INFOLINE PP 5575/1/2006
THE OFFICIAL NEWSLETTER OF THE MALAYSIAN BAR
MARCH / APRIL 2005
Quorum at AGMs: (2)(b) or NOT (2)(b)?
he AGM of the Malaysian Bar was held at the Hotel Nikko on 19th March 2005. At the appointed time for the meeting, some 688 members of the Bar were present and the Chairman Tuan Hj Khutubul Zaman Bukhari called the meeting to order. The customary minute’s silence was observed for the members of the Bar who had departed the previous year. Thereafter, the meeting took an unexpected turn. The customary announcement by the Chair that the quorum had been met was not there, which led to some members questioning whether quorum had been reached for the meeting to proceed. The Chairman informed the meeting that the Bar Council in its May 2004 meeting had unanimously decided that the quorum requirement under s 67 of the LPA applied only to EGMs and did not apply to AGMs. The first order of the proceedings then was a debate on a question of interpretation. Views from both sides of the divide were aired, in the usual eloquent style befitting the occasion.
Sulaiman Abdullah confessed, that, he too had subscribed to that view before, but now having looked into the various provisions of the LPA, saw the wisdom of the other point of view, and declared that he was wrong in having taken that position before, and was moved to support the present stand taken by the Bar Council, that a quorum was not required for the AGM. The Chair after allowing a lengthy discourse made a ruling that the AGM of the Bar shall proceed. Many were surprised by the move and not all of them were happy about it. When the general body of the Bar (such as was present that day) decided to carry on with the proceedings despite the protestation of some, Datuk Param and (to quote The Star) ‘several other prominent members’ stuck to their guns and walked out. ‘I felt it was not proper, so I left the meeting,’ said Datuk Param to The Star. However, it must be noted that a large majority of members stayed on to partake in the deliberations of the meeting.
The papers, of course had a field day. ‘Bar AGM The former Bar President Datuk Param Cumaraswamy, pointed out that the Bar Council had, marred by controversy over quorum’ the Star cried in for some 27 years, interpreted the s 67 of the LPA to their Sunday 20 March issue. ‘Validity of Bar AGM mean that a quorum was required before an AGM could unresolved’ chorused the NST the next day. be conducted. While another former Bar President Haji continued on page 3
8 Your Secretariat 12 News 20 Secretariat 24 Your Opinion 28 Comment 36 Articles 56 Notices 58 Press Statements 60 D B Order 62 Diary 64 Lawyers Update 67 Library Update
24 28 33 37
Admit it, Legal Practice is a Business Are Bureaucrats above the Law?? Scrapping Legal Aid? Reforming the Corporate Insolvency Regime 41 A Quick Peep Into the Child Act 2001 (Act 611) 44 The God-Provision 47 Hukuman Ke Atas Pesalah Bagi Perlakuan Jenayah Terhadap Wanita Masih Terlalu Ringan
Centrefold ... 1
An Open Letter to SUHAKAM
CC o on n tt ee n n tt ss
(An Infoline Pull-Out) Issue 14 March / April 2005
MARCH / APRIL_2005
Office Bearers for 2005/6 BAR COUNCIL OF MALAYSIA BAR COUNCIL Nos 13, 15 & 17 Leboh Pasar Besar 50050 Kuala Lumpur Malaysia Telephone (03) 2031 3003 Fax (03) 2026 1313, 2034 2825, 2072 5818 e-mail: [email protected]
BAR COUNCIL OFFICE BEARERS AND COUNCIL MEMBERS 2005/2006
Chairman Yeo Yang Poh Vice Chairman Ambiga Sreenevasan
OFFICE BEARERS Chairman Vice Chairman Secretary Treasurer
Yeo Yang Poh Ambiga Sreenevasan Ragunath Kesavan Vazeer Alam Mydin Meera
COUNCIL MEMBERS Hendon Mohamed Low Beng Choo Hj Sulaiman Abdullah Cecil Rajendra Dato’ Mohd Sofian Abd Razak Yasmeen Hj Muhamad Shariff Mah Weng Kwai Hj Hamid Sultan Abu Backer Christopher Leong Charles Hector Lim Chee Wee (Kuala Lumpur) Oommen Koshy (Kuala Lumpur) George Varughese (Selangor) S Ravichandran (Selangor) Krishna Dallumah (Negeri Sembilan) Tony Woon Yeow Thong (Negeri Sembilan) Aloysius Ng (Melaka) R R Chelvarajah (Melaka) Dato' Abdul Rahman Abdullah (Johor) Roger Tan Kor Mee (Johor) Salamon Ali Rizal b Abdul Rahman(Pahang) Ong Siew Wan (Pahang) Hj Asmadi Awang (Terengganu) Lee Leng Guan (Terengganu) Aziz Haniff (Kelantan) Indran Rajalingam (Kelantan) G Balakrishnan (Kedah/Perlis) Fredrick Indran Nicholas (Perak) Ngan Siong Hing (Perak) V Sithambaram (Penang) Petra Oon (Penang)
Infoline is the official newsletter of the Malaysian Bar, published monthly by the Bar Council of Malaysia. The Bar Council welcomes letters, articles, views and news (including photographs) for possible inclusion in the newsletter. However, the Bar Council reserves the right not to publish them or to edit those published as regards content, clarity, style and space considerations.
Articles from individuals that are published contain the personal views of the writers concerned and are not necessarily the views of the Bar Council.
Secretary Ragunath Kesavan Treasurer Vazeer Alam Mydin Meera
Call for Contributors IN ORDER THAT Infoline may better serve you, we would like to publish what you consider to be relevant to us as lawyers. These could be in the form of letters to the editor, your views and comments on issues affecting the legal profession, news items relating to the legal profession, articles of suitable length, poems or jokes that may be of interest to the legal profession and legal updates including a summary of cases of interest. We also welcome news and articles relating to Human Rights for the ‘Human Writes’ pull out, so that we may be able to update the legal profession in this area of law. We would prefer these to be submitted by email to the Editor, Infoline, [email protected]
Alternatively, they can be sent to the Editor, Infoline, Nos 13, 15 & 17, Leboh Pasar Besar 50050 Kuala Lumpur Fax: 03-2026 1313. Contributions may be declined or edited for reasons of space and clarity.
MARCH / APRIL_2005
Malik Imtiaz Sarwar (a member of the Bar Council when the decision was taken) in a letter to the ‘Malaysian Lawyers’ newsgroup sought to explain the Bar Council’s decision thus: .... At last year’s AGM, Mr Suppiah inquired as to whether there was any need to have quorum at all. He advanced a view that suggested that the quorum was not required. While his suggestion was not taken up for the purposes of that AGM, [the bar] council felt that the underlying argument was sufficiently grounded to merit further and more detailed consideration. …. Opinion was therefore taken and views were given to the effect that on the plain language of the provisions that the quorum requirement was only applicable to EGM’s. …. Senior members will recall that at the time, EGMs were being called with regularity to criticise governmental action. The amendment appears to have been aimed to curb the Bar’s freedom to call for the EGM. …. in all there were 5 opinions. 3 were in favour of the interpretation that the quorum was not required. 2 were against. The council accordingly took the decision. This decision was communicated to members in May 2004 by way of the General Statement of Decisions. No views were received by the council from members prior to the AGM last Saturday. Datuk Param took umbrage to the suggestion that the decision had been communicated to the members. He wrote to the incoming Bar Council Chairman and [in a letter subsequently displayed in the same newsgroup] declared: At the AGM when discussing the quorum issue the Chair said that the decision taken unanimously by the Bar Council on May 8 2004 that no quorum was required in AGMs was ‘circulated to all members of the Bar but none responded’ or something to that effect. The impression given was that all members of the Bar were notified of the decision by circular. It now appears what was circulated was the Monthly Statement Relating to Decisions taken by the Council that month in which the decision on the quorum appeared in three
lines among ten other decisions. Moreover that statement was addressed to Chairs of State Bar Committees. Not to members of the Bar. Did the Chair and the then office bearers including yourself, the Secretary and the Treasurer who flanked the Chair at the AGM check whether the State Bar Committees did notify their respective members of this decision? I understand that the KL Bar Committee did transmit the entire Statement to its members and that too by email to whoever had such addresses. The decision was indeed a major decision with serious implications, inter alia, departing from an interpretation followed by the Malaysian Bar for nearly 27 years. Yet the Council appears to have down played it without expressly drawing the members’ attention to seek their views. Since May last year there were no less than two issues each of Infoline and INSAF yet not a word about this decision appeared in any of them. The notice convening the AGM too made no mention of this decision. …. Downplaying the dissemination of the May decision for ten months was bad enough. What is startling is that the 36 member Council did not seem to have directed its mind to seek a declaration from the Court on the Council’s new interpretation which was the most prudent and responsible course of action to take in the circumstances. It could have done so in those ten months. It is not certain whether the five senior lawyers whose advice was sought advised such a course of action.
