tag:blogger.com,1999:blog-56078622949380083292024-03-14T16:23:33.138+08:00Voice of Reason:::Roger TanRoger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.comBlogger256125tag:blogger.com,1999:blog-5607862294938008329.post-3657264989281760662022-11-27T20:45:00.003+08:002022-11-28T20:59:27.186+08:00 Anwar can be our Nelson Mandela if… — Roger Tan<p style="text-align: justify;"><b>The Malay Mail</b><br /><b><i>by Roger Tan</i></b></p><p style="text-align: justify;"><b></b></p><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgy16M9mT7HB5yaldFXf4QcceqpiizExGz7rdlhwpFuyfazzTFWnOxVFKzHS_lw--o97pB2lCPgUS4sJbC5inN53hBDywN7RHJlcSZpHRmZAEGQ6m8gB61W__DoK5-lBdRFmMRrh9VUclwrdvVZ049aCf7GeMHIxAa47f8uMqk5N7yR3r1RpX90NMUS/s500/DSAI-500.jpg" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="333" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgy16M9mT7HB5yaldFXf4QcceqpiizExGz7rdlhwpFuyfazzTFWnOxVFKzHS_lw--o97pB2lCPgUS4sJbC5inN53hBDywN7RHJlcSZpHRmZAEGQ6m8gB61W__DoK5-lBdRFmMRrh9VUclwrdvVZ049aCf7GeMHIxAa47f8uMqk5N7yR3r1RpX90NMUS/s16000/DSAI-500.jpg" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><span style="color: #999999; font-family: DroidSerif; font-size: 14px;"><b>Datuk Seri Anwar Ibrahim began his official duties as Prime Minister by clocking in at his office at the Perdana Putra in Putrajaya November 25, 2022. — Bernama pic<br /><br /></b></span></td></tr></tbody></table><b>NOVEMBER 27 — </b>When the late Nelson Mandela was released after being imprisoned for 27 years for standing up against South Africa’s apartheid laws, many had expected him to seek revenge on his white captors. He did not. Instead, he forgave them. But many African National Congress (ANC) activists had also suffered under the apartheid regime. So, Mandela led the way because if he could forgive, there was no reason for his ANC acolytes and activists to ask for vengeance. By his act of forgiveness, this had brought healing and reconciliation to his nation.<p></p><p style="text-align: justify;">In the words of Mandela, “As I walked out the door toward the gate that would lead to my freedom, I knew if I didn’t leave my bitterness and hatred behind, I would still be in prison.” He added, “No one is born hating another person because of the colour of his skin, or his background, or his religion. They must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.”</p><p style="text-align: justify;">When he became the first black president of South Africa, he even allowed some of his erstwhile opponents to join his government. At his inauguration, he even invited one of his white prison guards. Hence, Mandela was not just a leader but a true statesman. In his wise words: “If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.”</p><p style="text-align: justify;">For this reason, Malaysians are grateful to Their Majesties the Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah and the Malay Rulers for ending the five-day political stalemate by getting Pakatan Harapan to form a unity government with the other warring parties.</p><p style="text-align: justify;">In the case Datuk Seri Anwar Ibrahim, he is perhaps the most persecuted politician in Malaysia.</p><p style="text-align: justify;"><span></span></p><a name='more'></a>Born on August 10, 1947, both his parents were active politicians. His late father, Datuk Ibrahim bin Abdul Rahman was a member of parliament for Seberang Tengah, Penang from 1958 to 1964. As a firebrand youth activist and orator, he was quickly recruited by Umno to counter the rise of its rival, PAS. On September 20, 1998 he was arrested after being sacked as a deputy prime minister and expelled from Umno. While under detention, Malaysians were horrified to see how he had sustained a black eye, and it was later discovered the head of our police force was responsible for this despicable assault. In 1999, he was jailed for corruption and sodomy.<p></p><p style="text-align: justify;">This was particularly hard on his wife and young family who endured hardship and humiliation. In Malaysia especially, once a politician loses his seat of power and position, sycophants, so-called ‘friends’ and business associates would desert you in no time and in droves. They will run to the victors or stay with the incumbents.</p><p style="text-align: justify;">In 2004, his sodomy conviction was overturned, and he was freed. He returned to lead the opposition coalition in the 2013 general election. Despite his coalition winning 50.87 per cent of the popular vote, he failed to obtain a majority to form the government. In 2015, he was thrown into jail again for five years for sodomy. It was not until 2018 when his PH alliance swept into power that he was pardoned.</p><p style="text-align: justify;">Writing from prison an Op-Ed piece in the <i>Washington Post </i>on October 12, 2016 entitled “<i>My plea from prison: Malaysia must choose freedom over repression</i>”, he said: “I have struggled my entire life for the betterment of my country and the improvement of the lives of Malaysia’s citizens. I am coming up on having spent 10 years of my adult life over the course multiple imprisonments in jail. I am grateful for the strong support of the United Nations and organisations like Amnesty International and Human Rights Watch, which have concluded I am illegally detained and have urged my immediate release. Although this has been particularly hard on my family, I am most worried about the unprecedented existential threat to Malaysia’s democracy and stability. We are at a crossroads where we can either emerge as a pluralistic democracy in Asia and in the Muslim world or where our nation will implode from grand corruption and different religious and ethnic groups being pitted against each other fighting for limited resources.”</p><p style="text-align: justify;">It is therefore interesting to note that he was appointed prime minister on 24.11 (November 24, 2022) after spending 11 years in jail and having waited for 24 years to reach Putrajaya!</p><p style="text-align: justify;">Anwar should now waste no time to come to grips with what he had described in his Op-Ed piece — “unprecedented existential threat to Malaysia’s democracy and stability” and possible implosion from “grand corruption and different religious and ethnic groups being pitted against each other fighting for limited resources.”</p><p style="text-align: justify;">In a way, his ascension to the highest office in Malaysia only at the age of 75 years is the will of God.</p><p style="text-align: justify;">He started off as a conservative firebrand politician who was perceived to have little tolerance for other ethnic communities. His ethnocentric approach to problems faced by the minorities alarmed them. But when he was thrown into jail, it was mainly non-Malay lawyers such as the late Karpal Singh who came to his aid and acted for him mainly pro bono.</p><p style="text-align: justify;">Having gone through so much personally and emotionally; mixed with ordinary citizenry and understood their problems; upheld the special rights of Malays and fought for the oppressed and marginalised in our society, at 75, he is now best suited for this high position. Just like a clay, he has now been moulded into a fine pottery.</p><p style="text-align: justify;">By securing 82 seats without an outright parliamentary majority, he now must work with his erstwhile rivals who were his truculent enemies. But as Mandela said, they can one way be his partners and together bring peace, unity and prosperity to this land of ours.</p><p style="text-align: justify;">When PH won the unprecedented 14th General Election, Malaysians thought it was a dawn of a new Malaysia and era. But people who had given hope changed when they tasted power.</p><p style="text-align: justify;">I did say these in my column in a newspaper on May 20, 2018 entitled “<i><a href="http://www.rogertan.com/2018/05/the-beginning-of-new-malaysia.html" target="_blank">The beginning of a new Malaysia</a></i>”: “GE14 victors should not use it to exact revenge on the vanquished in that they have received their comeuppance or take delight in their political schadenfreude. Instead, the new government’s priorities should be to restore the rule of law, redress miscarriages of justice and bring about reforms to our institutions of government.”</p><p style="text-align: justify;">Alas, with all due respect, my plea was completely ignored. A new political culture must be cultivated. We must desist from using the apparatus of the State against our political enemies. Institutional reforms must be reintroduced and expedited. To do all these, we must first quickly strive for national reconciliation because even within our own families, there were political differences if not feuds caused by our nation’s most divisive general election.</p><p style="text-align: justify;">I must admit that I only had minimal contact with Anwar in the early 1990s, when we assisted TPPT Sdn Bhd, his brainchild tasked with rehabilitating abandoned housing projects and providing affordable housing to low-income groups under the Projek Perumahan Terbengkalai funds. I also observed that he had followed me on Twitter.</p><p style="text-align: justify;">But speaking now in my capacity as the Co-Chair of the Committee on Reform to the Legal Sector of Bar Council, my wish is that the new minister in charge of law will immediately assist the Malaysian Bar to table the Legal Profession (Amendment) Bill which has been kept in abeyance since the fall of the PH government in 2020. We urgently need to bring the Malaysian legal profession to be on par with those in other jurisdictions by introducing, inter alia, the concept of limited liability law partnership in legal practice.</p><p style="text-align: justify;">The other issue which our national leaders may want to have a rethink is whether it was a mistake to have lowered the voting age to 18. Unlike in developed countries, our youths have not benefited from a first-class education system capable of empowering them with political maturity and understanding, not easily manipulated by suave and crafty politicians. If our young who are products of a poor education system are unable to comprehend and deal with political issues in a rational and mature manner devoid of any emotion after accessing social media, then this is indeed a cause for concern.</p><p style="text-align: justify;">All in all, Mr Prime Minister, you can become Malaysia’s Mandela if you show compassion and magnanimity to those who have not elected PH by working towards national cohesion but without any compromise whatsoever in corruption or any step which will undermine good governance, transparency and accountability in your administration.</p><p style="text-align: justify;">This is, of course, no easy feat, especially in order to ensure that Parliament will not be dissolved before it completes its five-year term. Also, two by-elections will be held soon, and we will see six State elections being held next year. In five years’ time, he will also be an octogenarian.</p><p style="text-align: justify;">With royal intervention and I do not know if this is also a divine intervention, PH and BN, once enemies, can become strong partners with the rise of new combination of young leaders such as Rafizi Ramli, Khairy Jamaluddin and Nurul Izzah.</p><p style="text-align: justify;">Hence, despite all the hurdles, pitfalls and political chicanery ahead for a unity and inclusive government, it is hoped that they will live up to PH’s election slogan, “<i>Kita Boleh</i> (We Can)”.</p><p style="text-align: justify;">Once again, congratulations Mr Prime Minister and best wishes to you and your unity government.</p><p style="text-align: justify;"><i>*The writer, a senior lawyer, is a member of Bar Council. His views expressed here are entirely his.</i></p>Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-90398891702605162732022-09-04T22:03:00.012+08:002022-09-06T21:34:21.090+08:00The role of lawyers in court<div style="text-align: justify;"><b><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjp4sNpP5evZacEREJYoHEdLDqPlmLYFu5Eore-yVTJSWkJmcUvnIgHKzGpiptN-mJKM2tXDufgcmnMjyUDzJ7NSLG0Oa8XX94_Qj5v9DXrUXpGUeILcKvfPixZg7UMQoG10b22UB3I5NO9SLkTQO5Ur1N6QRlu08AzQEwA5uNyTAA3pQABFxE1Knvz/s427/Pix-00.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="427" data-original-width="250" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjp4sNpP5evZacEREJYoHEdLDqPlmLYFu5Eore-yVTJSWkJmcUvnIgHKzGpiptN-mJKM2tXDufgcmnMjyUDzJ7NSLG0Oa8XX94_Qj5v9DXrUXpGUeILcKvfPixZg7UMQoG10b22UB3I5NO9SLkTQO5Ur1N6QRlu08AzQEwA5uNyTAA3pQABFxE1Knvz/w187-h320/Pix-00.jpg" width="187" /></a></div>The Sunday Star</b><br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">THE Aug 27 press statement of the Universiti Malaya Law Society on recent court cases caught my attention because it came from students at the best law school in this country whose alumni include the current Prime Minister, Chief Justice and Attorney General. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">They wrote, “As future rule of law bearers perusing the recent incidents, we believe that much is expected from legal luminaries to set a model of respect, courtesy and dignity. However, what is occurring thus far has been the downfall of such expectations even in the soil’s highest avenue of justice – the Federal Court.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It would be a tragedy if these prospective lawyers should feel disillusioned by the alleged conduct of some senior lawyers even before they join the legal profession. As a senior member of the Malaysian Bar, it behoves me to assure these future entrants to the profession that what they have learnt at law school relating to ethics, virtues, values and ideals of the legal profession still apply and will not be easily tossed away. There are still many senior lawyers out there who practise law with the highest standards of professional integrity and honesty, and who possess unblemished character and reputation. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhaaV47-gczZ3olsdLhzFcqbz58SbkfUpbKeqSG2ElYY1G1UCs1wuxoqWCj76tQa_iGL5cLtfPgDaCYLBzgD2j3MBKiS0WBB94X3FPf6bjGGkgvisxOpTczhjXpZSt3KddEyKkRt-DkIvnrORr50voSgFUz-YTTXh94P78R3V2Pcx-jKpKzCHL7rOX_/s500/Pix-01-500.jpg" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="281" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhaaV47-gczZ3olsdLhzFcqbz58SbkfUpbKeqSG2ElYY1G1UCs1wuxoqWCj76tQa_iGL5cLtfPgDaCYLBzgD2j3MBKiS0WBB94X3FPf6bjGGkgvisxOpTczhjXpZSt3KddEyKkRt-DkIvnrORr50voSgFUz-YTTXh94P78R3V2Pcx-jKpKzCHL7rOX_/s16000/Pix-01-500.jpg" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><p class="MsoNormal"><b>Dedicated: (From left, anti-clockwise) Lawyers Jaspal Singh,
Lee Guan Tong, HR Dipendra, Kevin Wong and Janet Chai with others at the recent
extraordinary general meeting of the Malaysian Bar. — Photo provided</b><o:p></o:p></p></td></tr></tbody></table><br />These students should also be assured that there is an independent judicial system in this country worth associating with and defending for. Together with an independent Bar, we are in the vanguard of preserving, protecting and defending the Constitution and upholding the rule of law. Otherwise, it is meaningless if at almost every National Day parade, our leaders and citizens raise hands, pledging aloud to uphold the five fundamental principles of <i>Rukunegara </i>which include the supremacy of the Constitution and the rule of law. </div><span><a name='more'></a></span><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In this respect, we are often reminded of what the late Lord President (as the position of chief justice was previously called) Tun Mohamed Suffian Hashim said when he was first elevated to the Bench on Oct 26, 1961: “I yield to no one in recognition of the difficulty and importance of the office which I now have the honour of occupying. In evenly balancing the scales of justice, I will help to maintain the rule of law, and two essentials of that rule are the independence of the Bar and the independence of the Judiciary.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">His words were echoed by the other Lord President, the late Sultan Azlan Shah: “The Judiciary, however, is only a part of our administration of justice. The fact is that the true responsibility for the effectiveness of judicial control lies with the legal profession which fosters and nurtures it. There cannot be an independent Judiciary without an independent Bar. The Judiciary cannot function without the legal profession and for the Judiciary to remain independent, so must the profession.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In other words, what will happen if the Judiciary and the Bar are not independent, and they are corrupt? The question brings to mind a Chinese proverb: “Though the sword of justice is sharp, it will not slay the innocent.” But we easily forget that the innocent man will be slain if the swordsman is corrupt. In simple terms, a corrupt and a compliant judicial system will slay the innocent. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi7PwH8KaRT4uGK2_rQOKBJ4U0AXUC_tX5arSEYZ4f3GW66s9Ck2DgbQfZrgsWd80rleuhaq5Eej7D5r9J8G-awmEJxcAIog5wezomNsHADWopzxijTzLIhtoMzNJHL18PAT7QsGST4pSeNmlMoj-MvXZFtkMhaX7FiCWNXfAIFy8cAt-lSAwHfXQwl/s896/Pix-02.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="896" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi7PwH8KaRT4uGK2_rQOKBJ4U0AXUC_tX5arSEYZ4f3GW66s9Ck2DgbQfZrgsWd80rleuhaq5Eej7D5r9J8G-awmEJxcAIog5wezomNsHADWopzxijTzLIhtoMzNJHL18PAT7QsGST4pSeNmlMoj-MvXZFtkMhaX7FiCWNXfAIFy8cAt-lSAwHfXQwl/s16000/Pix-02.jpg" /></a></div><br />That said, the recent court decisions in some high-profile cases must have brought cathartic relief to some but probably caused others to feel livid. Be that as it may, we as the rule of law bearers (as so described by those UM students) must respect the decisions of our courts; otherwise it is a perfect recipe for anarchy and tyranny. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Readers must know that the legal profession is an honourable profession. This is stated in the law. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Section 94(3)(o) of the Legal Profession Act, 1976 (Act 166) provides that it is professional misconduct if the unbefitting conduct of a lawyer brings the legal profession into disrepute. Rule 31 of the Legal Profession (Practice and Etiquette) Rules 1978 requires every lawyer to always uphold the dignity and high standing of the legal profession. An errant lawyer will have disciplinary proceedings instituted against him. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">We must confess that some of the unsavoury remarks made against us are partly self-induced, that is, due to our own members’ failure and refusal to uphold the high standing of this honourable profession. Some critics would love to make fun of lawyers with the oft-quoted line from Shakespeare’s Henry VI that “the first thing we do, let’s kill all the lawyers”! I am also reminded of the mendacious front-page headline of a local tabloid on July 24, 2003, that claimed “one in four lawyers in Malaysia are cheats”! </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Some members of the public have even been told that the services of lawyers can be dispensed with. For example, the introduction of the Housing Integrated Management System (HIMS) by the Housing and Local Government Ministry requires developers to use electronic sales and purchase agreements (eSPAs) via the HIMS. Some officials have commented to developers, “Why must you still get lawyers when you don’t have to pay any more fees?” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This is incorrect because a buyer is entitled to legal representation. After signing the eSPA, a buyer still must do the memorandum of transfer, and if he applies for a loan, the loan security documents. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Sadly, the first thing clients tend to ask lawyers is how much discount can they get for legal services. They do not ask this when they consult a doctor. It appears that lawyers are only appreciated when the clients’ liberty or property are threatened or taken away! </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Interestingly, despite the wide misconception about lawyers, the number of new entrants increases every year. As of Aug 31, there are 21,926 practising lawyers in Peninsular Malaysia (see diagram). This shows that parents still want their children to become lawyers and have no hesitation in investing in their children’s legal education notwithstanding jokes about avaricious lawyers feeding on the misfortunes of others. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhucA0bWDkl1cGJWmX6c7hA_5B8r7_Q5TwLUtlTKlyx_EAgkuDUt-jouSB8QxPIEd1DP4Kuu4bfmd20WJCYanttMUepB4eM0wtkXRbV4E1O28SzB2d3DUkHwbZSY-ZgIwOAhJKsERHYf_41DMwEAW1L6SXKfOjMAFbq5TyJ6fJML_Tr-mygBBpw8K-I/s533/Pix-03-300.jpg" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="533" data-original-width="300" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhucA0bWDkl1cGJWmX6c7hA_5B8r7_Q5TwLUtlTKlyx_EAgkuDUt-jouSB8QxPIEd1DP4Kuu4bfmd20WJCYanttMUepB4eM0wtkXRbV4E1O28SzB2d3DUkHwbZSY-ZgIwOAhJKsERHYf_41DMwEAW1L6SXKfOjMAFbq5TyJ6fJML_Tr-mygBBpw8K-I/w180-h320/Pix-03-300.jpg" width="180" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><p class="MsoNormal"><b>The writer with the President</b></p><p class="MsoNormal"><b>of the Malaysian Bar, Karen
Cheah, </b></p><p class="MsoNormal"><b>at the Bar Council meeting recently</b>.</p></td></tr></tbody></table></div><div style="text-align: justify;">With all due respect, a lawyer is also an officer of the court. In <i>Rondel v Worsley</i> 1966, the celebrated English judge, Lord Denning best explained what is meant by the duties of a lawyer to the court: “As an advocate he is a minister of justice equally with the judge.... He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants; or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client if they conflict with his duty to the court. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Of course, legal practitioners will know that the above words run contrary to what Attorney General Henry Brougham did in 1820 when he defended his client, Queen Caroline of Brunswick, the estranged wife of King George IV. When Caroline returned to England from abroad that year, the king immediately sought to dissolve the marriage on the grounds of adultery so that Caroline could not become queen. Lord Brougham fervidly and successfully defended Caroline. Without regard whatsoever to the chaos it might have on his country, he threatened to introduce evidence of George IV’s extramarital affairs and his secret marriage to one of his mistresses, a Roman Catholic widow, Maria Fitzherbert. A marriage to a Catholic would cause the forfeiture of the Anglican king’s crown. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This is Brougham’s famous speech in the House of Lords: “An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The above speech has often been relied upon by defence counsel, especially in Canada and the United States, to zealously advocate their clients’ cause at all costs. To these zealous advocates practising in an adversarial system of justice, the clients’ interests override their duties to the court even if they have to behave unethically. However, in almost all jurisdictions today, zealous advocacy is permitted but only within the bounds of the law. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">So to my learned friends, do not toss away what we learnt at law school. We need occasionally to go back to basics. I have no doubt that the knowledge and training we acquired there will come handy and constantly guide our conscience when upholding the cause of justice and the rule of law without fear and favour. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><i>The writer is a senior lawyer and a Bar Council member. The views expressed herein are entirely his.</i></div><div style="text-align: justify;"><i><br /></i></div><div style="text-align: justify;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh9c9-Xzvn3LxMaMHv1-fWFsGWMtF3AEeysf_zzv-5uI4WwFk7LQspj_AK9I002-8W9Pj8pypQxYsIlBay5QzmktcOAqlY5r9X3JVMnR_xaYHvKXiQA9wuPqML-LcB93O4I0iy6VjjyLyNhy2QE6T__zPxx2aRsS5GYS3RY-TWha08ntWMVGBaX8gHA/s705/2022-09-04-DRT-TheSStar-500.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="705" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh9c9-Xzvn3LxMaMHv1-fWFsGWMtF3AEeysf_zzv-5uI4WwFk7LQspj_AK9I002-8W9Pj8pypQxYsIlBay5QzmktcOAqlY5r9X3JVMnR_xaYHvKXiQA9wuPqML-LcB93O4I0iy6VjjyLyNhy2QE6T__zPxx2aRsS5GYS3RY-TWha08ntWMVGBaX8gHA/s16000/2022-09-04-DRT-TheSStar-500.jpg" /></a></div><br /><i><br /></i></div>Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-44734756321329511962021-05-02T10:43:00.002+08:002021-05-02T10:43:09.620+08:00Press freedom in the digital age<div style="text-align: justify;"><b>The Sunday Star</b></div><div style="text-align: justify;"><b><i>by Roger Tan</i></b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjfEiicEy9ziTfIfOxXemR_b1iuEmd_ADVAZKkGJTkQvpwx_bCnxii1D9AnetQsXR11cM_LHOWFgSP671Xo2Tf46pR0u7oR7DxDmN0QE0dk2KPrcj4hNbbR_2MHrnQeoik3aMz4hlkpphc/s500/WPFD-500.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="325" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjfEiicEy9ziTfIfOxXemR_b1iuEmd_ADVAZKkGJTkQvpwx_bCnxii1D9AnetQsXR11cM_LHOWFgSP671Xo2Tf46pR0u7oR7DxDmN0QE0dk2KPrcj4hNbbR_2MHrnQeoik3aMz4hlkpphc/s16000/WPFD-500.jpg" /></a></div><br />Can press freedom be further advanced when readers are given carte blanche to post whatever they like including unlawful and defamatory comments under the protection of anonymity?</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Tomorrow is World Press Freedom Day (WPFD).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It is a day which we Malaysians must remember and pay tribute to those news media and media practitioners for reporting the truth. Many have done so through their sheer courage and perseverance, by standing up for the independence of the press in this country, without fear or favour. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Needless to say, since Merdeka, some have also in their pursuits for a free press lost their own personal freedom in one way or another. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, the WPFD came about after the United Nations Educational, Scientific and Cultural Organisation (UNESCO) held a seminar in Windhoek, Namibia on the promotion of an independent and pluralistic African Press some thirty years ago. It culminated in the adoption of the Windhoek declaration for the development of a free, independent and pluralistic press on May 3,1991. May 3 was then chosen as the day to mark WPFD by the UN General Assembly in 1993. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Regrettably, in the 2021 World Press Freedom Index released by Reporters Without Borders on April 17, Malaysia slipped to 119, falling 18 spots from the previous year. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On the other hand, if one is to go through the kind of comments being made by readers on the Malaysiakini online news portal, one may draw a conclusion, albeit erroneously, that there is absolute freedom of press in this country. Some of these comment sections, if not all, are accessible to the whole world, that is, to those who are not paid subscribers of the portal. Many of the commenters used a pseudonym when posting their comments. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">But on February 18, Malaysiakini was fined half a million ringgit by the Federal Court for contempt of court over five readers’ comments criticising the judiciary. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">When imposing the fine, Court of Appeal president Justice Rohana Yusuf, who chaired the seven-man panel said in the 6-1 majority decision, that the apex court was mindful that this case would attract world attention as the media had demonstrated their agitation and concern that this case would shackle media freedom and might eventually lead to a clampdown on freedom of the press. