Sunday, December 11, 2011

Civil disobedience cannot rule the law

The Sunday Star
by Roger Tan

Street Protest: Civil disobedience is becoming a popular tactical weapon used by politicians and civil rights movements to justify their violation of laws.
IN 1996, when my clients and I were negotiating with the Attorney-General’s Chambers, led by its then head of the advisory and international division Tan Sri Abdul Gani Patail, I warned that too high a rate might cause the public to refuse payment to privatised entities out of civil disobedience.

Then, both my learned friends across the table and my own clients were rather amused by my argument.

Today, this term “civil disobedience” appears to be the “in-thing” among politicians, particularly those from the opposition, backed by non-governmental organisations and civil rights and liberties movements.

It is becoming a popular tactical weapon used by them to justify their violation of laws which, in their view, are “unjust”, apart from indulging in some polemics.

Hence, we saw various street protests being held without a police permit in contravention of the Police Act (1967).

So, what is civil disobedience? I would define it as an open and deliberate law-breaking or infringement of rights to get public attention that is often politically motivated, and normally is carried out because the civil disobedients conscientiously feel, whether sincerely or otherwise, that they are morally obliged to do so.

Pressure groups around the world have, over the years, resorted to this means to secure their desired legal and social changes. But for an act to be considered civil disobedience, the disobedients must also be prepared to accept punishment for infracting the laws.

This is, in fact, fine with them as the courtroom will give them the publicity they seek for the causes and issues which they are advancing.

The father of the modern concept of civil disobedience is said to be American Henry David Thoreau (1817-1862). For six years, he refused to pay taxes because of his opposition to slavery and the Mexican-American War. For that, he was thrown into jail in July 1846, but he only spent one night in jail because the next day, his aunt, against his wishes, paid his taxes.

We are undoubtedly more acquainted with celebrated modern-day civil disobedients such as Mahatma Gandhi (1869-1948), Martin Luther King (1929-1968) and Rosa Parks (1913-2005).

Parks was fined for refusing to give up her bus seat to a white passenger but Gandhi and King were jailed for disobeying the law. There is no denying that Gandhi’s Satyagraha and King’s civil rights movements brought immense legal and social changes to India and the United States respectively.

These civil disobedients were much inspired by the words of St Augustine (354-430) that an unjust law is no law at all (lex iniusta non est lex). So, one is under a moral obligation to disobey such a law. King also added that “sometimes a law is just on its face and unjust in its application”.

The story told by Professor Charles Lund Black (1915-2001) of Yale Law School, an outspoken critic of the death penalty, about one Pawnee Indian brave named Peshwataro, best illustrates the operation and benefits of civil disobedience:

“The law of the Pawnee commanded that on the summer solstice there take place the sacrifice of the star maiden. A girl was each year captured from a neighbouring tribe and bound to a stake. At dawn, the Pawnee braves would ride in a circle about her and shoot their arrows into her.

Sunday, November 13, 2011

Judicial diversity creates confidence

The Sunday Star
by Roger Tan

Judicial diversity and meritocracy should go hand in hand. A judiciary that does not reflect society’s diversity will ultimately lose the confidence of that society.

ENGLAND’S senior judiciary has often been described as “pale, male and stale” – that is a white, male-dominated bench.

This is understandable because despite many calls over the years for more diversity in judicial appointments, women and ethnic minorities are still sorely under-represented in the highest echelons of England’s judiciary.

Today, Lady Brenda Hale still remains the sole woman justice out of 12 places in the highest court of the United Kingdom, now known as the Supreme Court. First appointed to the House of Lords as a Lord of Appeal in Ordinary (Law Lord) on Jan 12, 2004, she was reappointed to the new Supreme Court when it replaced the House of Lords in 2009.

In October this year, Rabinder Singh became the first Sikh, a non-white, to be appointed a High Court judge of England and Wales. There is no law lord from an ethnic minority. This year two more white men, Jonathan Sumption, QC and Lord Justice Wilson, were appointed to the Supreme Court.

The President of the Supreme Court, Lord Phillips, did remark recently that he would like the Supreme Court to be 50/50 men and women from the point of perception, but he stressed that it was more important to consider judicial selections based on merit.

Lord Hope, the Deputy President, was not so hopeful, however. “It’s a great mistake to rush it forward and say that diversity must prevail over merit. The system depends on skilled people who can actually do the job and we can’t afford to have passengers here, just in the name of diversity,” he said.