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If an application is made to the Court now and if the Court sets aside the AGM of March 19 how is another AGM to be convened ‘before the first day of April’ this year as provided in S.64(1) of the LPA? The incoming President of the Malaysian Bar responded to Datuk Param and [in a reply posted on the newsgroup] stated: The circular was directed to State Bar Chairpersons for them to disseminate to all the members in their respective states. This was the agreed mode of dissemination of Council decisions, and has been in place for a number of years without any difficulty. We have no doubt that all State Bar Chairpersons do disseminate the information to all their members. On the issue that Council could have applied for a declaration from the court before implementing its decision, I did not find that an appropriate course of action to take. Speaking for myself, I have always understood the law to be that the court is not an advisory bureau, and that it is not the court’s function to advise litigants as to the policies they should adopt in managing their affairs. The court will not make a declaration just because the party seeking it fears that his position may be challenged, or because he desires to escape from a position of uncertainty. My understanding is that the court does not make a declaration merely to give comfort to a party that a course of action he proposes to take is in its view the correct one. Added to the above reasons, there were for me at least two other factors weighing heavily against the suggestion of seeking a declaration. One was the issue of an appropriate, real and genuine respondent or disputant, and the other was that a declaratory order in any event would not take effect in rem. In the middle of all this discussion, one must not lose sight of certain self-evident truths; these truths are addressed in the letter by Malik Imtiaz Sarwar: It is incorrect to say that the [Bar Council’s] decision was a clever way to circumvent the quorum requirement. It was prompted by a reconsideration of the law in light of the suggestion by a member that the law had been INFOLINE 4
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read wrongly. The council would never participate in a scheme of ‘circumvention’. To suggest otherwise is unfair. It is similarly incorrect to say that the move was calculated to prompt a challenge so that the matter could be decided in court. The council took a view of the law based on advice. The issue of the quorum is really a matter internal to the Bar. I would think that members would be grateful for having been shown a way by which we can move ahead unimpeded. While I appreciate that challenges may be taken by members, I wonder at the need. Legal interpretation favours a view that quorum is not needed (though, I recognise that there is a contrary view). And we already face so many challenges from outside the Bar. You will thus notice that missing is the acrimony that usually follows a falling out between two factions. There is not, thankfully, any suggestion that one party seeks to gain the upper hand over the other. Our actions have been questioned, but not our motives. Louis Van Buerle has now filed an action in the High Court for declarations inter alia that the quorum requirement as stipulated in section 67 of the LPA applies to AGMs and has prayed for consequential orders including one for the reconvening of the AGM. Affidavits are being filed and exchanged and the matter is now fixed for hearing on 6th May 2005. In the other, parallel, development, the Malay Mail of 14 April reports that the Member of Parliament for
Ipoh Barat, himself a lawyer, had raised the issue in Orders clearly explain that the Orders were drawn up Parliament. He had urged the abolition of the quorum and brought into effect by a body known as the requirement for AGMs (sic) and suggested it be replaced Solicitors Costs Committee. with a clause requiring only one-half of the committee members to be present. The Solicitors Costs Committee is formed under the provisions of s 113 of the LPA and, as is evident In winding up the debate one Minister in the from the declaration made at the end of the respective Prime Minister’s Department, told the House that the Orders, is comprised of the Chief Judge of Malaya (or suggestions were timely and he would take it up with a Judge of the High Court nominated by the Chief his colleague, also a Minister in the Prime Minister’s Judge of Malaya), the Attorney General (or a member Department, albeit the one in charge of law. of the Attorney General’s Chambers nominated by the Attorney General), the Chief Registrar of the High He is reported to have said that the Government Court (or a Senior Assistant Registrar nominated by agrees in principle to an amendment to the quorum the Chief Registrar) and four Advocates & Solicitors requirements for Malaysian Bar general meetings. The nominated by the Bar Council. logistics or mechanism to replace the current provision still needs to be discussed although the suggestion for It may also be relevant to note that the SRO 1980, the ‘presence of half of all committee members be while directing what the scale of fees ‘shall be’, accepted to form the necessary quorum’ was the one permitted, in the 1st Schedule, a discount of 25% in put forth. The Honorable Minister also said that it is ‘special circumstances’, albeit without quite defining for the Bar Council to follow up and make the the term. The SRO 1991 went on to emphasise that necessary representations to assist the Government in there ought not to be any discount on the scale fees drafting the bill to be proposed for the necessary actions unless specifically provided for in the respective to be taken to amend the law. The Government would schedule. also need to consult the AG on this. To then suggest that the scale of fees in general, Rest assured the Bar Council will follow up on all and the no discount rule in particular, was something these developments and continue to act in the best cooked up by the Bar (or, worse, the Bar Council itself) interests of the public and the profession. All we ask is at the behest of litigation lawyers, who do no that the members give us your unstinting support and conveyancing work, is mischievous, if not downright stand united behind the Bar in our best efforts to serve misleading. For the uninitiated, the Conveyancing you. Practice Committee of the Bar Council collates the relevant information and feedback and makes recommendations to the Bar Council. These recommendations, if endorsed by the Bar Council, are SRO: More For Less? The Bar Council has received several complaints (the then tabled at the next AGM for the approval of the two letters each published in this and the last issues of members by resolution. If so resolved, the Infoline are but examples), decrying the Bar Council’s recommendations are then forwarded by memorandum ‘sudden’ ‘decision’ to ‘strictly enforce’ the Solicitors to the SCC for their deliberation. The SCC or any Remuneration Order. Nay, the very raison d’etre of the four of them (the Chief Judge or his nominee being SRO has been brought into question, seeing as how a one) then may make general orders prescribing and ‘vast majority’ of the conveyancing fraternity – if not regulating in any manner as they think fair and the actual Bar itself – is actually in favour of scrapping reasonable the remuneration of advocates and solicitors the whole notion of scale fees, thereby permitting in respect of non-contentious business. The scale of ‘market forces’ to decide the level of fees that may be fees having then been brought into effect, it behoves the Bar to ensure that its members act in strict accord charged in conveyancing transactions. therewith. The Bar Council would, respectfully, like to draw That then was a brief re-cap of the events leading your kind attention to the Solicitors Remuneration Orders of 1980 and 1991. The preamble to these up to the formulation and imposition of the scale of MARCH / APRIL_2005
costs for non-contentious matters imposed, effectively, these to the attention of the Bar Council. These many on conveyancing lawyers in Malaya. Now, to address of the members have done. the present grievances. Clement Lopez (Infoline, Oct/Nov/Dec 2004 p There had been a clamour for the ‘re-imposition’ 33) in the SRO 1991 and the SR(E)R 2004 points out of the no discount rule, as if the rule had been revoked. that “the prescribed scale [of fees] is 14 years old. It is As far back as the AGM in 2000, the members decried out-dated resulting in the fees being low … not the ‘undercutting’ practised by members of the Bar and commensurate with the level of insurance presently called for a re-evaluation of the scale of fees to be being levied. He eloquently argues against the imposed and for the bar against discounts (already a enforcement of the SR(E)R, at least until the Bar part of the SRO 1991) to be strictly enforced. A Council seeks (and, necessarily, obtains) the express resolution to this effect was tabled and passed. mandate of the general body of the members. Not wishing to force the issue on an unwilling membership, the Bar Council promptly sent out a referendum requesting feedback from its members as to the viability and advisability of proceeding to enforce a ‘no discount’ policy. The relevant forms were sent to each and every member then on the list, all 10,000+ of them! The feedback received was a dismal 678 replies. The calls for enforcement of the no-discount rule did not abate and, in 2003, the Bar Council issued feedback forms to all its members, again requesting their input as to the effect and manner of the proposed enforcement, if any, of the no discount rule. This time, seeing the writing on the wall, the members, or at least some 2,633 of them, did respond.
With all due respect, we fail to see how, if the fees are already excruciatingly low, the giving of discounts will alleviate the suffering of our members. The members must be aware that a new scale of fees has been submitted for the consideration and approval of the SCC. We shall keep the members informed of developments in this field. As for getting the mandate of the members in general meeting, only some 688 members had signed up when the need for a quorum was debated at the AGM 2005. The Bar Council obtained the mandate of those present by a majority.
In the matter of his question, who polices the policemen?, it is a matter of record that, although the general body of members were attended to in strict alphabetical order, the members of the Bar Council The Bar Council has, as recently as the March 2005/2006 were, additionally, among the first batch 2004 issue of Infoline, in its front page Editorial entitled of members to be issued feedback forms under the Without fear or fervour?, lamented the apathy evident enforcement rules. It should thus be obvious that these among its members. It was noted that the 2004 AGM policemen are in fact also being policed. which had cost the Bar some RM130,000 and which had discussed ‘matters which affect the interests of over Leong Cheok Keng (Infoline, Oct/Nov/Dec 2004 12,000 members were being debated and decided by p 35), while voicing some support for ‘this wellsome 599 members”! intentioned scheme’, does raise other issues to be considered and addressed by the Bar Council, not the The Bar Council is all for round table discussions least of these being the payment of ‘kick-backs’ to, not and the venting of pent up frustrations at kopi tiams to put too fine a line on it, touts. Would that the others and teh-tarik stalls. However the members must realise of our noble profession had the motivation of our Mr that the outcome of these dialogues must be followed Leong, the loving memory of his late wife, taken from through, the suggestions and recommendations that this life in her prime and within a stone’s throw of the they engender must be introduced, discussed, debated Bar’s own premises, to urge us to resist the temptations and resolved at the AGMs. Ultimately, the members of the quick buck. The Bar Council does not suggest must be there, to stand up and be counted, when that the enforcement of the no discount rule alone is motions are discussed, debated and resolved at AGMs. the balm to the profession’s suffering. But the journey of a thousand miles begins with the first step. Members who feel strongly about the manner in which things are done are entirely at liberty to bring Louis Van Buerle ingenuously argues ‘an overwhelming majority’ of those responded to the INFOLINE 6
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referendum in 2001 ‘favoured allowing solicitors to give discounts’ while the ‘scale fees [are] maintained as a ceiling’. Having said that he concedes that only 678 lawyers responded to the referendum (without specifying how many of them were in the ‘overwhelming majority’) and, more importantly, that ‘[t]he motion was discussed with only about 200 lawyers (a majority of whom were litigators) present and was not carried’. This must be true, for were it not so, we are certain Louis Van Buerle would have told us. Be that as it may, we must thus ask ourselves then what became of the overwhelming majority of the conveyancers, whose strident cry for the power to give discounts across the board has been heard by all but the Bar Council. (Entirely as an aside, we must ask Louis Van Buerle how he identified the majority of the 200 lawyers present as litigators and not conveyancers. Ours is a fused profession, we are licensed to practise as Advocates and Solicitors. The mere fact that one of our own chooses not to engage in a certain type of practise does not debar him/her from speaking up in relation to the matter, any less than one who has never been detained under this country’s draconian ‘preventive detention’ laws can speak up against such arbitrary and unjust policies.) Nicole Tan is right to point out that the vices in our profession are not limited the giving of discounts, citing practices such as the giving of ‘off-the-record deductions’. She argues that conveyancers ought to be free to negotiate fees, just like litigators. She wonders aloud if the whole ‘No Discount rule is not a conspiracy by litigators to put us (sic) conveyancers in a fix’. She laments ‘litigators are happily charging clients problemfree and scale-free’ all this while and nobody ever brought this issue up.’ We could not agree with her assessment of the situation more, at least, that part about having to look into how much litigators are allowed to charge. In terms of contingency fees, which is where many of the complaints against litigators arise, the Bar Council has in fact forwarded to the Attorney General a memorandum and draft rules for the regulating of contingency fees across the board. Thus it is not true that the Bar Council is targeting only conveyancers. It is primarily to overcome the possibility of bias in feedback that the Referendum was sent out to all, and conveyancers, like everyone else, had their chance to have their say. If Ms Tan’s assessment is correct, that some conveyancers have a ‘look-and see’ attitude, the
Bar Council certainly ought not to be taken to task every time someone who purports to speak for the ‘silent majority’ proposes some other form of intervention. We however do agree with Ms Tan that ‘if everyone adheres to the No Discounts rule’, in the long run things will, as she suggests the conveyancers hope, improve. Practices being used to circumvent the No Discount rule are, even now, being addressed, despite the admitted difficulty in getting evidence. Malaysians are indeed ingenious when it comes to avoidance mechanisms. The comforting thought, is that, everywhere in the world the enforcers are always trying to keep up with the law breakers. All this is not, however, to suggest that we are not prepared to enter into a dialogue with members of the profession who have concrete suggestions to make and would like to have their specific queries answered. The total abolishment of the scale fee is not the answer. Just as legalisation of marijuana is not the answer to the drug abuse problem. Presently, we are studying the fee collection method adopted by the Board of Surveyors Malaysia, where the fees charged by its members are paid to the Board, as per scale, sans discount, and the same is then transmitted to the members concerned after a small deduction to cover administrative costs. We are here to serve. Just don’t come to us with platitudes and emotional arguments of ‘Woe, woe to all who enter here!’ The Bar Council will enforce the rules, these and all the others, and will do its utmost to ensure this noble profession remains unsullied by those who cannot resist the temptation to cut corners and to take advantage of the fellow professionals. The heat is now on and those who cannot stand the heat should get out of the kitchen.
