The role of lawyers in court

The Sunday Star

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. 

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.” 

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. 

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

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 Rukunegara which include the supremacy of the Constitution and the rule of law. 

Press freedom in the digital age

The Sunday Star

by Roger Tan

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?

Tomorrow is World Press Freedom Day (WPFD).

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

“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. 

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. 

Rohana also quoted Lord Denning who once said: “We must rely on our conduct itself to be its own vindication.” 

An independent judiciary saves American democracy

The Sunday Star

by Roger Tan

Image: I Got This by Sousa & Machado

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. 

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. 

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. 

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.” 

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. 

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. 

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. 

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.” 

‘Laws grind the poor, rich men rule the law’

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’.

The Sunday Star

by Roger Tan

WHEN I was young, I would recite the Rukun Negara every morning during the primary school assembly.

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. 

Raising our right hands, we would say these words aloud in Bahasa Malaysia: 

“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.  

What are these ambitions? They are: 

> Achieving and fostering better unity amongst the society; 

> 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; 

> Ensuring a liberal approach towards the rich and varied cultural traditions; and 

> Building a progressive society that will make use of science and modern technology. 

Of course, we would often spend most of our time memorising the five principles, overlooking the importance of the five national ambitions. 

Then, we were also too young to know the significance of these principles, particularly supremacy of the Constitution and rule of law. 

It was only when I began as a lawyer that I realised the true significance of these third and fourth fundamental principles. 

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. 

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”. 

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. 

This is obviously the ideal and a grandiloquent optimism. But in practice, a lot depends on the person who sits at these institutions. 

MPs urged to pass Covid-19 bill

The Star

PETALING JAYA: 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. 

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. 

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. 

“Singapore, the United Kingdom, Australia, Ireland, Scotland and even Hungary have done it, ” Tan said. 

“This bill would provide ‘a legal shield’ to all businesses big and small, and across all sectors of the economy. 

Tan said these measures were temporary and should be in place for a prescribed period. 

“In other words, the non-performing party’s liabilities will be suspended and non-enforceable during the prescribed period, ” he said. 

The enactment of such a bill is to “safeguard” against any unfair outcomes, Tan said. 

Working together for a cleaner world

The Sunday Star 
by Roger Tan

Not wasting time: Pushing for sustainable waste management, the writer (centre) standing beside Ho, who is leading the organising committee of ISWA 2018.

Malaysians still have a lot to learn about solid waste management.

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. 

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. 

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. 

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. 

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. 

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. 

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. 

Senior lawyer: Shake-up a welcome change for now

The Star
by Royce Tan

PETALING JAYA: The rationalisation proposal to make nine agencies independent entities and which reports directly to Parliament is seen as a welcome change by many. 

However, several concerns have been raised, especially in the event of an elective “dictatorship”.

Senior lawyer Datuk Roger Tan said if there was an absolute majority in Parliament one day, the issue of an Executive dominance would arise. 

He called for the Committee of Institutional Reforms to look into how to prevent this from happening. 

“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. 

“We must have necessary safeguards against any abuse, especially by the Government of the day that controls Parliament. 

“If one day we have an elective dictatorship, the Government will then be able to take control of these institutions,” he said. 

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. 

He said there was also a need to amend the Acts of the respective commissions for them to be appointed by the committee. 

The beginning of a new Malaysia

The Sunday Star

by Roger Tan

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.

ON May 10, Malaysians woke up to a new country, signaling the dawn of a new era.

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. 

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. 

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”. 

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. 

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. 

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. 

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. 

Likewise, the Prime Minister’s relationship with his cabinet will be governed by the concept of primus inter pares or first among equals. 

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. 

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.

Lawyer: Government can terminate contract of A-G

The Star

By Maizatul Nazlina

KUALA LUMPUR: The Government can terminate the contract of Attorney-General Tan Sri Mohamed Apandi Ali (pic), says senior lawyer Datuk Roger Tan.

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.

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. 

According to Tan, the Government could terminate Apandi's contract before the three years, subject to the terms and conditions.

His contract was extended to 2021, by which time he will be aged 71.

He said unlike former A-G Tan Sri Abdul Gani Patail, Apandi was not a career officer.

Tan explained that Gani was a "legal officer" when he was said to have resigned due to "ill health".

Lawyer: Dr M only needs support of MPs to be PM

The Star Online

KUALA LUMPUR: 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).

Datuk Roger Tan (pic) 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.

"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.

Pakatan Harapan has asked the Yang di-Pertuan Agong Sultan Muhammad V to swear Dr Mahathir as the 7th Prime Minister by Thursday evening.

Dr Mahathir said he had the support of 135 MPs, surpassing the 112 needed for a simple majority.

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.

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". 