But is this insistence on merit reasonable when actually it is a non-issue? Or is it simply an excuse not to effect judicial diversity speedily? If so, then perhaps the very definition of what is merit should be re-examined.

In fact, leading the call for more women and ethnic minority judges in the courts is none other than Hale herself. She said she was rather tired of being repeatedly told that change was “a matter of time”, but change never came.

Recently, Hale told the House of Lords constitution committee that “the lack of diversity on the bench is a constitutional issue”.

Sunday, October 2, 2011

Making the case for preventive detention

The Sunday Star 
by Roger Tan

In the proposed laws to replace the ISA, the government must balance, and balance it well, the state’s duty to protect national security with a citizen’s cherished liberty and human right of access to courts.

I JUST turned half a century old yesterday. But the Internal Security Act, 1960 (ISA) is older still.

In fact, the original preventive detention provision was contained in Regulation 17 of the Emergency Regulations 1948 which allowed the chief secretary to detain, by order, any person for a period not exceeding one year. Interestingly, it was made notwithstanding Section 4 of the Emergency Regulations Ordinance of 1948 which stated that the British high commissioner could make any regulations he considered desirable in the public interest provided that “no such regulation shall confer any right to punish by death, fine or imprisonment without trial…”

When the Emergency Regulations 1948 ceased after the proclamation of emergency ended on July 29, 1960, Regulation 17 was transplanted into a new statute, called the ISA which came into force on August 1, 1960.

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 (EO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA).

The EO, 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. Currently, there are few hundreds of detainees placed under the EO.

On the other hand, the 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.

The reason why these preventive laws still exist today and have not been invalidated by our courts is simply because they are permitted under Articles 149 and 150 of the Federal Constitution even though they are inconsistent with the fundamental liberties provisions stated in Articles 5, 9, 10 and 13 of the Constitution.

In this respect, Prime Minister Datuk Seri Najib Tun Razak should be commended for his bold move to repeal the ISA and the EO.

Saturday, October 1, 2011

Protecting Jalan Sultan

The Star
by Yip Yoke Teng

THE Land Acquisition Act 1960 and National Land Code 1965, specifically the amendment made in 1990, are two laws brought into view in the Jalan Sultan debate.

Lawyer and former member of the Bar Council Roger Tan, who is also a columnist with The Star, explained the relevance of these laws in this context.

He first highlighted an individual’s constitutional right to property as enshrined in Article 13 of the Federal Constitution. The Article reads: “No person shall be deprived of property save in accordance with law” and “No law shall provide for the compulsory acquisition or use of property without adequate compensation”.

He noted that even Singapore does not have a similar provision in its constitution.

The word ‘law’ in Article 13(1) can only mean an enacted law. This law is the Land Acquisition Act 1960 (LAA) which is in force since Oct 13, 1960.

Circumstances that allow land to be compulsorily acquired are:

Section 3(1) of LAA states that the state authority may acquire any land which is needed-

(a) For any public purpose; or

(b) By any person or corporation for any purpose which in the opinion of the state authority is beneficial to the economic development of Malaysia or any part thereof or to the public generally or any class of the public; or

(c) For the purpose of mining or for residential, agricultural, commercial or industrial purposes.

Constitution does not allow for hudud, says Bar Council

The Star

PETALING JAYA: Both the Federal Constitution and the current legislative framework do not allow for hudud to be implemented by any state, said the Bar Council.

Expressing its concern over the recent “political posturing” in reviving the possibility of implementing hudud, its president Lim Chee Wee called on all parties to instead uphold the Federal Constitution as the supreme law of the land.

“Hudud cannot be implemented within the current constitutional and legislative framework,” he said.

“The Malaysian Bar calls upon all parties to uphold the Federal Cons-titution as the supreme law of the land and cease all rhetoric on the implementation of hudud, which has inevitably caused confusion and division.

“They should focus instead on strengthening the rule of law and democratic process,” he said, adding that a Supreme Court ruling in 1988 had confirmed Malaysia as a secular state.

The Federal Constitution, he said in a statement, only allowed the states to enact laws creating offences by persons professing Islam, against the precepts of Islam, and the respective punishments for such offences.

Senior lawyer Roger Tan said the power to legislate punishment for criminal offences was with Parliament.

“To me, this is a very important issue as it is against the intention of our forefathers. If any non-Muslim does not respond strongly against PAS proposal, it is an act of acquiescence to the insidious attempt by the party to convert a secular state into a theocratic state,” he added.