Look at the chart and say the COLOUR not the word
Left - Right Conflict Your right brain tries to say the colour but your left brain insists on reading the word MARCH / APRIL_2005
he main function of the Bar Council is to manage the affairs of the Malaysian Bar and the proper performance of the functions of the Bar. The Secretariat is established as the administrative center of the Bar Council, a coordinating center for all Bar Council activities. It ensures that decisions and policies of the Council are enforced.
The Secretariat is headed by and Executive Director and the Deputy Executive Director. They are assisted by legally qualified executive officers and is divided into several departments, which includes the
Finance, Administration, and Human Resource, Membership, Membership Welfare, Complaints, Communications, and Information Technology. Within the Practice Areas, there are 5 executive officers who are managing a number of areas each. The Secretariat also organizes and coordinates seminars, lectures and talks for members of the Bar and pupils-in-chambers, sports, and social events between members of the Malaysian Bar and neighboring Bars, convening Extraordinary General Meetings or Annual General Meetings of the Bar and fund raising activities.
Secretariat Executive Director: Catherine Eu ext 102 / D/L: 03-2072 6818 [email protected]
Catherine heads the Secretariat, which has a staff force of 57. She oversees the functions of the various departments and attends to Council matters, such as Bar Council, Exco, Office Bearers and Finance Committee Meetings. Catherine also assists the Office Bearers in their duties and is responsible for the co-ordination and execution of the Bar Council’s policies.
Deputy Executive Director: Kenneth Goh ext 147 / D/L: 03-2070 6631 [email protected]
Kenneth is a Barrister-at-Law who graduated from the University of Canterbury, Christchuch, New Zealand. He was admitted to the Bar on 27 March 1992 and practised in the area of civil and criminal litigation before joining the Bar Council. Apart from assisting the Executive Director, his portfolio includes assisting the GATS, Alternative Dispute Resolution (ADR), and Legal Profession Committees.
Finance, Administration & Human Resource Senior Accounts Executive: Lily Aw Kim Lee ext 118 D/L: 03-2026 9818 [email protected]
Financial Controller: Chang Chooi Yoke ext 137 D/L: 03-2078 6708 [email protected]
Eliz’s job scope of responsibilities includes overseeing day-to-day work in relation to financial matters to ensure proper internal control and compliance of rules and regulations, office administration and human resource development. She also assists the Finance Committee.
Lily has been with the Secretariat since 1983. Her duties include maintaining full sets of accounts involving records of daily transactions and generating the month-end-closing accounts. Her duties also include effective monitoring and upkeep of office equipment, the office premises and other office administration. She is also responsible for payroll administration.
Membership Executive Officer: Vinodhini Benjamin Samuel ext 149 / D/L: 03-2032 4184 / [email protected]
Vino joined the Bar Council in January 2003 and assists in the following Committees under the Practice Areas Department: National Legal Aid, Conveyancing Practice, Shipping and Admiralty, and Corporate & Commercial Law. She also handles the Compensation Fund Claims and matters pertaining to deceased solicitors under the Membership Department. With effect from 14 June 2004 she will be taking charge at the Membership Department together with Rohani INFOLINE INFOLINE 88
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Executive Officer: Teena Mathew Madamakkal ext 116 [email protected]
Teena graduated from the University Maharaja’s Government Law College, Ernakulam, Kerala, S.India, and has been practising and teaching in India for six years before joining the Bar Council. Teena’s portfolio includes handling various areas relating to membership of the Bar, matters relating to the processing and issuing of the Sijil Annual/Practising Certificate, conduct researches as well as other ad hoc matters.
YOUR SECRETARIAT Membership Welfare
Executive Officer: Lynette Tan ext 142 / D/L: 03-2031 4857 [email protected]
Executive Officer: Cindy Chan Oy Yim ext 108 / D/L: 03-2032 5618 [email protected]
Lynette is legally qualified and was in practice before she joined the Bar Council in October 2003. Her current duties include assisting in the Professional Development Committee, National Young Lawyers Committee, Sports, Charity and Welfare Committee and handling Special Events (organising seminars/workshops/talks, Annual General Meetings, Annual Dinner and Dance). Professional Indemnity Insurance Risk Manager: Corrinne Wong ext 190 / DL: 03 - 2072 1614 [email protected]
Corrinne is legally qualified and joined the Bar Council in January 2005. Her duties include the setting up of a comprehensive and efficient Risk Management programme for the Professional Indemnity Insurance (PII) scheme for the Malaysian Bar. She will also be involved in monitoring the operation of the PII scheme and propose suitable measures for its overall improvement i.e. improvement in claims experience leading to lower premiums, excesses and better coverage. Librarian Librarian: Dr Pathmavathy Satyamoorthy ext 156 / D/L: 03-2031 5082 / [email protected]
Dr. Pathmavathy heads a team of six staff members in the Library. Her scope of responsibilities includes the maintenance of the Library, cataloging and updating of all books. She also assist the Library committee.
Cindy is legally qualified and was in practice before joining the Secretariat in July 1997. Her portfolio includes reviewing complaints received from the public, members of the Bar and the Disciplinary Board and drafting complaints and applications for suspension. She works closely with the Disciplinary Board on cases filed and attends hearings before the Disciplinary Tribunals and the Disciplinary Board. She also oversees suits filed against the Bar Council and intervention matters with the assistance of other legal officers.
Intervention Matters Legal Officer: Ahmad Muttaqin Rabbani ext 171
Ahmad is legally qualified and joined the Bar Council in May 2004. He attends to intervention matters, where he assists in the preparation of the documents necessary for appointment of intervener solicitors and liaises with them on the action to be taken. He supervises the seizing of files, removal, inventory, storage, liaising with clients and solicitors to facilitate the return of files. He also handles queries from public and from member of the Bar on related matters. Information Technology IT Executive: Soon Per Lang ext 135 [email protected]
Soon attends to all Information Technology related matters such as maintaining daily network operations, troubleshooting computer systems, providing technical support, and updating the websites. Besides that, he also assists in the Information Technology and Cyberlaws Committee by attending meetings and preparing minutes. Press & Publication Executive Officer: Siva Kumaran ext 143 / DL: 03 - 2032 4498 [email protected]
Siva is legally qualified and joined the Bar Council in October 2004. His responsibilities include preparing Insaf, Infoline and other publications of the Council, conducting research work, preparing press statements and generally assisting and carrying out assignments under the direction and supervision of the Executive Director. MARCH // APRIL_2005 APRIL_2005 MARCH
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YOUR SECRETARIAT Practice Areas Deputy Executive Director: Kenneth Goh ext 147 / D/L: 03-2070 6631 [email protected]
1. Legal Profession 2. GATS 3. Alternative Dispute Resolution ( See previous page)
Human Rights Executive Officer: Dominic Chan ext 148 / DL: 03 - 2031 3762 [email protected]
Dominic’s job scope covers matters pertaining to human rights, orang asli cases, conducting researches, liaising with NGOs, as well as conducting human rights-related campaigns. Apart from human rights matters, his portfolio includes assisting the Criminal Law Committee. Prior to joining the Bar Council, Dominic served in the Singapore government in Ministry of Home Affairs and the Ministry of Community, Development and Sports. Dominic has also brought in experiences in logistics and human resources in various companies in Malaysia.
Executive Officers: Rohani Adnan ext 116 / [email protected]
Rohani joined the Secretariat in 1996 as a Translator and handled various Committee, including the Conveyancing Practice Committee. She has recently been assigned to assist in the Membership Department and her duties include attending to numerous daily mail received by the Membership Department pertaining to approval of firm names, setting up of branches, dissolution of partnerships, cessation of practice and others, as well as enquiries from members of the Bar, the public, Government bodies, and Banks pertaining to the Department and Bar Council/Conveyancing Practice Rulings. Also supervision of staff in the Membership Department in relation to processing of applications for the Sijil Annual/ Practising Certificate. She also attends to Committees, such as the Professional Indemnity Insurance Committee, the Sijil Annual Committee, the Law Reform and Special Areas Committee and the Civil Procedure Rules Committee.
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Solicitors Remuneration Enforcement Executive Officer: Emily Lee Lai Ming ext 189 emily. [email protected]
Emily Lee joined the Secretariat on 16.2.2005. Her duties and responsibilities include attending to all queries pertaining to the Solicitors’ Remuneration (Enforcement) Rules 2004, coordinating and attending meetings of the Solicitors Remuneration Enforcement Committee, attending to follow-ups on instructions of the Committee, assisting in the enforcement procedure to ensure compliance thereof and such assignments as shall be directed by the said Committee. She is also in charge of the Corporate and Commercial Law Committee.
Legal Officer: Hafsyam Othman ext 127
Hafsyam joined the Bar Council on 2003 as a Legal Officer. Presently, his scope of responsibilities cover the following practice areas: Syariah Laws Committee and Bahasa Melayu Committee and to assist two Executive Officers namely Ms Harsharan Kaur and Ms Vinodhini. His job function includes attending committee meetings, and attending to follow-up and queries. He also coordinates activities conducted by the committees as well as doing research in relation to a particular area of practice or law.
