wong Ee Teng said her mother had very strong determination and faith.

“When she was sick, she told herself that she would be well because she did not want to burden others,” she said.

She said her mother was a rubber tapper until she was 65 to support her family, as her father Wong Pang Say had asthma and was unable to work.

“She made sure the 12 of us got the best in education and others,” she said.

She added that among her siblings were a London-based IT consultant, retired teacher, tutor and nurse.

Wong Pang Say died in 1980, while Teo's eldest son died in 2002.

Teo was buried at the Yong Peng Christian Cemetery.

Sunday, August 10, 2008

Perhaps, finally, Blair has come of age

ON Aug 1, when delivering the 22nd Sultan Azlan Shah Lecture, former British prime minister Tony Blair said the rule of law was more relevant than ever in today's era of globalisation.

"Although the rule of law is an initiation of political leaders, like me, it is also a vital component for political success as it ensures an orderly society," Blair said when presenting the lecture entitled "Upholding The Rule of Law: A Reflection".

I must say I could not agree more with him. We lawyers are often reminded of the celebrated words of the English pamphleteer Thomas Paine (1737-1809): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

Likewise, the law governing international relations is the United Nations Charter. Indeed, international rule of law is a vital component for peace as it ensures an orderly world.

However, by supporting and participating in the 2003 United States-led invasion and occupation of Iraq, I wonder whether Britain, being the world's oldest democracy, still possesses moral authority in a comity of nations to lecture on the principle of rule of law.

On Sept 14 last year, Opinion Research Business, an independent polling agency in London, released estimates of the total war casualties in Iraq at over 1,220,580 deaths. Thousands more were maimed and scarred for life.

According to the report, the number exceeded even the 800,000 to 900,000 deaths in the Rwandan genocide in 1994, and may even overtake the 1.7 million casualties of Cambodia's killing fields in the 1970s, two great crimes of the last century.

Of course, the debate rages on whether the invasion of Iraq was a breach of international law.

Under international law, there are probably two grounds where the use of force is justified.

The first is provided for under Article 51 of the UN Charter, which confers an inherent right upon a state to use force in self-defence.

The other is when the use of force is authorised by the Security Council under Article 42 of the Charter.

It is interesting to note that both camps seem to rely on the UN Security Council Resolutions 678 and 1441 to justify their arguments for and against the invasion.

Resolution 678 was passed on Nov 29, 1990, then giving Iraq one final opportunity to withdraw from Kuwait by Jan 15, 1991, failing which members of the UN in cooperation with the government of Kuwait were authorised to use "all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area".

UN Security Council Resolution 660 demanded that Iraq withdraw its forces unconditionally to the positions in which they were located before they invaded Kuwait on Aug 1, 1990.

Resolution 1441, passed unanimously on Nov 8, 2002, offered Iraq "a final opportunity to comply with its disarmament obligations".

The United States seemed to hold the view that Resolution 678, backed by Resolution 1441, was sufficient, without the need for any further resolution, to clothe it with the legal authority to use force against Iraq.

But how was that possible when there was no threat of an armed attack or act of aggression from Iraq, whether actual or imminent?

Similarly, the UN Charter does not permit such notion of pre-emptive strike or preventive war in international law as advanced by the US and its allies.

Iraq obviously did not commit or threaten to commit any act of "aggression" as defined by the UN General Assembly Resolution 3314 (XXIX).

In fact, during a 2004 interview with the BBC, the then UN Secretary-General Kofi Annan had this to say: "I have indicated it is not in conformity with the UN Charter, from our point of view, and from the Charter point of view it was illegal."

Similarly, the so-called "shock and awe" blitzkrieg to secure Iraq's compliance with its disarmament obligations was a totally disproportionate response, causing huge civilian casualties in breach of the Geneva Conventions of 1949 and their 1977 protocols.

It has now become abundantly clear that the infamous invasion was intended to remove Saddam Hussein, who in the eyes of the US and its allies was a recalcitrant dictator.

It is also abundantly clear that the UN inspectors who scoured Iraq for weapons of mass destruction did not eventually find any.

It is unfortunate that as a permanent member of the Security Council, Britain, then headed by Blair, did not stand up to this flagrant disregard of international law by the Bush administration.

Instead, Blair led Britain to join the US in this illegal war.

This went against the very foundation in which the UN Charter came into being after World War 2, that is, as stated in its preamble, "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" .

Unless one has been bereft of loved ones before, one may not appreciate why parents, widows and orphans shriek and thump their chests crying to high heaven and pleading for justice in agony, misery and sorrow when their innocent children, spouses and parents perish in a war.

The preamble to the Charter also reaffirms faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small in order to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.

Hence, the manner in which suspected terrorists are treated and incarcerated speaks volumes of the US's record of respecting basic human rights.

Today and like before, history seems to be repeating itself. The Bush administration is now saying that any withdrawal of the US and allied troops will plunge Iraq into a civil war.

Looking back at history, when Britain invaded Iraq in 1917, the British, too, claimed to be the liberators and not conquerors of the Iraqis.