Monday, September 26, 2011

Najib delivers promise on political transformation

The Borneo Post

KUALA LUMPUR: When Prime Minister Datuk Seri Najib Tun Razak took over as the sixth prime minister on April 3, 2009, he set his sights on resolving domestic economic issues and tackling political reform.

In his maiden speech over television as the nation’s premier, Najib even pledged to conduct a comprehensive review of the Internal Security Act (ISA) which allowed for the indefinite detention of people without trial, and even announced the release of 13 people held under the draconian act.

He then unveiled the Government Transformation Programme (GTP), Economic Transformation Programme (ETP) and Political Transformation Plan (PTP), a reflection of his integrated and visionary push to transform Malaysia into a truly developed nation by 2020.

For political transformation, Najib even suggested that the Barisan Nasional (BN) charter be amended to allow direct membership into the ruling coalition through four new kinds of membership in BN — affiliate membership, associate membership, Friends of BN and fourth, the BN Rakan Muda club.

But the biggest transformation since he took over and regarded as Najib’s boldest step in political reform was the repealing of the ISA.

In other words, the prime minister has delivered on his promise.

According to MIC secretary-general S Murugessan, the prime minister would be remembered as one who was willing to make such a bold decision.

“It would be a lasting legacy of Datuk Seri Najib. As a lawyer, I feel relieved (about the repealing of the ISA),” he said.

Senior lawyer Roger Tan said Najib’s courageous decision to repeal the ISA was the right thing to do and it showed that the government was receptive to the feelings on the ground.

Friday, August 5, 2011

Church leaders slam raid by state Islamic department

The Star 

PETALING JAYA: Church leaders have come out to strongly condemn the raid by Jais.

Damansara Utama Methodist Church (DUMC) senior pastor Dr Daniel Ho, who heads the church at the Dream Centre in Petaling Jaya, said the trespassers had subjected the dinner guests to undue harassment.

The event was organised by non-governmental organisation Harapan Komuniti on Wednesday as an appreciation for its volunteers, leaders, supporters and members of the community who have benefited from its work.

The NGO assists the poor and the needy, including women, children, and victims of HIV/AIDS and natural disasters, regardless of race or religion.

DUMC is among the bigger churches in the Klang Valley, with its membership numbering in the thousands.

“At 10pm on the same night, a large group of between 20 and 30 Jais and police officers entered the premises of Dream Centre.

“They entered the hall where the dinner was taking place and started taking videos and photographs,” Dr Ho said in a statement yesterday.

The officers, who took down details of the Muslim guests, had entered the private property without a warrant.

“When asked by the organisers why they were there, Jais replied that they received a complaint, but they were unable to produce a copy when asked,” Dr Ho said.

Council of Churches Malaysia general secretary Reverend Dr Hermen Shastri said the act had made a mockery of the sanctity of religious places.

Wednesday, July 13, 2011

Raja Aziz Addruse: A gentleman who believed in honesty and fair play

The Star
 by Roger Tan

THE social media was quickly overwhelmed with tributes and accolades for one of our nation's most renowned lawyers, Raja Aziz Addruse the moment news came in that he had passed away yesterday afternoon.

Ungku, as he was fondly known within the legal fraternity, was indubitably a legal luminary and a doyen of the Malaysian Bar.

His unequivocal commitment to the independence of the Bar and the independence of the judiciary - which are two essentials of the rule of law - is legendary. It is, therefore, not surprising that his departure is deeply felt by many lawyers, young and old, as Ungku could always be depended upon to speak up courageously for the Bar, and fairness and justice without fear and favour.

It is no wonder that by popular request he became the president of the Bar three times between 1976-1978, 1988-1989 and 1992-1993. He was also a member of the Bar Council intermittently for 21 years.

Born in Chemor, Perak on Feb 10, 1936, Ungku left for England in 1954 to read law at the University of Bristol.

He was called to the English Bar by the Honourable Society of Lincoln's Inn in 1960. He returned to Malaya the same year to join the Federal Judicial and Legal Services as a deputy public prosecutor and later a Deputy Parliamentary Draftsman.

Six years later, he resigned and entered private practice after having been admitted to the Malaysian Bar on Jan 8, 1966.