Did you know that Marvin Bower, one of the key founders of McKinsey & Company, was a lawyer by profession? Management Consultants aren’t all about MBAs. Indeed top firms are now casting their recruiting net further than the traditional MBA pool. Given the overlaps in skills, coupled with years of on-the-job training, it’s not surprising that lawyers in particular have the kind of pedigree that is attractive to management consulting firms. In 2000, Sara Yik made the move from in-house legal counsel for Singapore’s largest industrial estate developer to management consultant with the prestigious firm McKinsey & Company. Her goal? To round out her management skills and work with inspirational leaders to become a better business leader herself. The last four and a half years have made Sara realize that this goal would only be part of her journey . . . First, what is it that management consultants actually do? Management consulting is like law in the sense that it covers a broad variety of work. Just as barristers, tax specialists and corporate lawyers all operate in different areas of law, so do management consultants. But, whatever the area, successful management consulting always requires a structured and factbased approach to problem solving.
why lawyers make
great management consultants An important part of McKinsey & Company’s guiding mission is to help our clients make real and sustainable improvements in their performance. To do this, we provide our clients with an independent perspective, and serve as counselors to the CEO and leadership team. We work in small teams and liaise closely with clients to improve their strategies, organizations and operations. And our clients could be the leading companies around the world or governments, institutions and nonprofit organizations. Was it an easy transition for you—to move from one profession to another? My skills as a lawyer provided a great starting point—analytical fact-based approach to problemsolving, working with a team, strong writing skills and the ability to speak confidently in front of senior partners and clients. Even so the transition process from law to consulting was still an eye opener! I had to pick up new ways of working and additional skills. For example, within my first year, I had to learn to build a financial model in Excel and get used to doing quick and rough calculations in the middle of meetings as needed. I have also had to become comfortable with ambiguity. Often, while you are in the process of gathering information, you do not have all the relevant facts or data on hand and pieces of work can change direction daily because of that. But from the moment you arrive, there is an amazing system of support in all areas of skills development.
someone who places a high premium on variety, and McKinsey & Company has given me an ideal opportunity to widen my experiences and become a better business person without having to take a backward step in my career. There is no doubt that I have become a more rounded leader and better coach, with much broader industry and functional expertise. While the expertise I developed as a lawyer has been a great benefit to me in this profession, I have also had the chance to develop a whole new range of skills through the numerous projects in which I have been involved and the variety of people I have worked with. And that’s part of McKinsey & Company’s success: the people. Regardless of professional background, nationality or education, we all unite around a set of common values, which we really do live daily. The firm’s mission is in two parts—the first, to help our clients make lasting improvements in their performance; the second, is to attract, develop, and retain exceptional people. And that’s how it is! This is a very exciting place to work and the people are amazing.
I contribute to internal research on organization and leadership. We codify this internal research and use it to constantly develop our knowledge and refine proprietary tools and frameworks that underpin the problem solving we do for our clients. So, do lawyers make good management consultants? When I first thought about management consulting, I wondered if a lawyer could fit into a different environment. But when I was reading up on McKinsey & Company, I was encouraged to learn that Marvin Bower, who is widely regarded as the founder of the firm, was also a lawyer and that he built up the firm on many of the same principles as the law firm from which he came. Some of those principles are ‘we are a profession not a business’, ‘we have clients and not customers’, ‘we develop solutions; we do not sell products’. Any last words? Just this: any lawyers who are thinking about seeking new challenges and broadening their horizons, should definitely consider management consulting. It has been a very rewarding experience for me.
What are you working on now?
What have you gained from the move?
I am currently working with a company that is on a journey of transformation—to move from a regional success to become a global champion. The work I am doing covers a range of areas: business strategy, capability development, organizational change and the supporting ‘mindsets’ and behaviors, and leadership development and coaching.
A job here is a continual, and enjoyable, education. I am
I am also a core member of the firm’s organization practice, so
Sara Yik is an Engagement Manager with McKinsey & Company’s Southeast Asia office. She earned a Bachelor of Laws (Honors) degree from King’s College London, UK. If you would like to find out more a b o u t S a r a ’s e x p e r i e n c e , management consulting or McKinsey & Company, you can e-mail: [email protected]
MARCH / APRIL_2005
59th Annual Dinner & Dance 2005
his year’s Malaysian Bar Annual Dinner and Dance was held on 19 March 2004 at the Hotel Nikko, Kuala Lumpur. As the Annual General Meeting had concluded earlier in the day and the new office bearers subsequently elected, the outgoing President Tuan Haji Kuthubul Zaman Bukhari, in his welcome speech introduced the new office bearers, namely, Yeo Yang Poh (President), Ambiga Sreenevasan (Vice President), Ragunath Kesavan (Secretary) and Vazeer Alam (Treasurer). The formalities over, the emcees, Sanjeev and Adriani, took over and entertained the crowd, and each other, with their usual wit. Dinner was accompanied with music from the Happy People Quartet Band whilst Dato’ Abdul Rahman did a couple of Elvis numbers. A belly dancer called Paola ensured that all the male guests spent twenty minutes or so staring intensely at their food whilst Mahdi Hamed from Iran entertained the crowd with his dazzling magical show to end what truly was ‘A Magical Night’.
The emcees for the night, Adriani and Sanjeev
Nothing like some bondage INFOLINE 12
MARCH / APRIL_2005
‘You’ve been served!’
The Three Presidents – Yeo Yang Poh, Haji Kuthubul Zaman and Haji Sulaiman Abdullah
Office Bearers 2005/06, Vazeer Alam (Treasurer), Ambiga Sreenevasan (Vice President), Yeo Yang Poh (President) and Ragunath Kesavan (Secretary)
Justice Dato’ Kang Hwee Gee with the Chairman of the Kuala Lumpur Committee, Mr Lim Chee Wee
‘Come on guys. Don’t look away’
LawCare – Caring for our Own
n the afternoon of 11 March 2005, two members of the LAWCARE Fund Management Committee paid a visit to Mdm Ranjit Kaur, widow of the late Pertaf Singh s/o Hajara Singh. Pertaf was called to the Bar on 26 January 1989 and practised law until illness prevented him from doing so in 2003. He was diagnosed with lung cancer in October 2003 and passed away a year later on 16 October 2004. Pertaf left behind his widow and two children: Elishajit, 11 years old and Bhaalhesh who is 5. Elishajit was born prematurely after her mother suffered an eclampic fit. She is totally disabled, suffering illnesses and conditions including Spastic Quadriplegia, Epilepsy, Global Retardation and Asthma. She is on long-term medication and requires regular hospital visits for physio- and occupational therapy. Elishajit is totally dependent on others for all her needs and the doctors do not expect her condition to improve significantly over time.
S Ravichandran and Yasmeen Shariff presented her with a cheque from LAWCARE to help her but the LAWCARE Committee is aware that the sum contributed will not go far, considering the pressing needs of this family left behind in such tragic circumstances.
Members who would like to help ease the family’s hardship are requested to contact Yasmeen Shariff at (603) 26933276 or Lynette Tan at (603) 20314857. Ranjit has asked for a wheelchair so that Elishajit, who Ranjit is unable to take on a job as there is no one is paralysed from the neck down, can be moved around to care for her daughter besides her and her helper, who with less difficulty. Please help if you can. No matter has stayed on to help despite being owed many months’ how big or small, your contribution will definitely wages. Ranjit is facing grave financial difficulties and provide some comfort and ease for this helpless child. applied for some assistance from L AW C ARE .
RECENT EVENTS Talk - Beyond Registration: Commercialisation of Intellectual Property
n 19 April 2005, Willy Manfroy presented a talk entitled Beyond Registration: Commercialisation of Intellectual Property at the Bar Council Auditorium. About 65 members attended this talk, which was jointly organized by the Bar Council and the Licensing Executives Society Malaysia. Willy Manfroy is Principal of Bornival LLC, an international consulting firm involved in intellectual assets management and litigation support, President of the Licensing Executives Society International (LESI) and Past President of Licensing Executives Society (LES) (USA & Canada). LES is a global business association for licensing, whose members, as individuals, are actively involved in business activities concerned with transfer of technology and intellectual property rights.
speaker gave participants some insight into how intellectual property can be crucial for turning innovative ideas and inventions into competitive products that significantly increase profit margins. Those interested in becoming LES Malaysia members are requested to call Anniza Jamaluddin at 03-2166 6655.
For most businesses, marketing products or services is a major challenge. Although innovative and creative ideas are at the heart of most successful businesses, ideas by themselves have little value. The MARCH / APRIL_2005
14TH COMMONWEALTH LAW CONFERENCE ‘Developing Law & Justice’ 11 - 15 September 2005, London, UK “A CONFERENCE NOT TO BE MISSED” by Roy Rajasingham Regional Representative Malaysia, Singapore, Brunei & Hong Kong, Commonwealth Lawyers Association The Commonwealth Law Conference (CLC) is probably the most well known activity of the CLA. The Conferences began in 1955. They were organised by an informal body called the Commonwealth Legal Bureau which included a member of the Commonwealth Secretariat and a number of prominent Commonwealth lawyers. Later, the Commonwealth Secretariat ceased to play a part and delegated organisation of the Conferences to the Law Associations of the host countries. During the Conference there is a meeting of the Presidents, Officers and Executive Secretaries of Commonwealth Bar Associations and Law Societies. There are also meetings of Commonwealth Chief Justices, Commonwealth Attorneys General and specialist Commonwealth legal groups, such as the Parliamentary Draftsmen, Military Lawyers and Public Sector Lawyers.
! CLA MEMBERSHIP ! GROUP BOOKINGS ! CONFERENCE PACKAGE ! RECEPTIONS ! ACCOMPANYING GUEST PROGRAMME ! CONFERENCE PROGRAMME ! ACCOMMODATION ! WHY YOU SHOULD ATTEND
MARCH / APRIL_2005
The above Conference for the first time in the history of the Commonwealth Lawyers’ Association (CLA) is to be jointly organised with the Law Society of England and Wales from 11 - 15 September 2005. The Conference is to be held at the Queen Elizabeth II Conference Centre (QEII) and Central Hall located in the heart of Westminster opposite the Houses of Parliament, London, United Kingdom to coincide with the Golden Jubilee (50 th year) celebrations of the Commonwealth Law Conference. The first Commonwealth and Empire Law Conference (as it was then known) was held on London in 1955. The theme for this year’s Conference is “Developing Law & Justice”. Several prominent legal luminaries have been appointed to chair and be speakers at the various sessions and they hail from various jurisdictions of the Commonwealth. Law Lords, Chief Justices, Judges of the superior courts, senior practising lawyers, attorney-generals, members of the judicial and legal service and others associated with law, namely, professors and academicians would attend this Conference.
