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. 

Who is Roger Tan, the lawyer in Pastor Koh and Amri’s task force?

Senior lawyer Datuk Roger Tan Kor Mee  is one of

the two latest additions to the  special task force probing

the high-profile enforced disappearances of Pastor

Raymond Koh and social activist Amri Che Mat.

— Picture via RTNP.my

Malay Mail

by Ida Lim

KUALA LUMPUR, July 12 — Senior lawyer Datuk Roger Tan Kor Mee is one of the two latest additions to the special task force probing the high-profile enforced disappearances of Pastor Raymond Koh and social activist Amri Che Mat, but who is he? 

Tan is currently serving as a Bar Council member, but his peers and his long list of achievements can easily attest that his appointment is not mere tokenism for better diversity in the government’s seven-man task force. 

Here’s a quick look by Malay Mail at Tan’s background, based on his law firm’s website and publicly available information: 

Tan, who was born in Yong Peng, Johor and has a law firm in his home state, graduated with a law degree from Queen Mary College, University of London and also holds a master of law from the National University of Singapore.

Trained as a barrister of the UK’s Gray’s Inn, Tan was admitted as a lawyer in peninsular Malaysia in October 1989 and is also qualified to practise as a lawyer in Singapore. 

Throughout his 30-year career, Tan had actively contributed to the legal community, including as Bar Council member for the years 2004 to 2009, during which he was also the webmaster for the Malaysian Bar’s website which he went on to redesign. 

The beginning of a new Malaysia

The Sunday Star

by Roger Tan

The new government’s priorities should be to restore the rule of law, redress miscarriages of justice and bring about reforms to our public institutions.

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

The unprecedented GE14 results have obviously proved to the world that we the citizens are the masters of our own ship – we decide when and whether to repair, sink and rebuild it, let alone rock it! We should also take pride in the smooth and peaceful transfer of power. 

But GE14 victors should not use it to exact revenge on the vanquished in that they have received their comeuppance or take delight in their political schadenfreude. Instead, the new government’s priorities should be to restore the rule of law, redress miscarriages of justice and bring about reforms to our institutions of government. 

What then is the rule of law? This concept of the rule of law is also the fourth guiding principle of our Rukun Negara. To make it simple for our readers, it is best summed up in the words of Dr Thomas Fuller, who wrote in 1733, “Be you never so high, the law is above you.” In other words, no one including the king could disregard the law with impunity. As the English jurist, Henry Bracton (c. 1210 – c. 1268) put it, “the king is under no man but under God and the law because the law makes the king”. 

In Malaysia, the ascendancy of the law is also enshrined in Article 8 of the Federal Constitution that all persons are equal before the law and entitled to the equal protection of the law. 

It is ironic that the reforms are now being pursued at great pace by the new Prime Minister, Tun Dr Mahathir Mohamad who was also the old Prime Minister who had pursued Machiavellian policies and undermined some of the institutions during his previous rule. 

But he is now one person most loved by Malaysians and best suited to undertake this restoration, and rightly so because without him, whether one likes it or not, Pakatan Harapan would not have won GE14. 

What is most gratifying, however, is what Tun Mahathir said when he first took office, that the component parties in Pakatan are of equal standing, regardless of the number of seats respectively secured by them. This is unlike the component parties in Barisan Nasional who had to kowtow to the dominant party UMNO. 

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

It is hoped that Datuk Seri Anwar Ibrahim who has turned 70 will be now wiser. My generation remembers the damage caused by his pursuit of ethnocentric policies and ‘crony capitalism’ when he was a deputy prime minister. 

It is also good for him to always remember that when he was at his lowest ebb when first arrested on September 20, 1998, it was those from the opposition such as Lim Kit Siang and Karpal Singh who had gone to his aid. Hence, it remains a prayer of all Malaysians that when he takes over the reins, he will be a benevolent leader pursuing inclusive policies, making every Malaysian feel that they have a sense of belonging in this great nation. After all, it is a Malaysian tsunami that swept Pakatan into power.

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

The Star Online

KUALA LUMPUR: A senior lawyer agreed with Prime Minister-designate Tun Dr Mahathir Mohamad's interpretation that he can lead the country with the majority support of Members of Parliament (MPs).

Datuk Roger Tan (pic) said Article 43(2)(a) of the Federal Constitution refers to a member of parliament – not the party or coalition of the majority of the MPs.

"Since all the Pakatan MPs have signed a written declaration to support Tun Mahathir, it is hoped that all government institutions will immediately give effect to the sacrosanct will of the people expressed through the ballot box," he said.

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

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

His remarks come after outgoing prime minister Datuk Seri Najib Razak said he accepted "the will of the people" but stopped short of admitting defeat.

Dr Mahathir said that four parties in the coalition have also "written to the King, asking for a swearing-in ceremony to take place the sooner". 

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.

Moderation is the key, says lawyer

The Star 

by Adrian Chan 

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

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

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

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

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

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

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

Freedom from hate speech

The Sunday Star
Legally Speaking by Roger Tan

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

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

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

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

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

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

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

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

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

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.”

Nefarious act of betrayal

The Sunday Star
by Roger Tan

Party-hopping is a potent threat to parliamentary democracy and it is hoped that politicians will come to grips with this issue in a bipartisan manner.