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The apex court ruled that this unfortunate incident should serve as a reminder to the general public that expressing one’s view, especially by making unwarranted and demeaning attacks on the judiciary at one’s whims and fancies, could be tantamount to scandalising the court. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“Whilst freedom of opinion and expression is guaranteed and protected by our Federal Constitution, it must be done within the bounds permissible by the law”, said Rohana. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">She stressed on the importance of maintaining public confidence in the Judiciary and the need to protect the dignity and integrity of the Judiciary as a whole, considering the nature of the judicial office is one which is defenceless to criticism, that is, judges cannot reply to their criticism and neither can they enter public controversy. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Rohana also quoted Lord Denning who once said: “We must rely on our conduct itself to be its own vindication.” </div><span><a name='more'></a></span><div style="text-align: justify;"><br /></div><div style="text-align: justify;">If so, concerns have been expressed whether by punishing Malaysiakini, which is not the author of those impugned comments, the apex court has by its own conduct overreacted and this decision is one of the causes of Malaysia dropping by 18 spots in the 2021 World Press Freedom Index. It would have been more ameliorating if action was only taken against the commenters. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">But Malaysiakini managed to raise the full amount of the fine within hours after the decision was pronounced. This swift public reaction could be interpreted as a public outcry over the decision. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Nevertheless, for Malaysians to appreciate the severity of the decision, they must acquaint themselves with the facts of the case, especially what are these five impugned comments published by Malaysiakini on June 9,2020. However, I will not give these commenters the publicity here. The impugned comments are contained in the written judgment which can be downloaded from the Judiciary website at www.kehakiman.gov.my. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, Malaysiakini did admit that the comments are contemptuous, and it was not something which they would condone. I hasten to add here that there is no truth or justification whatsoever in these unwarranted attacks against the Chief Justice and the judiciary. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In his recently published book, former Attorney General, Tommy Thomas, who admitted having been much criticised for instituting contempt proceedings against a fellow lawyer and then asked for a custodial sentence wrote, “attributing corruption without proof and ascribing malice to judges was unacceptable”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Interestingly, on August 31 last year, a senior Indian lawyer Prashant Bhushan was fined a symbolic one rupee, in default three months’ jail and barred from practising for three years, for contempt for posting two tweets in which he criticised the chief justice and the courts for their role in “how democracy has been destroyed in India” after Prime Minister Narendra Modi took office in 2014. He paid the fine. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Malaysians are, therefore, concerned why no action was not taken against the five commenters as they are the primary publishers and perpetrators. After all, Malaysiakini like Twitter, is only an intermediary. Media practitioners are worried that by going after intermediaries, this will eventually curtail public discourse on genuine public interest issues as they will have to restrict the use of such online platforms to protect themselves from any legal reprisals, indirectly having a negative effect on press freedom in Malaysia. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In their defence, Malaysiakini said they had complied with the Content Code made under the Communications and Multimedia Act, 1998 (Act 588). It added that section 3(3) of Act 588 states that nothing in Act 588 shall be construed as permitting any censorship of the Internet. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Malaysiakini also argued that it was not possible for them to moderate all comments due to sheer volume of about 2,000 comments being posted every day. Neither is their filter system or any available artificial intelligence capable of moderating such comments. In this case, Malaysiakini said the impugned comments were taken down in a matter of minutes upon being notified by the police. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The Federal Court disagreed, setting down the following principles and findings: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> that the failure of the Attorney General by not giving Malaysiakini first a formal notice to show cause as required under the rules of court is not fatal or prejudicial. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> that Malaysiakini has failed to rebut the presumption in section 114A of the Evidence Act, 1950 that Malaysiakini is the publisher of the impugned comments because it facilitates the platform for such publication. The majority decision held that to avoid liability, Malaysiakini must have a system in place that can detect and rapidly remove offensive comments. Malaysiakini, according to Rohana, cannot just wait to be alerted because such alert may never come. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“Sheer volume cannot be the basis for claiming lack of knowledge, to shirk from its responsibility”, said Rohana. She emphasised that Malaysiakini “cannot be allowed to turn their news portal into a runaway train, destroying anything and everything in its path, only because their riders are the ones creating such havoc albeit made possible by their train”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> that freedom of speech under Article 10 of the Federal Constitution is not absolute. In other words, one party cannot insist on exercising this fundamental right and at the same time he violates the rights of others. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> that it agreed with the Supreme Court of India in respect of lawyer Prashant Bhushan case that the twitter platform is a totally different platform being a completely uncontrolled one. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> that European Court of Human Rights and the Court of Appeal of New South Wales too had ruled against website companies. In the latter case, it went further to state that the companies were the primary publishers and the commentators were the subsidiary publishers. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">All in all, Rohana said, “Malaysiakini cannot be heard to say that its filter system failed to filter offensive comment when it deliberately chooses only to filter foul language but not offensive substance, though we remained perplexed how these comments even passed its filter, looking at the language of the impugned comments.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In reply, the sole dissenting judge said to impute constructive knowledge on an online intermediary is “comparable to making an airline and airport operator complicit in the offence of drug trafficking, just because a certain drug mule chose to fly to an airport managed by a particular airport operator, using a specific airline”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In my opinion, the five commenters should not be allowed to go scot-free. The Attorney General and the police should have first or just gone after them. I am sure Malaysiakini would have no difficulty in identifying them by extracting their payment details. It is legally unhealthy to resort the easy way out by relying on the presumption of section 114A and shifting the burden to the respondents. In so doing, the world has regarded the action on Malaysiakini as an attack on press freedom. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">With all due respect to Malaysiakini, it cannot be gainsaid that sensationalised comments available to the public will draw more paid subscribers who want to read the actual news stories and post their comments. These comments should only be accessible by paid subscribers. Many news portals do that. But many too stay away from facilitating this platform for the risks involved. It is not fair to those who decided to opt out or be more responsible when facilitating such a platform. I cannot see how the cause of press freedom can be further advanced when readers are given carte blanche to post whatever they like, including unlawful and defamatory statements under the protection of anonymity. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Having said that, press freedom is indisputably essential to democracy. In the words of George Washington, “if freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Happy Press Freedom Day to journalists in Malaysia. We salute you if what you do is right.</div><div style="text-align: justify;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEglZgVqwBzyUEng9vWIlNUWB-QDGxJMT-HPIsIXikdNmysr6pQimQ8fNITv-GkROh7aJxKmrInTIvuBAArzC2TpRSdIy0Al4RqtfWyJ-4yaOlnYDqVFBNZNaMpxnKTlJMs4xkwMrk-_o8E/s701/2021-05-02-PressFreedom-500.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="701" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEglZgVqwBzyUEng9vWIlNUWB-QDGxJMT-HPIsIXikdNmysr6pQimQ8fNITv-GkROh7aJxKmrInTIvuBAArzC2TpRSdIy0Al4RqtfWyJ-4yaOlnYDqVFBNZNaMpxnKTlJMs4xkwMrk-_o8E/s16000/2021-05-02-PressFreedom-500.jpg" /></a></div><br /><div style="text-align: justify;"><br /></div>Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-48787146580612598052021-01-24T22:19:00.006+08:002021-02-17T02:18:33.743+08:00An independent judiciary saves American democracy<div style="text-align: justify;"><b>The Sunday Star</b></div><div style="text-align: justify;"><b><i>by Roger Tan</i></b></div><div style="text-align: justify;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjRib2XyQshNFE9d61HtE0jD3giWuc9hPDSrreILaUx8q7gsfMiAIKP-Ix6Vrww-ubNgJWzb6mVIpLJTQCUI16A2WWmnHy96blD1Ky1rPdKP-zrqxtBf9M6VaSObGX5wACqTAT4spqhOsI/s500/I+got+this_final-500.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="Image: I Got This by Sousa & Machado" border="0" data-original-height="324" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjRib2XyQshNFE9d61HtE0jD3giWuc9hPDSrreILaUx8q7gsfMiAIKP-Ix6Vrww-ubNgJWzb6mVIpLJTQCUI16A2WWmnHy96blD1Ky1rPdKP-zrqxtBf9M6VaSObGX5wACqTAT4spqhOsI/s16000/I+got+this_final-500.jpg" title="Image: I Got This by Sousa & Machado" /></a></div><div style="text-align: center;"><b>Image: I Got This by Sousa & Machado</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">CONGRATULATIONS to Joseph Robinette Biden Jr and Kamala Devi Harris for having been successfully inaugurated as the 46th president and vice-president of the United States respectively. It almost did not happen on Jan 20, or at all, if not for the US judiciary. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On Jan 6, the losers fomented mobs to storm the US Capitol to stop the certification of the 2020 US presidential election results. To former President Donald Trump and his acolytes, this was perhaps their last hope to get rid of what they called the “rigged result” after American courts, including the US Supreme Court, twice refused to overturn the results in battleground states. Despite five deaths, the incident could have been a calamity had any elected legislator been taken hostage or killed by the insurrectionists. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">For a moment, the 245-year-old American republic almost became a banana republic devoid of the rule of law. On that day of infamy, democracy as the best form of government almost died in a country which has always prided itself on being the world’s greatest democracy. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In the words of national youth poet laureate Amanda Gorman – who wowed the world at Biden’s inauguration ceremony with her poem – “This effort very nearly succeeded. But while democracy can be periodically delayed, it can never be permanently defeated.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The free world heaved a huge sigh of relief at this irenic victory for democracy, though this embarrassing episode has now diminished America’s moral authority as the keeper or beacon of democracy. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Before I go on, I need to pause here to say that I have not been watching too much CNN. In fact, I watch the conservative-leaning Fox News Channel too. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">To the world at large, Biden did secure an emphatic victory. The world was just simply astounded to see how Trump, who was unable to accept defeat in an electoral democracy, could lie that the elections were rigged and urge his supporters to “Stop the steal”. It is even more mind boggling to see how some Americans could so easily turn cuckoo overnight, deluded by misinformation into believing in conspiracy theories. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This reminds me of the tactic employed during World War II by the Nazi minister of propaganda, Joseph Goebbels: Turn a lie into the truth just by repeating it often enough. He reportedly said: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.... It thus becomes vitally important for the state to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the state.” </div><div style="text-align: justify;"><span><a name='more'></a></span><br /></div><div style="text-align: justify;">And the truth is that Biden had won by seven million more votes, receiving nearly 81.3 million votes, or 51.3% of all votes cast. His Electoral College majority is identical to Trump’s Electoral College win in 2016, which the latter described as a landslide victory. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Even the then Senate majority leader Mitch McConnell, a powerful Republican, admitted that there was no illegality of a massive scale that could have tipped the entire election. He warned: “If this election were overturned by the losing side, our democracy would enter a death spiral.”
But not all Republicans agreed with him. It was reported that 70% of Republicans still refuse to accept the election outcome.
</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">What saddens the legal profession around the world is to see how lawyers like Rudy Giuliani and Sydney Powell could set aside professional ethics to help perpetuate these lies. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Indeed, there is an old saying in the legal fraternity that if the facts are against us, we should argue the law. If the law is against us, then we should argue the facts. But if the law and the facts are against us, our last resort is to pound the table and yell like hell! This was exactly what Giuliani did when he lost on both the facts and the law. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On Dec 11 last year, the US Supreme Court tossed out the specious suit filed by Texas Attorney-General Ken Paxton to invalidate the election results in the four swing states of Georgia, Michigan, Pennsylvania and Wisconsin. The apex court, in a very brisk and brusque manner, dismissed the case without even hearing the lawyers. This is incredibly significant because the suit was endorsed by 106 Congressional Republicans and 17 state attorneys-general. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, Trump lost in nearly 60 cases in the courts. The judges, the majority of them appointed by Trump, did not rule in his favour. Imagine if they had done so, it would have been the death knell for global democracy when millions of voters were disenfranchised. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">I salute these judges. They obviously recognised that judicial gratitude must cease upon appointment. Thereafter, they must always choose duty over loyalty even though in the case of Chief Justice John Roberts, one of Trump’s most ardent supporters, Senator Josh Hawley, was his clerk. If at all loyalty is required, it is only to the Constitution. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">That said, it will now be registered for posterity that the independent American judiciary has valiantly saved the United States from the abyss of anarchy and the destruction of democracy. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The judges have indeed borne true faith and allegiance to the oath of office they took when being sworn in “to support and defend the Constitution of the United States against all enemies, foreign and domestic”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">But Congressmen and Senators, elected through the same electoral system as Biden, took a similar oath upon being sworn in. On inauguration day on Jan 20, 2017, Trump too swore to preserve, protect and defend the Constitution. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In Malaysia, our Federal Constitution also requires that, upon being sworn in, our Cabinet members, Speaker and Deputy Speakers of Dewan Rakyat, members of Dewan Rakyat and the Senate, and judges take an oath, inter alia, to preserve, protect and defend the Constitution. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">That is why it is so pivotal to have an independent judiciary whenever a nation’s Constitution comes under attack from the other two branches of government, namely the executive and legislature. The founding fathers of the United States obviously did not foresee the day when the Constitution would have to withstand an assault by a rogue head of executive, supported by powerful legislators.
</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Regardless of where you are and from, a country that practises the rule of law can never afford to have people who behave almost <i>non compos mentis </i>walk the halls of power. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In this respect, I am grateful to American artists Sousa and Machado for permitting me to use the cartoon<i> I Got This</i> to convey this message. The cartoon, drawn in May 2017, depicts Lady Justice saying to Lady Liberty, “I got this”, as Trump assaulted civil liberties.
In fact, the date July 4, 1776 in Roman numerals are inscribed in the left hand of the Lady of Liberty, which is the date of the United States Declaration of Independence. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">I could not have done better to reinforce this fundamental principle, that an independent judiciary is the bulwark of our fundamental liberties and Constitutional rampart against any assault by the executive and/or legislature.
Not forgetting the need, too, for a strong and independent Bar. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">I am reminded by these American events of what took place at the 1992 annual general meeting of the Malaysian Bar. It was almost four years earlier that Tun Dr Mohamed Salleh Abas had been removed as the sixth Lord President. Since then, the Bar had refused to invite his successor, Tun Hamid Omar, to the Bar’s events.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On the morning of March 14,1992, the Chair of the meeting, Manjeet Singh Dhillon, abruptly read out his letter of resignation as the president of the Malaysian Bar, apparently due to events that took place at the Bar Council meeting held the day before. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Before the House that morning, a group of senior and prominent lawyers comprising, among others, Low Yong Suan, Ronald Khoo, Abdul Kadir Kassim, KB Thuraisingham, Zaid Ibrahim, Kam Woon Wah, Jagjit Singh, Munir Abdullah and G. Sri Ram were in favour of the motion asking the Bar to acknowledge the appointment of Hamid and set aside any policy of withholding any member of the judiciary such courtesy and respect as is normally accorded to such an office bearer. They argued that this was necessary with the passage of time and for the sake of enabling the administration of justice to proceed with optimum smoothness and efficiency if there was to be complete cooperation between members of the Bar and the judiciary. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">I still remember what the legendary Karam Singh said in objecting to this. He argued that if the Bar had thought Hamid unfit to be a judge in 1988, then the Bar should hold the same now because time does not run on a Constitutional issue. He rebuked those members who felt a bit cold because they had not been sitting with judges and that such people were only paying lip service to the 1988 resolutions. He urged members not to sell themselves out and to reject the resolution. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">With all due respect, the principle of the independence of the judiciary is immutable. The motion was defeated overwhelmingly: 809 voted against it with 52 voting in favour and nine abstentions. As a matter of record, I was one of the 809. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The next day, lawyers appearing before Tun Hamid at the Supreme Court were each asked first whether they recognised him as the Lord President before granting them the right of audience. The Bar objected strongly because the right of audience is guaranteed under the Legal Profession Act, 1976. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Beginning the week of Feb 8 this year, Trump will face an impeachment trial at the United States Senate for incitement of insurrection. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">He will most likely be indicted under Section 3 of the 14th Amendment of the US Constitution which states that no person shall “hold any office, civil or military, if they, after having taken an oath to support the Constitution, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”. If convicted, he may be disqualified from running for president again in 2024. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, I was rather surprised that Trump did not pardon himself before leaving office. If he had, I would have had to resort to the wise words of Abraham Lincoln: “He reminds me of the man who murdered both his parents, and then when sentence was about to be pronounced, pleaded for mercy on the grounds that he was an orphan.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">All in all, fragile democracy has prevailed. Our best wishes to Biden and his team. Many in the world are rooting for his success. We know it will take time to heal his divided nation. But Gorman’s poem, <i>The Hill We Climb</i>, gives Americans the hope needed to rebuild Ronald Reagan’s <i>City on the Hill</i>.</div><div style="text-align: justify;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEilHdyl5O59v57uGbdEWqk0qpHd_4dBkggVyfQvU4Skkll3hIrBMeWCdWf9VEfri16z41qCRUDMjLPonEcZMjCVELAdmaRKlvRA00ubwhlVCa4Hux0h8u2XgfcBLAKQAPPwUVrzquh2LVo/s708/2021-01-24-TheSundayStar-500.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="708" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEilHdyl5O59v57uGbdEWqk0qpHd_4dBkggVyfQvU4Skkll3hIrBMeWCdWf9VEfri16z41qCRUDMjLPonEcZMjCVELAdmaRKlvRA00ubwhlVCa4Hux0h8u2XgfcBLAKQAPPwUVrzquh2LVo/s16000/2021-01-24-TheSundayStar-500.jpg" /></a></div><br /><div style="text-align: justify;"><br /></div>Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-18200745006644525522020-10-25T14:48:00.001+08:002020-10-27T15:02:41.943+08:00Let us save Malaysia<div style="text-align: justify;"><b>The Sunday Star</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b><i>by Roger Tan</i></b></div><div style="text-align: justify;"><br /></div><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhbwkgi_yE-AeDbMUyQQ_xpMbS5zsXJaPSKp_CExX3KjMc3RTN3kIfJgzNmQTLO_tKmM87lcPOSVP0hj8zb0TdvFrpUfAIFnpJq_bYJH2lozoOby2WHgIT4B00VYNc3GW-hxa5Mwk9ks1o/s552/Picture-500.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><span style="color: black;"><img border="0" data-original-height="552" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhbwkgi_yE-AeDbMUyQQ_xpMbS5zsXJaPSKp_CExX3KjMc3RTN3kIfJgzNmQTLO_tKmM87lcPOSVP0hj8zb0TdvFrpUfAIFnpJq_bYJH2lozoOby2WHgIT4B00VYNc3GW-hxa5Mwk9ks1o/s16000/Picture-500.jpg" /></span></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><br /></td></tr></tbody></table><div><div style="text-align: center;"><b>Call to action: Raelyn Rachele Chwee (left) and Christina Kow of the Waste Management Association of Malaysia passing on the message to passers-by.<br /></b><br /></div><div style="text-align: justify;"><b>We need to reduce or curb the use of single-use plastic masks in order to save our environment and planet. </b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">ANSWERING the earlier calls from the Malaysian Association of Tour and Travel Agents (MATTA) to turn to Cuti-Cuti Malaysia to help the local domestic tourism industry, my family and I decided to spend a weekend at Redang Island recently.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Interestingly, I was not alone at all in answering to this call during these febrile times. The island’s long beach was crowded with holidaymakers. We had a great stay at the Laguna Redang Island Resort. The hotel staff there were ever so helpful and courteous. They were in high spirits. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">But sadly, the lives of their counterparts in the Klang Valley especially in those hotels which have remained closed since movement control order in March have been one of despondency. Some of them have to turn to part-time jobs like riders for Grab Food and Foodpanda to make ends meet.
</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This Covid-19 pandemic has indeed exacted an untold misery on the human race as well as the environment. But as I undertook snorkelling and enjoyed the rich underwater marine life in Redang, I felt as if God was telling us to be still for a moment and let the marine life heal and rewild itself during this period. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Then it dawned upon me how acts of men could still harm them and the environment if our oceans are still clogged with more plastic waste, posing a huge threat to the marine ecosystems. Plastic pollution will exacerbate when non-biodegradable face masks made of polypropylene (PP) and gloves made of synthetic polymers such as vinyl find their way into our rivers and oceans. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Already conservationists have found masks floating like jellyfish in the oceans and latex gloves strewn around seabeds. </div><span><a name='more'></a></span><div style="text-align: justify;">According to the National Oceanic and Atmospheric Administration (NOAA), scientists estimate that close to 90% of all seabirds have ingested plastic. Plastic is also found in 50% of sea turtles, mistaking it as real food. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Needless to say, as we consume seafood, it also poses a health risk to us since microscopic particles have entered the food chain. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Indeed, plastic waste should be disposed of in a landfill even though it can take up to 1,000 years for the plastic to decompose in landfills. The reason why we see more plastic ending up in oceanfills is because it costs many times more to recycle than to produce a new one. Hence, a study by the United States National Academy of Sciences revealed that in 1975 alone, oceangoing vessels dumped about eight million pounds (3.6million kilograms) of plastic into the oceans every year. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This environmental impact on the entire ecosystems will last for generations to come, unless we wake up to the possibility of an environmental disaster that is coming. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">You see, my fellow Malaysians, we have a population of close to 33 million. Now that wearing masks is mandatory since August 1, and assuming half of our population wear masks daily, and often single-use face masks, then we are talking about more than 10 million of face masks being discarded daily.