! CLA MEMBERSHIP
CLA MEMBERSHIP New Members
For those who are not a CLA member as yet this is the opportunity to so. If the application to become a member is made before end of April 2005, as hitherto advertised, the registration fee is 40 pounds sterling. Existing Member
Existing CLA members, as hitherto advertised, shall enjoy an early bird discount of 200 pounds sterling off the full conference registration fee. ! GROUP BOOKINGS
Group bookings of 5 or more as hitherto advertised, would entitle delegates to a 10% discount off the full conference registration fee. ! CONFERENCE PACKAGE
CONFERENCE PACKAGE Package
Bookings Before 30.4.2005 (Payment in Pounds Sterling)
Full Rate Bookings (Payment in Pounds Sterling)
Full Delegate (4 days) 775 + VAT (910.62) 2 Day 475 + VAT (513.47) 1 Day 299 + VAT (351.32)
975 + VAT (1,145.62) 546 + VA T (642.55) 299 + VAT (351.32)
Gala Dinner - Tuesday, 13 September 2005 at Intercontinental Hotel, Hyde Corner (7.30 p.m. - 1.00 a.m) Price - 120 pounds sterling + VAT per head The Gala Dinner is a formal affair. Conference Party- Wednesday, 14 September 2005 at The Brewery, City of London (8.00 p.m. - 12 midnight) Price - 80 pounds sterling + VAT per head The evening would include a drinks reception followed by dinner with entertainment and a disco.
! ACCOMPANYING GUEST PROGRAMME
ACCOMPANYING GUEST PROGRAMME
There is a Accompanying Guest Programme for guests of delegates who register for the whole 4-day conference only. The Guest Programme fee is 150 pounds sterling + VAT per head. This includes the following: " Access to Opening and Closing Ceremony MARCH / APRIL_2005
" " " " " ! CONFERENCE PROGRAMME
Welcome Reception on Sunday, 11 September 2005 Access to Guest lounge at QEII and Blue Badge Guide Guest Programme pack including name badge Access to the exhibition Access to preferential Guest Programme tours
The Programme includes several keynote addresses and workshop streams covering: " Human Rights " Corporate & Commercial Law " Criminal Law & Practice (including Constitutional Law) " Family Law and The Child " The Judicial Officer " Legal Profession & the Future " The Law & Small States " And Others ACCOMMODATION
Several hotels have been listed by the Organisers offering special rates for the Conference Details can be obtained via the website at www.commonwealthlaw2005.com. ! WHY YOU SHOULD ATTEND
WHY YOU SHOULD ATTEND " This would be the 50th Anniversary. Be part of the history. " You would be able to meet delegates from many Commonwealth
countries who have common interest in law and the practice of law. " There would be several prominent keynote speakers and equally
prominent speaker who would present papers on varied topics at the Conference. There are 60 working sessions. " The Social Programme gives you an opportunity to meet and mingle with all delegates and to renew, if not, to make new friends. " You can update yourself with laws of your interest and choice. " The Commonwealth Law Conference is a prestigious event that calls for your attendance. The last (13 t h ) Commonwealth Law Conference (www.lawcouncil.asn.au) was held in Melbourne, Australia from 13th – 17th April 2003. Over 1500 lawyers from throughout the Commonwealth attended to discuss topics as wide ranging as HIV/AIDS, human rights and the rule of law, the legal profession and its future and litigation in the new millennium. The theme of the conference was Common Law Common Good Common Wealth. It is anticipated that a selection of papers presented at this conference will be published and available to purchase soon.
MARCH / APRIL_2005
NEWS List of Bar Council Circulars Issued as at 4 May 2005
No. 1/2005 2/2005 3/2005 4/2005 5/2005 6/2005 7/2005 8/2005 9/2005 10/2005 11/2005 11/2005 12/2005 13/2005 14/2005 15/2005 16/2005 17/2005 18/2005 19/2005 20/2005 21/2005 22/2005 23/2005 24/2005 25/2005 26/2005 27/2005 28/2005 29/2005 31/2005
Subject Hotline for queries relating to the Solicitors’ Remuneration (Enforcement) Rules 2004 Special Notice by the Bar Council Pertaining to Conveyancing Fees and the “No-Discount Rule” Tsunami Relief Fund Tsunami Relief Fund Project Ku Sayang Malaysian Bar Golf Calendar 2005 Tsunami Relief Fund Perception Audit by Companies Commission of Malaysia International Mediation Conference (24th - 25th February 2005)Theme: Mediation on the MoveVenue: Equatorial Hotel, Kuala Lumpur 59th Annual General Meeting of the Malaysian Bar Mediation Conference (24th - 25th February 2005)Theme: Mediation on the MoveVenue: Equatorial Hotel, Kuala Lumpur Waiver of Library Registration Charge and Use of Library Membership Cards Walkathon, Family Day & Jumble Sale to be held on 6.3.2005 at Pusat Rekreasi Air, Taman Wetland Putrajaya, Putrajaya Extension of Library Opening Hours A Dialogue Session with Datuk Seri Mohd Nazri Abdul Aziz 2005 Bar Council Subscriptions Bar Council 5-Year Plan 1. Annual Dialogue Between Malaysian Bar and Bank Negara Malaysia 2. Bursa Malaysia Berhad Annual Dialogue with Industry Participants Service Tax Refund for Bad Debts Lawyers Negotiating Settlement with Opposing Parties Held on Remand Tsunami Relief Fund Malaysia / Singapore Bench & Bar Games 2005Singapore - 20 May to 22 May 2005 Suhakam Forum on the Right to an Expeditious and Fair Trial Training Program on Competition/Antitrust Law Malaysia / Singapore Bench & Bar Games 2005Singapore - 20 May to 22 May 2005 Due Diligence Guidelines Invitation to Serve the Bar Project Ku Sayang Kuala Lumpur High Court O.S. No. R1-17-5-05(Bahagian Rayuan & Kuasa-Kuasa Khas)Louis Edward Van Buerle v Bar Council Malaysia Appeal for Donation - THOO MAY LENG Assigned Counsel
If you have not received any of the above circulars, you may download them from the Bar Council’s website at: http://www.malaysianbar.org.my/notices/bar_council.asp MARCH / APRIL_2005
Walkathon, Family Day & Jumble Sale Report
agreed to flag of approximately 30 walkers who took off at a brisk pace into the wetlands. The walker emerged at around 8.45am and made their way to the finish line with William Thomas winning the Mens From around 7.30am onwards, members of the Senior category, S. Bar were seen setting up their stalls. Stalls consisted of Ravichandran winning an assortment of food as well as various jumble sale the family category, Mah items. There was a great sense of solidarity on the day Weng Kwai winning the as the earlier call by the organizing committee for Mens category, Saraswaty winning the Ladies category members to set up stalls and support the event was not and Niroshah winning the childrens category. All the only answered by local law firms but it was also walkers had a great time and there were certainly no answered by a number of State Bars namely, Kedah, losers on the day. Perlis, Penang Perak, Negeri Sembilan and Selangor At around 9.00am, the President of the Malaysian who also operated stalls. The legal firms who operated stalls were Messrs. Richard Tee & Co., Melissa Ram & Bar, Hj Kuthubul Zaman Bukhari delivered his Associates, Wan Nadhri Tan, SBS Maniam & welcome address and invited Justice Siti Norma to Associates, Ranjit Ooi & Robert Low, A.I. Nathan & officially declare the Walkathon, Family Day & Jumble Isa Aziz Ibrahim, Selva Kumar Mookiah & Associates, Sale open. Her ladyship did this by attempting to Kiru & Yong, M. Jagesh & Co. submerge a volunteer who was sitting on a dunking machine. It was terrific fun. A steady crowd of walkers were also seen registering for the walkathon which was scheduled to With the Family Day now open, people starting to begin at 8.00am. The Chief Judge of Malaya, The Right mill around the stalls. Preparation in most of the food Honourable Dato’ Siti Norma Binti Yaakob, kindly accepted our invitation to attend the Walkathon, Family Day & Jumble Sale as guest of honour and graciously he Bar Council held its Walkathon, Family Day & Jumble Sale on Sunday, 6th March 2004, at the Lake Recreational Centre, Taman Wetland in Putrajaya. The event was officiated by The Right Honourable Dato’ Siti Norma Binti Yaakob, the Chief Judge of Malaya and it proved to be a tremendous success. Approximately 500 people patronized this event and all proceeds raised throughout the day went to Law Care.
MARCH / APRIL_2005
NEWS stalls were well underway and people were enjoying a Approximately 2000 people participated in the variety of treats for breakfast. Food being offered Family Day which could not have been a success included burgers, mamak mee, thosai, roti canai, kuih, without the magnificent effort put in by members of meehoon, cendol, nasi lemak etc. the Bar who volunteered their services throughout the day in operating stalls. Bar Council staff must also not Clowns were seen throughout the day entertaining be forgotten. They were on hand throughout the day children with balloon art and members of the Bar assisting at the committee tent. The organizing together with their families could be found rummaging chairman, Robert Low, and his team from the Sports, through stalls looking for bargains. Charity and Welfare Committee were pleased with the outcome. By late morning the Putrajaya lake looked like there was a regatta being held as a flotilla of boats could The proceeds from the Walkathon, Family Day be seen peppered throughout the lake. Some of the & Jumble Sale went towards Law Care and also towards more popular boating activities were the paddle boats, 2 children’s charities. Many thanks to all sponsors who kayaking and the motorized joy rides. In addition to contributed to this event and to all members of the water sports, a number of games stalls were set up which Bar and their families who gave their support. were very popular with the children. See you all again next year. Adriani was our MC and DJ for the day. Murad Ali also kept the crowd entertained and often had them in stitches. The Chairman of the Sports, Charity and Welfare Committee, S Ravichandran, after some persuasion, volunteered to clamber onto the dunking machine for a special charity dunk to raise funds for Law Care. Senior members of the Bar including Ambiga Sreenevasan, Gerald Gomez, Ringo Low, Danabalasingham and even the President and Vice President of the Bar could not resist trying their luck to dunk him. Each participant was charged RM50 for 3 throws. The charity dunk raised RM1,100.00 before Ravi was finally dunked by Mark Talalla. A second charity dunk was organized later in the afternoon when another sporting member of the Bar, Melissa Kaur, agreed to take the dunking seat. Melissa’s exercise was RM10 for 3 throws and it raised another RM520 for Law Care.