THE great Winston Churchill (1874-1965) was known for party-hopping. In 1904, he changed parties from the Conservative Party to the Liberal Party, and was made Under-Secretary of State for the Colonies in 1905. He officially returned to the Tories in 1925 after he failed in two successive attempts to win a seat as an independent.

On record, his reasons for defecting to the Liberals were the Conservatives' reluctance to undertake social reform and their protectionist policy of favouring trade with the British Empire. But on the other hand, the Liberals were then an up-and-coming party, and his calculated move obviously did catapult him to high office at the rather young age of 31.

Of course, admirers and detractors of Churchill would respectively describe his act as one of political conscience and opportunism. But that is immaterial as until today, the British parliamentary system still does not proscribe party-hopping which also has different nomenclatures such as party-crossing, party-switching, party-leaping, floor-crossing and waka-jumping.

Like any democracy, regardless of it being an established or an incipient one, Malaysia too faces this perennial problem of party-hopping and elected representatives resigning from their political parties to become an independent.

Hence, we are not short of inveterate party-hoppers. One of them is Sabah State Reform Party (Star) chairman Datuk Dr Jeffrey Kitingan. Prior to this, he had joined Parti Bersatu Sabah (PBS), the Parti Bersatu Rakyat Sabah (PBRS), Angkatan Keadilan Rakyat (now defunct Akar), United Pasokmomogun Kadazandusun Organisation (Upko) and Parti Keadilan Rakyat (PKR).

It is, therefore, not surprising for such politicians to be given various undignified names such as political frogs, traitors, lepers and chameleons.

Up close and personal with Roger Tan

The Star
by Wong Wei-Shen 

Lawyer and SPAN commissioner gets...

ROGER Tan has come a long way since his small town boy days in Yong Peng, Johor. From living in poverty as a young lad to becoming a successful lawyer in Malaysia, it is not hard to see that Tan values hard work, discipline and determination. These values are what have made him the man he is today.

Despite having achieved a lot in his life so far, it is evident that Tan harbours a lot of pain and anguish. On May 23, 2000, his father, Tan Sue Yong, the person who inspired Tan to become the man he is today, went missing after a walk about in Yong Peng town. His anguish lingers as 11 years later, his father has still not been found.

Tan is emotional when speaking to StarBizWeek about his father. “11 years have passed. Actually I've done all I can but we still can't locate him. I've gone on national television and used the press in every form. This is one area I feel that I've failed him.” Tan's wish is to get closure on his father's disappearance. “Even if we can't find him alive, the least that we want is to find his body and give him a decent burial,” he said.

Personal mentor

It is obvious from the way that Tan speaks of his father, that he looks up to his father, just as every little boy does to his own dad: with a sense of admiration and awe. His father comes from the rich Zheng family in Fuzhou, China. Due to the onset of communism, Sue Yong and his wife Swee Mei left China and came to Malaysia.

Civil disobedience cannot rule the law

The Sunday Star
by Roger Tan

Street Protest: Civil disobedience is becoming a popular tactical weapon used by politicians and civil rights movements to justify their violation of laws.

IN 1996, when my clients and I were negotiating with the Attorney-General’s Chambers, led by its then head of the advisory and international division Tan Sri Abdul Gani Patail, I warned that too high a rate might cause the public to refuse payment to privatised entities out of civil disobedience.

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

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

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

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

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

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

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

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

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

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

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

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

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

Making the case for preventive detention

The Sunday Star 

by Roger Tan

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

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

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

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

But the ISA is not the only preventive law in Malaysia. The other two laws are the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA).

The EO, which came into force on May 16, 1969 after the May 13, 1969 riots, allowed the minister to detain without trial any person for up to two years in the interest of public order or in order to suppress violence or prevent crime. Currently, there are few hundreds of detainees placed under the EO.

On the other hand, the DDA, which came into force on May 30, 1985, allowed the minister to detain without trial any person involved in drug trafficking for up to two years.

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

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

Najib delivers promise on political transformation

The Borneo Post

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

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

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

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

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

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

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

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

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

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.

No access to information in three categories

The Star

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

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

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

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

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

Bar: Karpal fit to be counsel

The Star

By M. Mageswari

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

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

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

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

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

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

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.

Court: Plan for RM4b floating city is valid

New Straits Times

JOHOR BARU, Sat. - The High Court here yesterday struck off with costs an originating summons asking for a declaration that the permission given by the City Council (MBJB) to develop the RM4 billion floating city project is invalid.

Judge Datuk Abdul Malek Ishak, who delivered his judgment in chambers, said the originating summons had no reasonable grounds, adding that the costs would be decided at a later date.

Lawyer Abdul Razak Ahmad in his originating summons filed last November, had said that the permission granted to Johor Coastal Development Sdn Bhd to start work on the project contravened the Town and Country Planning Act, 1976.

His originating summons also stated that the permission contravened the Street, Drainage and Building Act, 1974 and Uniform By-Laws 1984.

Razak had stated that he was entitled to a reply by the MBJB to his letter dated Sept 7, 1994 in relation to the planning permission given.

The MBJB's application to strike off the originating summons was made last December pursuant to Order 18, Rule 19 on the grounds that Razak's summons did not disclose reasonable cause of action.

Roger Tan appeared for the MBJB, while Razak represented himself. State Legal Advisor Abdul Alim Abdullah held a watching brief for the State Government.