</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Sadly, the Ministry of Environment and Water and the Ministry of Science, Technology and Innovation are completely silent on this issue when they should be at the forefront in advising Malaysians what we can and should do to reduce or curb the use of single-use plastic masks and their alternatives in order to save our environment and planet. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In my humble opinion, we should quickly consider the following: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Opt for reusable fabric masks without disposable filters. The masks can be machine washed regularly by following the instructions for the fabric. In fact, a face shield, notwithstanding it is also made of plastic, can still be an alternative to single-use mask because its easily cleaned and sanitise for re-use. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Try to carry a spare reusable mask so that if something should go wrong with the one you are wearing; you do not need to use or buy a disposable mask. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> If you do need to use a disposable mask, take it home (may be in a bag if you have to take it off) and then put it straight into a bin with a lid. If this is not possible, place it in a proper public bin. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> If it is taken home, the masks should be segregated from other household waste by disposing them in a sealed receptacle to prevent scavenging when it is collected by waste workers. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> The ear straps or loops of these masks should be cut off before disposal as legs and wings of animals have been seen to be tangled in face masks. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Do not put disposable masks in the recycling bins. They can get caught in specialist recycling equipment and be a potential biohazard to waste workers. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Whatever you do, do not litter them! </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">I know, to many Malaysians, the above will appear to be a tall order. But unless we change our mindset by taking little steps as set out above, we will only harm ourselves because we are part of the natural world. As Sir David Attenborough used to say, if we take care of nature, nature will take care of us.
</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">With all due respect, our enforcement agencies’ lackadaisical response towards littering over the years has always dismayed me. As explained above, now is the time for laws on littering under the Local Government Act, 1976 and Solid Waste And Public Cleansing Management Act, 2007 to be enforced strictly in order to deal with irresponsible disposal of face masks which are hazardous to humans and animals. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">All in all, it is hoped, political differences aside please, that the current government will carry on with the roadmap and blueprint introduced by the previous Ministry of Energy, Science, Technology, Environment & Climate Change (MESTECC) to aim at zero plastics by 2030. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Similarly, as a littoral state, Malaysia should seriously study the need to have our own Save our Seas Act to address the plastic debris threatening our oceans and harming our marine creatures. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><i><b>The writer, a former Board Member of SWCorp Malaysia, is the honorary secretary of the Waste Management Association of Malaysia. The views expressed here are solely his own.</b></i></div></div>Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-65264271363764435102020-09-06T14:16:00.011+08:002021-05-08T20:55:57.690+08:00‘Laws grind the poor, rich men rule the law’<div style="text-align: justify;"><b><div class="separator" style="clear: both; text-align: center;"><img alt="The writer with the legendary Lord Denning during his law student days in London. Denning quoted Fuller that ‘Be you ever so high, the law is above you’." border="0" data-original-height="414" data-original-width="300" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi4z2h5qnlAako4IgACEd1gszEngvBv6Zx2MFdC9xpYFwyAjl7g1knpzyI-ySlyejAIisitS-qYeuGQyZZqjMxJqz63q6L6RzGNGRMmF0BF-LomV9FaR_7DUQ22ydOfTyZfrc3oU0wkcC4/s16000/848334-300.jpg" title="The writer with the legendary Lord Denning" /></div></b><b style="text-align: center;">The writer with the legendary Lord Denning during his law student days in London. Denning quoted Fuller that ‘Be you ever so high, the law is above you’.</b><b><br /><br /></b></div><div style="text-align: justify;"><b>The Sunday Star</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b><i>by Roger Tan</i></b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">WHEN I was young, I would recite the Rukun Negara every morning during the primary school assembly.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">When I was older, I would lead in the taking of this pledge as the head prefect of the secondary school every other week.
This pledge-taking commenced in late 1970, a year after the May 13, 1969, incident. So this year is the golden jubilee of the Rukun Negara.
</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Raising our right hands, we would say these words aloud in Bahasa Malaysia: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“We, the citizens of Malaysia, pledge to concentrate all our energy and efforts on achieving these ambitions based on the following principles: Belief in God; Loyalty to the King and Country; Supremacy of the Constitution; Rule of Law; Courtesy and Morality. </div><div style="text-align: right;"><br /></div><div style="text-align: justify;">What are these ambitions? They are: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Achieving and fostering better unity amongst the society; </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Preserving a democratic way of life;
> Creating a just society where the prosperity of the country can be enjoyed together in a fair and equitable manner; </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Ensuring a liberal approach towards the rich and varied cultural traditions; and </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Building a progressive society that will make use of science and modern technology. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Of course, we would often spend most of our time memorising the five principles, overlooking the importance of the five national ambitions. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Then, we were also too young to know the significance of these principles, particularly supremacy of the Constitution and rule of law. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It was only when I began as a lawyer that I realised the true significance of these third and fourth fundamental principles. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The supremacy of the Constitution means our Parliament is not supreme, unlike the British Parliament, because our Federal Constitution is the supreme law in that even our Parliament cannot make, amend or unmake any law as it pleases. Article 4(1) of the Federal Constitution declares that the Constitution is the supreme law of the land and any law passed which is inconsistent with the Constitution shall be void. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The principle of the rule of law, in simple terms, means no one is above or immune from the law. Article 8(1) of the Federal Constitution also declares that all persons are equal before the law and entitled to equal protection of the law. As Sultan Azlan Shah once said in a case when sentencing a prince, “This equality of all in the eyes of law minimises tyranny”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It then behoves the public prosecutor and the judiciary to ensure that this nation is governed by the rule of law and not rule the law. Hence, the Attorney General is often called the independent guardian of public interest and protector of public rights; and the judiciary, the fountain of justice and the bulwark of our liberties. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This is obviously the ideal and a grandiloquent optimism. But in practice, a lot depends on the person who sits at these institutions. </div><div style="text-align: justify;"><br /></div><span><a name='more'></a></span><div style="text-align: justify;">In a case brought by one Mr Gouriet in 1977, the British Attorney General refused to give him consent to institute relator proceedings to injunct the Union of Post Office Workers from boycotting all postal communications between Britain and South Africa as such actions would constitute criminal offences under the Post Office Act 1953. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">When the Attorney General argued that his discretion was absolute and not subject to judicial review, Lord Denning had this to say: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“What is to be done about it? Are the courts to stand idly by? Is the Attorney General to be the final arbiter whether the law should be enforced or not? </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“It is a matter of great Constitutional principle. If the Attorney General refuses to give his consent to the enforcement of the criminal law, then any citizen in the land can come to the courts and ask that the law be enforced. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“This is an essential safeguard; for were it not so, the Attorney General could, by his veto, saying ‘I do not consent’, make the criminal law of no effect. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“Confronted with a powerful subject whom he feared to offend, he could refuse his consent time and time again. Then that subject could disregard the law with impunity. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“It would indeed be above the law. This cannot be permitted.
“To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you never so high, the law is above you’.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">However, Lord Denning’s decision is subject to Article 145(3) of our Constitution which expressly confers the powers to institute, conduct or discontinue any criminal proceedings on the Attorney General. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Hence, with all due respect, not many lawyers are excited about the proposal to amend the Constitution for Parliament to approve the appointment of the Malaysian Anti-Corruption Commission (MACC) chief and a special tribunal to remove him. The more urgent amendment is to give independent prosecutorial powers to MACC. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Now, after more than 30 years in legal practice and soon becoming a sexagenarian, it saddens me that we still see, after 63 years of Merdeka and 50 years of the Rukun Negara, the many inequalities and injustices in our society. Some once vociferous non-governmental organisations have also gone elegantly silent. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The saddest part is when there appears to be one law for the poor and weak and another for the rich and powerful. To quote the Anglo-Irish novelist of the 18th century, Oliver Goldsmith: “Laws grind the poor, rich men rule the law”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Of course, this is not just unique in Malaysia. Currently in Thailand, there is a public outcry after the police and the Attorney General dropped charges against Red Bull heir Vorayuth Yoovidhya. Vorayuth was accused of killing a police officer in Bangkok in 2012 after crashing his Ferrari and using cocaine at the time of the hit-and-run accident. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, I last quoted these words of Oliver in 2006 when I wrote about two councillors of the Klang Municipal Council reportedly erecting their mansions without any approval. It was reported that for this contravention of planning and building laws, councillor Datuk Zakaria Mat Deros was only slapped with a fine of RM24,000 which was described as the maximum fine permitted under the law. It was also reported that council enforcement officers had demolished a rival restaurant for minor infractions but took no action against Zakaria’s unlicensed restaurant. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">And in the United Kingdom, there is also public outcry over double standards and hypocrisy in the enforcement of coronavirus restrictions. No action was taken against Prime Minister Boris Johnson’s chief adviser, Dominic Cummings, when he drove the length of England with his wife and child during lockdown. Cummings’ excuse for driving from Durham to Barnard Castle before returning to London was to see if he could drive safely after his eyesight became affected by coronavirus. Despite public outcry, he neither resigned nor apologised. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On the other hand, EU Commissioner Phil Hogan resigned after flouting Ireland’s public health restrictions limiting indoor gatherings by attending the Oireachtas Golf Society dinner on Aug 19 together with 80 other people, including the Irish Supreme Court judge and former Attorney General, Séamus Woulfe who is currently fighting for his career. New Zealand’s Health Minister, David Clark, also resigned after he broke the country’s stay-at-home order to take his family to the beach. UK’s leading epidemiologist who advised the government on its coronavirus response, Professor Neil Ferguson, also resigned after he breached lockdown rules by allowing his lover to visit his home. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Back here, Deputy Health Minister Datuk Dr Noor Azmi Ghazali and Perak state executive councillor Razman Zakaria were fined RM1,000 each for violating the movement control order (MCO). </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">And then Plantation Industries and Commodities Minister Datuk Dr Mohd Khairuddin Aman Razali was reportedly issued a compound for RM1,000 by the Health Ministry for not observing the mandatory 14-day quarantine after his return from Turkey. He neither apologised nor resigned. Instead, a party leader of his had the temerity if not audacity to blame Mohd Khairuddin’s violation on the Health and Foreign Affairs Ministries. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Let us now compare this with the punishments meted out against some of the other defaulters. A site supervisor was fined RM5,000 in default of five months’ jail for breaking his 14-day home quarantine to enjoy a plate of noodles. A 72-year-old woman who was pictured having a meal while wearing a pink Covid-19 home quarantine tag on her wrist at an eatery was jailed one day and fined RM8,000 in default of six months’ jail. A private university student was jailed seven days and fined RM800 for defying the MCO to present a cake which she had baked to her boyfriend. Three men were sentenced to three days’ jail and fined RM1,000 for teeing off during the MCO, and a single mum was originally jailed for breaching the MCO. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It follows Malaysians are rightfully concerned to know why Mohd Khairuddin reportedly did not observe or did not have to adhere to the mandatory 14-day quarantine after his return from Turkey. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">How our public institutions deal with this breach by a member of the government will go a long way to either inspire or undermine confidence among law-abiding Malaysians. The very foundations of our legal system will be shaken if the rich, powerful and elites have such scant disregard for the law and are allowed to disobey the law with impunity. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">I could not agree more with the CNN report of Aug 30 entitled “<i>Elites are flouting coronavirus restrictions – and that could hurt us all</i>”. In it, writer Laura Smith-Spark put it trenchantly: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“When countries impose restrictions to combat the coronavirus, there’s an implicit pact between the government and people: we’re all in this together. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“So when the powerful or influential break the rules, it provokes fierce public anger and puts society’s inequalities on full view.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The report also quoted Professor Susan Michie of health psychology at University College London that “trust and perceived fairness are both very important in terms of protecting adherence. Trust is very difficult to build up again – it’s easy to lose, difficult to build up.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It follows if there is no fidelity to our Covid-19 restriction laws, it will undo all the good work that our health workers and other frontliners have done so far to fight this pandemic, because once trust is gone, it is difficult to build up or recover it. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This reminds me of the oft-quoted comparison of law to a scarecrow by Shamsul Hoque, the director of the Legal Education and Training Institute of the Bangladeshi Bar Council. He wrote in 2013: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“The scarecrow is put in a cornfield to frighten birds away. The innocent, simple birds are really scared and they don’t dare to come near the field. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“But some birds, strong and greedy, do not get frightened. They are often found not only to come near the scarecrow but also to perch on its arms and head to rest after eating the grain to their hearts’ content.
</div><div style="text-align: justify;">“Seeing these birds enjoying food and security, some other birds ask themselves, ‘They are having good meals. The scarecrow does not scare them. Why should we be fools and starve?’ So all the birds join in the feast.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">When that happens, it becomes a lawless society. Rule of law will also become rulers of law and rule the law.</div><div style="text-align: justify;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh50DF3YtN9OrJvLiH50R4sC0cpoZ5QnY7HM_7E7j0wpPdl9iAS3F-fiK8OwKD6knTC9GMjd9ZuqmD6oNBwn3w2YerDf-5KKpAmAWYmCyY3DLa-jOtowZK4PbVvclxNwm0kI1Ewul9nhFM/s698/2020-09-06-SSArt-500.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="698" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh50DF3YtN9OrJvLiH50R4sC0cpoZ5QnY7HM_7E7j0wpPdl9iAS3F-fiK8OwKD6knTC9GMjd9ZuqmD6oNBwn3w2YerDf-5KKpAmAWYmCyY3DLa-jOtowZK4PbVvclxNwm0kI1Ewul9nhFM/s16000/2020-09-06-SSArt-500.jpg" /></a></div><br /><div style="text-align: justify;"><br /></div>Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-56308039159739908102020-08-16T20:09:00.008+08:002020-08-16T20:20:42.844+08:00Is our Covid-19 Bill the panacea?<b><i>The Sunday Star<br /></i><br />by Roger Tan<br /></b><br /> <div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEivUTdH2AR-s1jh8IUEx05M1qfHAMo8Z8qYz-QHpikp4aqHhksllcfYphYXtjeOFhfiJdNC0rkFV-ZKiTqnad7zFmxJQCOcGuvvuGtcU4b3x1kPp4yv_zbUGKILE2e_q66Xl9_U1j0rXzk/s500/SS-2020-08-16-500.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="Hit hard: Covid-19 has left a wide swathe of destruction in its wake in Malaysia too. Banners of property for sale in front of a row of closed shops in Kuala Lumpur." border="0" data-original-height="320" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEivUTdH2AR-s1jh8IUEx05M1qfHAMo8Z8qYz-QHpikp4aqHhksllcfYphYXtjeOFhfiJdNC0rkFV-ZKiTqnad7zFmxJQCOcGuvvuGtcU4b3x1kPp4yv_zbUGKILE2e_q66Xl9_U1j0rXzk/d/SS-2020-08-16-500.jpg" /></a></div><br /><div style="text-align: center;"><b>Hit hard: Covid-19 has left a wide swathe of destruction in its wake in Malaysia too. Banners of property for sale in front of a row of closed shops in Kuala Lumpur.</b></div><br /><div style="text-align: justify;"><b>This Bill does not appear to be fulfilling its real purpose, which is to suspend, for a specified period, enforcement of contractual obligations against a defaulting party, who is usually the weaker party and does not have an equal bargaining strength with the other contractual party.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">FINALLY. Malaysia’s much awaited version of the Covid-19 Bill (“the Bill”), entitled the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Bill was tabled for first reading in the Dewan Rakyat on Wednesday.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The Bill comprises 19 parts and 59 clauses. It seeks to modify 16 written laws. The modifications will have retrospective effect with most of the main provisions coming into effect on 18 March 2020, the day when the movement control order first came into operation. If passed, this law will prevail over any other written law in the event of any conflict or inconsistency between them.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The Bill is not expected to come into force until probably after September 2020, that is, after it has been passed by Senate; royal assent has been obtained and it is published in the <i>Gazette</i>. Singapore was able to pass her COVID-19 (Temporary Measures) Act, 2020, all on the same day on April 7,2020, primarily because her Parliament is unicameral.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The following are some of the statutory modifications proposed by the Bill:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> A one-time extension to 31 December 2020 is given to any limitation period which falls between 18 March 2020 to 31 August 2020 under the Limitation Act, 1953, Sabah Limitation Ordinance, Sarawak Limitation Ordinance and the Public Authorities Protection Act, 1948. The limitation period for a homebuyer to file his claim at the Tribunal for Homebuyer Claims is also extended from 4 May 2020 to 31 December 2020 if it has expired during the period from 18 March 2020 to 9 June 2020.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> The monetary threshold to take bankruptcy or insolvency proceedings against individuals is increased to RM100,000 from RM50,000 until 31 August 2021, unless further extended by the Minister.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> An owner’s right to repossess goods under a hire-purchase agreement due to non-payment of instalments during the period from 1 April 2020 to 30 September 2020 is suspended until 31 December 2020, unless further extended by the Minister. However, this does not apply to a case where the owner has already exercised his power of repossession before this law comes into force.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Before 31 December 2020, a landlord cannot recover the arrears of rent by a warrant of distress for the period from 18 March 2020 to 31 August 2020 unless the warrant has already been executed before coming into force of this law.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> The calculation of the period for according recognition of a trade union or otherwise making of a report or filing of representation on dismissal under the Industrial Relations Act, 1967 shall exclude the period from 18 March 2020 to 9 June 2020.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">However, I am more concerned with two main parts: Part 2 which deals with inability by parties in performing contractual obligations and Part 11 which deals with modifications to the Housing Development (Control and Licensing Act, 1966 (Act 118).</div><div style="text-align: justify;"><br /></div><span><a name='more'></a></span><div style="text-align: justify;">Part 2 is the most important part of the entire Bill. It will come into effect on 18 March 2020. It provides that at any time between 18 March 2020 and 31 December 2020, unless this period is extended by the Minister (“the prescribed period”), the inability of any party to perform any contractual obligations arising from seven types of contracts specified in the schedule to this part due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act, 1988 (Act 342) to control or prevent the spread of Covid-19 shall not give rise to the other party exercising his rights under the contract.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The seven types of contract are related to construction work or consultancy and the supply of construction material, equipment or workers in connection with a construction contract; performance bond; professional services; lease or tenancy of non-residential immovable property; events for the provision of any venue, accommodation, amenity, transport, entertainment, catering or other goods or services including for any business meeting, incentive travel, conference, exhibition, sales event, concert, show, wedding, party or other social gathering or sporting event; tourism and religious pilgrimage (“scheduled contract”). The schedule can be amended by the Minister from time to time.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In other words, clause 7 imposes a moratorium on any party of a scheduled contract to take any action against the non-performing party during the prescribed period. It then provides that any dispute arising from this may be settled by way of mediation. The Minister may determine the mediation process and upon the conclusion of a mediation and parties reaching an agreement, the parties shall enter into a binding settlement agreement in writing.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">However, clause 10 goes on to say “any contract terminated, any deposit or performance bond forfeited, any damages received, any legal proceedings, arbitration or mediation commenced, any judgment or award granted and any execution carried out for the period from 18 March 2020 until the date of publication of this Act shall be deemed to have been validly terminated, forfeited, received, commenced, granted or carried out”.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">With all due respect, it is regrettable that the decision makers behind this Bill appear to have forgotten its real purpose, which is to suspend, for a specified period, enforcement of contractual obligations against a defaulting party, who is usually the weaker party and does not have an equal bargaining strength with the other contractual party. In other words, the paramount purpose of this social legislation is to afford a legal shield and give a chance and lifeline to individuals and businesses especially small medium enterprises to get back on their feet in the post-Covid-19 environment.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">If this Bill is passed as it is, it will have the following effects:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> As mediation is not mandatory, nothing will change. The stronger party or party which has more resources will still resort to the normal dispute resolution process, such as going to the courts even after this Bill becomes law. In fact, as it is now even without this Bill, parties can always opt for mediation and follow the provisions of the Mediation Act, 2012 (Act 749).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> If mediation is chosen, then what happens if parties fail or refuse to reach a settlement or perform the settlement agreement?