Senior lawyer hails Pak Lah’s commitment to judicial independence

by FMT Reporters

Roger Tan praises the former prime minister for his role in passing the Judicial Appointments Commission Act 2009.

Senior lawyer Roger Tan said Abdullah Ahmad Badawi’s actions validated the Malaysian Bar’s efforts in ‘upholding justice without fear or favour’. (Facebook pic)

PETALING JAYA: Former prime minister Abdullah Ahmad Badawi left a lasting legacy in his commitment to judicial independence, says senior lawyer Roger Tan.

In a Facebook post tonight, Tan expressed his condolences to Abdullah’s family over his death.

“Pak Lah was indeed a true gentleman in politics, or rather, he was too good a gentleman to be in politics.

“Unlike many politicians, he was neither vindictive nor ruthless. In fact, on many occasions, he was magnanimous,” he said.

Tan, a former member of the Bar Council, praised Abdullah for having the political will to pass the Judicial Appointments Commission (JAC) Act 2009, demonstrating his commitment to judicial independence.

“He also supported the Malaysian Bar during the infamous VK Lingam video tape controversy by attending the 14th Malaysian Law Conference and hosting a sumptuous dinner for the delegates on Oct 29, 2007.

“This was done despite the then chief justice having directed the judiciary to not attend the conference, of which I was the organising chairman,” he said.

In September 2007, lawyers marched towards the Prime Minister’s Office in a “Walk for Justice” to protest allegations of corruption in the judiciary, following the release of the tape implicating then chief justice Ahmad Fairuz Sheikh Abdul Halim in a judge-fixing scandal.

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. 

‘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. 

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. 

Let justice be seen to be done

The Sunday Star

by Roger Tan

Cousins Piya (left) and Prithep Sosothikul with a picture of their late grandmother Boonsom Boonyanit. — Filepic

I JUST recently learnt from an international arbitration news site that the Malaysian government had reached an amicable settlement with the estate of Boonsom Boonyanit, a Thai national, some time in October 2018. 

This news hitherto is not known to the Malaysian public. Neither is there any information available to the public on the exact settlement sum and whether the same has been paid. 

Be that as it may, the Malaysian taxpayers have obviously ended up once again having to fork out a sum probably in millions of ringgit to compensate for the criminal acts of the perpetrators who are still at large. There may be a requirement for confidentiality in the settlement agreement, hence the non-disclosure. 

Apparently, the October 2018 settlement had been reached with the Pakatan government after the estate issued a notice on July 31,2017 addressed to the then Prime Minister, Foreign Affairs Minister and Attorney General, accusing Malaysia of contravening her treaty obligations under the 1987 Asean Agreement for the Promotion and Protection of Investments in not according fair and equitable treatment and providing full protection for Boonsom’s investments. 

The treaty has been signed by Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand. Under the treaty, if any dispute cannot be settled within six months after its being raised, then the affected party can choose to submit the same for conciliation or arbitration. 

But has justice been done or rather has justice been seen to be done to Boonsom? To quote the oft-repeated 100-year-old words of Lord Chief Justice Hewart in R v Sussex Justices, ex parte McCarthy [1924] that “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” 

Sadly, Boonsom had already passed away on May 23,2000. She was a victim of land scam in 1989. All in, three generations of her family had carried on with this fight for justice with sheer grit and tenacity. But this long and arduous journey has also taken them some 30 years. 

It all started when Boonsom’s two beachfront lots in Tanjung Bungah, Penang (the said lands) were fraudulently transferred by an impostor claiming to be Boonsom to Adorna Properties Sdn Bhd, then known as Calget Sdn Bhd (‘Adorna”), on May 24,1989 for RM1,865,798. 

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.

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.

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:

Platform for strata woes

The Sunday Star 

With All Due Respect by Roger Tan

On board: Senior lawyer Teh Yoke Hooi, the only woman president, receiving her letter of appointment from Dahlan, flanked by the ministry’s secretary-general Datuk Mohammad Mentek and Norhayati.

With the Strata Management Tribunal, the myriad of related disputes should be effectively dealt with.  

ON July 9 this year, 20 lawyers received their letters of appointment as presidents of the Strata Management Tribunal from Urban Wellbeing, Housing and Local Government Minister, Datuk Abdul Rahman Dahlan. 

The much-awaited Strata Management Act, 2013 (Act 757), initiated by the previous minister, Tan Sri Chor Chee Heung, finally came into force on June 1, 2015, in the peninsula except for Penang which came into operation on June 12, 2015.

The Strata Management (Strata Management Tribunal) Regulations, 2015, came into effect on July 1, 2015. Act 757 also repealed the Building and Common Property (Maintenance and Management) Act, 2007 (Act 663).

In fact, the tribunal is the precursor of the Strata Titles Board set up under the repealed provisions of the Strata Titles Act, 1985 (Act 318) which really did not take off despite Act 318 being amended on Dec 1, 2000, and again on April 12, 2007.

The tribunal’s headquarters is based in Putrajaya whilst offices have also been set up in Penang, Johor Baru and Kuala Terengganu (See table). The chairman of the tribunal is Norhayati Ahmad.

