Of the Bench and the Bar

The Sunday Star

by Roger Tan

Allyna Ng with her proud parents, Datuk & Datin Ng Kong Peng at the 2015 JPA Presentation Ceremony.

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. 

IT is always a proud moment for the nation whenever we learn of our young Malaysian students excelling in their legal studies overseas. 

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. 

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. 

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. 

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. 

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! 

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. 

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. 

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.

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.

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.

Ex-judges must remain ethical

The Sunday Star

Legally Speaking by Roger Tan

Who a former judge later associates with and what he subsequently does or says will still be closely scrutinised by the public.

THE morning after I retired, a Rolls Royce arrived at my house with a message that I was required to attend a very important board meeting. Without further ceremony, I was taken to the penthouse of the Chartered Bank. Here, I was appointed chairman and required to call the meeting to order.

“There were only three items on the agenda. Caviar, champagne and any other matters arising therefrom. At noon, we adjourned to a private room in the Shangri-La for a sumptuous lunch. When I was driven back home at 3pm, I greatly regretted I had not retired years earlier!”

Those were the bantering words of one of Malaysia’s most celebrated judges, Tun Mohamed Suffian, at a dinner given in his honour shortly after his retirement as Lord President on Nov 12, 1982. At first glance, these may well be facetious remarks, but it does go to show that a retired judge can be commercially marketable and become an asset for any organisation to be associated with.

Needless to say, who an ex-judge later associates with and what subsequently he does or says will still be closely scrutinised by the public. His judicial conduct during his pre-retirement or resignation days may even be called into question if he later exhibits strong inclinations or preferences whether politically, socially or morally.

However, currently, the Judges’ Code of Ethics 2009, made pursuant to Article 125(3B) of the Federal Constitution, does not deal with the conduct of judges after their retirement or resignation. Hence, an ex-judge will have to be guided by his own conscience when he embarks on any post-retirement activities. Most of them will become an arbitrator or join a legal firm as its consultant or a statutory body as its chairman. To date, only three are said to have returned to the court as counsel – Tun Mohamed Salleh Abas, Datuk Kamalanathan Ratnam (better known as R.K. Nathan) and Datuk Gopal Sri Ram.

Custodial deaths a national shame

Justice served: Kugan’s mother Indra Nalathamby leaving the court. Kugan’s family was awarded RM751,709 in damages and another RM50,000 in costs.

The Sunday Star

Legally Speaking by Roger Tan

Our enforcement officers must appreciate, if not be made to appreciate, that it is the cornerstone of our criminal justice system that a person, including a suspect, is innocent until proven guilty.

ON June 28, Justice Datuk V.T. Singham indeed retired with a bang! Two days before his retirement, he awarded RM751,709 in damages and another RM50,000 in costs to the family of Kugan Ananthan who died while in police custody on Jan 20, 2009. 

Singham held that the then Selangor police chief Tan Sri Khalid Abu Bakar, now the Inspector-General of Police, had committed misfeasance in public office. 

In delivering his judgment, he also reportedly urged the government to urgently set up the Independent Police Complaints and Misconduct Commission (IPCMC) as recommended by the 2005 Royal Commission to enhance the operation and management of the Royal Malaysia Police (RCI).

However, at the time of writing this piece, his written judgment is still not available. In any event, the government and the IGP are expected to appeal against his decision.

This reminds me of the case of Mohd Anuar Sharip who vomited blood, collapsed and died in a police cell on Aug 19, 1999. In June, 2010, Justice Lee Swee Seng awarded about RM1.6mil in damages to his widow, Suzana Mohamad Aris. However, Lee’s decision was subsequently reversed by the Court of Appeal. In October 2010, Suzana failed to obtain leave from the Federal Court to appeal against the decision of the Court of Appeal. 

But it is worthy to reiterate Lee’s words when he handed down his judgment: “Let the message go forth from this place that any more deaths in police custody would be one too many! Those with power to arrest and detain must ensure that the basic human rights (sic) of a detainee to seek medical treatment while in custody, is immediately attended to. There should be no more wanton and wasted loss of life in police custody for every life is precious … The safest place to be in should not by default be turned into the most dangerous place to be taken to.”