When he became the president of the Bar in March 1988, it was also one of the most tumultuous periods of the Bar with the dismissal of the then Lord President, Tun Salleh Abas and two senior judges of the Supreme Court as well as the suspension of three others.

He not only represented Tun Salleh but stuck to his principle by refusing to appear in the Supreme Court when Tun Hamid Omar was Tun Salleh's successor albeit he was a senior counsel often sought after by many for major cases at the apex court.

Though small in built, he was a giant of a man both in personality and character. He was always able to bring across his points of arguments forcefully and effectively but in a soft-spoken and courteous manner.

Sunday, June 12, 2011

Resolving tenancy disputes (building issues)

The Sunday Star
by Roger Tan
In the interest of millions of stratified property owners, the Strata Titles Board needs to be set up and quickly brought into operation.

MILLIONS of Malaysians live and undertake commercial activities in strata sub-divided buildings these days. These stratified buildings can vary from low-cost apartments to high-end condominiums and from shopping complexes to commercial office towers.

But whenever there is a cluster of people living and undertaking business together as a community in one sub-divided building, and sharing the same resources and facilities, there are bound to be multifarious problems.

The most common problems involve stratified residential buildings, particularly in respect of the operations of management bodies and payment and collection of maintenance charges.

Currently, the Strata Titles Act 1985 (Act 318) and the Building and Common Property (Maintenance and Management) Act 2007 (Act 663) govern the maintenance and management of stratified buildings.

Acts 318 and 663 are respectively under the purview of the Natural Resources and Environment Ministry (MNRE) and the Housing and Local Government Ministry (MOHLG).

Sunday, May 29, 2011

What a mockery

Unmasked: Giggs obtained a super injunction to keep his alleged six-month extra-marital affair with reality TV star Thomas a secret but it soon became the world's most revealed secret. - AFP
The Sunday Star
by Roger Tan

The Ryan Giggs’ drama goes to show that rights to privacy and free press have to keep up with technological changes in this age of social media.

It had been a hell of a week for one of Manchester United’s most celebrated players, Ryan Giggs. Hitherto often portrayed as a family man, Giggs had earlier obtained a super injunction to keep his alleged six-month extra-marital affair with 28-year-old reality TV star Imogen Thomas secret. Of course, last week saw it become the world’s most revealed secret.

With the super injunction in force, neither Thomas nor the media could reveal or even mention the Premier League star’s name. (A super injunction is a temporary injunction which restrains a person from publishing private or confidential information concerning the applicant or informing others of the existence of such injunction and the court proceedings.)

But this had not impressed the Wild West of social media because by May 21, tens of thousands of Twitter users had already tweeted and re-tweeted Giggs’ name. This is by far the biggest act of mass civil disobedience on the Internet, making a mockery of the court order.

Needless to say, Britain’s feral and sanctimonious media were not amused at all, as it did not make sense to them that they could still be gagged from publishing something which is already an open secret on Twitter.

Even British Prime Minister David Cameron weighed in, describing the privacy law of Britain as no longer sustainable in this age of social media since everybody already knew the footballer’s identity.

Then May 22 in Scotland, which has a different legal system, saw The Sunday Herald emblazoning a large picture of Giggs on its front page. The next day, British MP John Hemming finally used parliamentary privilege, in clear defiance of the court order, to unmask Giggs as the subject footballer.

“With about 75,000 people having named Ryan Giggs on Twitter, it is obviously impracticable to imprison them all,” argued Hemming in Parliament.

Shortly after that on the same day, the News Group Newspapers (NGN) asked the High Court to lift the anonymised injunction in the wake of Hemming’s revelation. Senior media judge Justice Michael Tugendhat again rejected NGN’s attempt, arguing that while it was obvious that the purpose of the injunction to protect a secret had failed, it had not, however, failed in so far as its purpose was to prevent intrusion or harassment.

Wednesday, May 25, 2011

Hamid and Halim on SPAN commission

The Star

KUALA LUMPUR: Tan Sri Datuk Amar Dr Hamid Bugo and Datuk Dr Halim Man have been appointed as commissioners of the National Water Services Commission (SPAN).

Their two-year term took effect on May 2.

Hamid was formerly Sarawak state secretary.

He is also a council member of the Institute of Integrity Malaysia and a member of Eminent Persons Group for Malaysia-Indonesia and the Malaysian Anti-Corruption Com­mission advisory committee.

Halim was Energy, Water and Green Technologies Ministry secretary-general until his retirement last year.