</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Clause 10 will cause a deluge of legal actions being taken by contractual parties to circumvent this law by terminating contracts, forfeiting deposits or performance bonds or commencing legal proceedings, arbitration, or mediation before the coming into force of this law. The biggest injustice is that all these actions will then be “deemed to have validly terminated, forfeited, received, commenced, granted or carried out”. With this deeming provision, the validity of these actions may no longer be questioned or challenged.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, I had even suggested the following as early as April 6, 2020 in my article in <i>StarBiz</i>, <a href="https://www.thestar.com.my/business/business-news/2020/04/06/malaysia-too-need-a-covid-19-bill">Malaysia too needs a Covid-19 Bill</a>. Let me expound further.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Firstly, the Bill must expressly cover scheduled contracts executed before 18 March 2020 and after Covid-19 has begun to impact our economy, sometime late January 2020.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Secondly, if any party is unable to perform his contractual obligations and wishes to seek reliefs during a moratorium, he must serve a notification on the other contractual party. Once a notification is served, the other party’s right to enforce the contract is suspended during the prescribed period. The Bill must then provide that it is an offence if later the other party takes any legal action against the non-performing party.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Thirdly, once the notification has been served, any proceedings before a court or any arbitral proceedings or mediation in progress in relation to the party’s inability to perform must be stayed or suspended until the earliest of the following: (1) the expiry of the prescribed period; (2) the withdrawal of notification by the affected party; or (3) the Tribunal suggested below has made a determination.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">> Fourthly, if there is a dispute over the notification or the affected party’s inability to perform, the State must be involved. In this respect, a special Covid-19 Tribunal should be established during the currency of this new law. Instead of following Singapore’s methodology of appointing assessors, I had suggested that we can avail to the ready pool of advocates and solicitors who sit as presidents in various tribunals such as the Tribunal for Consumer Claims; the Tribunal for Homebuyers’ Claims and the Tribunal for Strata Management. Any dispute can be referred to the Covid-19 Tribunal without involvement of lawyers, and notwithstanding any pending court and arbitral proceedings or mediation. The decision of the Covid-19 Tribunal shall be final. To ensure compliance, it should be an offence if the award of the Covid-19 Tribunal is not complied with. I say these because the daily sitting allowance of the presidents of the three aforesaid tribunals does not exceed RM1,000 but tens of cases can be disposed of daily. I am confident that many senior lawyers are ever ready to step forward if called to undertake this national service. If the current dispute resolution process of going through mediation is adopted, parties may not reach a settlement agreement and if reached, parties would still need to enforce it if there is a breach. Unlike an award from the Covid-19 Tribunal, there is no penal sanction if the settlement agreement is breached. Hence, the inception of the Covid-19 Tribunal as the dispute resolution arbiter in granting temporary reliefs is cheaper, speedier and more expedient.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As respects Part 11, it is proposed that if a purchaser fails to pay for any instalment from 18 March 2020 to 31 August 2020, the developer shall not impose any late payment charges on the unpaid instalments. Likewise, this period is to be excluded when calculating the time for delivery of vacant possession and the liquidated damages for late delivery of vacant possession by the developer. However, the purchaser and developer can respectively apply to the Minister for an extension to pay or deliver up to 31 December 2020. However, as this law is not expected to operate before 31 August 2020, the need to apply to the Minister for the extension of time (“EOT”) will immediately take effect.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Seriously, whenever we talk about EOTs, I can imagine the kind of reaction from the Secretary General of the National House Buyers Association, Datuk Chang Kim Loong. In this respect, I think he is right in that it will become a huge burden on individual purchasers having to apply for EOTs. There is no reason why it cannot be expressly provided in the Bill now that the time to pay by the purchasers and to deliver by the developers be extended to 31 December 2020. It cuts both ways and at this time, certainty in law is obviously preferred to arbitrary exercise of ministerial powers.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">All in all, I sincerely hope that the government will take a serious look at the Bill again in order not to deviate from the real purpose of enacting it. Otherwise, it cannot be treated as a legal panacea or elixir for Malaysians whose livelihoods and businesses have been materially affected by this pandemic.</div><div style="text-align: justify;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg5CIxnmtlILR3d-AOpMUCZxb985y0EPG9TlYKbm-n71CButeEx0mtv7fquptzRIfLxwSusMZuqAa2Ns4d0uHxXmXqNWyMrWn2Ejo3Ai3ioShTUMg7qZad9868Z6_BKaFXCkjfMjFPpeaU/s704/2020-08-16-TheSStar-500.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="704" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg5CIxnmtlILR3d-AOpMUCZxb985y0EPG9TlYKbm-n71CButeEx0mtv7fquptzRIfLxwSusMZuqAa2Ns4d0uHxXmXqNWyMrWn2Ejo3Ai3ioShTUMg7qZad9868Z6_BKaFXCkjfMjFPpeaU/d/2020-08-16-TheSStar-500.jpg" /></a></div><div style="text-align: justify;"><br /></div>Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-33091627980090707522020-08-02T14:12:00.007+08:002020-08-02T14:14:00.108+08:00Of the Bench and the Bar<div style="text-align: justify;"><b>The Sunday Star</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b><i>by Roger Tan</i></b></div><div style="text-align: justify;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgjjGclRrga-yi72DHggBHRYzO28V1SVEnePjc7M_gWgUrVSEZvYLQGKt0KbQ16QmqF2WaIAW2wHe6G-PxPSpT20z1EBxzMFMWUs4_O99-Tv4NFuXi395wTSFcLi3A1ighQigq8mRfwt0M/s507/803779-500.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="507" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgjjGclRrga-yi72DHggBHRYzO28V1SVEnePjc7M_gWgUrVSEZvYLQGKt0KbQ16QmqF2WaIAW2wHe6G-PxPSpT20z1EBxzMFMWUs4_O99-Tv4NFuXi395wTSFcLi3A1ighQigq8mRfwt0M/s0/803779-500.jpg" /></a></div><div class="separator" style="clear: both; text-align: center;"><b>Allyna Ng with her proud parents, Datuk & Datin Ng Kong Peng at the 2015 JPA Presentation Ceremony.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>Malaysia’s rule of law can only be upheld if these twin pillars remain independent and fearless. And for that to happen, we need to eradicate one of their main threats — the mass production of lawyers who are ill-equipped and incompetent due to poor legal training and education. </b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">IT is always a proud moment for the nation whenever we learn of our young Malaysian students excelling in their legal studies overseas. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On July 21, Allyna Ng Ming Yi obtained a first class honours in BA Jurisprudence (Law) from Oxford University. She was also the recipient of the Crystal Prize for best overall performance in Law; the Farthing Prize for best performance in Constitutional Law and the Monk Prize for best performance in Criminal Law. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Allyna, the younger daughter of lawyer couple, Datuk Ng Kong Peng and Datin Amy Yeo of Melaka (pic), is a Public Services Department (JPA) scholar. An alumna from SMK Infant Jesus Convent, she was also in the top 20 of 2014 SPM candidates in Malaysia. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, this is not the first time a Malaysian youngster has done our country proud with their law studies overseas. In October 2010, an ex-Muar High School boy, Tan Zhongshan emerged as the overall best law student in the entire Cambridge University – an academic feat said to have surpassed even that of the university’s luminary alumni, Singapore’s former Prime Minister, the late Lee Kuan Yew and his wife. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">A son of a retired Federal Court judge and a holder of Singapore’s Asean scholarship, Zhongshan later graduated with a Master of Law degree from the prestigious Harvard Law School and is now reportedly a deputy public prosecutor in Singapore. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">I always marvel at such academic achievements by others, wondering how they could have done it with such ease. I have nothing much to boast about my own academic achievement, except perhaps being in the top 15 among Commonwealth students in the 1988 English Bar Finals. I must unashamedly confess that I chose law because I was hopeless in Mathematics and Science, having failed both in my Form 5 Malaysian Certificate of Education examinations! </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">But it must be stressed that having a good academic result will not guarantee a successful career at the Bar in this dog-eat-dog world meant only for the survival of the fittest. Take for example, the late Karpal Singh only obtained a third-class honours law degree from the University of Singapore but he later became one of the most outstanding criminal lawyers this country has ever produced. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On a more serious note, more than 1000 law graduates enter the legal profession every year, but there is no common system to evaluate, ascertain and ensure their levels of competence. Today, there are about 21,000 lawyers practising in Peninsular Malaysia, and the number of lawyers in Klang Valley alone will exceed the total number of lawyers in Singapore. </div><span><a name='more'></a></span><div style="text-align: justify;">The Bar Council has been advocating since 1980s for a Common Bar Course (CBC) as the single-entry point into the legal profession for all law graduates from overseas as well as local universities. I wrote about it too in 2011 in a commentary in <i>The Star</i>: “<a href="https://www.thestar.com.my/opinion/letters/2011/02/06/high-time-for-a-new-bar" target="_blank">High time for a new Bar</a>”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Sadly, we are still talking, and talking about it today and there appears to be a total lack of a sense of urgency and political will to reform our decrepit legal education in the public interest. With a surfeit of lawyers entering the profession annually from so many diverse educational streams, the new entrants should be subjected to uniform standards of knowledge and legal skills and training, regardless of the origin of their law degrees. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">With all due respect, I have observed one unhealthy trend among some locally trained lawyers who consider foreign trained lawyers such as barristers as elitist. They are not, but with CBC acting as the ultimate sieve in admitting only the qualified ones into the legal profession and judicial and legal services, it is hoped this will raise international recognition of our local law graduates who are not barristers. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Currently, neither the certificate of law practice (CLP) nor a law degree from any local Malaysian university including University of Malaya is recognised by Singapore as coming from an approved university permitting our law graduates to sit for their professional Bar examinations. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">This is a quite a pity as speaking from personal experience, I am quite impressed by law graduates from Universiti Malaya, Universiti Kebangsaan Malaysia and the Multimedia University. Hence, I do not see these local graduates having any difficulty in competing with foreign trained graduates if CBC is introduced. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">My other observation is that our local and foreign law graduates seem to have a different perception of and approach to fundamental principles of justice, rule of law and democracy when these are actually universal values. As R. Ramani, second president of the Malaysian Bar and a former Permanent Representative of Malaysia to the United Nations said not everything about British colonialism is bad. He said the bench and bar are heirs of three noble traditions deriving from the colonialism, namely the English language, British system of justice and the British spirit of democracy. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, Lord President Tun Mohamed Suffian Hashim said the two essentials of the rule of the law are the independence of the Bar and the independence of the judiciary. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As I have written many times, the concept of the rule of law which is also the fourth guiding principle of our Rukun Negara can be best summed up in the words of Dr Thomas Fuller, who wrote in 1733, “Be you never so high, the law is above you.” In other words, no one including the king could disregard the law with impunity. As the English jurist, Henry Bracton (c. 1210 – c. 1268) put it, “the king is under no man but under God and the law because the law makes the king”. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As regards the independence of the judiciary, I cannot do better than to quote the late Sultan Azlan Shah who said in a 1986 public lecture: “Judges are not beholden politically to any government. They owe no loyalty to ministers. They have longer professional lives than most ministers. They like civil servants, see government come and go. They are “lions under the throne” but that seat is occupied in their eyes not by Kings, Presidents or Prime Ministers but by the law and their conception of the public interest. It is to that law and to that conception that they owe their allegiance. In that lies their strength.” </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">But that solemn oath taken by every judge to preserve, protect and defend the constitution upon assumption of office is no easy task to fulfil. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As former Chief Justice of the Philippines, Artemio Panganiban would tell us that judges are subjected to all sorts of temptations and pressures - some brazen, some subtle, some direct, some indirect.
</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“Litigants and their lawyers are sometimes devious. They study the judge’s profile, personality, family history and employment record in a spirited effort to find a weak point. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“Some resort to blackmail, some to political pressure, still others to friendship or kinship or even religious relationships. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“Many times lawyers are retained by litigants not because of their skill and brilliance in legal advocacy, but because of their judicial connections, fancied or real. “The ultimate question some litigants ask their counsel is not ‘Is my case meritorious?’ but ‘Do you know the judge?’”, he said. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In fact, during the movement control order period, I managed to sit down to watch a drama series about a Chinese judge, Song Ci (1186–1249) during the Song Dynasty. As a presiding judge in criminal trials, he would often undertake his own forensic investigation at crime scenes. Known as the world’s first anthropologist and forensic scientist, he later reduced his own experiences and findings into a book entitled Collected Cases of Injustice Rectified. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">He was a fearless judge. However, when undertaking an investigation into a murder case which the Emperor’s son-in-law was implicated, Song Ci discovered the royal son-in-law was blackmailed by a trader who had drugged him into committing the murder. Song Ci then chanced upon eight huge boxes kept by the trader on his premises. Each box contained inculpatory evidence of almost all the other judges and senior officials of the Emperor. This explained why the trader was untouchable.
He then had the eight boxes taken to the palace and opened before the Emperor. As he explained the contents of each box to the Emperor late into the night, the Emperor pretended to fall asleep. He then woke up the Emperor who asked Song Ci to return home. Just as the disappointed Song Ci was leaving the palace grounds with the corrupt judges waiting there, he saw huge flames appearing in the sky.
Apparently, the Emperor had all the boxes burnt and destroyed together with the contents. The panicky judges heaved a great sigh of relief. He then confronted the Emperor who commended him for a great investigative job and said Song Ci would be promoted the next day. All the corrupt judges praised the Emperor for his wisdom.
The next morning, Song Ci did not return to palace to accept the promotion. Instead, he returned all the paraphernalia of a judge to the Emperor and resigned, broken-hearted and disillusioned with the system. The Emperor grimaced in sadness, thinking that what he did was necessary to preserve the dynasty.
Naturally, with the destruction of evidence, the corrupt officials went after the trader like a pack of bloodthirsty wolves and killed him. But the rot had already set in and that was the beginning of the collapse of the Song dynasty. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The moral of the story is that unless there is independence of the judiciary and protection by the state for good judges such as Song Ci, the rule of law cannot be upheld which will eventually cause the institutions of government to collapse. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The judiciary also must be defended by an independent and fearless Bar. They are the twin pillars of the rule of law. My concern is that the threat to the independence of the Bar can be greater from within than without. One of these threats is the mass production of lawyers who are ill-equipped and incompetent due to poor legal training and education. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As Ramani said during the elevation proceedings of Suffian as a High Court Judge on October 26,1961: “It was Lord Erskine who declared that whatever may be the encroachments of Parliament on personal liberty so long as you have an independent judiciary, and you are assured of the integrity of the Bar, they together will be the sheet anchor to hold the ship of state to her course amidst contending storms.</div>Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-42570333743167143422020-07-19T09:41:00.000+08:002020-07-22T09:55:54.276+08:00Let justice be seen to be done<div style="text-align: justify;">
<b>The Sunday Star</b></div>
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<i><b>by Roger Tan<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh13nlODGq9y40G_RIZMD4svfZRg6dLxbsDGxGQYuPlSBW2W0tP4jah6pbJyURY5qeTURsN0fAMi61biT6BgCoKpx1zPnbd3veoF6kzoXrrHX5ssiUxMfUML1-IUeMj6qx5EpTwfDNacMM/s1600/Boonyanits-500.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="373" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh13nlODGq9y40G_RIZMD4svfZRg6dLxbsDGxGQYuPlSBW2W0tP4jah6pbJyURY5qeTURsN0fAMi61biT6BgCoKpx1zPnbd3veoF6kzoXrrHX5ssiUxMfUML1-IUeMj6qx5EpTwfDNacMM/s1600/Boonyanits-500.jpg" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;"><span style="font-size: 12.8px;"><b>Cousins Piya (left) and Prithep Sosothikul with a picture of their late grandmother Boonsom Boonyanit. — Filepic</b></span></td></tr>
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I JUST recently learnt from an international arbitration news site that the Malaysian government had reached an amicable settlement with the estate of Boonsom Boonyanit, a Thai national, some time in October 2018. </div>
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This news hitherto is not known to the Malaysian public. Neither is there any information available to the public on the exact settlement sum and whether the same has been paid. </div>
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Be that as it may, the Malaysian taxpayers have obviously ended up once again having to fork out a sum probably in millions of ringgit to compensate for the criminal acts of the perpetrators who are still at large. There may be a requirement for confidentiality in the settlement agreement, hence the non-disclosure. </div>
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Apparently, the October 2018 settlement had been reached with the Pakatan government after the estate issued a notice on July 31,2017 addressed to the then Prime Minister, Foreign Affairs Minister and Attorney General, accusing Malaysia of contravening her treaty obligations under the 1987 Asean Agreement for the Promotion and Protection of Investments in not according fair and equitable treatment and providing full protection for Boonsom’s investments. </div>
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The treaty has been signed by Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand. Under the treaty, if any dispute cannot be settled within six months after its being raised, then the affected party can choose to submit the same for conciliation or arbitration. </div>
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But has justice been done or rather has justice been seen to be done to Boonsom? To quote the oft-repeated 100-year-old words of Lord Chief Justice Hewart in <i>R v Sussex Justices, ex parte McCarthy </i>[1924] that “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” </div>
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Sadly, Boonsom had already passed away on May 23,2000. She was a victim of land scam in 1989. All in, three generations of her family had carried on with this fight for justice with sheer grit and tenacity. But this long and arduous journey has also taken them some 30 years. </div>
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It all started when Boonsom’s two beachfront lots in Tanjung Bungah, Penang (the said lands) were fraudulently transferred by an impostor claiming to be Boonsom to Adorna Properties Sdn Bhd, then known as Calget Sdn Bhd (‘Adorna”), on May 24,1989 for RM1,865,798. </div>
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The said lands were first purchased by Boonsom’s husband on Dec 12,1956 with the view of building their retirement home there. They were transferred to Boomson on Jan 18,1967. On Oct 7,2004, Adorna sold the said lands to Diamaward (M) Sdn Bhd, a subsidiary of Hunza Properties Berhad, for RM13,220,000. Today, what is on the said lands is a beachfront condominium. Further, strata titles have also been issued to the individual parcel owners. </div>
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This is a heart-rending story – a story that has shaken the very foundation of our torrens system of registration on indefeasibility of title to our properties. Every law student is taught and is assumed to know everything about this case, fully. </div>
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Of course, Boonsom sued for the return of the said lands but the Penang High Court ruled in favour of Adorna on April 28,1995. On appeal, the Court of Appeal reversed the High Court’s decision on March 17,1997. Adorna then appealed, and the Federal Court allowed Adorna’s appeal on Dec 22,2000 (Adorna Judgment).
Boonsom’s second son, Kobchai Sosothikul, being the representative of her estate, then filed two separate motions to the Federal Court for review of the Adorna Judgment but failed on both occasions in 2001 and 2004. </div>
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It was not until January 2010 that a strong five-member bench of the Federal Court had finally decided in the case of <i>Tan Yin Hong v Tan Sian Sang </i>to restate the correct position of the law in that the error committed in the Adorna Judgment was, in the words of the then Chief Justice, Tun Zaki Tun Azmi, “so obvious and blatant”. But this does not provide any relief to the Boomsom family. </div>
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In fact, on March 15,2005, Kobchai had also sued the Penang land office for negligence and breach of statutory duty. On Jan 10,2011, then Judicial Commissioner Vazeer Alam Mydin found that the Penang land office was indeed negligent and in breach of statutory duty, but unfortunately the action had to be dismissed because it was time-barred as it was filed 36 months late under the Public Authorities Protection Act, 1948. </div>
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But the learned judge had made a very strong observation on police investigation. Vazeer said: “In the beginning, I alluded to the fact that this is the sequel to a sad saga, which is now part of the annals of the nation’s legal history. The helplessness of the plaintiff in the face of the fraud perpetrated leading to the loss of the said lands is very evident. </div>
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“The apparent negligence and breach of statutory duty by the defendant and the complete inaction of the police in bringing the forger and fraudster to book is very disturbing indeed. After all, the fraudster was represented by a firm of solicitors in Penang in the transfer of the said land to Adorna and there would have been sufficient leads for investigations.” </div>
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In fact, I echoed such views in “<a href="http://www.rogertan.com/2013/06/justice-not-served-cousins-piya-left.html" target="_blank"><b>The stink of injustice</b></a>” (<i>The Sunday Star, June 9, 2013</i>) that this is one injustice that stinks to high heavens! I wish to reiterate that unless this stink is removed, it will indelibly remain a huge dent on foreign investors’ confidence in our land offices, police investigations and the administration of justice. </div>
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It must be stressed that two police reports were lodged and rather at an early stage too – on July 12,1989 by Boonsom’s lawyer from Messrs Lim Kean Siew & Co and on July 22,2002 by Kobchai. But to date, there has not been a whisper from the police or the Attorney General’s Chambers on this matter. </div>
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Incidentally, in July last year, the Inspector General of Police Tan Sri Abdul Hamid Bador vowed to re-investigate thousands of “cold” cases. He reportedly said that he understood the frustration experienced by the public and admitted that thousands of ‘cold case’ files were not acted upon effectively. Last Sunday, Abdul Hamid said it again that all ‘cold cases’ which have not been resolved by the federal Police Commercial Criminal Investigation Department will be re-opened for investigation. </div>
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Of course, such assurance from the highest law enforcement officer will warm the cockles of many hearts. But with all due respect, unless it is translated into real action, the assurance is only illusory.