The stink of injustice

 

Justice not served: Cousins Piya (left) and Prithep Sosothikul with a picture of their late grandmother, Boonsom Boonyanit.

The Sunday Star

by Roger Tan

The police have to explain their tardiness in investigating the most infamous land forgery case in Malaysia.

This is a heart-rending story, a story about an incessant quest for justice by three generations of a Thai family.

It all happened on Dec 12, 1956 when a Thai of Chinese origin, Sie Guan Tjang @ Sie Hang Bok, purchased two pieces of land for investment – Lots 3606 and 3607 of Mukim 18 at Tanjung Bungah, Penang (“the said lands”).

During his lifetime, Sie visited Penang very often with his Thai wife, Boonsom Boonyanit, also known as Sun Yok Eng. They loved Penang and her people so much that they had intended to build their retirement home on the said lands. On Jan 18, 1967, the two lots of land were transferred to Boonsom by way of a memorandum of transfer (“Form 14A”).

Under section 81(3) of the National Land Code (Penang and Malacca Titles) Act 1963 (Act 518), Form 14A was then treated more or less as proof of ownership over the said lands. Section 92 of Act 518 also provides that pending the issuance of a final title, an advance certificate of title (“ACT”) would be issued. Since Jan 18, 1967, Boonsom had been at all times in possession of the Form 14A apart from faithfully paying all the quit rents and assessments due on the said lands.

Some time in June 1989, Boonsom’s eldest son, Phiensak Sosothikul, chanced upon an advertisement in a Thai newspaper, Thairat, dated June 11, 1989, which was inserted by a law firm from Penang, Messrs Khor, Ong & Co (“KOC”). The advertisement requested that any person who had any right to the said lands or any heir to Boonsom residing at a house No. 87, Cantonment Road, Penang, Malaysia to contact KOC. The court was later told that when Boonsom’s accountant did contact KOC, the latter could not give any useful information.

Boonsom then engaged the law firm, Messrs Lim Kean Siew & Co (“LKSC”) to conduct investigations which revealed that the said lands had been 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.

Boonsom then sued for the return of the said lands. The Penang High Court ruled in favour of Adorna on April 28, 1995. On appeal, the Court of Appeal in its judgment dated March 17, 1997 reversed the High Court’s decision. Adorna then appealed, and the Federal Court comprising Eusoff Chin, Wan Adnan Ismail and Abu Mansor Ali allowed Adorna’s appeal in its judgment dated Dec 13, 2000 and pronounced in open court on Dec 22, 2000 (“Adorna Judgment”). Sadly, Boonsom had already passed away on May 23, 2000.

Boonsom’s second son, Kobchai Sosothikul, being the representative of her estate, soldiered on and filed two separate motions to the Federal Court for review of the Adorna Judgment.

It's time to end the death penalty

Anti-death penalty campaigners staging a demonstration in Los Angeles. Even in other countries, people are protesting against the death penalty. AFP pic

New Straits Times
By Datuk Sri Dr Muhammad Shafee Abdullah 

ABOLITION OF CAPITAL PUNISHMENT: Malaysia should rethink holistically and practically and take the lead and be the proponent in Asean countries to implement this.

THE death penalty is prescribed for several offences, ie murder and waging war against the King (offences under the Penal Code), kidnapping for ransom (an offence under The Kidnapping Act 1960 as opposed to simple kidnapping under the Penal Code), drug trafficking (offences under the Dangerous Drugs Act 1952 and other related drug statutes), certain scheduled offences for activities in relation to possession of firearms and ammunition or explosives [offences under the Firearms (Increased Penalties) Act 1971(FIPA)] and under the Internal Security Act 1960 (ISA) the latter of which was repealed recently.

Most of the death penalties are mandatory upon finding of guilt. This means the trial judge has no discretion in sentencing to consider a range of possible sentences such as life imprisonment or a prescribed jail sentence which could run up to the maximum sentence, being the death penalty, which of those is most suited to be handed down on a convicted person after considering the myriad circumstances in relation to the commission of the offence and/or the offender.