With more than three million Malaysians living in various stratified buildings, it is hoped that this tribunal will be an effective forum for the various stakeholders to settle their disputes.

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.

Of pleading guilty and going topless

The Sunday Star

by Roger Tan

 

Two newsworthy headlines in recent weeks merit some comments.

ON Sept 11 when I was taking a flight at Changi Airport, I came across the news report that a former Singapore prosecutor and crime buster, Glenn Knight, had apologised to former MCA president Tan Koon Swan for wrongly prosecuting him in the Pan-El crisis in 1986 (Koon Swan case ‘a mistake’, The Star, Sept 11).

I thought such a move was rather strange but then I was not able to get hold of a copy of the book, The Prosecutor, at the airport. Now that I have sighted it, some observations should be made.

Among other things, Knight wrote in his book, “He (Koon Swan) was charged in 1985 before Justice Lai Kew Chai and pleaded guilty to the charge. He was also given a two-year jail sentence. And a S$1 million fine, which he immediately appealed ...

“A similar CBT case came up for hearing, and Chief Justice Yong Pung How, who had replaced Justice Wee Chong Jin as Chief Justice in 1990, concluded that I was wrong to charge Koon Swan for the offence which got him convicted. Chief Justice Yong was of the opinion that the section that I had charged Koon Swan with was wrong in law, for we could not charge a person for stealing from a company because as a director, it was not a breach of the law in that sense ...

“In the United Kingdom, such a landmark judgment would have set aside Koon Swan’s conviction, but our jurisprudence does not allow for this, though technically Koon Swan could still have been granted a pardon ... The judgment meant that Koon Swan had been wrongly convicted and he was technically an innocent man.”

Firstly, there are some factual errors. Koon Swan was actually charged and he pleaded guilty in 1986, not 1985. Justice Lai’s decision was delivered on Aug 26, 1986. Apart from the two-year jail sentence, he was actually fined S$500,000, not S$1mil.

Glimmer of hope for Vui Kong

The Sunday Star

by Roger Tan

Singapore has announced that new laws will be drafted by the year-end to abolish the mandatory death penalty for some cases of drug trafficking and murder.

ON Nov 14, 2008, Sandakan (Sabah)-born Yong Vui Kong was convicted of trafficking 47.27g of heroin and sentenced to death in Singapore.

He was 19 when he was arrested at about midnight on June 13, 2007 near the Meritus Mandarin Hotel at Orchard Road by officers from the Central Narcotics Bureau (CNB).

The drugs were found in two packets in a Malaysian-registered car MBK 5317 which the prosecution said Yong had earlier collected from a man in Taman Sentosa in Johor Baru.

Yong then went to look for his friend, one Chai Chor Hsiang, and asked him to drive the car into Singapore.

At the trial, Yong made it clear that Chai had no knowledge of the packages hidden under the driver’s seat. Yong’s defence was that he thought he was collecting debts from his boss’ debtors and that his boss had made him promise not to open the packages.

Yong said even though he was suspicious, he did not think that they contained drugs.

Yong, who initially withdrew his appeal to the Singapore’s apex court, was later allowed to appeal and he did make several other but unsuccessful attempts at the Court of Appeal.

Among others, he unsuccessfully challenged the constitutionality of the mandatory death sentence.

He failed too in his arguments that his prosecution contravened the constitutional provision on equal protection when the Public Prosecutor decided to discontinue three capital charges against one Chia Choon Leng whom Yong had identified as the man in Johor Baru who on June 12, 2007 had asked him to deliver the “gifts” to Singapore.

Yong had also sought clemency from the Singapore President but it was turned down.

Yong’s plight attracted the sympathy of many people, both within and without Malaysia.

Described by his lawyers as “impoverished and vulnerable”, many felt that Yong should be given a second chance as he was too young and naïve to appreciate the gravity of the act when he was arrested.

There appears to be one glimmer of hope for his death sentence to be commuted to life imprisonment.

On July 9 this year, Singapore Deputy Prime Minister Teo Chee Hean announced in Parliament that new laws would be drafted by the year-end to abolish the mandatory death penalty for some cases of drug trafficking and murder.

Bar must be apolitical

The Star
by Roger Tan

I KNEW this was coming because as I said it would be painful for some lawyers to read what I wrote in “Unswayed by fear or favour” (Sunday Star, May 20).

I am indeed not wrong with my prognostication.

However, I am surprised that it was even necessary for the eight Loyarburoks to come together to give a 2,700-word response to something they felt were just mere fallacies being spun by me.

In a tweet sent out early yesterday morning, one of the eight, K. Shanmuga tweeted that their joint statement, “Bar’s resolution proper”, (The Star, May 23) was issued because my aforesaid article had got all of them so annoyed.

Hence, because I emphatise with them, I would oblige them in the best tradition of the Bar with a short reply which should suffice.

Firstly, my concern on the independence of the 80 monitors from the Bar is not totally unfounded. Of the 80 monitors, I personally know at least one whom I follow on Twitter.

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.