An Eisenhower fellow, he was also a board member of Bank Simpanan Nasional and Water Asset Manage­ment Company Bhd.

Minister Datuk Peter Chin Fah Kui also extended the term of senior lawyer Roger Tan for a further two years when his current term expires on May 31.

Tuesday, April 26, 2011

The Bar's evaluation team re-visits UUM and MMU

Reproduced from the Malaysian Bar Website

The LPQB Evaluators with the mooting team of Multimedia University.

The Malaysian Bar's evaluation team recently re-visited Universiti Utara Malaysia (UUM) at Sintok, Kedah and Multimedia University (MMU) in Malacca to undertake a total review on the conditional exemption from Certificate in Legal Practice (CLP) examination given to UUM and MMU law graduates two years ago.

The conditional exemption which required UUM and MMU law graduates to undergo an intensive course on conveyancing practice and legal opinion writing and drafting before they could be called to the Malaysian Bar had also expired on April 15 this year.

The Bar's evaluation team, appointed by the Legal Profession Qualifying Board ("LPQB"), was headed by former Bar Councillor, Roger Tan. Their last visits to UUM and MMU respectively took place in August 2008 and September 2008.

During their visits to UUM on March 19-21, 2011 and MMU on April 12-15, 2011, the Bar's team members were joined by representatives from the Judicial and Legal Services. Each of the evaluators was assigned to a particular area of law whose main role is to advise the Evaluation Committee on the necessary recommendations to be made to LPQB.

The Evaluation Committee is headed by the Chief Registrar of the Federal Court, Datuk Hashim Hamzah who also took part in the two evaluation exercises. The other Committee members are: Tan, Puan Aliza Sulaiman, LPQB Director, Tuan Muniandy Kannyappan, Head of Research Division, AG Chambers and a former LPQB Director, Professor Zita Mohd Fahmi of the Malaysian Qualifications Agency, Prof. Dr. Aisah Bidin, Dean of Law Faculty, Universiti Kebangsaan Malaysia and a representative from Jabatan Perkhidmatan Awam.

During the two visits, the evaluators were tasked to review whether, by comparing the law syllabus taught by the two universities and the ten 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 completely exempted from the CLP exam.

In the process, the evaluators 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. Tan had also taken close to 800 pictures during the two visits.

Monday, April 11, 2011

Hope yet to improve English

Teacher Rose Anne Easaw
addressing the school assembly
of Sekolah Menegah
Yong Peng in 1977. 
Standing behind her
is the writer.
The Star
by Roger Tan

It seems like a huge task to restore Malaysians' standard of English but it can be done if we put our hearts to it.

IN November 1996, a Saudi Arabian Airlines 747 jet collided with an Air Kazakhstan cargo plane near New Delhi, killing 349 crew and passengers.

Investigations later revealed that the accident was partly caused by the Kazakh pilots' insufficient fluency in English in understanding the instructions given by air traffic controllers.

Needless to say, this was only one of the several plane accidents which had been caused by the pilots’ poor command of English.

Today, the rules of the International Civil Aviation Organisation require all pilots to be fluent in English. So just imagine what will happen if our Malaysian air traffic controllers and pilots are not sufficiently proficient in English. This will no doubt bring dire consequences.

English is not just the lingua franca of civil aviation, but of the world. In this Internet age, it is also the lingua franca of the Web if we want to stay connected with the world, and avail ourselves to the colossal amounts of online information.

In the 1960s and 1970s, we Malaysians were credited for having a supreme command of the English language in the region.

Then, we had no lack of personalities like R. Ramani, a former Permanent Representative of Malaysia to the United Nations and president of the Malaysian Bar.

His impeccable command of English, both written and spoken, often impressed the world body and made our nation shine on the international stage.

Saturday, April 2, 2011

Experts: Water issue needs thrashing out

There is a prediction that there will be a major water shortage issue by 2014, which will affect the people in the city. There is an urgent need to replace leaky pipes to resolve the issue of water wastage. – AFP
The Star

As the population in Kuala Lumpur grows, there will inevitably be higher demand for water and the increase in the number of people will also lead to more waste being generated.

The need for improved sustainability has been highlighted by IBM and Siemens in their study on Kuala Lumpur's sustainability. There is currently a water impasse between the Selangor government and Syarikat Bekalan Air Selangor Sdn Bhd (Syabas) . Syabas supplies water to Kuala Lumpur, Selangor and Putrajaya. The Government will intervene so that consumers will not be burdened by water issues, says Commissioner of the National Water Services Commission (Span) Roger Tan. Span, approved by Parliament in June 2006, came into force on Feb 1, 2007, to promote efficient water services management.