The Malaysian legislature used to entrust judges with this important discretionary function. For instance, we used to give this sort of discretion to the High Court judges in drug trafficking matters. But a previous attorney-general was frustrated with the fact that judges were opting to sentence certain drug trafficking convicted offenders to life imprisonment rather than mete out the death penalty.

Those judges had good reasons in most cases for opting out of the death penalty. In any case, if the judges were wrong there was always the appellate process which the prosecution could resort to press their point for the capital sentence.

But immaturity and myopic considerations seemed to have prevailed then. We have been stuck with this knee-jerk culture of our legislature, a legislature that is not well advised by the parliamentary draftsman and other relevant authorities. As a result amendments made were jaundiced and lack cohesion with the general scheme of the system.

Unswayed by fear or favour

The Sunday Star
by Roger Tan

As much as we do not like the judiciary to be perceived as pro-government, we also do not want the Bar to be perceived as pro-opposition.

ON May 11, the Malaysian Bar passed a motion containing 12 resolutions related to the April 28 Bersih 3.0 public assembly by an overwhelming majority. The decision of the House with 939 votes in favour and 16 against is to be respected. The argument that it is not representative of the 14,000-member Bar has no basis whatsoever as Section 66 of the Legal Profession Act, 1976 (LPA) is clear, that is, a motion is carried if a majority votes in favour of it.

With that above overriding principle in mind, let me, however, put on record the reasons, whether rightly or wrongly, why I could not support the motion.

First and foremost, it must be acknowledged that Resolution (12) was amended to include, inter alia, that (1) the Bar is concerned by and does not countenance any acts of violence in a public rally and that such action by participants is not an appropriate response to the police; and (2) the Bar is equally concerned by reports that certain persons had crossed through the police barriers to Dataran Merdeka.

But this is a complete opposite of the language used to condemn police brutality and the manner in which the assembly was handled by the police on that day. I felt that merely expressing concern against the other law breakers is not strong enough. The Bar, in my view, must be seen in the forefront in upholding the rule of law regardless of whether they were police or protesters who had broken the law. If the Bar wanted to inveigh and condemn police brutality, the Bar must also do likewise against actions of those protesters who had behaved more like rioters and anarchists in assaulting policemen and jumping on and damaging police vehicles.

Secondly, I did not want the Bar to prejudge the issues. The way Resolution (1) was worded, it appears that the Bar had already come to a conclusion that all those acts listed therein had been committed by the police. On the other hand, Resolution (12) was worded very carefully to state that the breach of police barriers was based on reports.

As lawyers, we are trained that even if we have witnessed someone shoot another person, it does not mean the former is automatically guilty of murder. There could be other extenuating factors that require further investigation.

Bar Council criticised over its stand

New Sunday Times

KUALA LUMPUR: The Bar Council should let justice take its course rather than suggest that the Attorney-General refrain from appealing against Datuk Seri Anwar Ibrahim's acquittal from a sodomy charge.

World Assembly Youth president Datuk Idris Haron said due processes should be followed.

"The provisions are there and we should utilise the resources available.

"Natural justice, the right to be heard and the maxim of innocent until proven guilty should be practised," he said when commenting on Bar Council president Lim Chee Wee's statement urging the A-G not to appeal against Anwar's acquittal as the High Court had ruled fairly in the case.

Lim had said that the case had unnecessarily taken up judicial time and public funds and the A-G should focus on more serious crimes.

The A-G has 14 days to file an appeal from the date of the verdict. Due to the Chinese New Year celebrations next week, the last day to file an appeal is on Jan 25.

Police warn protesters against stepping out of line

The Sunday Star

KUALA LUMPUR: Organisers of tomorrow's Free Anwar 901 rally must ensure that none of their supporters gather outside the designated area or police will be forced to disperse them, Inspector-General of Police Tan Sri Ismail Omar said.

“I wish to stress that the approval for the rally outside the court house is not a blanket approval for people to gather anywhere else in the city or the country,” he said.

He said the designated parking area outside the court complex could accommodate about 5,000 people and no more than that.

Otherwise, it would lead to traffic congestion and inconvenience others, he said.