Judicial independence is sacrosanct

The Sunday Star

With All Due Respect by Roger Tan

Assaulting the judiciary is as crude and uncivilised as assaulting a referee who impartially and fearlessly applies the rules of the game.

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.

Judicial independence – a sacrosanct concept which I have written quite a bit over the years – has been much talked about again, lately.

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 The Role of the Independent Judiciary by Tun Salleh Abas on Dec 17, 1988 as follows:

“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.

“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.

“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.”

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.

“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!

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.

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.”

Hence in the State of Washington v Trump, 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.

No room for hudud law

The Sunday Star

With All Due Respect by Roger Tan

No political acquiescence: Barisan Nasional component party leaders have resolved to stand against PAS’ Hudud Bill. From left are MCA president Datuk Seri Liow Tiong Lai, SUPP deputy president Datuk Seri Richard Riot Jaem and MCA secretary-general Datuk Seri Ong Ka Chuan.

PAS’ proposed Syariah Courts amendments are no less controversial even when we look at them objectively. The clash of laws will only give rise to another set of headaches to our multi-religious and multi-racial society. PAS’ proposed Syariah Courts Act amendments are no less controversial even when we look at them objectively. The clash of laws will only give rise to another set of headaches to our multi-religious and multi-racial society. 

IT was indeed unusual. On May 26, the Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said moved a motion allowing opposition MP, PAS president Datuk Seri Abdul Hadi Awang’s Private Member’s Bill (PMB) to take precedence over government business. This has enabled Abdul Hadi’s PMB to leapfrog over government matters, thus allowing it to be tabled. Abdul Hadi had tried twice since 2015 and failed, but now his PMB will be debated in the October parliamentary session.

Needless to say, the non-Muslim Barisan Nasional leaders felt slighted as they were obviously caught unawares.

Abdul Hadi’s PMB, entitled the Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016, seeks to amend the Syariah Courts (Criminal Jurisdiction) Act, 1965 (Act 355); as Umno leaders had explained, it was intended to enhance the powers of Syariah Courts.

However, the exhilarated PAS leaders had no hesitation to proclaim that it was to pave the way for the implementation of hudud punishment in Kelantan via the Syariah Criminal Code II (1993) 2015 (SCC) passed by the Kelantan State Legislature on March 19 last year.

The preamble to the SCC clearly states that this state enactment is for the creation of Syariah hudud criminal offences. Under the SCC, there are six types of hudud offences – sariqah (theft), hirabah (robbery), zina (unlawful sexual intercourse such as adultery, pre-marital sex and sodomy), qazaf (accusation of zina which cannot be proven without four witnesses), syurb (consuming liquor or intoxicating drinks), and irtadad or riddah (apostasy).

Emotion aside, let us now look at this controversial subject strictly from the legal perspective.

Resolving tugs of war

The Sunday Star 

With All Due Respect by Roger Tan

The Federal Court ruling on the custody battle between a Muslim convert and his Hindu ex-wife was a landmark decision. Can the thorny issue of unilateral conversion be finally be put to rest?

The much-awaited decision of the Federal Court involving S. Deepa and her former husband, now a Muslim convert, Izwan Abdullah, delivered on Feb 10, is sort of a landmark decision.

Deepa and Izwan (whose Hindu name is N. Viran) registered their civil marriage on March 19, 2003, under the Law Reform (Marriage and Divorce) Act, 1976 (Act 164). They have two children, a girl, V. Shamila and a boy, V. Mithran. ­Both were Hindus at the time of their birth. 

On Nov 26, 2012, Viran converted to Islam. On Jan 4, 2013, Izwan unilaterally converted the two minors to Islam surreptitiously without the knowledge or consent of Deepa. 

Shamila’s Muslim name is Nur Nabila Izwan while Mithran is named Muhammad Nabil Izwan. On May 15, 2013, Izwan also managed to obtain a dissolution order of his civil marriage with Deepa from the Seremban Syariah High Court under section 46(2) of the Islamic Family Law (Negri Sembilan) Enactment 2003. Then on Sept 19, 2013, Izwan was granted permanent custody of the two children by the Syariah High Court with Deepa having visitation rights and access to the children.

Meanwhile, upon the application of Deepa, the civil marriage was dissolved by the Seremban Civil High Court on April 7, 2014. The same court also granted permanent custody of the children to Deepa with Izwan having weekly access to the children. However, two days later, Izwan took Mithran away from Deepa’s house. Deepa then applied for and obtained a recovery order from the Civil High Court pursuant to section 53 of the Child Act, 2001. 

Izwan appealed to the Court of Appeal against the custody order as well as the recovery order. On Dec 17, 2014, the Court of Appeal dismissed both appeals. 

On Feb 10, the Federal Court ruled that as long as one parent was non-Muslim, the Syariah Court had no jurisdiction to hear any matter pertaining to the marriage solemnised under civil law at the very beginning (ab initio). The court also granted custody of Shamila (Nurul Nabila), 11, to Deepa, while son Mithran (Nabil), eight, is to live with Izwan. 