In my view, it is high time that a special task force be set up by the police to re-investigate this cold case to ensure that justice is not only done but seen to be done. </div>
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By doing so, a strong message will be sent out to the perpetrators that you can run, but you cannot hide forever for the long arm of the law will eventually catch up with you.</div>
Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-5107404207664567792020-05-10T21:56:00.000+08:002020-05-10T21:56:29.383+08:00Tribute to my mum on this Mother's Day<div style="text-align: justify;">
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NEVER FORGOTTEN, ETERNALLY GRATEFUL: On this Mother’s Day, let me pay tribute to this woman I have the privilege of calling Mum (1925-2015). Though forever missed, we will never forget what she had gone through in her mortal life - a lot of suffering and trials; living in poverty; but always standing by her husband our dad throughout who later went missing in May 2000, at the same time looking after all of us. This video resonates with us how bad life was in the 1960s and 1970s, but never forgetting for a single moment one of the most important values of Chinese culture - our filial piety towards our parents.</div>
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In fact, mum had a miscarriage during her first pregnancy when she was 18. When her first child, a girl, was finally born, mum was a weak and frail 19-year-old girl herself. It was also in this year (1943) that our paternal grandmum in her 40s died. Believing that the newly born girl had brought bad luck to the family, maternal grandmum then decided to let the poor baby girl die in the cold outside.</div>
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She came over to Malaya with Dad in March 1947. They first settled down in Sepang, Selangor and toiled hard as pig-farmers there. A son was shortly born but died a few days later, again. Still childless at this time, they decided to adopt a girl in 1948 in the belief that later pregnancies would be smooth going. In November 1949, their own child, a girl, was born and this was followed by a son in October 1951. Much to their dismay, one more miscarriage happened in 1952. In June 1955, they were blessed with another daughter. But life then was still bad, and they lived in poverty and under the constant fear of the communist insurgents which Malaya was fighting at this time. As the pig farm was located far away from home, their livelihood was severely affected by the many curfews imposed by the security forces. When another girl was born in 1957, like so many other Sepang residents then, they had no choice but to give the child up for adoption by the Christian missionaries in now known as the Convent High School, Seremban. Years later, it was discovered from the records kept at the Seremban Convent High School and confirmed by the National Registration Department that the baby girl named Mary Agatha Tan Ah Siew had died 3 months after her admission from pneumonia.<br />
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In 1958, they decided to move down to Yong Peng. The family of 6 lived in a small rented room. There, another girl was born in 1959. With the proceeds of the sale of the Sepang house and the pig farm together with the pigs and some borrowings from relatives, Dad bought a 6-acre piece of land in Yong Peng for 800 dollars which he later planted it with rubber trees. It was also in early 1970s that I learnt how to tap rubber trees.<br />
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But our access to education finally broke the chains of poverty. We managed to give her and Dad a better life from the late 80s onwards, leading to the great celebration of her 80th and 90th birthdays.<br />
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Happy Mother's Day to all mothers. Thank you for all your sacrifices.🙏<br />
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永不忘记,永远感激: 在这个母亲节,让我向这一位我享有特权唤一声母亲的女人致以敬意。虽然永远无法再相见, 我们将不会忘了她这一生所经历的一切 – 她在经历了那么多的痛苦和考验; 生活在贫困之中; 却始终陪伴在她的丈夫,我们的父亲身边 ,(我们的父亲随后在二零零零年五月失踪), 同时照顾着我们。这段视频让我们对六十及七十年代的生活是多么的糟糕产生共鸣,但一刻也别忘了华人文化中其中一个最重要的价值-那就是对父母的孝道。<br />
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其实,母亲在十八岁那年首次怀孕即告流产。当她产下她的第一个孩子,一名女婴时,她也只是一名年仅十九岁的脆弱女孩,产后的她身体也十分虚弱。同年(一九四三年),祖母逝世,享年才四十多岁。外祖母认为,那是初生的孙女为家人所带来的不幸,于是便任由她流落街头冷死。<br />
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她于一九四七年年三月随父亲来到马来亚。 他们先定居于雪兰莪的雪邦,并以养猪为生。 不久,母亲产下一名男婴。可惜,出生数天后便夭折。他们当时尚未有任何子女,于是在一九四八年收养了一名女孩,希望她会为家中带来兄弟姐妹。次年十一月,他们首名女儿出世,紧接着,于一九五一年十月又再诞下一名男婴。翌年,母亲再度流产,令他们深感气馁。一九五五年六月,二女儿的出生为他们带来无限欢乐。可惜好景不常,他们的生活变得十分艰难,除饱受贫困之苦外,亦因当时马来亚正值共产党叛乱,他们备受战火威胁。由于养猪场离家甚远,加上军方实施宵禁严重影响了他们的生计。一九五七年,母亲再诞下一女,就像许多雪邦的市民一样,父母无力抚养她,只好把她交给芙蓉市的天主教传教士收养。数年之后,经由芙蓉市修道院中学[译名]的记录得悉,并经国家人口登记局证实,该名女婴,被命名为玛莉,并于她患上肺炎三个月后离世。<br />
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一九五八年,父母决定迁居永平,一家六口租了一间小房间居住。就在永平,母亲再产下一名女儿。靠变卖雪邦的房子、猪场和猪只所得,加上向亲友借贷,父亲花了800马币买下六英亩土地用来种植橡胶树。我也是在七十年代初学会了割取树胶。<br />
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但我们所受的教育终于打破了贫穷链。我们自八十年代末起便能够给予她和父亲更好的生活,并盛大的庆祝了她的八十和九十大寿。<br />
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祝所有的母亲母亲节快乐。谢谢您们的牺牲。🙏</div>
Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-33874147022607950332020-04-29T15:53:00.000+08:002020-05-06T16:01:13.798+08:00MPs urged to pass Covid-19 bill<div class="separator" style="clear: both; text-align: center;">
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<b>PETALING JAYA:</b> The Bar Council’s Conveyancing Practice Committee has called politicians to put aside their differences for the sake of the country to pass a Covid-19 bill in the coming May 18 Parliamentary sitting. </div>
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At a webinar meeting yesterday “Adequacy of our laws on stratified properties during and post-MCO”, president and panellist Datuk Roger Tan said without this bill, there would be massive litigation, done on a piecemeal basis, for failure to perform contractual obligations after the lifting of the MCO. </div>
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To avoid that situation, the enactment of such a bill would at once cover all contractual obligations to be performed on or before a certain time. </div>
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“Singapore, the United Kingdom, Australia, Ireland, Scotland and even Hungary have done it, ” Tan said. </div>
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“This bill would provide ‘a legal shield’ to all businesses big and small, and across all sectors of the economy. </div>
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Tan said these measures were temporary and should be in place for a prescribed period. </div>
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“In other words, the non-performing party’s liabilities will be suspended and non-enforceable during the prescribed period, ” he said. </div>
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The enactment of such a bill is to “safeguard” against any unfair outcomes, Tan said. </div>
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Another panellist, National House Buyers Association honorary secretary-general Datuk Chang Kim Loong said while the government has granted financial assistance in various economic stimulus packages to sustain and “re-start” business, it has not looked into the legal issues to shield businesses and individuals for non-performance of their contractual obligations. </div>
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This “relief” is of utmost importance as contracts and agreements are part and parcel of our everyday lives. </div>
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“People need protection, contracts need protection, ” he said. </div>
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A buyer may have undertaken obligations to buy a house but he cannot arrange a loan due to the MCO. This is a disadvantage to him and he cannot to sued for failure to do so. So such a bill is to protect the little man. </div>
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Or you may have planned to get married in a hotel but because of the MCO, the hotel forfeits 50% of your booking fees. </div>
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Or a company may have some obligations which it cannot perform because of the MCO and this involves millions or billions of ringgit. </div>
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A Covid-19 bill provides that legal shield for all parties, a “time-freeze” while both parties pick themselves up and carry on. </div>
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They need time to pick up speed, what some may call “the injury time”, said Chang. </div>
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On calls by some lawyers to use certain sections of the Housing Development (Control and Licensing) Act 1966 (Act 118) & Regulation to enable the minister to make regulations to prescribe certain forms of contracts to be used by a developer, and/or to regulate or prohibit the conditions and terms of any contract, Chang said this is flawed. </div>
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Unilateral and retrospectively change is not possible, he said. </div>
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“The best option to address failure to perform contractual obligations is a Covid-19 bill, a stand alone act to protect all contracts in the market, ” Chang said. </div>
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A third panellist Wong Kok Soo, technical advisor for the Association of Valuers Property Managers & Estate Agents in Private Sector Malaysia (PEPS) said it is unwise to waive monthly charges for stratified properties although there is a provision to reduce the rate of monthly charges and to waive late payment charges. </div>
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This is provided this is agreed upon after convening an annual general meeting or an extraordinary general meeting, both of which would be sticky given the need for social distancing even post-MCO. Wong said the pool pump has to continue working although the pool cannot be used, otherwise algae will grow. </div>
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“The cost of rehabilitating some of the services will be even more extensive. Security services and disinfectant services will be needed as exemplified by Menara City One, Selangor Mansion and Malayan Mansion. </div>
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“Whatever little savings you can save, you will have to spent more for disinfectant services, for clothes, face masks, aprons and sanitisers to help safeguard the community living there, ” Wong said.
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-2023720714218190302020-04-06T11:44:00.000+08:002020-04-06T11:44:55.502+08:00Malaysia too needs a Covid-19 Bill<div style="text-align: justify;">
<b>The Star Biz</b></div>
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<b><i>by Roger Tan</i></b></div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj5PKMpHq8zb_X1BRDKcv6nHP-Nd2yOssSr2NG1N7GRFCiZ-KVPckrsUx98fFo7ENqbDZuKbUvMzi470tKvVHYKzZklzMGEI6doVAfNFOcezux2y8Oo6oOZA1a2G9Qbfa8UOZk29lp6jnk/s1600/StarBiz-2020-04-06-500.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="462" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj5PKMpHq8zb_X1BRDKcv6nHP-Nd2yOssSr2NG1N7GRFCiZ-KVPckrsUx98fFo7ENqbDZuKbUvMzi470tKvVHYKzZklzMGEI6doVAfNFOcezux2y8Oo6oOZA1a2G9Qbfa8UOZk29lp6jnk/s1600/StarBiz-2020-04-06-500.jpg" /></a></div>
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MALAYSIA should enact a law similar to the one proposed by the Singapore government to offer temporary relief to businesses, in particular SMEs and individuals who are unable to perform their contractual obligations because of the movement control order (MCO) brought about by the Covid-19 pandemic. </div>
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On April 1, the Singapore Ministry of Law announced that it intended to introduce the Covid-19 (Temporary Measures) Bill this week. </div>
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The Bill will have a retrospective effect and cover contractual obligations that are to be performed on or after Feb 1,2020 and contracts that were entered into or renewed before March 25,2020. </div>
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According to its statement, Feb 1 was used as the approximate date when the impact of Covid-19 started to be significantly felt in Singapore’s economy. </div>
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These measures will be in place for a prescribed period, which will be six months from the commencement of the new law, expected to come into force this month itself, and may be further extended for up to a year from the commencement of the new law.
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In other words, the non-performing party’s liabilities will be suspended and non-enforceable during the prescribed period. </div>
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Contracts covered by the Bill are: </div>
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> Non-residential leases and licences in that if the commercial tenants or licensees are unable to pay rent for February and/or March, they may seek relief; </div>
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> Construction and supply contracts in that the contractors will not have to pay damages for late delivery or non-performance of contractual obligations; </div>
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> Contracts for the provision of goods and services (eg, venue, catering) for events (eg, the cancellation of weddings, business meetings) and for visitors to Singapore, domestic tourists or outbound tourists, or promotion of tourism (eg, the cancellation of cruises, hotel accommodation bookings), for example, there shall be no forfeiture of booking fees or deposits; and </div>
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> Certain loan facilities granted by a bank or a finance company to SMEs with turnover of not more than S$100mil in the latest financial year. </div>
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The Bill will prohibit a contracting party from taking the following legal actions against a non-performing party: </div>
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> Court and insolvency proceedings. As regards insolvency proceedings, the monetary thresholds to take bankruptcy or insolvency proceedings against individuals and businesses (companies and partnerships) are increased to S$60,000 and S$100,000, respectively. </div>
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Similarly, the statutory period which debtors are required to respond to creditors before insolvency proceedings can be commenced will also be lengthened. </div>
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> Enforcement of security over properties used for the purpose of business or trade. This covers private-hire drivers who are unable to afford monthly instalments on their hire-purchase loans. </div>
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> Call on a performance bond given pursuant to a construction contract. </div>
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> Termination of leases of non-residential premises. </div>
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If relief is given under this new law, it will become an offence for any individual or organisation to take legal action against the non-performing party if that party has given a notice of his inability to fulfil the contract due to Covid-19. </div>
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According to the Singapore Ministry of Law, it will also employ about 100 assessors (mainly lawyers) to resolve disputes arising from the application of measures under this new law. </div>
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This is to safeguard against any unfair outcomes, especially when parties fail to come to an amicable settlement or they dispute the application of the new law. </div>
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The assessors’ decisions will be final and not appealable. Similarly, parties are not allowed to be represented by lawyers, and there will be no order as to costs. </div>
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I am of the view that this protective legislation as proposed in Singapore to protect contracting parties should also be introduced here, urgently.
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However, our legislation should be simple and to the point. </div>
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It should protect all parties to any contract from being deemed to be in breach of the contract simply because of an inability to perform any obligation of the contract owing to Covid-19 and, in particular, due to the MCO. </div>
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Many contracting parties, either on their own or through their solicitors, have not been able to perform their contractual obligations owing to the MCO. </div>
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For example, whilst banks are open for business, lawyers are not permitted to return to their office to retrieve their files or access their cheque books. </div>
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Hence, solicitors are not able to release moneys held by them as stakeholders. </div>
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It follows that legal services should have been listed as essential services in the regulations made under the Prevention and Control of Infectious Diseases Act, 1988 (Act 342). Vendors of properties are also unable to deliver vacant possession of properties to purchasers. </div>
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As land offices are also closed, bank solicitors are not able to register transfers of land title and charges to financing banks. </div>
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This will result in the banks not being able to release loan sums to complete a sale and purchase transaction. </div>
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As a result, such purchasers and borrowers are not able to complete the sale within the period stated in the sale and purchase agreement (SPA), which unless extended by the vendors, is an event of default, entitling the vendors to terminate the sale and forfeit the deposits as most agreements do not contain clauses dealing with force majeure or changes in circumstances. </div>
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Hence, a statutory force majeure clause should be automatically inserted into such written contracts to excuse any inability of a contracting party to perform due to Covid-19 and the MCO. </div>
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It should apply to all contracts, including loan and financing contracts, SPAs of immovable and movable properties, tenancies, hire-purchase agreements and construction and services contracts. </div>
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On the other hand, the application of the limitation period should be automatically suspended during the MCO period and an extension of time, which is commensurate with the MCO period, should be automatically given. </div>
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Needless to say, a brief period of moratorium should be imposed to prevent recovery and court proceedings being taken against contracting parties. </div>
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This would give a chance and lifeline to individuals and businesses to get back on their feet in a post-Covid-19 environment. </div>
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Like the Singapore Bill, the right to commence insolvency proceedings should be deferred and restricted accordingly.</div>
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Further, instead of appointing assessors to deal with disputes arising from this new law, we can avail to the ready pool of advocates and solicitors who sit as presidents in various tribunals such as the Tribunal for Consumer Claims; the Tribunal for Homebuyers’ Claims and the Tribunal for Strata Management. </div>
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These presidents can be empowered and automatically roped in to deal with such disputes under the new law.
This is indeed an extraordinary time and it requires extraordinary measures. </div>
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Stay safe and stay positive everyone. Let us all protect ourselves and our country against Covid-19.</div>
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<b>Datuk Roger Tan is a senior lawyer and the chairman of the Bar Council’s Conveyancing Practice Committee. Views expressed here are entirely his own.</b></div>
Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-90009693945609155902019-12-27T20:42:00.000+08:002019-12-28T20:45:11.403+08:00<div style="text-align: justify;">
<b><i>The Star</i></b></div>
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<b>This letter was originally a <a href="https://m.facebook.com/story.php?story_fbid=10157717105809223&id=634504222" target="_blank">Facebook post</a> by Datuk Roger Tan, and is republished here with his permission. </b></div>
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<b>DURING the Christmas break</b>, I chanced upon this 39-year-old A4-size cardboard mockup (<i>pic</i>) of a report on a student election held at Tunku Abdul Rahman College (TARC). The mockup was given to me by the editorial board of the 1980 magazine of the School of Pre-University Studies at TARC (which is now known as Tunku Abdul Rahman University College). It brought back lots of memories that I would like to share. </div>
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The report was about the first student representative election held at TARC. In 1980, TARC comprised several schools, including the School of Pre-University Studies (SPUS). Many of the first-year SPUS (Lower Six) students studied outside TARC’s main Jalan Genting Klang campus, Kuala Lumpur, including myself; I attended the Jalan Cheras Secondary School, next to Taman Midah, KL, in 1979. All students, however, would continue their Upper Six studies on the main campus. </div>
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Of course, without TARC, I would not have been able to do any A Level (or Higher School Certificate, HSC, as it was known then) studies at all, as I hailed from the little town of Yong Peng, Johor, and had to survive on an all-in monthly pocket money allowance of M$200. This included travelling daily from my brother’s house near Batu Caves to the Jalan Cheras Secondary School on a journey that usually took about an hour and half, including a 2km walk from the house to the main road to catch a stage bus. That explains why I was then only one third of my current size! </div>
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Being so thin and small-built, I was soon a common target of extortionists operating in the crowded Puduraya Bus Station or along Jalan Chow Kit or Jalan Ipoh where I had to switch from a stage bus to a mini bus. But the gangsters stopped harassing me after I started carrying a file with a prominent pamphlet on its cover with the Chinese words for either “Jesus Loves You” or “Jesus Saves You”. They probably stayed away to avoid being preached at! </div>
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Students studying outside the TARC main campus generally felt a little neglected as students on the main campus got to enjoy various facilities; we especially missed using the main library there. Hence, a group of us got together to offer a candidate to stand for student elections in January 1980. I was asked to stand and I knew it was no easy feat, as I would be going up against two candidates from the main campus. Nobody there knew who I was. So in order to help the city folk remember the name of this kampung boy, I campaigned under the name of “Roger Tan” instead of my Chinese name. </div>
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The initial response to my campaign was hostility, especially from students on the main campus. I had to deliver election speeches moving from one lecture hall to another. Having been a head prefect at my Yong Peng secondary school, my experience in public speaking came handy. </div>
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Even more fortunate than that was the fact that I was a part of the English and Chinese literature lecture group. Most of my lecture mates were girls – not just ordinary looking girls but pretty ones! Freshie Queen Janet Tai, Disco Queen Yh Teh and Miss Malaysia candidate Rosalind Chan all came from this group, and not forgetting Wong Sweet Lo! When they began accompanying me on my campaign rounds, the hostility disappeared as the boys quickly turned their attention on to my pretty campaigners! </div>
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With their command of the English and Chinese languages, my lecture mates and my supportive housemates Andy Chee, Tey Kok Joo, Andy Oon Ean Tan, and Poh Leng Fong came up with all sorts of eye/ear-catching slogans! I started off with a huge 10-point manifesto placard hung up at the college entrance. I remember one point was that I pledged to act fearlessly in protecting the interests of the students against any interference or intimidation. </div>
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At this time at the national level, Lee San Choon and Michael Chen were fighting for the MCA presidency but with all the election materials for our student elections being hung around on the campus, the feeling on campus was akin to the national MCA election fever! </div>
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Soon enough, I was summoned to the vice-principal’s office. Mr Lee Ker Foon wanted to know why was I so political and what did I mean by intimidation because the college management had never intimidated any student! (Note: Mr Lee, who was then also head of SPUS, and I later became good friends. Then deputy SPUS head, Mr Tsen Wei Kong, was also a mentor. I learnt so much from him especially in the manner in which we come to grips with problems, and especially in changing my rigid mindset to a moderate one. I am eternally grateful to him.) </div>
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Then came election day on Feb 12,1980. Only the Upper Six students were eligible to vote, numbering about 1,100. But we were required to elect two student representatives. But we were required to elect two student representatives. So the only way to get around it was for my pretty election managers to march students to voting centres in groups – hence, I won a landslide victory!
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But all this work was not without personal cost. I remember half way through 1980, I was offered a place at a Teacher’s Training College but because I had promised to serve as a student representative, I did what was unthinkable in those days and rejected the government’s offer, much to my mum’s displeasure. Alas, by devoting my student life to looking after the welfare of fellow students, I neglected my studies and had to repeat my A Levels. But looking back, this is not something that I am ashamed of because I can now say proudly and with a clear conscience that I fulfilled my election manifesto. </div>
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If need be, I would do it all again to protect the welfare of the students of my alma mater against any interference or intimidation and without fear or favour in the true spirit of a Tarcian!