Judicial diversity creates confidence

The Sunday Star
by Roger Tan

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

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

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

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

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

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

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

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

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

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

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

The Star

 by Roger Tan

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

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

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

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

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

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

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

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

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

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

What a mockery

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

The Sunday Star
by Roger Tan

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

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

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

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

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

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

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

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

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

Legal aid centres lack funding

The Star
by P. Aruna and Wong Pek Mei

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

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

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

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

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

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

High time for a new Bar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Time to break the impasse

By not confronting racial and religious issues, civil court judges have abdicated their duty to uphold the people’s constitutional rights to equality and freedom of religion.

ON Nov 12, much to the dismay of many Malaysians, the Federal Court declined to answer five constitutional questions of public importance on unilateral conversion of children to Islam by one parent who has embraced Islam.

The case involved Shamala Sathiyaseelan, 38, and Dr Jeyaganesh Mogarajah, 42. The couple were married on Nov 5, 1998 according to Hindu rites in Alor Setar and the marriage was registered under the Law Reform (Marriage and Divorce) Act, 1976 (Act 164). Their sons, Saktiswaran and Theiviswaran – born in 1999 and 2001 – were Hindus at the time of their birth.

On Nov 19, 2002, Jeyaganesh converted to Islam. As a ‘saudara baru’ or muallaf, he is known as Muhammad Ridzwan bin Mogarajah. On Nov 25, 2002, Jeyaganesh converted the two minors to Islam without the knowledge or consent of Shamala. Saktiswaran’s Muslim name is Muhammad Firdaus Jeya while Theiviswaran is named Muhammad Asraf Jeya.

Shamala then went to the Kuala Lumpur High Court to challenge the conversions and seek custody of the minors. Justice Faiza Tamby Chik held on April 13, 2004 that since the two minors were now muallafs, Shamala should take them to Majlis Agama Islam Wilayah Persekutuan for help and advice to resolve the issue because under Article 121(1A) of the Federal Constitution, the civil court had no competency to determine the status of the minors’ conversion.

Meanwhile, Jeyaganesh had also obtained hadhanah (custody) of the two minors from the Mahkamah Tinggi Syariah Selangor on May 8, 2003. However, on July 20, 2004, in addition to an interim order made earlier in favour of Shamala on April 17, 2003, the High Court granted Shamala ‘actual custody’ or actual care and control, and the husband, ‘legal custody’ of the children.

Roger Tan:: Not a question of loyalty (Expanded Version)

Malaysians who live, work or study in Singapore should not be regarded as disloyal to their own country.

LIKE many Malaysians, I am naturally proud of ex-Muar High School boy Tan Zhongshan’s extraordinary academic feat (“Malaysian is top law student at Cambridge University”, The Star, Oct 19).

By chalking up the record as the overall best law student in the entire Cambridge University, his performance has probably even surpassed that of the university’s luminary alumni like Singapore’s Minister Mentor Lee Kuan Yew and his late wife.

Tan is but one of the thousands of young and bright Chinese Malaysians who have received scholarships from the Singapore government to study at different levels from secondary one to university in the city state.

It is no secret that Singapore officials would only recruit the “cream among the crop” for this purpose and those who excel will be sent to Oxbridge colleges and the Ivy League universities. Upon graduation, they would be bonded to work for a number of years in Singapore or elsewhere in Singapore-owned corporations. By then, most will not return to Malaysia.

Needless to say, many such children from poor families who were unable to get state aid in Malaysia have benefited immensely from this financial assistance. In return, they generally feel grateful to the Singapore government.

In Tan’s case, he said he would join the Singapore legal service. This is another achievement because only the very best of law graduates would be selected to join the Singapore judicial and legal services. It is also financially rewarding considering that a Singapore High Court judge is said to draw an annual salary inclusive of perks amounting to about S$1mil (RM2.4mil).

However, one has to take up Singapore citizenship if he aspires to become a judge or hold a senior position in their legal service.

This reminds me of my own experience. Unable to get financial aid from the state, my family had to privately finance my law studies in England. At that time, the then British government had begun imposing full-cost fees on foreign students as well as prohibiting them from seeking employment while studying there.

I wrote to Prime Minister Margaret Thatcher telling her that the common wealth of the Commonwealth ought to be commonly shared! I did receive a reply from the British Department of Education and Science on her behalf justifying the new policy on the grounds of national interest.