MARCH / APRIL_2005
ECRET ARIA T ECRETARIA ARIAT
Malaysian Bar Council No. 12, 15 & 17, Leboh Pasar Besar, 50050 Kuala Lumpur, Malaysia Peti Surat 12478, Kuala Lumpur, Malaysia Tel: 03-2031 3003 (Hunting Line) Fax: 03- 2034 2825, 2026 1313, 2072 5818 E-mail: [email protected]
: All Members of the Bar
From : Catherine Eu Date : 10th May 2005 SUBJECT : GENERAL INFORMATION ON DECISIONS MADE AT THE 2ND MEETING OF THE BAR COUNCIL HELD ON 9TH APRIL 2005 Dear Members of the Bar, Enclosed please find a copy of the abovementioned General Information for your attention. Thank you. Your faithfully, Catherine Eu
General Information on Decisions made at the 2nd Meeting of the Bar Council held on 9th April 2005 1.
REVISING THE PUBLICITY RULES
The Council will review the existing Legal Profession (Publicity) Rules 2001, with the view to further liberalizing the same. Members are invited to forward their views and comments on this subject.
MARCH / APRIL_2005
INDUSTRIAL COURT – WHETHER PENINSULAR MALAYSIAN LAWYERS CAN APPEAR IN SABAH AND SARAWAK AS OF RIGHT
The Bar Council will be making representations to the relevant authorities that Peninsular Malaysian lawyers have the right to appear in the Industrial Court in Sabah and Sarawak.
ECRET ARIA T ECRETARIA ARIAT
ENFORCEMENT OF THE SRO
PROPOSED RULES ON ADMISSION OF FOREIGN LAWYERS
A joint meeting between the PII Committee, the A working committee has been formed comprising SRO Enforcement Committee and the representatives from the AG’s chambers and Conveyancing Practice Committee will be held representatives from the Bar Council, to discuss to look into whether insurance coverage should the proposals and to find as much common be denied in a case where the solicitor has given a approach and common ground as possible, with discount in breach of the rules.The SRO the view to presenting the same to the relevant Enforcement Committee will collate information authorities. on the enforcement steps taken so far, and publicise the same. The Committee will also draw up frequently asked questions (and their answers) for 10. RULES ON WEBSITE OF LAW FIRMS The Bar Council has adopted some amendments publication, to assist members. to the Website Rules, as proposed by the Legal Profession Committee and the IT & Cyberlaws MEETING YOUNG LAWYERS Committee. The revised rules will be published. The Bar Council will schedule a suitable date to They may also be viewed on our website at http:/ meet young lawyers and representatives from the /www.malaysianbar.org.my Young Lawyers Committee. DIALOGUES WITH BANK NEGARA MALAYSIA & BURSA MALAYSIA
11. VERBATIM COURT REPORTING
The Bar Council will further pursue with the relevant authorities the implementation of the verbatim reporting system in the High Courts.
The Corporate & Commercial Law Committee intends to hold dialogues with both Bank Negara and Bursa Malaysia. Members are encouraged to respond to our circular inviting views and 12. MALAYSIAN LAW CONFERENCE The biennial Malaysian Law Conference will be comments on the issues that can be raised at such held in the last quarter of this year. dialogues. 6.
CIVIL PROCEDURE RULES
The Bar Council intends to propose a set of Combined Rules for both the High Courts and the Subordinate Courts. An Ad-Hoc Rules Committee has been formed to draw up the same. 7.
BAR COUNCIL’S 5 YEAR PLAN
With the kind assistance of Loh Siew Cheang, Chong Wei Lung and Nahendran Navaratnam, we have commenced the process towards system compliance by taking the initial steps to put in place the necessary systems and procedures. 8.
SUIT BY VAN BUERLE AGAINST THE MALAYSIAN BAR
The Bar will be represented by Cecil Abraham, Sulaiman Abdullah, Tommy Thomas and Robert Lazar. The suit concerns the construction of the provisions in the Legal Profession Act in relation to the question of quorum for an AGM of the Bar.
13. PROFESSIONAL INDEMNITY INSURANCE POLICY FOR THE YEAR 2005 – ACKNOWLEDGEMENT OF LEGAL REPRESENTATION
For the 2005 PII policy, the insurers have introduced a disclaimer notice that is required to be signed by a purchaser waiving his right to independent legal representation and agreeing that his solicitor (in the purchase) may act for the financier in respect of the loan documentation. For further enquiries, members may contact Jardine Lloyd Thompson (Tel. No: 03-2723 3388). 14. GENERAL STATEMENT CONCERNING DECISIONS AT COUNCIL MEETINGS
It is decided that henceforth such General Statements will be emailed to members, and also published in the Infoline. This will reduce the cost of distribution. (Note : we have also renamed it “General Information” instead of “General Statement”.)
MARCH / APRIL_2005
ECRET ARIA T ECRETARIA ARIAT
15. INVITATION TO MEMBERS TO SERVE IN COMMITTEES OF THE BAR COUNCIL
Members of the Bar have been invited to serve in the Committees as listed in our Circular No. 26/2005 dated 13.4.2005. 16. CALENDER OF EVENTS NO.
20th May 2005
Internet for the Legal Professionals : (1-Day Hands-on Training) at MCSB Systems (M) Bhd, Wisma Mirama, KL
20th May 2005 – 22nd May 2005
2005 Malaysia/Singapore Bench & Bar Games in Singapore
Ms Lynette Tan/ May Leng
2nd July 2005 (Saturday) The Malaysia, Singapore, Sabah & Sarawak Quadrangular Golf Tournament for Tan Sri Steve Shim Trophy – at Damai Golf & Country Club, Kuching
Ms Lynette Tan/May Leng
Circa September 2005
Malaysian Bar Interstate Golf Tournament for the P Suppiah Challenge Trophy at Tiara Melaka Golf & Country Club, Melaka
Ms Lynette Tan/May Leng
Circa October 2005
Malaysian Bar vs Royal Malaysian Police Golf Tournament at Klang Valley
Ms Lynette Tan/May Leng
9-11 December 2005
World Legal Aid Conference
Mr Dominic Chan/Sue
We welcome any comments/ suggestions in relation to the matters listed above. Ragunath Kesavan Secretary Bar Council
see page 62 INFOLINE 22
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ECRET ARIA T ECRETARIA ARIAT
MARCH / APRIL_2005
Your Opinion Admit it, legal practice is a business Nicole Tan Lee Koon
t was a dark, dark day, and I believe that 2005 is ! Firstly, the reality has been that discounts are going to be the annus horribilis for conveyancing rampant. Shakespeare wrote ‘The whole world is a lawyers, when we were outvoted at the recent AGM stage and the men and women merely players’ but on the call for the abolition of the No Discount rule. we ought not kid ourselves and pretend that we Many conveyancing lawyers are not happy about the adhere to the No Discount rule when we resort to No Discount rule, yet they fail to turn up at the AGM practices like off the record deductions e.g. delete to abolish it. The Solicitors’ Remuneration an item or two from the disbursements, requesting (Enforcement) Rules 2004 is a farce and I propose that the clients to pay the fees in full first and then all you conveyancing lawyers out there who are affected reimburse them later etc. How can we go on with by this anachronistic No Discount rule go to the next this charade and still maintain a straight face and say AGM to abolish it. ‘No, I don’t give discounts’ or even swear in a statutory declaration that we don’t give discounts or proclaim in public in the most self-righteous Legal Practice a Business manner that we don’t give discounts but yet giving I am sure most lawyers agree with me that the practice discounts in private? I say, ‘Come out and admit of law is a business. In the business world it!’ there’s competitiveness, e.g. individuals like Andrew Carnegie; Sam Walton of Wal Mart; Ingvar Kamprad ! Secondly, conveyancers should be free to negotiate of IKEA etc strive on competition. In fact, their success fees like litigators. The problem with a fused was and/or is based on quality products for the best profession like ours is that the former are governed by scale fees whilst the latter are not. I hope that price. In the legal world, it should be quality services for the best fees. Nowadays, who wouldn’t ask for a this No-Discount rule is not a conspiracy by litigators discount? Even we as professionals for that matter. It is to put us conveyancers in a fix (being aided by daft entirely up to us how much to charge in order that our conveyancers with personal political agenda who do firm’s overheads are covered. not care two hoots on its negative effects on the profession). Litigators have been happily charging I feel that this is a free world and a free market. If clients problem-free and scale-free all this while and the No Discount rule is maintained, I will not only nobody ever brought this issue up. Why is there no lose clients but also friends and relatives. Why should need for such a monopoly for the litigators? we stop ourselves from giving discounts to family and friends? We can’t be giving free services to all of them. ! Thirdly, conveyancers simply cannot charge fees too I am aware of Circular No. 62/2004 i.e the Bar Council low due to the cost factor. Some of you will say Guidelines on Waiver of Fees in Conveyancing Matters that this is the reason lawyers abscond with clients’ ‘personal relationship’ includes immediate family money. Please check your facts before you make members etc. It is simply an affront to my civil liberties such statements. Most of the time, lawyers abscond and common sense that I should be made accountable due to their own bad habits like gambling, overto the Bar Council for any waivers given by me. It’s indulgence in material things or failed business my firm and I do not want to have to ask the Bar ventures etc. I propose that the Bar Council hold a Council’s permission for a waiver. It is just as simple as referendum on the No Discount rule restricted to that. conveyancers only as I feel that the litigators were the ones controlling the floor during the AGM. This On this premise, I would like to highlight 3 points was quite obvious when they spoke that they are for the argument for the abolition of the archaic No litigators and not conveyancers, another awkward Discount rule:situation caused by a fused profession. Some INFOLINE 24
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Your Opinion work to be done to fill up the forms and what not) in policing ourselves in matters like charging fees which should be left entirely at our discretion? I humbly opine that the time and effort should be channeled into other pressing issues like tackling the delays caused by bureaucratic red tape. The Bar Council should take the necessary and positive steps as soon as possible to solve the backlog of cases in the courts and the relevant local authorities. Merely holding dialogues, without getting any results, is next to achieving nothing. For e.g. to extract Letters of Administration or probate takes months; to obtain consent to transfer takes months; Change of Focus My other worry is the enforcement machinery. The there are Land Offices that refuse to follow the SRO Enforcement Procedure Committee should not National Land Code 1965 (NLC) or have the own consist of active practising conveyancers. There is always interpretation of the NLC; extracting certified true the possibility of them handling the same projects or copies of documents, which could be done in a day doing the same kind of work or being business but in reality takes months; missing documents and competitors of the lawyers complained against (the files at the Land Offices and courts etc. All these opposite party). The committee members can argue contribute to the delay of the transactions which in that the accounts and documents shall be scrutinised turn affects our economy. by independent auditors and not them and that they Quoting the Chinese Premier, Wen Jia Bao at are not free to do the checking. The point is that, regardless of the integrity of the committee members China’s Annual Press Conference ‘I am neither nervous or whether they have the time to check or not or nor afraid because I speak from the heart!’ whether they are doing the checking or not, the fact I hope that this mail can be read with an open that such conflict exists is again an affront to justice as heart and in a constructive manner as this is a tiny voice justice must be seen to be done. representing a huge group who are either too apathetic Why are we wasting time and resources (the extra or too scared to speak out. conveyancers have this ‘look and see’ attitude, hoping that in the long run things may improve and we can do less work for same fees. This lofty ideal is fantastic if everyone were to adhere to the No Discount rule but not when the abovementioned practices are still being used to circumvent the No Discount rule. It is very difficult to get evidence of such practices especially when the clients are the only witnesses.