To be fair to the panel of five Federal Court judges chaired by the Court of Appeal President Tan Sri Raus Sharif who also delivered the decision of the apex court, the issue of unilateral conversion was not addressed simply because the court was asked to determine only two questions of law, namely:

Mourning a great leader

The Sunday Star

Legally Speaking by Roger Tan 

IN MEMORY: Sunday Star columnist Roger Tan paying tribute to the late Singapore founding father Lee Kuan Yew in the condolence book at the Singapore High Commission in Kuala Lumpur.

Spontaneous and emotional outpouring of grief by Singaporeans is indeed a testament to Lee Kuan Yew’s extraordinary achievement in creating a united nation out of a divided, polyglot, multi-racial and multi-religious population.

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

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

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

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

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

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

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

Moderation is the key, says lawyer

The Star 

by Adrian Chan 

One for the album: Liow (right) posing with speakers at the forum (from left) Dr Tan Chong Tin, Datuk Dr Hou Kok Chung, Tan, Tan Sri Dr Ghauth Jasmon, Prof Mohamad and Dr Chandra (front).

KUALA LUMPUR: Moderation is the key that opened the door to the formation of our Federal Constitution, says lawyer Roger Tan Kor Mee. 

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

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

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

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

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

Case for judicial review

The Sunday Star 
Legally Speaking by Roger Tan

Landmark judgment: In the Nov 7 decision of the Court of Appeal in Muhamad Juzaili Bin Mohd Khamis & Ors v Negri Sembilan State Government, 2014, the court struck down section 66 of the Syariah Criminal Enactment (Negeri Sembilan), 1992 which criminalises Muslim men for cross-dressing, as unconstitutional.

Is judicial review the correct procedure to challenge the validity of a statute? 

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

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

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

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

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

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

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

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

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

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

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

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

Keep it colour blind

The Sunday Star 
Legally Speaking by Roger Tan
 

Respected figure: The writer with Sultan Azlan.

Our judges, regardless of their race and religion, must always be mindful that they have taken an oath to preserve, protect and defend our Constitution not for some but for all Malaysians.

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

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

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

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

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

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

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

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

Justice at all cost for MH17

The Sunday Star

Legally Speaking by Roger Tan

Malaysia Airlines' special multi faith prayer service for the tragic and senseless loss of passengers and crew of MH17, at the Malaysia Airlines Academy in Kelana Jaya. - Filepic

States whose citizens perished in the tragedy can pursue the perpetrators in their domestic courts if their criminal laws have extra-territorial jurisdiction. 

SINCE Thursday, I have been thinking how horrible it must have been, the final moments of their lives, when they knew the plane was going down.

“Did they lock hands with their loved ones, did they hold their children close to their hearts? Did they look each other in the eye, one final time, in a wordless goodbye? We will never know.

“In the last couple of days we have received very disturbing reports, of bodies being moved about, being looted of their possessions.

“Just for one minute, I want to say that I am not addressing you as representatives of your countries, but as husbands and wives, fathers and mothers. Just imagine you first get the news that your husband has been killed, and within two or three days, you see images of some thug removing the wedding band from their hands. Just imagine that this could be your spouse.

“To my dying day, I will not understand that it took so long for rescue workers to be allowed to do their difficult jobs. For human remains to be used in a political game?”

Those were the sad words of the Dutch Foreign Minister, Frans Timmermans, when he delivered his heart-rending speech at the UN Security Council (UNSC) on July 21 on the downing of MH17. More than two thirds of MH17 victims were Dutch.

Almost at the same time, our Prime Minister Datuk Seri Najib Tun Razak managed to pull off a major diplomatic coup by quietly arriving at an agreement with the leader of the pro-Russian separatist group, Alexander Borodai, that finally broke the impasse and secured the release of the black boxes and remains of the victims of MH17.

“In recent days, there were times I wanted to give greater voice to the anger and grief that the Malaysian people feel. And that I feel. But sometimes, we must work quietly in the service of a better outcome,” said Najib.

In this sense, Malaysia’s foreign policy, which is based on non-alignment and neutrality, may have just paid off.

Be that as it may, Malaysia must still register our absolute outrage, in the strongest possible terms, over the shooting down of MH17. At the time of writing this, investigators still do not have unimpeded access to the crash site and remains of some of the victims are reportedly still on the site.

But as the Australian Foreign Minister Julie Bishop put it aptly: “We must have answers, we must have justice, we owe it to the victims and their families to determine what happened and who was responsible.” 

Also, the UNSC Resolution 2166 on MH17 has demanded that “those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability”.

But sadly, men’s greatest sin is always forgetting about tragedies and not learning from them.