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<b>This letter was originally a Facebook post by Datuk Roger Tan, and is republished here with his permission. Tan is a senior lawyer and chairman of the Conveyancing Practice Committee of the Bar Council</b></div>
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-68718442405184283532019-12-01T13:33:00.000+08:002019-12-09T13:37:10.285+08:00Upholding the rights of house buyers<div style="text-align: justify;">
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiEHgsbFl-b7VG0LAkZeRT3UM6FNkNeSv9sUqQvWTN-bmWtxkJPPRMpfv5ycUf13dMQa7PYOHTbX3dgk_NZqyxdiE1h4XjmHYsyfBcU9oZEEu31aquB2VctKoHPYQ0f0Cwm8gFUbGVfKgs/s1600/2019-12-01-500.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="313" data-original-width="500" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiEHgsbFl-b7VG0LAkZeRT3UM6FNkNeSv9sUqQvWTN-bmWtxkJPPRMpfv5ycUf13dMQa7PYOHTbX3dgk_NZqyxdiE1h4XjmHYsyfBcU9oZEEu31aquB2VctKoHPYQ0f0Cwm8gFUbGVfKgs/s1600/2019-12-01-500.jpg" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Dream house?: A young boy admiring the scale model of a housing project at a property fair in Penang last year. – Filepic</td></tr>
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<b>The Sunday Star</b></div>
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<b><i>by Roger Tan</i></b></div>
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ON Tuesday , the Federal Court ruled that the housing controller has no power to waive or modify provisions of the contracts of sale as prescribed by regulations 11(1) and (2) of the Housing Development (Control and Licensing) Regulations, 1989 (1989 Regulations).<br />
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The 1989 Regulations were made by the housing minister pursuant to section 24 of the parent Act, namely the Housing Development (Control and Licensing) Act, 1966 (Act 118).<br />
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These contracts of sale are better known in the housing industry as Schedules G, H, I and J, depending on the types of housing accommodation being developed.<br />
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The prescribed contracts of sale include provisions stipulating the time for delivery of vacant possession and they have to be strictly followed; failing which the defaulting party can be liable upon conviction to a fine not exceeding RM50,000 or to a jail term not exceeding five years or to both. Further, any person who aids, abets or counsels the commission of the offence will face similar punishment upon conviction.<br />
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Hence, regulation 11(3) which came into force on April 1, 1989 and remained unamended since, allowed the controller to waive or modify the provisions of the contract of sale if he was satisfied that there were special circumstances or hardship or necessity; compliance of which with any of the said provisions was impracticable or unnecessary.<br />
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Regulation 12 then provides for any person aggrieved by the controller’s decision to appeal to the minister whose decision is final and shall not be questioned in any court.<br />
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One common modification sought by the developers to the contract of sale is to apply, before the expiry of the stipulated date fixed for handing over of vacant possession, for an extension of time (EOT) so that the developers will not be sued for late delivery and face a claim for liquidated damages (LAD) by the house buyers.<br />
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On May 14, five questions were posed to the five-member panel of the apex court namely, Chief Justice Tengku Maimun Tuan Mat, Justice Azahar Mohamed, Justice Alizatul Khair Osman Khairuddin (who has since retired), Justice Idrus Harun and Justice Nallini Pathmanathan. In delivering the unanimous decision of the apex court, Justice Tengku Maimun ruled that:<br />
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> the controller has no power to waive or modify any provision in the contract of sale;<br />
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> section 24 of Act 118 does not confer power on the minister to make regulations for the purpose of delegating his power to waive or modify the contract of sale to the controller; and<br />
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> regulation 11(3) is ultra vires (beyond the powers of) Act 118.<br />
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The apex court, however, declined to answer the following two questions posed by the developer, BHL Construction Sdn Bhd because the above ruling effectively meant that there was no decision by the minister:-<br />
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> whether the letter granting an extension of time after an appeal pursuant to regulation 12 must be signed personally by the minister and whether the minister could delegate his duties (signing of the letter granting the extension of time) to an officer in his ministry; and<br />
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> whether the minister having taken into consideration the interest of the purchaser is obliged to afford the purchasers a hearing prior to the minister granting the extension of time <i>albeit </i>there is no such provision or requirement in Act 118 or the 1989 Regulations.<br />
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At the appeal hearing, the learned counsel for the purchasers, Datuk Andy Wong Kok Leong was reported to have submitted as follows: “Regulation 11(3) gives power to the controller to grant this extension of time. So we are saying that the controller cannot be given this power because it should be exercisable by the minister.” (“Apex court reserves judgment in house buyers vs developer case”, <i>The Star,</i> May 14, 2019)<br />
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The Chief Justice agreed, adding that when Parliament conferred the power and discretion on the minister to make regulations under section 24(2)(e) of Act 118 to regulate and prohibit the terms and conditions of the contract of sale, Parliament did not intend this power or discretion to be exercised by any authority other than by the minister himself.<br />
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Justice Tengku Maimun also gave the following grounds in arriving at the decision:<br />
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> As Act 118 is a social legislation to protect the house buyers, the interests of the purchasers shall be the paramount consideration against the developer. There is nothing in Act 118 to show that the minister’s duty to safeguard the interests of the purchasers may be delegated to other authority as this will “militate the intention of Parliament”.<br />
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> If the minister has delegated his decision making power to the controller under regulation 11(3), then there should not even be an appeal process from the decision of the controller to the minister under regulation 12 as this is as good as an appeal to the minister against his own decision.<br />
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> There is no merit in the developer’s argument that the purchasers would suffer greater hardship if the project is not completed because if the developer fails to obtain an EOT, this would not mean that the developer has failed to complete or has abandoned the project as an EOT only determines the payment of LAD.<br />
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> Even though sub-sections 4(3) and 4(4) expressly allowed for the delegation of the controller’s powers and functions under Act 118 to persons such as deputy controllers, inspectors and any public officer or officer of a local authority, there is no such express provision for the minister to delegate his powers to the controller to regulate the terms and conditions of a contract of sale. It is, therefore, not open to the court to read into section 24 an implied power enabling the minister to delegate his powers to the controller.<br />
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It is now apposite to make a clarification as regards the statement by the learned Chief Justice in paragraph 23 of the judgment that the Bar Council supported the position taken by the developer. With all due respect, the Bar Council did not. If at all, counsel for the Bar Council was only reiterating the principles laid down in the case of <i>Carltona, Ltd v Commissioners of Works and Others</i>, 1943 which also formed the submission of the senior federal counsel who appeared for the minister and controller that the minister has the implied power to delegate and the minister’s functions can be performed either personally or on his behalf by his officers.<br />
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To quote Lord Greene, M.R. in the Carltona case: “It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister.”<br />
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Even though this submission did not persuade the court, counsel for Bar Council did agree with the purchasers’ argument that the minister’s decision to allow the appeal from the developer BHL Construction Sdn Bhd was invalid because the letter signed by his officer did not comply with Section 17 of the Delegation Of Powers Act 1956.<br />
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<i>A fortiori</i>, the Bar Council had also emphasised that modifications to contracts of sale did not just involve EOTs. They could involve multi-farious modifications as the standard prescribed contracts of sale are incapable of catering for every eventually. In fact, some modifications such as by extending the time for progressive payments or amending the amounts of progressive payments by home buyers, for example, in government projects for affordable housing, work in the interest of home buyers. In other words, whilst one group of the purchasers would benefit when EOTs are invalidated, another group of purchasers may suffer if modifications which are to their advantage are now extinguished as a result of this decision.<br />
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The reason being, in my humble opinion, this decision of the apex court will have retrospective effect on all other modifications made before this. After all, if regulation 11(3) has been declared void, it has to be void <i>ab initio</i> (from the beginning).<br />
<br />
In <i>Public Prosecutor v Mohd Radzi bin Abu Bakar,</i> 2005, the Federal Court held that it is a fundamental principle of adjudicative jurisprudence that all judgments of a court are retrospective in effect. This principle not only applies to constitutionality of statutes but also to decisions in other areas of law unless a specific direction of prospectivity is expressed in the decision. There is none in Justice Tengku Maimun’s judgment unlike in other cases such as <i>Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and Anor</i>, 2017.<br />
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It is my considered view that if henceforth no modification is allowed due to special circumstances, hardship or necessity, the housing industry may just grind to a standstill. But this problem is not altogether insurmountable. Whilst it may take time for Parliament to amend section 24 to empower the minister to delegate his powers to the controller, the 1989 Regulations can, however, be amended by the minister any time.<br />
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In this respect, the minister can always insert a new regulation 11(3A) to allow parties from now on to apply to him for a waiver or modification to the provisions of the contract of sale. At the same time, the minister has to repeal the appeal provision in regulation 12. Administratively, the applications will still be processed by ministry officials but if any letter conveying the minister’s decision is not signed by him personally but signed by his officer on his behalf, then strict adherence must be had to the procedures set out in section 17 Delegation Of Powers Act, 1956 such as authorising such officer by way of a certificate.<br />
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Having said that, if this approach is taken by the ministry, then it is indeed a matter of regret that the apex court had declined to deal with the issue of affording the purchasers a right to be heard prior to the minister approving any waiver or modification notwithstanding that Act 118 does not expressly provide for such a requirement. Otherwise, it will greatly strengthen the rights of the purchasers.<br />
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This is of particular concern because according to the data collected by the House Buyers Association, 536 EOTs were actually granted since 2014. It follows that if the right to be heard is now not expressly provided in Act 118 or the 1989 Regulations, the powers of the minister can be easily abused and are also susceptible to corrupt practice. The purchasers will ultimately be at the mercy of the developers, especially those who have strong political and personal links to the powers that be.<br />
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I now recall when I was helping the housing ministry pro bono to revamp Act 118 in 2002 and 2007, the then housing minister actually requested for regulation 12 to be removed so that he would not be harassed by the developers. In those days, granting an EOT was almost unheard of.<br />
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In any event, the apex court has now made it abundantly clear to the government that it is duty bound under Act 118 to safeguard the interests of home buyers whose interests must always prevail over that of the developers. Otherwise, the court will remain steadfastly the purchasers’ rampart against such encroachment.<br />
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<b><i>Datuk Roger Tan is the chairman of the Conveyancing Practice Committee of the Bar Council. His views herein do not constitute legal advice, and are entirely his own. </i></b><br />
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-76170486857270248322019-09-28T09:32:00.000+08:002019-09-30T09:33:56.046+08:00'Review fees for loan documents'<div style="text-align: justify;">
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<tr><td class="tr-caption"><b>The Bar Council said it is high time for banks to review its practice of imposing fees for loan documents. (Image by Pixabay: For illustration purposes only)</b></td></tr>
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<b><i>New Straits Times</i></b><b></b><br />
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<b>Banks' practice against the law, a burden to customers, says Bar Council official </b><br />
<b><br /></b>
<b><b>KUALA LUMPUR: </b>The Bar Council said it is high time for banks to review its practice of imposing fees for loan documents.</b><br />
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Bar Council conveyancing practice committee chairman Datuk Roger Tan said the practice was against the law and has a become a burden which consumers could do without.<br />
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He said the fee was imposed on the banks’ loan documents, which borrowers sign when taking, for example, a housing loan.
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“These documents are largely standardised documents for each bank.
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“The bank’s solicitors will typically download the documents from the bank’s website and, after completing the particulars relating to the borrower and the loan, print for the borrower’s signature,” said Tan.
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He said banks currently charge a fee for the ‘purchase’ of these documents ranging from RM100 to RM500, even though the cost of printing the documents is borne by the solicitors.
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He said that the document fee is usually passed on to the borrowers as part of the solicitor’s charges. However, Tan said that in some cases, solicitors are compelled by the banks to absorb these costs.
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“This results in the borrowers having to pay additional costs when taking a loan from a bank and the solicitors getting peanuts for the professional work done especially purchasers of low- and medium-cost and affordable homes.<br />
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“The Bar Council objects to the banks charging such a fee,” said Tan.</div>
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He cautioned against imposing the fees as the sale of loan documents was a breach of section 37(2) of the Legal Profession Act 1976.</div>
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That subsection states that any unauthorised person either directly or indirectly draws or prepares documents relating to any immovable property for or in expectation of any fee or gain shall be guilty of an offence under that subsection.
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Tan said the Bar Council regretted that despite several representations made to Bank Negara Malaysia, the central bank had failed to put a stop to the "unhealthy practice" which unfairly increased the financial burden on consumers.
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He said this would, in turn, mean that Bank Negara failed in its role as the regulator of banks in Malaysia.
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“Surely, the central bank cannot be waiting for the Federal Court to intervene again before it decides to act on it just like in the case of the British borrower Anthony Lawrence Bourke and wife who succeeded in declaring that it was unconscionable for banks to seek refuge behind exclusion clauses.
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“The Central Bank must lead and spare a thought for the borrowers and solicitors who are often at the mercy of this unequal bargaining with the powerful financiers”, said Tan.
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He, however, welcomed a recent move by Malaysian banks to do away with the charges for cash and cheque transactions for credit cards and financing repayments for over the counter and cash deposit machines transactions.</div>
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-23873910332345208982019-07-12T12:29:00.000+08:002019-07-13T12:44:54.444+08:00Who is Roger Tan, the lawyer in Pastor Koh and Amri’s task force?<div style="text-align: justify;">
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<span lang="EN-GB">Senior lawyer Datuk Roger Tan Kor Mee is one of<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-GB">the two latest additions to the special task force probing<o:p></o:p></span></div>
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<span lang="EN-GB">the high-profile enforced disappearances of
Pastor<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-GB">Raymond Koh and social activist Amri Che
Mat.<o:p></o:p></span></div>
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<span lang="EN-GB">— Picture via RTNP.my<o:p></o:p></span></div>
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<b>Malay Mail</b></div>
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<b><i>by Ida Lim</i></b></div>
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<div style="text-align: justify;">
<b>KUALA LUMPUR, July 12 — </b>Senior lawyer Datuk Roger Tan Kor Mee is one of the two latest additions to the special task force probing the high-profile enforced disappearances of Pastor Raymond Koh and social activist Amri Che Mat, but who is he? </div>
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<div style="text-align: justify;">
Tan is currently serving as a Bar Council member, but his peers and his long list of achievements can easily attest that his appointment is not mere tokenism for better diversity in the government’s seven-man task force. </div>
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Here’s a quick look by <i>Malay Mail</i> at Tan’s background, based on his law firm’s website and publicly available information: </div>
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Tan, who was born in Yong Peng, Johor and has a law firm in his home state, graduated with a law degree from Queen Mary College, University of London and also holds a master of law from the National University of Singapore.<br />
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Trained as a barrister of the UK’s Gray’s Inn, Tan was admitted as a lawyer in peninsular Malaysia in October 1989 and is also qualified to practise as a lawyer in Singapore. </div>
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Throughout his 30-year career, Tan had actively contributed to the legal community, including as Bar Council member for the years 2004 to 2009, during which he was also the webmaster for the Malaysian Bar’s website which he went on to redesign. </div>
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Lawyers who backed his offer to be a Bar Council member for the current term of 2019-2020 had listed Tan’s long list of positions in the Bar Council, including as deputy chair of its IT and Cyber Laws Committee (2004-2005), chairman of its Conveyancing Practice Committee (2006-2008) and also chairman of its National Young Lawyers Committee (2008-2009). </div>
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Tan was also the organising chairman of the 14th Malaysian Law Conference in 2007, and had returned as Bar Council member for the 2017-2018 term besides also coming back to chair its Conveyancing Practice committee since 2016. </div>
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He is also on the Advocates & Solicitors Disciplinary Board for the term 2017-2019, a role which he had previously served in 2013 to 2015.</div>
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<b>Here to serve </b><br />
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Tan is no stranger to public service or work done to assist the government, as he is said to have acted as an external legal consultant since 1992 for the Johor government and federal statutory bodies in matters such as privatisation and joint ventures.<br />
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Besides having acted as the first company secretary of several investment units of the Johor government, Tan is also listed to have been involved in the drafting of several Johor laws on water supply and federal laws relating to housing developers and the management of solid waste.<br />
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Tan was also a board member of the Solid Waste Management and Public Cleansing Corporation of Malaysia for a maximum permitted six-year term from 2009 to 2015, and was a National Water Services Commission of Malaysia (SPAN) commissioner from 2009 to 2017.<br />
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His love for the nation can be seen when he was interviewed several years ago by local daily <i>The Star</i>, where he acknowledged how being a SPAN commissioner was a “sacrifice” for lawyers who are actively practising.<br />
<br />
“When I was appointed in 2009, the monthly allowance was a meagre RM1,200. It was later increased to RM2,000 with a RM500 meeting allowance. Much of my time was spent away from my firm but nothing beats the joy of serving your country,” he was quoted saying.<br />
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In a message on his Twitter account following his July 10 appointment to the special task force, Tan humbly said: “Thank you for all your messages but please do not congratulate me. I accept this appointment with full knowledge that it comes with a very huge responsibility together with the public’s expectation for truth and justice. ❤ #malaysia”<br />
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<span style="font-size: 12.8px;">Datuk Abdul Fareed Abdul Gafoor said Tan </span><span style="font-size: 12.8px;">is suited for the new task. </span></div>
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<span style="font-size: 12.8px;">— Picture by Yusof Mat Isa</span></div>
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<b style="text-align: justify;">A vote of confidence </b></div>
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<i>Malay Mail</i> spoke to Tan’s fellow lawyers, and here is what they have to say regarding his appointment:<br />
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Malaysian Bar president Datuk Abdul Fareed Abdul Gafoor said: “It’s a recognition of a member of the Bar by the present government and we welcome the move. Roger Tan is a senior and experienced council member and is fit for the job.”<br />
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Former Malaysian Bar president Datuk Ambiga Sreenevasan told <i>Malay Mail</i> that she was “very heartened” to see that Tan has been included in the task force.<br />
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“I have known Roger since we were both Bar council members many years ago. He completely revamped the Bar website and made it come alive. He undertook difficult tasks and dealt with them responsibly, professionally and with integrity.<br />
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“He played a major role in galvanising support for the Bar’s Walk for Justice. He was one of the most hardworking members of Council, and I have no doubt he will be an asset in a task force that demands nothing less than the highest level of courage, transparency and independence,” she said.<br />
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<span lang="EN-GB">Datuk Ambiga Sreenevasan praised Tan for
his </span><span style="font-size: 12.8px;">integrity and professionalism.</span></div>
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<span lang="EN-GB">— Picture by Ahmad Zamzahuri<o:p></o:p></span></div>
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Ragunath Kesavan, also a former Malaysian Bar president, hailed Tan’s inclusion as a “good appointment”.<br />
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“I have full trust and confidence in Roger Tan. I have known him as a Council member and fellow lawyer for at least 15 years and he is well respected and principled and I am sure he will ensure that the truth prevails,” he told <i>Malay Mail</i> when contacted.<br />
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Datuk Lim Chee Wee, who was also previously the Malaysian Bar’s president, expressed similar confidence in Tan as he embarks on his new role.<br />
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“Roger Tan is an honest, independent, courageous, intelligent and trustworthy man who will do the right thing. I am confident that he will leave no stone unturned to get to the truth of this tragedy,” Lim told <i>Malay Mail</i>.<br />
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On July 10, the Home Ministry named Tan along with MACC’s inspection and consultancy division assistant commissioner Azian Umar as the two new additions to the special task force.<br />
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Their appointments came after it was hinted that a non-Malay and another individual would be joining the task force, to replace the police’s former legal division head Datuk Mokhtar Mohd Noor who had voluntarily pulled out after public concern over possible perceived conflict of interest.<br />
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The Malaysian Bar yesterday commended Moktar for his decision as it noted the importance of preserving the task force’s image of impartiality and to have its findings seen as credible, while also welcoming both Azian’s and Tan’s appointments.
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<span lang="EN-GB">Norhayati Mohd Arifin and Susanna Koh
attend the announcement of Suhakam’s public inquiry findings into the
disappearances of pastor Raymond Koh and Amri Che Mat in Kuala Lumpur April 3,
2019.</span><br />
<span lang="EN-GB">— Picture by Hari Anggara<o:p></o:p></span></div>
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Koh’s wife Susanna, however, yesterday raised concerns regarding the task force’s chairman and former High Court judge Datuk Abd Rahim Uda and two of its original members Datuk Muhammad Bukhari Ab. Hamid (Enforcement Agency Integrity Commission’s operations division director) and Datuk Zamri Yahya (director of the police’s Integrity and Standard Compliance Department (JIPS).<br />
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The two other members of the task force, who were not disputed, are Mohd Sophian Zakaria (legal officer in the Attorney General’s Chambers’ prosecution division) and the task force’s secretary Mohd Russaini Idrus (the Home Ministry’s Police Commission’s division secretary).<br />
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The Malaysian Bar yesterday also said it was “extremely urgent” for the terms of reference to be made public, a call that was similarly made by Koh’s wife.<br />
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Koh, 64, was abducted by a group of masked men while driving in Kelana Jaya, Selangor on February 13, 2017, while Amri, 44, a co-founder of Perlis Hope Welfare Association, disappeared on November 24, 2016.</div>
Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-20040313569743981682019-01-14T12:28:00.000+08:002019-01-14T12:34:45.997+08:00Unconscionable for banks to seek refuge behind exclusion clauses<div style="text-align: justify;">
<b>The Star</b></div>
<div style="text-align: justify;">
<b><i>by Roger Tan </i></b><br />
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<span lang="EN-GB"><b>Protection needed: It is time for the
government to introduce a legislation or extend the protection currently given
to consumers under the Consumer
Protection act, 1999 to all types of
contracts, including financial dealings and transactions, involving,
particularly, purchasers and borrowers of a housing development.</b><o:p></o:p></span></div>
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In April 2008, a British couple living in the United Kingdom obtained a loan facility of RM715,487 to finance the purchase of their property in Malaysia. It was a term of the loan facility that the bank would make progressive payments to the developer against certificates of completion issued by the architect at each progress billing.<br />
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In March 2014, the developer sent a notice for a progressive payment to the bank, supported by an architect’s certificate.<br />
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The bank’s disbursement department then sent several internal emails to its branch to conduct site visit inspection on the property.<br />
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The branch did not do anything, and meanwhile, the due date for payment had also expired on March 25, 2014.<br />
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Neither did the bank notify the developer nor the couple that a site visit inspection was an additional condition precedent to drawdown.<br />
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The bank also did not request for any extension of time to make the payment pending the completion of the site visit.<br />
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On April 10, 2015, the developer terminated the sale and purchase agreement (SPA), after about one year from the issuance of the invoice.<br />
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The couple then sued the bank for breach of agreement and/or negligence.<br />
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The couple sought (i) RM273,996.24 being the total amount of loan payments that they had paid to the bank under the loan facility; (ii)RM747,481.42 being the couple’s total losses suffered due to the termination of the SPA; and (iii) the sum of RM10,975.30 being all other miscellaneous costs and expenses they had incurred due to bank’s breach and general, aggravated and/or exemplary damages.
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In defence, the bank relied on clause 12 of the loan agreement which reads as follows:<br />
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“Notwithstanding anything to the contrary, in no event will the measure of damages payable by the bank to the borrower for any loss or damage incurred by the borrower include, nor will the bank be liable for, any amounts for loss of income or profit or savings, or any indirect, incidental consequential exemplary punitive or special damages of the borrower, even if the bank had been advised of the possibility of such loss or damages in advance, and all such loss and damages are expressly disclaimed.”<br />
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The bank argued that the couple’s claim was unsustainable as the clause had excluded the bank’s liability on the ground that the fundamental principle of freedom of contract requires parties to be bound by the terms of the contract and courts must give effect to the clear and plain meaning of the words in clause 12.<br />
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The High Court agreed, in that clause 12 had absolved the bank from any liability or claim in contract and in the tort of negligence.<br />
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The High Court did not make any finding of fact whether the bank was in breach of the loan agreement or negligent when the invoice was not paid. On appeal, the Court of Appeal allowed the couple’s appeal against the decision of the High Court.
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The bank then appealed to the Federal Court.<br />
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On Dec 17, 2018, the Federal Court dismissed the bank’s appeal and affirmed the decision of the Court of Appeal by striking down clause 12 for having contravened sections 24(e) and 29 of the Contracts Act, 1950 (Act 136).<br />
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Section 24(e) of Act 136 states that any consideration or object of an agreement which is against public policy will render the agreement unlawful and void.<br />
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On the other hand, section 29 provides as follows: “Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.”<br />
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These are indeed landmark decisions of the Court of Appeal and the Federal Court.<br />
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It is, therefore, important to summarise briefly the findings of the Federal Court in <b><i>CIMB Bank Bhd v Anthony Lawrence Bourke & Anor, 2018</i></b>:<br />
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> Given its natural and ordinary meaning, clause 12 has only one meaning, that is, it must be given effect to and enforced, however unreasonable the court may think it is. If that is the case of allowing clause 12, then it would be an exercise in futility for the couple to file any suit against the bank as they are precluded from claiming all forms of damages for breach of contract or negligence.<br />
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> Clause 12 is, therefore, an absolute restriction and section 29 of Act 136 prohibits such restriction.<br />
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However, mere limitations and/or some restrictions added into an exclusion clause are insufficient to invoke section 29. Section 29 speaks of only absolute restriction.<br />
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> Freedom of contract must surely still imply some choice or room for bargaining, even in standard form loan agreements. In this case, the couple have unequal bargaining powers with the bank.<br />
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This is against public policy. It is therefore patently unfair and unjust to the couple had clause 12 been allowed to deny their claim/rights against the bank.<br />
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In the words of Justice Balia Yusof Wahi who delivered the judgment of the Federal Court: “It is unconscionable on the part of the bank to seek refuge behind the clause and an abuse of the freedom of contract.”