“Before 2005, the state government has authority over water issues. After some amendments to the law, the state government has juridiction only over raw water, which is untreated water while water companies focus on water treatment and supply,” Tan says.

The second issue is wastage. It was highlighted about a couple of weeks ago that Malaysians use an average of 226 litres of water per person daily, which is way above Singaporeans (154 litres) and the Thais (90 litres). Low tariff has led to high consumption.

No access to information in three categories

The Star

SHAH ALAM: The public will not be allowed access to three categories of information despite the Freedom of Information Enactment being passed at the state assembly.

Under Section 14, information classified as confidential and secret under the Official Secrets Act (OSA) is exempted from the enactment.

The second exemption refers to trade secrets obtained from a third party and to communicate it would constitute an actionable breach of confidence. The third exemption applies to information, if disclosed, causes serious prejudice to the effective formulation or development of state government policy.

Including sub-clauses, the exemptions in the enactment passed yesterday had been reduced from 11 to five. There are, however, three scenarios where the exemptions can be overruled and information could be made available under Section 15.

Section 15 states that regardless of Section 14, a department must grant access to the applicant if the information's disclosure is of public interest.

Sunday, March 20, 2011

Rising to the water challenge

Meeting demand: Work on the Pahang-Selangor Interstate Raw Water Transfer Project has started.
It is everyone’s responsibility to ensure that we have adequate and affordable safe and clean drinking water for many years to come.

THIS Tuesday, March 22, is the 18th International World Water Day. This year’s theme, “Water for cities – responding to the urban challenge”, could not have been more timely in the context of how Selangor, Kuala Lumpur and Putrajaya will come to grips with the challenge of urban water management due to increasing demand for safe and clean drinking water as a result of rapid growth in urban migration and population.

The Federal Government foresees that the residents of Selangor, Kuala Lumpur and Putrajaya will experience water supply shortage by 2014 unless the increase in demand can be effectively met.

Many can still remember the water crisis that hit Kuala Lumpur in 1998 when water rationing lasted for several months until shortly before the Commonwealth Games were held.

To avoid a repeat of such a crisis, the states of Pahang and Selangor signed a contract in November 2007 for Pahang to supply raw water to Selangor at the rate of 10 sen per 1,000 litres of water, and such rate would be reviewed every five years. In return, Pahang would receive an annual income of approximately RM85mil.

This RM9bil project, known as Pahang-Selangor Interstate Raw Water Transfer Project, comprises the construction of a 45km tunnel to transport some 1.89 billion litres of raw water daily to Selangor; Kelau Dam; Semantan Pumping Station; and Langat 2 Treatment Plant and its distribution system. With Japanese funding, the tunnel construction commenced on June 1, 2009 and is expected to be completed by May 2014.

However, to avert a possible water crisis, the Langat 2 Treatment Plant and its distribution system (Langat 2 Project) have to be completed in time or simultaneously with the completion of the water tunnel. When fully completed, the entire system is capable of producing more than 2,000 million litres of treated water a day (MLD), sufficient to help meet the projected water demand of about 4,900 MLD by 2014 in Selangor, Kuala Lumpur and Putrajaya from the current demand of about 4,200 MLD.

However, the Selangor government has decided to tie together the state water restructuring issue involving four concessionaires – Syarikat Bekalan Air Selangor Sdn Bhd (Syabas), Puncak Niaga (M) Sdn Bhd (PNSB), Syarikat Pengeluar Air Sungai Selangor Bhd (Splash) and Konsortium Abass Sdn Bhd – and the commencement of Langat 2 Project. As a result, the land acquisition process has been put on hold and the relevant local authorities have also been directed to withhold planning permission for the development of the Langat 2 Project.

Sunday, February 27, 2011

Legal aid centres lack funding

The Star
by P. Aruna and Wong Pek Mei

PETALING JAYA: The Bar Council has been struggling to provide aid through its 15 legal aid centres nationwide due to lack of funding and a shortage of lawyers willing to provide free service.

President Ragunath Kesavan said it was difficult to cope with the demand as lawyers could not sacrifice much time to do pro bono work as they had a heavy workload of their own.