The reason was the same, that is, to set up democracy in Iraq. The then prime minister, Lloyd George, too, warned that if British troops should leave Iraq there would be civil war.

Abandoned Iraq, they did, and the Baath Party led by Saddam Hussein then took over.

Sadly, the mess now created in Iraq is the result of failure and refusal by powerful nations to respect and commit to international rule of law.

The invasion and continued occupation of Iraq have never been expressly authorised by the UN Security Council.

Winston Churchill once put it aptly: "The whole history of the world is summed up in the fact that, when nations are strong, they are not always just, and when they wish to be just, they are no longer strong."

As the UN is powerless to act and enforce international law when the culprits are the world's powerful nations, one can only leave it to history to judge whether Bush, Blair, John Howard and the others are saviours or butchers of the Iraqis.

Published in New Straits Times, 10 August 2008

Wednesday, July 16, 2008

The ACA and the power to prosecute

LAST Friday, the Anti-Corruption Agency announced that it has been given full powers to prosecute anyone for corruption. This means it no longer needs to refer to the Attorney-General’s Chambers after completing its investigations.

According to news reports, the A-G’s Chambers will now second a senior officer to be a director at the ACA, giving him powers to prosecute cases. This officer will report directly to the director-general of the ACA.

In Malaysia, Article 145(3) of the Federal Constitution expressly states that the attorney-general shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a syariah court, a native court, or a court martial.

Section 376 of the Criminal Procedure Code (CPC) also expressly states that the attorney-general shall be the public prosecutor and shall have the control and direction of all criminal prosecutions and proceedings. To assist him, the public prosecutor may appoint and authorise other persons such as the assistant and deputy public prosecutors, advocates, police officers, officers of any government department, local authority or any statutory authority to conduct criminal prosecutions before any court or any inquiry before a magistrate.

Hence, the public prosecutor is the alter ego of the attorney-general, in that these two positions are held by one and the same person.

In 1999, Justice Datuk Gopal Sri Ram, sitting as a High Court judge, decided in Repco Holdings Bhd v PP that Article 145(3) gives the attorney-general the sole and exclusive authority to institute and conduct any criminal proceedings, although neither the word “sole” nor “exclusive ” appears in Article 145(3).

He therefore held that any law that confers prosecution powers upon any other person is unconstitutional, and that the attorney-general’s exercise of discretion in this matter is not subject to judicial review.

Even though High Court judges like Justice Datuk Ian Chin in PP v Lee Ming & Anor (1999) and Justice Datuk Abdul Wahab Patail in Rajendran a/l Gurusamy v PP (2000) and Datuk Seri S.Samy Vellu v S. Nadarajah (2000) have expressed their reservations on the correctness of Sri Ram’s interpretation of Article 145(3), the latter’s decision has however been followed by the Court of Appeal on several occasions.

It follows that Repco’s decision essentially means the following:

• The attorney-general and the public prosecutor must be the same person. If the public prosecutor is not the attorney-general, then Section 376 of the CPC is unconstitutional.

•Any law similar to Section 39(2) of the Securities Commission Act 1993 that provides that any officer of the Securities Commission (SC) authorised in writing by the SC chairman may conduct any prosecution of any offence under the said Act will be struck down as unconstitutional. (Section 39(2) was subsequently repealed on Sept 28, 2007.)

It is therefore respectfully submitted that without any amendment being effected to Article 145(3), and so long as the decision in Repco still stands, the ACA’s legal officers who report to the ACA chief are still the attorney-general’s subordinates. The attorney-general can always overrule them anytime. In this sense, it cannot be said the ACA now possesses independent prosecution powers.

Further, it is a mistake to broadcast to the whole world that the legal officers now report to the ACA chief over prosecution matters.

This is not only wrong in the light of Repco’s case, but it will now certainly prompt every accused’s counsel in a corruption trial to raise a preliminary issue of whether the attorney-general’s consent has been obtained before a charge is preferred against his client. This is because Section 50 of the Anti-Corruption Act 1997 expressly provides that no prosecution under the said 1997 Act shall be instituted except by or with the consent of the public prosecutor.

Hence, the latest move, though viewed by many as a step in the right direction, may just turn out to be a façade in our haste to please the court of public opinion.

To my mind, if the government is really serious about establishing a “full-fledged” Malaysian Commission on Anti-Corruption by the end of this year, we must do things properly so that we can rebuild the legal structure of ACA to make it a totally independent anti-corruption enforcement body.

It is, therefore, always a danger to vest absolute powers in one person alone. To this aim, Article 145(3) can be amended to make it clear that it does not confer upon the attorney-general sole and exclusive power to institute and conduct prosecutions.

In so doing, the office of the public prosecutor can be assumed by another officer independent of the attorney-general, so that day-to-day prosecutions are personally conducted by the public prosecutor and other statutorily appointed officers.

The attorney-general can still have supervisory, but not exclusive, powers over prosecutions so that he can concentrate on his role, and rightly so, as the chief legal adviser to the government.