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It follows that contracts which seek to oust the jurisdiction of the courts are invalid.<br />
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Hence, in the absence of an all-encompassing legislation that deals with unfair contract terms such as in Singapore and the United Kingdom, it is time for the government to introduce such a legislation or extend the protection currently given to consumers under the Consumer Protection Act, 1999 (Act 599) to all types of contracts including financial dealings and transactions, involving, particularly, purchasers and borrowers of housing development.<br />
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The reason being notwithstanding section 24B of Act 599, it has been argued that Part IIIA of Act 599 applies only to consumer contracts.<br />
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Section 24D of Part IIIA of Act 599 states that a contract or a term of a contract is substantively unfair if the contract or the term of the contract (a) is in itself harsh; (b) is oppressive; (c) is unconscionable; (d) excludes or restricts liability for negligence; or (e) excludes or restricts liability for breach of express or implied terms of the contract without adequate justification. Section 24A(c) of Act 599 defines an “unfair term” as a term in a consumer contract which, having regard to all the circumstances, causes a significant imbalance in the rights and obligations of the parties arising under the contract to the detriment of the consumer.<br />
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All in all, the Malaysian Bar Council welcomes this decision which protects borrowers who are often at the mercy of this unequal bargaining with the powerful financiers.<br />
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<i>Datuk Roger Tan is the chairman of the Conveyancing Practice Committee, Bar Council, Malaysia. This column is brought to you by the Malaysian Bar Council for your information only. It does not constitute legal advice.</i><br />
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-9050968335510487482018-11-11T14:43:00.000+08:002018-11-13T17:15:06.550+08:00Working together for a cleaner world<b>The Sunday Star </b><br />
<b><i>by Roger Tan</i></b><br />
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<tr><td class="tr-caption" style="text-align: center;"><b>Not wasting time: Pushing for sustainable waste management, the writer (centre) standing beside Ho, who is leading the organising committee of ISWA 2018.</b></td></tr>
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<b>Malaysians still have a lot to learn about solid waste management.</b><br />
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FROM Oct 22 to Oct 24, an important world event, which took place at Kuala Lumpur Convention Centre, almost went unnoticed by the general public. </div>
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The event was the congregation of the best in the waste management industry at the World Congress of the International Solid Waste Association (ISWA). Some 1700 over participants from 64 countries took part. </div>
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Four years ago, the Waste Management Association of Malaysia (WMAM), the national member of the ISWA, led by its Chairman, Ho De Leong, had gone to great lengths to bid successfully for this most important annual event of ISWA to be held here. </div>
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Regrettably, when it came to the big day, the Housing and Local Government Minister, Zuraida Kamaruddin was not able to officiate it due to her parliamentary obligations. She was represented by her deputy, Datuk Raja Kamarul Bahrin Shah Raja Ahmad. However, the Secretary General of the ministry, Datuk Seri Mohammad Mentek, was most supportive by making an effort to be present at several sessions. The Secretary General of the Water, Land and Natural Resources Ministry Datuk Dr Tan Yew Chong was equally supportive. And what is most gratifying to note is that 99% of the participants who were surveyed said they were most satisfied with our beautiful Malaysia being the destination for this year’s world congress. </div>
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But then again, what is most alarming is Malaysians are generally ignorant about solid waste management. Most will immediately ask what is actually “solid waste”. In simple terms, it is any unwanted material or substance which is required to be disposed of, but does not include sewage, hazardous and radioactive wastes. The most common types are household and commercial solid wastes, that is, solid waste generated from a household or any commercial activity. </div>
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Malaysians too have little knowledge about or regard for generation, collection, transportation, recovery, treatment and disposal of solid waste. This explains why our drains and rivers are always clogged up by solid waste, and every day workers have to clear the litter trapped in floating booms installed in rivers throughout the country in order to prevent and minimise pollution and flood. </div>
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The situation is exacerbated by us generating more waste over the years. Three years ago, Malaysians generated about 19,000 tonnes of solid waste daily (TPD). Today, the figure has reached two-fold, 38,000 TPD. Out of this amount, waste separation and recycling rates only account for 24%. The remaining 76% goes to 160 landfills, of which about 15 of them are sanitary landfills. A sanitary landfill, unlike dumpsites, is a properly engineered landfill where solid waste is safely isolated from the environment with lining materials and designs to prevent leakage of leachate and contamination of groundwater and surrounding soils as well as making it possible for landfill gas to be captured and converted into a renewable energy resource. So, in developed countries, it is quite a common sight for golf courses and public parks to be built and landscaped on sanitary landfills that have been closed. </div>
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<tr><td class="tr-caption" style="text-align: center;"><b>Educated well: Japanese football fans cleaning up after a match at the World Cup tournament in Russia. – AFP/Getty</b></td></tr>
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<span style="text-align: justify;">In fact, to my mind, there are three main reasons which generally explain Malaysians’ apathy and insouciance towards waste reduction and littering habits: </span><br />
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> lack of enforcement of the relevant laws which are not uniform throughout the states in Malaysia; </div>
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> Malaysians do not directly have to pay for treatment, transportation and disposal of solid waste; and </div>
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> poor public education. </div>
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Currently, the Federal Parliament can legislate on matters relating to management of solid waste and public cleansing, only for states in Peninsular Malaysia and Labuan. This was done in 2007 when Solid Waste and Public Cleansing Management Act, 2007 (Act 672) was passed on the ground that sanitation is a matter within the concurrent list under the ninth schedule to the Federal Constitution. Act 672 is administered and enforced by the Director General of Solid Waste and Public Cleansing under the Ministry of Housing and Local Government (JPSPN) and the statutory body of SWCorp which was established on June 1, 2008 under the Solid Waste and Public Cleansing Management Corporation Act, 2007 (Act 673). However, Act 672 did not come into force until September 1, 2011 and it is only in operation in Perlis, Kedah, Pahang, Negri Sembilan, Malacca, Johor, Kuala Lumpur and Putrajaya. </div>
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Essentially, Act 672 confers executive authority on the federal government over matters relating to management of solid waste and public cleansing in the Peninsular and Labuan. It also empowers the federal government to enter into any agreement with any person authorising such person to undertake, manage, operate and carry out any solid waste management services or public cleansing management services. The federal government did this with three corporations which are currently operating in those states which Act 672 has come into force, namely E-Idaman Sdn Bhd in Kedah and Perlis; Alama Flora Sdn Bhd in Pahang, Kuala Lumpur and Putrajaya and SWM Environment Sdn Bhd in Johor, Malacca and Negri Sembilan. These three concession companies are also licensed under Act 672. </div>
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It is generally observed that in those areas operated by the three concession companies, the service level of performance in managing solid waste and public cleansing is higher than those states which Act 672 is still not in force. For these states, they are still governed by the Local Government Act, 1976 (Act 171) and its regulations whereby management services of solid waste and public cleansing are undertaken by the local authorities and their contractors. </div>
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This lack of uniformity in our solid waste management laws is unhealthy. Also, SWCorp has proven to be ineffective in enforcing Act 672, especially in relation to littering and waste separation or segregation by households. It has also failed quite miserably to promote public awareness on solid waste management and public cleansing services. Often, it overlaps with JPSPN and duplicates the latter’s duties. </div>
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Of course, the only time when a Malaysian family becomes conscious of the importance of waste collection and disposal is when their household waste is not collected for several days or a heap of uncollected garbage in the neighbourhood has emitted an unbearable rotting smell or odour into their living rooms. One of the main reasons is that Malaysians are not directly paying a separate charge for collecting and disposing solid waste which they have generated. We still have the mindset that it is the responsibility of local authorities to do so by them just paying local assessment. But local assessment is not just about paying for collecting and disposing garbage. </div>
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At ISWA 2018, we really had nothing very much to shout about when delegates after delegates especially from the developed world narrated their successful stories in solid waste management.
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Despite the government’s concerted efforts in promoting the 3R approach – reuse, reduce, and recycle – in order to minimise the amount of solid waste for final disposal, it remains a Herculean task to ensure that ultimately solid waste is safely and environmentally disposed so as to attain a higher quality of life for Malaysians. </div>
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Hence, we may have to look at other types of waste to energy options, including incineration, apart from relying on traditional landfill system. In the meantime, we are already facing serious threat to our environment from the use of plastics which has caused a huge increase of marine litter over the years. </div>
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The current solid waste management system which is based on linear economy practices – extracting, making use and disposing solid waste - are no longer sustainable. We must work towards a circular economy model in waste management because it is generally accepted that linear practices have caused a high percentage of waste extraction becoming waste again each year. Malaysians must dispel the notion that waste is a problem. It is not. Waste is a resource. We can monetise waste or convert waste to wealth. </div>
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It follows a holistic and coherent approach is needed in extracting the maximum value from a product’s life and then recover and regenerate it by, for example, re-using, recycling or remanufacturing it. This not only reduces environmental burden but also promotes economic growth.
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At ISWA 2018, Ho warned that we are now living with the consequences of wasteful over-consumption. </div>
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“We are consuming more than the earth can replenish, and this is of great concern. It has been forecast that global demand for resources will triple by 2050. The Global Footprint Network reports that we are now in an ecological deficit and it is taking Mother Earth one and a half years to regenerate what we use in a year”, said Ho. </div>
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In this respect, the Deputy Minister believes that education is the key to changing both our mindset and behaviour in order to achieve sustainable consumption and minimise wastage. Hence, the general theme of ISWA 2018, ‘Sustainable Consumption towards Waste Minimisation’ echoed this sentiment.<br />
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I could not agree more with him. In this respect, we have so much to learn from the Japanese how a Japanese handles waste from his cradle to his grave. Japanese are now known at global events to ensure that no litter is left behind by their countrymen. They have also shown to the world why and how their public toilets can be kept so clean. To my mind, it has to be and can only be by way of education. </div>
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Hence, our government and all industry stakeholders must immediately get our act together before we are consumed by the amount of waste which we generate but incapable of re-using, reducing, recycling and finally disposing it environmentally and safely. </div>
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<i>Roger Tan is a founder and executive committee member of Waste Management Association of Malaysia.</i><br />
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-40787523073402201122018-07-02T17:30:00.000+08:002018-07-03T13:05:51.301+08:00Senior lawyer: Shake-up a welcome change for now <div class="separator" style="clear: both; text-align: center;">
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<i><b>The Star</b></i><br />
<b>by Royce Tan</b></div>
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<b>PETALING JAYA: </b>The rationalisation proposal to make nine agencies independent entities and which reports directly to Parliament is seen as a welcome change by many. </div>
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However, several concerns have been raised, especially in the event of an elective “dictatorship”.</div>
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Senior lawyer Datuk Roger Tan said if there was an absolute majority in Parliament one day, the issue of an Executive dominance would arise. </div>
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He called for the Committee of Institutional Reforms to look into how to prevent this from happening. </div>
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“It is a good move to preserve the independence of institutions, such as the Malaysian Anti-Corruption Commission (MACC) and the Election Commission, but it may not necessarily be good if one day the Government has an absolute majority in Parliament. </div>
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“We must have necessary safeguards against any abuse, especially by the Government of the day that controls Parliament. </div>
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“If one day we have an elective dictatorship, the Government will then be able to take control of these institutions,” he said. </div>
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Tan said that posts such as the MACC chief commissioner or the Human Rights Commission of Malaysia (Suhakam) commissioners should be elected by a bipartisan committee, comprising MPs from both divides. </div>
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He said there was also a need to amend the Acts of the respective commissions for them to be appointed by the committee. </div>
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“At the moment, the AG is the Public Prosecutor. The AG, as the legal advisor to the Government, reports to the Prime Minister’s Department. </div>
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“But the AG as the Public Prosecutor, reports to Parliament. What is the point when the person is the same?” said Tan. </div>
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Suhakam chairman Tan Sri Razali Ismail welcomed the move to make the commission fully independent as it was a big step in its evolution and human rights bodies. </div>
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“Most human rights bodies all over the world are elected by Parliament and it’s the fair way to do it.
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“If you look at how Suhakam has functioned before, our advice was hardly ever taken into account and now with this, things will change. </div>
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“We will use Parliament to make a point to the Executive,” said Razali, adding that Suhakam had always wanted to be independent of the Government. </div>
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He also said they have previously been used “cosmetically” by the government, at times when it suited those in government. </div>
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Transparency International Malaysia president Datuk Akhbar Satar lauded the overhaul of the Prime Minister’s Department, saying that it would avoid duplication of work and reduce wastage. </div>
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He added that it was vital for MACC and EC to be placed under Parliament, not only in terms of administration but also for financial autonomy. </div>
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“We have to relook the role and relationship between public servants and politicians and make sure there is less intervention by politicians. </div>
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“We need to find a good strategy to combat corruption and improve the Corruption Perceptions Index. Our rank dropped from 55 to 62 last year, the worst in the history of our CPI,” Akhbar said.</div>
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Human rights lawyer Roger Chan said having institutions being accountable to Parliament would provide better transparency and more information to be accessed by the public. </div>
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Meanwhile, he said the separation of the Public Prosecutor’s Office from the AGC was also highlighted by the Malaysian Bar. </div>
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“The mischief being addressed here is when the Public Prosecutor acts in a case that involves the Executive. </div>
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“Let’s say a minister is charged, and if we stick to the original position where the AG is the Government’s adviser and also the Public Prosecutor, then you have a conflict of interest. </div>
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“The AG should not play a role in prosecution matters,” Chan said, adding that the main objective was to maintain prosecutorial independence. </div>
Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-58187083504290734622018-05-20T14:21:00.000+08:002018-05-21T10:56:01.721+08:00The beginning of a new Malaysia<div style="text-align: justify;">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhJilwmAACnGPCyzSebVf9RFj-2o5bU4vapNco9n8BeUfUCu8oef5iRJteHzavZTQmMyvTQbN6AKuY4fnu9ykGSRiM5Py_brJI-SbOFdN751Jc_z2EZlG6y3TeqOzp_O9P4TXctZ7p70_I/s1600/flag.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="281" data-original-width="540" height="166" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhJilwmAACnGPCyzSebVf9RFj-2o5bU4vapNco9n8BeUfUCu8oef5iRJteHzavZTQmMyvTQbN6AKuY4fnu9ykGSRiM5Py_brJI-SbOFdN751Jc_z2EZlG6y3TeqOzp_O9P4TXctZ7p70_I/s320/flag.jpg" width="320" /></a><b>The Sunday Star</b></div>
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<b><i>by Roger Tan</i></b>
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<b>The new government’s priorities should be to restore the rule of law, redress miscarriages of justice and bring about reforms to our public institutions.</b></div>
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ON May 10, Malaysians woke up to a new country, signaling the dawn of a new era.</div>
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The unprecedented GE14 results have obviously proved to the world that we the citizens are the masters of our own ship – we decide when and whether to repair, sink and rebuild it, let alone rock it! We should also take pride in the smooth and peaceful transfer of power. </div>
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But GE14 victors should not use it to exact revenge on the vanquished in that they have received their comeuppance or take delight in their political schadenfreude. Instead, the new government’s priorities should be to restore the rule of law, redress miscarriages of justice and bring about reforms to our institutions of government. </div>
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What then is the rule of law? This concept of the rule of law is also the fourth guiding principle of our Rukun Negara. To make it simple for our readers, it is best summed up in the words of Dr Thomas Fuller, who wrote in 1733, “Be you never so high, the law is above you.” In other words, no one including the king could disregard the law with impunity. As the English jurist, Henry Bracton (c. 1210 – c. 1268) put it, “the king is under no man but under God and the law because the law makes the king”. </div>
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In Malaysia, the ascendancy of the law is also enshrined in Article 8 of the Federal Constitution that all persons are equal before the law and entitled to the equal protection of the law. </div>
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It is ironic that the reforms are now being pursued at great pace by the new Prime Minister, Tun Dr Mahathir Mohamad who was also the old Prime Minister who had pursued Machiavellian policies and undermined some of the institutions during his previous rule. </div>
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But he is now one person most loved by Malaysians and best suited to undertake this restoration, and rightly so because without him, whether one likes it or not, Pakatan Harapan would not have won GE14. </div>
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What is most gratifying, however, is what Tun Mahathir said when he first took office, that the component parties in Pakatan are of equal standing, regardless of the number of seats respectively secured by them. This is unlike the component parties in Barisan Nasional who had to kowtow to the dominant party UMNO. </div>
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Likewise, the Prime Minister’s relationship with his cabinet will be governed by the concept of <i>primus inter pares</i> or first among equals. </div>
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It is hoped that Datuk Seri Anwar Ibrahim who has turned 70 will be now wiser. My generation remembers the damage caused by his pursuit of ethnocentric policies and ‘crony capitalism’ when he was a deputy prime minister. </div>
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It is also good for him to always remember that when he was at his lowest ebb when first arrested on September 20, 1998, it was those from the opposition such as Lim Kit Siang and Karpal Singh who had gone to his aid. Hence, it remains a prayer of all Malaysians that when he takes over the reins, he will be a benevolent leader pursuing inclusive policies, making every Malaysian feel that they have a sense of belonging in this great nation. After all, it is a Malaysian tsunami that swept Pakatan into power.<br />
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<a name='more'></a><span style="text-align: justify;">It is also hoped that Lim Guan Eng who often came across as uncompromising when faced with criticisms would now realise that he is no longer in the Opposition but in the ruling government. But it cannot be gainsaid that his response to the reporter from China that “I don’t consider myself a Chinese, I am a Malaysian…” was epic and exemplary. I was indeed moved by it and it did put a lump to my throat when I heard those words. </span><br />
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Datuk Mohamad Sabu is a great orator. In leading the splinter party of PAS, Amanah, Malaysians hope that he and his party would continue to practise moderation by recognising that this country is not a theocratic state. </div>
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I have great admiration for Lim Kit Siang for his humility and intrepidity in taking upon the government for more than half a century. I recall when I was in secondary school, I borrowed a copy of his book, <i>Time Bomb</i>, from a Malay teacher. It contained fiery speeches made by him in parliament. I was inspired by his words. </div>
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There was also in one particular general election when Kit Siang, the late V. David and Chan Kok Kit turned up at the Yong Peng Chinese High School to campaign. Their speeches, even though delivered partly in Hokkien before a huge crowd, were fiery. He taught us what it means by peaceful struggle through democratic means. May he have many more years of good health. </div>
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Of all the senior Pakatan component party leaders, I had worked under Tan Sri Muhyiddin Yassin for several years when he was Johor Mentri Besar. To me, he has always been a progressive and pragmatic leader. He is also known for his political gumption by taking on Datuk Seri Najib Razak which resulted in him being shunned by party leaders and members and eventually expelled from UMNO. </div>
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But not many people would remember that on the day when Anwar was dismissed as the deputy prime minister in 1998, Muhyiddin was the only UMNO cabinet minister who had the courage to turn up in Anwar’s house to give moral support to the latter. Of course, he was spotted on television.
The next day, Muhyiddin reported to the feared Mahathir that he had been to Anwar’s house the evening before because Anwar was his friend. Mahathir did not take any action against Muhyiddin. </div>
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In any event, this is a new Malaysia. For us to progress, meritocracy should be practised by not forgetting, of course, the poor and rural development. Power corrupts and thus checks and balances on the new government should be strengthened. </div>
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It is hoped that the following proposals will be considered: </div>
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> the government should secure cooperation from the Opposition to amend the Constitution on two matters. Firstly, to outlaw party hopping in order to ensure the emergence of a two-party system. In Singapore, Article 46(2)(b) of its Constitution provides that a parliamentary seat will fall vacant resulting in a by-election if the member of parliament ceases to be a member of or is expelled or resigns from the political party for which he stood in the election. </div>
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If the support from the Opposition cannot be secured, then the government should try to pass a federal law or amend the Elections Act, 1958 to provide for the same on the ground that party hopping is immoral under Article 10(2)(a) of the Federal Constitution. Secondly, the Federal Constitution should be amended to limit the office of the Prime Minister to two terms. </div>
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> the office of the Parliamentary Opposition Leader should be given ministerial standing and necessary facilities especially for research. It is imperative to have a strong opposition in a parliamentary democracy. </div>
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> the government should adhere strictly to the principle of individual ministerial responsibility in that the minister bears the ultimate responsibility for the actions of his ministry. This is pivotal in a parliamentary system of government so as to uphold accountability and good governance. </div>
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> the civil service must stay independent at all times unlike in the last GE14, some senior civil servants even had the temerity to don on BN uniforms and wave BN flags during functions. </div>
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> there should be diversity and meritocracy in the judiciary and civil service in order to create public confidence because ours is not a monolithic society and the composition of these pillars of government should be more representative of the make-up of our country. </div>
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> to get rid of corruption and the malaise in government administration which appear to be rather deep rooted. Similarly, the “<i>kesian</i>” (sympathetic) attitude has been used to exonerate government servants from disciplinary action, and also used as a ground to accord recognition to qualifications and standards even though the person has failed to meet. </div>
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> government linked companies and statutory boards should no longer be helmed by politicians who always have some funny ideas whenever they join such bodies, especially those which are custodians of huge public funds. </div>
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> government servants should be advised to desist immediately from wastage and apple polishing. We should listen to the wise words of Robert Kuok who wrote in his memoirs: “From the very early days of setting up in business, I had told all my managers, “Don’t ever send off anybody or receive anybody. You are hired to work and to make money, not to squander your time seeing off and receiving your boss or colleagues.” </div>
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> the reintroduction of English medium schools as an option or the teaching of Mathematics and Science in English so that our children can stay competitive in this age of science and technology.</div>
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> inhibitions against minorities erecting their places of worship be immediately removed. </div>
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May 9 has given a lifeline to this country and if governed well, in no time Malaysia can emerge as one of the Asian tigers again. </div>
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Otherwise, the citizens will not hesitate to use their people power again to effect change in the government. </div>
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With that, the opposition should not lose heart but endeavour to be an alternative to the government. </div>
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-41367915639127755612018-05-14T18:00:00.000+08:002018-05-15T12:02:35.270+08:00Lawyer: Government can terminate contract of A-G <div style="text-align: justify;">
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<b><i>The Star</i></b></div>
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<b>By Maizatul Nazlina</b><br />
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<b>KUALA LUMPUR: </b>The Government can terminate the contract of Attorney-General Tan Sri Mohamed Apandi Ali (<i>pic</i>), says senior lawyer Datuk Roger Tan.<br />
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This follows after Prime Minister Tun Dr Mahathir Mohamad announced that Apandi has been told to take leave and that his duties will be taken up by the Solicitor-General.<br />
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The Prime Minister said although the A-G's contract has been recently renewed for another three years, the government would go through the proper process to initiate investigations against Apandi.
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According to Tan, the Government could terminate Apandi's contract before the three years, subject to the terms and conditions.<br />
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His contract was extended to 2021, by which time he will be aged 71.<br />
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He said unlike former A-G Tan Sri Abdul Gani Patail, Apandi was not a career officer.<br />
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Tan explained that Gani was a "legal officer" when he was said to have resigned due to "ill health".<br />
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<a name='more'></a>“As Apandi is not a legal officer, the statutory procedure for removing a civil servant does not apply to him,” he said when asked to comment on Apandi’s position on Monday (May 14).<br />
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Tan said if the contract is silent on early termination, then Apandi can seek damages for wrongful and early termination.<br />
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In any event, he said, it is implied that in every contract of employment, a worker can always be summarily (immediately) dismissed on grounds of gross misconduct.<br />
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But he cannot insist on staying on, Tan added.<br />
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He said there was also no requirement for a tribunal to be set up before his services can be terminated.<br />
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The Federal Constitution had formerly stated that the A-G could only be removed “on the like grounds and in the like manner as a judge of the Federal Court”.<br />
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However, Tan said this requirement was removed by a constitutional amendment made in 1963.
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“Even though Article 145(5) of the Federal Constitution does say the A-G shall hold office during the pleasure of the Yang di-Pertuan Agong, this simply means he is just like a member of the public service under Article 132, whose services can be terminated by the government.<br />
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“It does not expressly say that the Yang di-Pertuan Agong’s consent is required before the A-G can be removed.<br />
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“If this is a requirement, then it will be expressly stated in Article 145 just like Article 43(5) that Cabinet ministers hold office during the pleasure of the Yang di-Pertuan Agong, unless the appointment of any minister shall have been revoked by the King on the advice of the Prime Minister,” he said.<br />
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Apandi had reported to work on Monday, the first day since Pakatan Harapan won the May 9 polls.<br />
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Dr Mahathir had previously said that the A-G had "undermined his own credibility" and indicated that several government servants would be investigated for their roles in the 1Malaysia Development Berhad (1MDB) saga. </div>
Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com2tag:blogger.com,1999:blog-5607862294938008329.post-22202209611686613722018-05-10T21:05:00.000+08:002018-05-11T21:10:39.694+08:00Lawyer: Dr M only needs support of MPs to be PM<div style="text-align: justify;">
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<b><i>The Star Online</i></b><br />
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<b>KUALA LUMPUR:</b> A senior lawyer agreed with Prime Minister-designate Tun Dr Mahathir Mohamad's interpretation that he can lead the country with the majority support of Members of Parliament (MPs).