Humour The following questions and answers were supposedly collected from a test given to 16 year old students! Q: Name the four seasons. A: Salt, pepper, mustard and vinegar. Q: Explain one of the processes by which water can be made safe to drink. A: Flirtation makes water safe to drink because it removes large pollutants like grit, sand, dead sheep and canoeists. Q: How is dew formed? A: The sun shines down on the leaves and makes them perspire.
Q: How can you delay milk turning sour? A: Keep it in the cow. Q: What is the Fibula A: A small lie. Q: What does “varicose” mean? A: Nearby. Q: What is a seizure? A: A famous dead Roman emperor. Q: What is a terminal illness? A: When you are sick at the airport.
Q: What happens to your body as you age? A: When you get old, so do your bowels and you get intercontinental.
Q: What does the word “benign” mean? A: Benign is what you will be after you be eight.
Q; Name a major disease associated with cigarettes. A: Premature death.
Q: What is a turbine? A: Something an Arab wears on his head.
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Your Opinion The No Discount Rule Louis E Van Buerle
had proposed at the AGM in Year 2004 that scale fees be maintained as a ceiling but Solicitors be allowed discretion give discount or waiver on their fees. This was in response to the Bar Council’s referendum in 2001 in which an overwhelming majority of those who responded (678 lawyers) favored allowing solicitors to give discounts. The motion was discussed with only about 200 lawyers (a majority of whom were litigators) present and was not carried.
Conveyancing is a multi million dollar industry. It is estimated that an average Bank incurs between $30 to $60 million in conveyancing fees, if its products are marketed on a zero costs basis. Banks, developers, consumers etc are not going to stand by and allow lawyers to increase the costs of a transaction just because lawyers enjoy a monopoly. Consider this (and there are other possibilities): Banks and Housing Developers, who provide at least 70% - 80% of the Conveyancing work, are I note that enforcement has brought forth voices likely to look for ways to dispense with the from conveyancers. It is important that this issue be services of lawyers. Banks can expand their legal revisited and be determined by a substantial majority department and attend to execution of their of our members ideally in excess of our statutory security documents (which are standardized and quorum. Time is not with us as third parties would printed by the bank anyway). They arrange for soon respond to the enforcement of the No Discount their borrowers to sign before lawyers or rule. Commissioner for Oaths. Attestation fees are paid to those who attest those documents. They Members should be reminded that our monopoly can then outsource the presentation work to in the Conveyancing Industry is at the sufferance of Companies/Individual (lawyer’s presentation Parliament. We are now in the 21st Century where clerks) to attend to the registration of their Globalization and Competition are keywords. Scale fees documents. You will have big and well funded have been abolished in England, Australia, New companies doing this work on a large scale Zealand, Singapore and Hong Kong. There is no reason (advised and managed by lawyers who leave the why the Government should or would protect our profession?). Banks can then truly tell their monopoly if we are unable to give competitive rates borrowers that it is zero cost and market their for our services. Bear in mind that the Government products without lawyers. Don’t forget that no could open Conveyancing to other professionals like legal firm has the financial resources that the Banks in Australia where non legal professionals (conveyancing have. So they can invest in technology and agents) can do Conveyancing work. In Canada, a sale maximize the use of human resources to obtain transaction including a loan would normally be optimum efficiency. completed within 2 weeks, that is efficiency and costs are reduced. No doubt, we would require land and other The above scenario is real and short sighted relevant authorities to be efficient as well. thinking could lead to a catastrophe for Conveyancing Competition means a free market determined by supply and demand. If your playing field has few players, you command good fees. (Medical specialists, top criminal lawyers?) If you are a conveyancer, you know the deal! Young lawyers should ask themselves this ‘If a client has to pay the same fees would he engage me or the large established firms or lawyers?’
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lawyers. It is not only lawyers who are going to lose their jobs but also the staff employed by them. Conveyancing is a sunset industry unless we re-engineer ourselves! As for the rest of us, we have to find a new playing field. We are talking of thousands of lawyers and staff who would be affected. I would urge every Conveyancing lawyer to re-appraise the No Discount Rule and to attend the next AGM so that they can determine their own future.
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Are Bureaucrats above the Law?? Seah Choon Chye*
he law pertaining to the use of land alienated before the commencement of the National Land Code (i.e. prior to 1.1.66) continues to be misunderstood and misapplied by our bureaucrats at the land office and the local authority.
‘Provided that this condition (i) shall not prevent (a) the use of any part of the land for any purpose for which it could (under Section 115) be lawfully used if it were subject instead to the category ‘agriculture’, or
According to the land office if the title of a proprietor of such land is endorsed with a ‘nil’ (b) the continued use of any part thereof for any condition, it is necessary to make an application under industrial purpose for which it was lawfully Section 124 of the Code for imposition of an express used immediately before the commencement condition (‘conversion’) otherwise it may amount to of this Act; and a breach of condition for which action may be taken by the State Authority pursuant to Section 128. (ii) shall not apply to any part of the land which is occupied by or in conjunction with Likewise, the local authority would also insist (a) any building lawfully erected before that on the same requirement otherwise it would not commencement, or approve any licence to operate any business to be carried out on such land by the proprietor, his lessee or tenant. (b) any building erected after the commencement, the erection of which would With due respect, both authorities have erred as (under section 115) be lawful if the land were they do not appear to understand the relevant provisions subject instead to the category ‘agriculture’. ‘ governing the use of such land as set out under Section 53 of the Code. While this proviso would confer no noticeable benefit on a proprietor of country land (or town and village It should be noted from the outset that land land held under Land Office title) who continues to classified under Section 53 is not subject to any category use same for agricultural purposes, it would substantially of land use (or any express condition) applicable to land benefit a proprietor who has prior to 1.1.66 used the alienated after the commencement of the Code (see land for industrial purpose as he is permitted to continue Section 52) but to implied conditions regulating its doing so to by virtue of proviso (i)(b) above and is use as specified under Section 53(2) and Section 53(3) therefore not obliged to apply for conversion under respectively. Section 1 24.
This applies to (a) country land or (b) town or village land held under Land Office title which shall with effect from 1.1.66 become subject to an implied condition that it shall be used for aaricultural purposes only, subject to the following proviso which reads as follows:-
This is applicable to all other land (i.e. town or village land under Registry title but not country land or town or village land held under Land Office title) which shall w.e.f. 1.1.66 be ‘subject to an implied condition that it shall be used neither for agricultural nor for
* Advocate & Solicitor, High Court of Malaya. INFOLINE 28
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Comment industrial purpose’ subject to the proviso (substantially By virtue of the said provisions, it is further similar to the proviso to Section 53(2) aforesaid), submitted that if the State Authority has not acted following viz., under Section 54 it would be premature and improper on the part of the land office or the local authority to ‘Provided that this condition compel any proprietor of such land to apply for (i) shall not prevent the continued use of any part conversion under Section 124, in the light of the said of the land for any agricultural or industrial Privy Council ruling. purpose for which it was lawfully used immediately before the commencement of this CONCLUSION Act; and Bureaucrats at the land office and the local authority (ii) shall not apply to any part of the land which is appear to be unable to understand the provisions of occupied by or in conjunction with Section 53 concerning land alienated prior to the (a) any building lawfully erected before that commencement of the Code without express commencement, or conditions. (b) any building erected after that They tend to adopt a rather simplistic view of commencement, the erection of which would the issue i.e. if a title to such land does not have an (under section 116) be lawful if the land were express condition the proprietor is under a duty to apply subject instead to the category ‘building’. ‘ for conversion under Section 1 24 to have an express condition endorsed, and completely ignore the provisos In Garden City Development Bhd v Collector of Land to Sections 53(2) and 53(3) which authorise the Revenue, Federal Territory  2 MLJ 98, the Privy continued use of the land after commencement of the Council (in setting aside the Federal Court judgment) Code for such purposes e.g. industrial or building, for ruled that a proprietor of town land under Section which it had been lawfully used prior to 1.1.66. 53(3) with ‘nil’ condition is entitled to erect a commercial complex thereon without being required If they are in doubt, they should take note of the to apply for conversion under Section 124 of the Code. Federal Court’s admonition in Pow Hing & Anor v Registrar of Titles, Malacca  1MLJ 155 and It is hereby submitted that the Privy Council seek the learned advice of their State Legal Adviser before decision on town land under Section 53(3) is also flexing their bureaucratic muscles by issuing notices to applicable to country land under Section 53(2) because proprietors of such land threatening forfeiture both Sections carried similar provisos allowing a proceedings without legal basis. proprietor (who used the land for say, industrial purpose It is therefore hoped the said authorities would before 1.1.66) to continue using same after the commencement of the Code for industrial purpose not continue to defy the Privy Council ruling on this until the State Authority has taken action under Section issue otherwise it would give rise to a disturbing 54 to subject the land to a category of land use and perception that our bureaucrats have no respect for the other express conditions by notification in the Gazette. law as enunciated by the highest tier of the judiciary and may disregard same with impunity because they The special status and statutory protection consider themselves to be above the law. conferred on proprietors of land alienated prior to the commencement of the Code are further recognised by Section 54(4) which states that no declaration forfeiting such land (for breach of condition imposed under Section 54) shall be effective ‘except upon payment of such compensation as may be agreed or determined under Section 434’. see page 63 MARCH / APRIL_2005
Women in the Lead P Dev Anand Pillai
t was recently reported that soon by 2013, women in Malaysia will the biggest spenders and, more importantly, according to the report, they will be heading households by this time. What beleaguers me most is aren’t women already leading households in Malaysia now? Many are choosing to be single because it doesn’t come with the hazards of women’s liberation i.e. that of having a husband and children. Companies like BMW, Mercedes Benz & Volvo seem to cater to women because they are the ones that have the spending power. There will be more single women and more dependency on foreign labour as the nation’s birth rate drops drastically. As there are more single women, there will also be more older women who will become a challenge to the health care system that the nation is now practising. The likelihood of seeing a woman Prime Minister in Malaysia is not to far away as the girls are the ones who seem to do the country proud in every arena. The women in Malaysia have proven themselves well and it is the men who are far behind on everything. It is indeed a sad state of affairs but as usual our leaders just talk without doing much at the end of the day. Boys in schools are not doing well and the teachers prefer to concentrate on girls because they learn faster and are easier to control. Almost the entire teaching force in Malaysia is comprised of women, therefore it is not surprising that most boys can’t cope in school.