In welcoming the National Legal Aid Foundation launched by Prime Minister Datuk Seri Najib Tun Razak on Friday, he said the RM5mil grant provided by the Government would assist the foundation in paying lawyers for their work.

He said the foundation would also facilitate the process of providing legal aid with the cooperation of the police.

“There will now be a ‘duty lawyer’ for every police station,” he said, adding that the police could contact the lawyers “on call” to inform them of new cases which needed legal aid.

The foundation aims to provide legal aid for the low-income group from the day they are charged with an offence until the trial stage.

Monday, February 21, 2011

Process for government land acquisition explained

The Star
by Roger Tan, Petaling Jaya

I REFER to the news report ‘Residents fume over acquisition notices on trees’ (Sunday Star, Feb 20) where I was quoted as saying “the land acquisition must commence within two years from the date the notice was gazetted, or it would be rendered invalid.”

The acquisition notice – Form A, issued under Section 4 of the Land Acquisition Act, 1960 (“Act 486”) – referred to in the report is actually a preliminary notice that certain lands are likely to be acquired.

The law requires Form A to be published in the Government Gazette in addition to giving public notice of it.

The validity period of Form A is 12 months. If during this 12-month period, the government authority does not publish a declaration under Section 8 of Act 486 (Form D in the Government Gazette), then Form A shall lapse. (Form D declares and particularises the lands and areas intended to be acquired.)

Thereafter, a fresh Form A has to be issued if the government still desires to go ahead with the acquisition of the subject property.

The validity period of Form D is two years after its publication in the Gazette.

During these two years, the land administrator is required to hold an enquiry into the value of the subject property and make an award on the amount of compensation payable to the property owner.

Sunday, February 6, 2011

High time for a new Bar

A common evaluation system is needed urgently to check the declining quality and standard of new lawyers in the country.

It is a matter of grave concern that with about 1000 law graduates entering the legal profession every year, there is no common evaluation system to ascertain and ensure their levels of competence.

The Bar Council has been advocating a Common Bar Course and Examination (CBE) since the 1980s as a single entry point to the legal profession for both local and foreign law graduates.

It is understood that the delay in implementing the CBE is partly due to objections from local universities.

But it cannot be gainsaid that the quality and standard of lawyers have also declined significantly since the 1980s. There is a common feeling among senior legal practitioners that there is an “abject absence of rudimentary legal skills” among the new entrants.

In 2008, a senior judge lamented on the poor quality of locally trained lawyers, describing their standard as ranging from the “good to the grotesque”. (However, some senior lawyers had also opined that the learned judge’s assessment applied equally to the quality of judges since the 1980s.)

For example, one senior lawyer related this incident to me involving a senior assistant registrar (SAR) and lawyers for both the plaintiff and defendant. The SAR was tasked to read the judge’s order relating to costs. Both lawyers recorded the amount of costs with interest at the rate of 80%!

When the senior lawyer asked his assistant, who was the counsel for the plaintiff, about it, the latter said he did not understand why the SAR had mentioned the interest at 80%. He added that when he checked with the counsel for the defendant; the latter said it was common for the court to grant interest at 80%, which is, of course, erroneous!

Hence, the point is, how could one have walked out of the court without even understanding the court’s order? If the parties were not able to understand the order, then they would also not be able to draft the order later. If what the plaintiff’s counsel had said about the SAR and the other counsel was true, then indeed all the three legally trained officers – SAR and the two lawyers - were indeed half-past-six professionals!

Besides the decline in lawyering quality, there is an abysmal language skill especially the command of the English language among the new entrants for practice at the Bar. I have personally received a letter from a young lawyer asking me to “ensure that (our) clients would be executed the documents!”

It follows that it is not unjustified to require the new entrants to also pass an English Language Qualifying Examination. Whilst we can blame this decline on our education system, we cannot ignore the fact that we are living in an increasingly competitive global environment where international business is transacted primarily in English.

It is also in the national interest for us to build up a pool of competent practitioners in international law so that we can put across our nation’s case in international forums and courts, which is made all the more necessary after the Pulau Batu Puteh case before the International Court of Justice.

In fact, there were 13,350 practising lawyers in Peninsular Malaysia as of Dec 31 last year, with more than half having obtained their basic law degree overseas.

The Legal Profession Act, 1976 (LPA) governs the admission of new entrants from various streams to the legal profession as an advocate and solicitor.