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Datuk Roger Tan <i>(pic)</i> said Article 43(2)(a) of the Federal Constitution refers to a member of parliament – not the party or coalition of the majority of the MPs.
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"Since all the Pakatan MPs have signed a written declaration to support Tun Mahathir, it is hoped that all government institutions will immediately give effect to the sacrosanct will of the people expressed through the ballot box," he said.<br />
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Pakatan Harapan has asked the Yang di-Pertuan Agong Sultan Muhammad V to swear Dr Mahathir as the 7th Prime Minister by Thursday evening.
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Dr Mahathir said he had the support of 135 MPs, surpassing the 112 needed for a simple majority.
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His remarks come after outgoing prime minister Datuk Seri Najib Razak said he accepted "the will of the people" but stopped short of admitting defeat.
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Dr Mahathir said that four parties in the coalition have also "written to the King, asking for a swearing-in ceremony to take place the sooner". </div>
Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-89051346794734482422017-12-23T14:41:00.000+08:002017-12-23T14:41:33.207+08:00Lawyer: Change loans rule and pay direct to developer<div class="separator" style="clear: both; text-align: center;">
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<b><i>The Star</i></b></div>
<div style="text-align: justify;">
<b>by Fatimah Zainal</b></div>
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<b><br /></b></div>
<div style="text-align: justify;">
<b>PETALING JAYA:</b> The Public Sector Home Financing Board (LPPSA) should change its loans rule to allow the money to be released straight into the developer’s account if it is a direct purchase from the developer, said a senior lawyer. </div>
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“If it is a second sale or sub sale then I understand the money must be released to the seller’s lawyer to take care of other payments,” said Datuk Roger Tan, the chairman of the Malaysian Bar Council Conveyancing Practice Committee. </div>
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LPPSA is a statutory body established under the Public Sector Home Financing Board Act 2015 to manage the provision of housing loans to civil servants. </div>
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Tan was commenting on reports by <i>The Star </i>on Thursday about buyers of an affordable housing scheme in Johor Baru who were duped by a lawyer. </div>
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The lawyer, who was supposed to help them secure housing loans, did not remit the money to the developer after the loans were approved. </div>
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The lawyer siphoned off the money from the victims, mostly civil servants, and wrote invalid cheques to the developer instead.
The developer then decided to hold back the keys to the houses, to the dismay of the buyers. </div>
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<i>The Star</i> also reported that the victims, who lost more than RM620,000, lodged at least five police reports against the lawyer. </div>
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Tan said purchasers are not obliged to use the lawyer appointed by the developer, adding that they have the right to choose their own lawyers to handle the sale and purchase transaction. </div>
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“I’m not saying that lawyers cannot be trusted but this is to avoid unpleasant occurrences. </div>
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“The majority of lawyers are trustworthy and ethical but as in any profession, there are black sheep who tarnish the good name,” he said. </div>
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In addition to police reports, Tan said the scam victims can also lodge a complaint with the Advocates & Solicitors Disciplinary Board. </div>
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He said the Government should also consider, on humanitarian grounds, how the loans can be restructured to help the borrowers pay their instalments.
He said it is the duty of the authorities to ensure that the lawyers they engage have a good record. </div>
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“It is difficult to put the burden on the buyers to do background checks on lawyers,” he said.
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Meanwhile, the Finance Ministry said in a statement that since the setting up of the panel of lawyers in 2016, borrowers have been encouraged to appoint LPPSA’s panel law firms. </div>
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“In line with its role and function, LPPSA will continue to engage with the Bar Council to escalate grievances and concerns faced by its borrowers,” it said.</div>
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-12527718471711650332017-06-11T20:15:00.000+08:002017-06-11T20:36:10.889+08:00Interview: Of values and water<div style="text-align: justify;">
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<tr><td class="tr-caption" style="text-align: center;"><b>Roger Tan</b></td></tr>
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<b><i>The Sunday Star</i></b><br />
<b>by Christina Chin</b><br />
<b>Photo by Abdul Rahman Embong</b><br />
<br />
AFTER eight years of helping to implement and enforce the country’s water supply and sewerage services laws, Datuk Roger Tan served his last day as commissioner of the Water Services Commission (SPAN) on May 31. Tan, a lawyer by trade, was instrumental in putting in place a disciplinary mechanism based on values he lives by – accountability, transparency and integrity.<br />
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Former fellow commissioner Datuk Zulkifly Rafique has this to say of Tan’s tenure: “He has discharged his responsibility admirably and is a pillar of strength for the staff and fellow commissioners who looked to him for support and guidance at a very challenging time. A job well done.”<br />
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Tan, from Yong Peng, Johor, graduated from the school of hard knocks and he never forgot his roots.
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Describing himself as a “simple man”, he’s pleased that his wife and children are equally grounded. Opening up about his family, Tan says those who rose from poverty, surviving only because of their parents’ resilience and sacrificial love, have no reason to lead an ostentatious life.<br />
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An illiterate labourer, his father, Sue Yong, toiled to put food – often porridge with soy sauce or a few slices of preserved bean curd – on the table.<br />
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The desire to honour his parents, family and God, is what drives Tan to excel.<br />
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An avid photographer, he shares how an image of the All Souls Church in Langham Place, London – with a cross of clouds forming just above the place he used to worship at as a student, is his favourite work. The best photographs are often accidental masterpieces, he muses.<br />
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Tan’s success, however, is anything but accidental. He attributes it to hard work – a value Sue Yong drilled into him and is now instilled in his four children. His father, afflicted with Alzheimer’s and dementia, would have turned 100 this year. He went missing on May 23, 2000, after a walkabout near the family home. It’s a pain Tan still carries with him.<br />
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“So long as he, or his remains, have not been found, there’s no closure. I failed to find him and the guilt hounds me till today. The number of missing persons – both old and young – is alarming. Close to 4,000 children went missing between 2014 and January 2016. It’s shocking.”<br />
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Tan, who chairs the Bar Council’s Conveyancing Practice Committee and serves as president of the Strata Management Tribunal, is showing no signs of slowing down after his retirement from SPAN. The founding secretary of the Waste Management Association of Malaysia is also a member of its organising committee for International Solid Waste Association World Congress to be held in KL for the first time, come October next year. During a visit to the Sungai Segget centralised sewerage treatment plant on May 28, Tan shares his views on water – the country’s most precious resource.<br />
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<b>> You still run a legal practice. But with your retirement from SPAN, is a well-deserved rest on the cards? </b><br />
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I don’t think I can afford that until my kids have finished their tertiary education. For active practitioners like us, being a commissioner is a sacrifice. When I was appointed in 2009, the monthly allowance was a meagre RM1,200. It was later increased to RM2,000 with a RM500 meeting allowance. Much of my time was spent away from my firm but nothing beats the joy of serving your country. <br />
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<b>> You’ve set a high standard for future SPAN commissioners. How did you do it? </b><br />
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I’m a perfectionist. I always give my best to whatever I’m entrusted to do. As a legally trained person, it’s easier for me to discharge my duties without fear or favour. I left SPAN after eight years of service with my professional reputation and integrity intact.<br />
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<b>> Will the Water Industry Fund (WIF) announced in Budget 2017 solve our water woes? </b><br />
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The WIF is to be controlled and operated by SPAN. Its objectives include protecting and preserving watercourses and water catchment areas; ensuring sustainability of water supply and improvement of water quality; and providing water and sewerage services in rural developments. To what extent the fund will help solve our water woes remains to be seen because watercourses and water catchment areas are within the purview of the respective states, which at the moment, lack preservation planning.
Secondly, the fund isn’t expected to be huge because contributors are water supply licensees and authorised persons with a small revenue base of about RM5.7bil. At best, it may be enough to finance rehabilitative works. On the other hand, the Sewerage Capital Contribution Fund (SCCF) – a similar fund for the sewerage sector – probably stands at about RM1.5bil today. The SCCF is contributed by developers or by persons constructing or connecting to a sewerage system. It’s controlled and operated by SPAN. As custodian of these gargantuan funds, SPAN must protect the public’s interest.<br />
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<b>> Shouldn’t the WIF be under the ministry, instead of SPAN? </b><br />
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The WIF and SCCF are a huge distraction to SPAN’s original function as a regulator entrusted to implement and enforce water supply and sewerage services laws in Peninsular Malaysia. There’s no provision empowering SPAN to undertake any projects on its own or to become project managers financed by the two funds. To do so would be ultra vires.
Who’ll regulate and ensure SPAN’s legal compliance? If SPAN is entrusted with awarding contracts under the two funds, commissioners and officers would have to deal with all the lobbying by contractors and politicians. That’s why we should remove the distraction of managing these funds. The Energy, Green Technology and Water Ministry is better equipped to know the needs, and formulate the necessary policies, to ensure that the funds have a bigger impact.
After all, the law also requires a commissioner to make a statutory declaration before he is appointed that he has no interest, financial or otherwise, in any undertaking involving water supply services or sewerage services.
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<b>> How can we ensure the country’s water security? </b><br />
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Access to safe water is a fundamental human right. A good demand and supply management will contribute to the sustainability and security of potable water. Supply management includes water resources planning, and water infrastructure development such as constructing dams, off-river storage, barrage, raw water transfer, water treatment plants and public water distribution systems.
Water demand management includes making people understand, appreciate and conserve this non-infinite element. The WIF when implemented, can also be used to change the way water resources and supplies are managed. On the demand side, we should practise sustainable use. Consumer education is pivotal. By conserving water, we reduce the demand for water and amount of wastewater generated, subsequently minimising wastewater infrastructure capital investment.
Key water management strategies are: pricing; management of non-revenue water; mandatory use of water efficient products; effective enforcement; product labelling; water efficient audit; awareness campaigns; and alternative water resources. For uniformity, a new federal law for states to deal with all water matters – including management and preservation of rivers, water catchment areas, ground water, lakes and dams and the prevention of pollution – is long overdue. The current fragmented legislative framework is unhealthy, especially as there are vast disparities in the penalties imposed by different states in protecting their water resources.<br />
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<b>> Sewage is the main culprit of river pollution. What are we doing about it? </b><br />
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Sewage is treated before being released back to the environment. No development is allowed unless sewage treatment requirements are in place. Malaysia enjoys a very high percentage of connected services to sewerage treatment plants. And where connected services are not possible, septic tanks must be used.<br />
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<b>> Should we moneytise our waste water? </b><br />
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Monetising wastewater or converting waste to wealth is extensively done in many developed countries where sewage is seen as resource, not waste. Both liquid and solids in the sewage can be reused. The liquid can become an alternative water source. The solids can be used as fertiliser, fuel, energy, additive for construction materials and so on. To monetise sewage requires an enabling environment that goes beyond technology. There must be a strong and clear regulatory framework which allows innovative business models; coordinated effort between various ministries and government agencies; and strong political will to change the stigma of sewage.<br />
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<b>> The Water Services Industry Act 2006 (WSIA) was introduced a decade ago but to date, only half of the states in the peninsula have migrated. Why is it crucial? </b><br />
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Negeri Sembilan, Melaka, Johor, Perak, Penang, Kelantan and Perlis, have migrated to the new reform model whereby financing for development of new water infrastructure, refurbishment, and upgrading works are by Pegurusan Aset Air Berhad. This has alleviated the need to look for financing, and enabled water operators to focus on increasing operational efficiencies and providing better quality service to consumers. States which have migrated have improved their services because of the available funds.<br />
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<b>> What are your aspirations for SPAN? </b><br />
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For SPAN to drive the water industry and be a regulator of international standing, it must act independently, fairly, boldly, and transparently. To achieve that, SPAN commissioners and officials must be passionate and lead by example.<br />
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Roger Tanhttp://www.blogger.com/profile/08504418567697155136noreply@blogger.com0tag:blogger.com,1999:blog-5607862294938008329.post-64389370148868108962017-05-07T17:41:00.003+08:002017-05-07T21:26:16.331+08:00Judicial independence is sacrosanct<div class="MsoNormal" style="text-align: justify;">
<b><span lang="EN-GB">The Sunday Star<o:p></o:p></span></b></div>
<div class="MsoNormal" style="text-align: justify;">
<b><i><span lang="EN-GB">With All Due
Respect by Roger Tan<o:p></o:p></span></i></b></div>
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<b><span lang="EN-GB">Assaulting the judiciary is as crude and uncivilised
as assaulting a referee who impartially and fearlessly applies the rules of the
game.<o:p></o:p></span></b><br />
<b><span lang="EN-GB"><br /></span></b>
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<tr><td class="tr-caption" style="text-align: center;"><b>Just and fair: When the judiciary decides against the authority it is simply doing its duty under the Constitution which expresses the will of the people just as when it decides for authority.</b></td></tr>
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<div class="separator" style="clear: both; text-align: center;">
</div>
Judicial
independence – a sacrosanct concept which I have written quite a bit over the
years – has been much talked about again, lately.</div>
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<div class="MsoNormal" style="text-align: justify;">
<span lang="EN-GB">What then is
judicial independence? I believe this can be best explained by one of our most
celebrated judges, Lord President Tun Mohamed Suffian Hashim when writing his
foreword to <i>The Role of the Independent
Judiciary </i>by Tun Salleh Abas on Dec 17, 1988 as follows:<o:p></o:p></span></div>
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<span lang="EN-GB">“When the
judiciary decides against authority there is no question of its being superior
to Parliament or the Executive; the three branches are co-equal partners, each
branch being like the leg of a three-legged stool. When the judiciary decides
against the authority it is simply doing its duty under the Constitution which
expresses the will of the people just as when it decides for authority.<o:p></o:p></span></div>
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<span lang="EN-GB">“To accuse a
judge of wanting to wrest power from the elected representatives of the people
and thus destroy democracy is as absurd as accusing a football referee of
wanting to take over the game and thus destroy football because from time to
time he blows the whistle against one’s team-mate. There can be no justice for
the people without independent judges as there can be no game without
independent referees. Assaulting the judiciary is as crude and uncivilised as
assaulting a referee who impartially and fearlessly applies the rules of the
game.<o:p></o:p></span></div>
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<span lang="EN-GB">“Those who stand
by and do nothing to protect the independence of the judiciary will in the end
get a judiciary they deserve – one powerless to stand between them and
tyranny.”<o:p></o:p></span></div>
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<span lang="EN-GB">This is echoed
by the new Chief Justice, Tan Sri Md Raus Sharif in his inaugural speech at the
recent ceremony celebrating his elevation that it is his duty as well as
everyone’s to ensure that the independence of the judiciary is safeguarded.<o:p></o:p></span></div>
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<span lang="EN-GB">“As an
institution, the judiciary is not and should never be beholden to anyone but
the Federal Constitution,” said Md Raus. In other words, not even to the
Executive nor Parliament!<o:p></o:p></span></div>
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<span lang="EN-GB">To the legally
trained, this is also known as the doctrine of separation of powers where the
three branches of state – legislature (Parliament), executive (government) and
the judiciary are independent of one another so that each has separate powers
to become a check and balance on the other.<o:p></o:p></span></div>
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<div class="MsoNormal" style="text-align: justify;">
<span lang="EN-GB">As the French
philosopher Baron de Montesquieu puts it: “Again, there is no liberty, if the
judiciary power be not separate from the legislative and executive. Were it
joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would be then the legislator. Were
it joined to the executive power, the judge might behave with violence and
oppression.”<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span lang="EN-GB">Hence in the <i>State of Washington v Trump</i>, 2017, the
USA Ninth Circuit Appeals Court ruled that President Donald Trump’s executive
order on travel ban is not unreviewable; otherwise, it will run contrary to the
fundamental structure of a constitutional democracy which requires compliance
with the US Constitution which is the supreme law.<o:p></o:p></span></div>
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<span lang="EN-GB">The position is
no different from ours in that our supreme law is also our Federal
Constitution. Article 4(1) of the Federal Constitution provides that any law
passed which is inconsistent with the Constitution is void.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span lang="EN-GB">It follows the
three branches must be subordinate to the Constitution including the executive
and Parliament. Our constitutional democracy is not entirely modelled upon the
United Kingdom’s as unlike ours, the UK Parliament is supreme in that it can
make, amend and unmake any law it likes, primarily because the UK does not have
a single formal written constitution.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span lang="EN-GB">In fact, in <i>Ah Thian v. Government of Malaysia</i>, 1976
our apex court already declared that the doctrine of parliamentary supremacy as
practised in the UK does not apply in Malaysia because we have a written
constitution. It follows the power of Parliament and state legislature in
Malaysia is limited by the Federal Constitution as they cannot make any new law
as they please.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span lang="EN-GB">So, on April 20,
when the Federal Court decided to re-affirm the supremacy of the Federal
Constitution and the concepts of judicial independence and separation of powers
in the case of <i>Semenyih Jaya Sdn Bhd v
Pentadbir Tanah Hulu Langat</i>, this was quickly hailed as a landmark
decision.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span lang="EN-GB">In this case,
one of the questions posed to the Federal Court was whether Section 40D(3) of
the Land Acquisition Act 1960 (Act 486) is <i>ultra vires</i> Article 121 of the
Federal Constitution.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
<span lang="EN-GB">Section 40D of
Act 486, as inserted by the Land Acquisition (Amendment) Act 1997 (Act 999) on
March 1, 1998, reads as follows:<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">“(1) In a case
before the Court as to the amount of compensation or as to the amount of any of
its items the amount of compensation to be awarded shall be the amount decided
upon by the two assessors.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">“(2) Where the
assessors have each arrived at a decision which differs from each other then
the Judge, having regard to the opinion of each assessor, shall elect to concur
with the decision of one of the assessors and the amount of compensation to be
awarded shall be the amount decided upon by that assessor.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">“(3) Any
decision made under this section is final and there shall be no further appeal
to a higher Court on the matter.”<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">Hence, the crux
of the matter is that the amount of compensation to be awarded “shall be the
amount decided upon by that assessor” and not by the judge! Constitutionally,
it looks innocuous because Article 121(1) states that the High Courts shall
have such jurisdiction and powers as may be conferred by or under federal law.
Hence, if the federal law here which is Act 486 provides so, then it is the
assessor and not the judge who will have the final say on the amount of
compensation to be awarded.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">But Article
121(1) was amended during the Mahathir administration by the Constitution
(Amendment) Act 1988 (Act A704) on June 10, 1988, and at the height of a
constitutional collision between the judiciary and his administration. Prior to
that, the original Article 121(1) stated that: “The judicial power of the
Federation shall be vested in a Supreme Court (now Federal Court) and such
inferior courts as may be provided by federal law.” The words “judicial power”
were expressly deleted.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">Sadly, the
Federal Court decided to take a narrow interpretation of Article 121(1) in the
earlier 2008 case of <i>Public Prosecutor v
Kok Wah Kuan</i>.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">In delivering
the majority decision of the Federal Court, the then President of the Court of
Appeal who later became a Chief Justice, Abdul Hamid Mohamad said, “If we want
to know the jurisdiction and powers of the two High Courts we will have to look
at the federal law. If we want to call those powers ‘judicial powers’, we are
perfectly entitled to. But, to what extent such ‘judicial powers’ are vested in
the two High Courts depend on what federal law provides, not on the
interpretation the term ‘judicial power’ as prior to the amendment.”<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">In a display of
judicial gumption at its best and departing from the earlier decision of <i>Kok Wah Kuan</i>, Justice Tan Sri Zainun Ali
who delivered the unanimous decision of the Federal Court in <i>Semenyih</i>, declared that the said Section
40D has effectively usurped the power of the court in allowing non-qualified
persons including the assessor other than the judge to decide on the matter
before the court. Hence, section 40D was struck down as being unconstitutional.<o:p></o:p></span></div>
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<span lang="EN-GB">Zainun added
that by removing judicial power from the inherent jurisdiction of the court,
this has suborned the institution of judiciary to Parliament, thus making
Malaysian Parliament supreme and sovereign over the Constitution.<o:p></o:p></span></div>
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<span lang="EN-GB">This is
inconsistent with the aforesaid Article 4(1) which states that no law must be
inconsistent with the Federal Constitution.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">In this respect,
Zainun and her four other intrepid colleagues ruled that Parliament does not
have the power to amend the Federal Constitution to the effect of undermining
the concepts of separation of powers and judicial independence as this would be
tantamount to establishing parliamentary supremacy when it is the Federal
Constitution which is supreme.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">Stressing that
the concept of judicial independence is the foundation of the principles of the
separation of powers, Zainun stressed that the discharge of judicial power by
persons who are not judges would render the said exercise <i>ultra vires </i>Article
121 of the Federal Constitution as it has ignored the role of judges as
defenders of the Constitution.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">This landmark
decision is now also the authority for holding that if any statute including
one amending the Federal Constitution should offend the basic structure and
features of the Constitution such as the sacrosanct concepts of separation of
powers and judicial independence, the judiciary has the inherent jurisdiction
to strike it down as unconstitutional under Article 4(1).<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">“The judiciary
is thus entrusted with keeping every organ and institution of the state within
its legal boundary...This is essentially the basis upon which rests the edifice
of judicial power. The important concepts of judicial power, judicial
independence and the separation of powers are as critical as they are
sacrosanct in our constitutional framework”, wrote Zainun in the 87-page
judgment of the Federal Court.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">It is also
apposite to be reminded by the words of the late Sultan Azlan Shah: “It is
fundamental in this regard that the Federal Constitution is the supreme law of
the land and constitutes the grundnorm to which all other laws are subject.”<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">In the light of
this monumental decision of all time, it is also anticipated that those in the
legal fraternity will start debating on the validity of statutory provisions
which attempt to oust the jurisdiction of the court such as provisions which
state that the decision of the minister who is a member of the executive is
final and cannot be challenged or appealed against in any court, thus suborning
the judiciary to the executive in contravention of the doctrine of separation
of powers.<o:p></o:p></span></div>
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<br /></div>
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<span lang="EN-GB">Likewise, the
standing of the Syariah courts under Article 121(1A) as inserted by the
aforesaid Act A704.</span></div>
<br />
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<span lang="EN-GB">But at this
moment, congratulations are in order for the five Federal Court judges in the <i>Semenyih </i>case: Justice Tan Sri Zulkefli
Ahmad Makinudin (now President of the Court of Appeal), Justice Tan Sri Hasan
Lah, Justice Tan Sri Zainun Ali, Justice Tan Sri Abu Samah Nordin and Justice
Tan Sri Zaharah Ibrahim.<o:p></o:p></span><br />
<span lang="EN-GB"><br /></span>
<br />
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