On Sept 1, 1983, Korean Airlines Flight 007 was shot down by a Soviet fighter jet near Moneron Island, west of Sakhalin Island over the Sea of Japan. All 269 passengers and crew on board were killed. General Anatoly Kornukov, who was then commander of Dolinsk-Sokol Air Base, Sakhalin, gave the order to shoot down KAL007 without verifying that it was a civilian aircraft.

In 1998, Russia’s president, Boris Yeltsin, even made him chief of the Russian Air Force. The Ukrainian-born Kornukov remained unrepentant throughout. He died early this month. Russia had neither apologised nor made any compensation.

On July 3, 1988, US navy missile cruiser USS Vincennes shot down Iran Air Flight 655 in the Persian Gulf after mistaking it for an Iranian fighter jet. All 290 on board died. President Ronald Reagan and his deputy George Bush Senior refused to apologise. It was not until 1996 that President Bill Clinton’s administration finally expressed “deep regret” over the tragedy and paid the Iranian government US$131.8mil, of which US$61.8mil went to the victim’s families.

Religion and the law

The Sunday Star

Legally Speaking by Roger Tan

The Jais raid on the premises of the Bible Society of Malaysia has put into focus the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of SelangorThe Jais raid on the premises of the Bible Society of Malaysia has put into focus the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor.

THE Jan 2 raid by the Selangor Islamic Affairs Department (Jais) on the premises of the Bible Society of Malaysia (BSM), in which 331 copies of Malay and Iban Bibles were seized, has brought to national attention a piece of state legislation hitherto unknown to many Malaysians – the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor (Selangor Enactment).

So far, Jais has argued they were empowered to do so under Section 9 (1) of the Selangor Enactment, which prohibits any non-Muslim to use in writing or speech any of 25 words or any of their derivatives and variations, as stated in Part 1 of the Schedule, pertaining to a non-Islamic religion.

The 25 words are Allah, Firman Allah, Ulama, Hadith, Ibadah, Kaabah, Kadi, Ilahi, Wahyu, Mubaligh, Syariah, Qiblat, Haj, Mufti, Rasul, Iman, Dakwah, Injil, Salat, Khalifah, Wali, Fatwa, Imam, Nabi andSheikh.

Section 9 (2) also prohibits a non-Muslim to use 10 expressions of Islamic origin set out in Part II of the Schedule, including Alhamdulillah and Insyallah.

Non-Muslims can, however, use the words and expressions by way of quotation or reference.

Jais contended that Section 9 (1) had been contravened because the Malay and Iban Bibles contain the word “Allah”. Further, they were entitled to arrest without warrant the BSM chairman, lawyer Lee Min Choon, and manager Sinclair Wong as section 11 provides that all offences and cases under the Selangor Enactment are deemed to be seizable offences and cases under the Criminal Procedure Code (CPC), that is, offenders of seizable offences can be arrested without any warrant of arrest.

A fortiori, as this is a law passed by a state legislature, it has the force of law and quite rightly it can, therefore, override the 10-point solution decided by the Federal Cabinet and communicated via the Prime Minister’s letter dated April 11, 2011 to the Christian Federation of Malaysia.

Freedom from hate speech

The Sunday Star
Legally Speaking by Roger Tan

The debate currently raging in Australia about amending or repealing section 18C of its Racial Discrimination Act, 1975 is rather interesting.

DURING the recent election, Prime Minister Tony Abbott and Attorney-General George Brandis had pledged to repeal section 18C.

It all started after journalist Richard Bolt was found to have contravened the RDA in two of his articles written in 2009 and published in The Herald Sun and on its online site, titled “White fellas in the black” and “White is the new black”.

As reported in the case of Eatock v Bolt, 2011, Eatock had complained that Bolt’s two articles had conveyed offensive messages about her and people like her (that is high profile and fair-skinned Aboriginal people) in that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could avail to the benefits meant for Aboriginal people.

Justice Bromberg ruled that the defences and exemptions allowed under section 18D of the RDA, such as if the act was done reasonably and in good faith for purposes of artistic work or public interest or making a fair comment, had no application because the articles contained factual errors.

Hence, this has now appeared to be the first task of the Abbott government, that is to remove this racial vilification law. In Brandis’ view, repealing section 18C would, in fact, strengthen and restore freedom of speech in Australia.

“You cannot have a situation in a liberal democracy in which the expression of an opinion is rendered unlawful because somebody else ... finds it offensive or insulting,” said Brandis in The Australian recently.

In other words, free speech is about allowing other people to say or write bad and rude things about you which you do not like.

That was exactly what Abbott said in August when he was the Opposition Leader: “If free speech is to mean anything, it’s others’ right to say what you don’t like, not just what you do. It’s the freedom to write badly and rudely. It’s the freedom to be obnoxious and objectionable.”