To be admitted to the Malaysian Bar, one has to be a “qualified person” as defined in the LPA; attain the age of 18; be of good character and not been adjudicated bankrupt or convicted of any offence; be a citizen or permanent resident of Malaysia; have served nine months of pupillage under a lawyer of at least seven years’ experience; and have passed, or be exempted from, the Bahasa Malaysia Qualifying Examination.

Three tables containing the relevant information of the legal practitioners and their qualifications have been provided, and let me expound on it a little.

Wednesday, January 26, 2011

Bar: Karpal fit to be counsel

The Star
By M. Mageswari

Meanwhile, senior lawyer Roger Tan said it was for the courts and the disciplinary board to decide whether Karpal Singh was in breach of ethics, adding that the Bar Council should not prejudge the issue.

“It’s unacceptable to describe any member of the Bar raising the issue as mischievous,” he said in a tweet. 

PETALING JAYA: There are no grounds for DAP chairman Karpal Singh to be called as a witness in the ongoing sodomy trial of Opposition Leader Datuk Seri Anwar Ibrahim, the Bar Council said.

Its president Ragunath Kesavan said there was also no basis for misgivings regarding the legal and moral standing of the veteran lawyer to serve as a defence counsel in the trial.

“It is therefore mischievous of any party, let alone members of the Bar, to now intimate that Karpal should be disqualified on the basis of his access to so-called knowledge in the previous sodomy trial,” he said.

“The issues that have been raised in recent days might have been relevant in that earlier trial, had the then Public Prosecutor voiced any opposition to Karpal’s role as a potential prosecution witness, and his subsequent appearance as defence counsel.

Sunday, January 9, 2011

Separate politics from civil service

Politicians should learn to work with the civil servants by winning their hearts and minds, just as in the United States and in the United Kingdom, whenever there is a change in government.

THE recent brouhaha over the appointment of former Selangor Jais director Datuk Mohd Khusrin Munawi as the new Selangor state secretary is really much ado about nothing.

In my humble opinion, the appointment made by the Federal Public Services Commission (PSC) under Article 52(1) of the Selangor State Constitution (SSC) is constitutional and lawful.

Let me explain.

Article 52(1) expressly provides as follows: “There shall be constituted the offices of State Secretary, State Legal Adviser and State Financial Officer; and the appointments thereto shall be made by the appropriate Service Commission from amongst members of any of the relevant public services.”

Taking the words of Article 52(1) literally, it would appear that the sole appointing authority of the three Selangor State officers is the “appropriate Service Commission”. The provision does not mention the need to consult or even obtain the prior consent of any other person, including the Selangor Sultan and Mentri Besar.

If at all the Service Commission had consulted or obtained the consent of the Sultan or Mentri Besar, then this was done out of courtesy but certainly not out of any legal obligation.

However, the position would have been different had the older version of Article 52(1) not been amended by the Constitution of Selangor (Second Part) (Amendment) Enactment, 1993.

The old version read as follows: “His Highness shall on the recommendation of the appropriate Service Commission by instrument under His Sign Manual and the State Seal appoint a person holding whole time office in the public services to be the State Secretary, the State Legal Adviser and the State Financial Officer respectively: Provided that before acting on the recommendation of the Service Commission His Highness shall consider the advice of the Mentri Bear and may once refer the recommendation back to the Commission in order that it may be reconsidered.”

The 1993 Constitution Amendment Enactment, which was brought about by the 1993 constitutional crisis, also deleted Article 51(6) which read: “In the event of there being no Service Commission having jurisdiction in respect of any appointment of any officers mentioned in Clause (1) such appointment may be made by His Highness acting in His discretion.”

Suffer the children

Mummy, please don't go!
The Sunday Star
By Hariati Azizan

Interviews have become the common practice by family court judges in Malaysia to resolve intractable custody disputes. However, many family law practitioners believe that this can be detrimental to the children as the judges are not experts in child psychology and counselling.

A FAMILY court judge ruled that the custody of Child A should be awarded to her mother after she convinced him in a one hour-interview in his chambers that she would be happier with her mother.

In another case, Child B pleaded and cried to stay with her father but she was ordered to go and live with her mother. The judge presiding over her case did not believe her testimony and was convinced that she had been brainwashed by her father and his relatives.

Interviews have become the common practice by family court judges in Malaysia to resolve intractable custody disputes.

However, many family law practitioners believe that this can be detrimental to the children as the judges are not experts in child psychology and counselling.