they don’t need to get down to the ground to get the work going. Their social adaptability gives them the advantage when it comes to public relations and personal bonding with the potential clientele. It is only hoped that the Education Ministry looks into the problem and addresses it as a national problem which will cause the country to loose its pride if not properly tackled. One hopes that the parliamentarians who have just got their long awaited pay raise will put this matter for debate in Parliament and the educators will see some form of directive of how to address and tackle the issue of low morale and the lack of self esteem in most school boys in Malaysia. Be it Malay, Chinese or Indian, we have crossed the racial barrier in this problem, it seems that generally the girls are miles ahead. If it is not addressed, the issue of inferior quality male students is going to lead to Malaysia’s inability to provide a highly skilled and able work force to foreign investors. Its good that the women have made it but will it complement them if they are surrounded by intellectually inferior men? One is sure that the women would want a serious challenge to their ability from equally intellectual and ably qualified men!
This is not only a worrying trend but it has to become a problem which the government must tackle if we don’t want a male population that is very intellectually inferior. Earning capabilities today is in the terms of the new K-economy which suits the women better because
Find the images of 7 horses in this picture. This and other teasers like it can be found at ngakak.net
see page 63 INFOLINE 30
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MPs and Human Rights in Malaysia : A Snapshot1 Edmund Bon*
tate actors constitute the principal violators of human rights around the world. The irony is that human rights protection cannot subsist without State participation. It is then obvious that lawmakers play a vital role in protecting and promoting human rights through legislation and democratic practices. It is unfortunate that the Members in Parliament (MPs) in Malaysia do not do enough for the human rights cause. This state of affairs is discouraging.
meeting on 2 March 2005, Datuk Azmi Khalid, the Minister of Home Affairs, said that ‘bona fide refugees, as well as those who had applied for refugee status, would not be targeted during the current Ops Tegas against illegal immigrants.’ 3 This decision was welcomed as it represented an open acknowledgement of the principle of non-refoulment which forms the core content of the Convention Relating to the Status of Refugees, 19514.
The next day however, the Deputy Prime Minister, Since its inception, the Human Rights Datuk Seri Najib Razak, reversed the Government’s Commission (SUHAKAM) has actively carried out its position and said: ‘We will take action against anyone mandate culminating in no less than 15 reports. All of who is here illegally. There is no exemption on this its annual reports have been submitted to Parliament including those who are carrying letters, genuine or but have neither been tabled nor debated. The otherwise, from the UNHCR.’5 It is high time for Government appears reluctant to discuss the matters SUHAKAM to start conducting human rights training contained in the reports. No formal reason has been programmes for MPs. given why time has not been allocated for consideration of these reports2. This points to the Government’s lack On the international level, Malaysia has repeatedly of the respect for SUHAKAM. It also impairs been defensive of its human rights record and SUHAKAM’s right to defend human rights and continually deflects genuine attempts to improve the represents an abdication of responsibility by the human rights monitoring mechanisms promoted by Government. the United Nations. Recently, Malaysia resisted the recommendation of the United Nations to prepare an There is a dire lack of awareness of basic human annual report on the situation of human rights rights principles on the part of MPs, and any genuine worldwide in view ‘of the varying human rights desire to uphold human rights norms is usually clouded perspectives and different political, historical, social, by political motivations. After attending the Cabinet religious, cultural and developmental characteristics’6. 1
Panelist note delivered at the Education and Research Association for Consumers, Malaysia (ERA Consumer)’s workshop The Vital Role of Malaysian Parliamentarians in Strengthening Human Rights and Democracy in Malaysia held on 20 March 2005 at Petaling Jaya, Selangor. * Advocate & Solicitor, High Court in Malaya. 2 At a dialogue hosted by the Bar Council on 17 February 2005 between Datuk Seri Mohd Nazri Abdul Aziz and members of the Malaysian Bar, the Honourable Minister was asked why none of SUHAKAM’s reports have been debated in Parliament and whether he would pledge to make efforts to have the reports debated. His answer was that there are not many MPs who are lawyers in Parliament. As such, they would not be able to understand the legal points in the reports and debate them. He also said that it would be pointless to debate the reports as the Barisan Nasional forms the majority and any vote would be in its favour. Further, he said, it is not mandatory to follow SUHAKAM’s recommendations. Datuk Seri currently heads the Parliamentary Human Rights Caucus and is the Minister in the Prime Minister’s Department, whose portfolio includes overseeing Parliamentary affairs. 3 Sa’odah Elias and Royce Cheah, “Home Ministry upset with UNHCR”, The Star, 3 March 2005. 4 Malaysia has not ratified the Convention. 5 “Illegal immigrants: None will be spared from Ops Tegas”, The Star, 4 March 2005. 6 Statement by Dato’ Seri Syed Hamid Albar, the Minister of Foreign Affairs to the 61st Session of the United Nations Commission on Human Rights on 14 March 2005 at Geneva. 7 Ibid. MARCH / APRIL_2005
Comment Yet, in the same breath, Malaysia maintained that not enough is being done to address poverty, underdevelopment, marginalization and instability as ‘the universality and indivisibility of all human rights have been accepted as far back as 1993, at the Vienna World Conference on Human Rights.’7 The problem is endemic. Contradictory public statements such as the ones quoted above are not isolated incidents. They display a genuine deficiency on the part of MPs in understanding what the human rights struggle really means. It renders other useful statements on the commitment to human rights mere lip-service.
The focus must now be to re-educate and redemocratise our country. There must be a concerted agenda for MPs to pursue in terms of human rights protection and promotion8. It must be on the political plate at every election to be canvassed by the candidates, along with other issues. Almost every issue in an election can some way or other be articulated in the language of human rights. The promotion of human rights issues must then be shaped in different forms to reach out to different sectors of the electorate – the poor, the disabled, the middle-class, the rich, the educated et al.
As long as the Opposition continues to be fragmented and disorganised, there can be no effective But to criticize MPs is not enough. We must make challenge to the ruling Government. Exercises in excess an attempt to understand them and where they are of power will continue. The baggage which PAS coming from. It is not difficult for NGOs and human brought to the Opposition was probably the major rights activists to take altruistic human rights positions, factor in the overwhelming majority voting for the BN. as they must. MPs however, whilst purportedly Despite PAS’s stated commitment to human rights, representing the voice of the people, are constrained by its basic idealogy and raison d’etre does not sit well with the political realities of the day. MPs are elected and international rights norms. The way PAS has ruled sustained by the power of numbers. It is these numbers certain States bears testimony to that fact. they must sustain to hold onto power. Human rights transcend the power and numbers game. Hence, the There must be a concerted human rights agenda dilemma. How does one incorporate the human rights based on clear policies (at the macro and micro level) struggle as part of the game without compromising its of a shadow or alternative government for the electorate core values. to choose from. The human rights cause cannot be fought on a piecemeal basis. It must be advanced as a There is no easy answer. Battles have been won, whole in every aspect of the administration and and the statement of Datuk Azmi Khalid on 2 March management of the country. 2005 is one of them. It was a battle fought and won by a combination of unrelenting and tireless NGOs, human rights activists and the office of the United Nations High Commissioner for Refugees. Yet, as the struggle continues, the feeling on the ground is that MPs cannot be counted on with regards to human rights issues. Human rights is a concept based on certain norms but yet is fluid enough to be applied across borders to people and nations very different from each other. The perception is that MPs tout human rights causes to suit their needs, and have a hidden agenda. Be that as it may, in reality, MPs are indispensable to the process of furthering the cause effectively. 8
For a start, a “shopping list” of what needs to be done should be drawn up. The immediate aims, (though by no means the only ones), should be the ratification of international human rights treaties, the withdrawal of reservations lodged in respect of the Convention on the Elimination of All Forms of Discrimination Against Women, 1981 and the Convention on the Rights of the Child, 1990, and the full and effective implementation of the said conventions through domestic law as well as the establishment of the ASEAN human rights mechanism. INFOLINE 32
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Scrapping Legal Aid? Cecil Rajendra
u Tiang Joo’s commentary Legal Aid – Smart Partnership (Infoline Jan/Feb 2005) that calls for the scrapping of the Bar’s legal aid centres - let’s not mince words, ‘dismantle’ is merely a euphemism for ‘scrap’ - raises several interesting points but is riddled with misconceptions and fallacies. However, as it brings to the open an opinion held by a fair sector of the Bar, but seldom articulated, a response of sorts is called for. First, Mr. Su’s argument that the Bar’s limited monetary resources could be better husbanded and that millions could be saved by closing our legal aid offices is a scarlet red herring. The RM100/- subscription that members of the Bar have been contributing towards legal aid since 1983 is earmarked totally and exclusively for legal aid. The said RM100/- legal aid contribution goes directly into a special Bar legal aid account and cannot be channelled into any other Fund, benevolent or otherwise. In other words, if the Malaysian Bar is so ill-advised as to adopt Mr. Su’s suggestion to shut down our legal aid centres and sack our legal aid staff tomorrow, the Bar will not be one sen the richer as the contribution falls with the scheme! Second, Mr. Su’s suggestion, that the setting up administration and running of legal aid centres should be left to the Government and that we confine ourselves to providing ‘the service of advocates and solicitors through these bureaus’ is nothing new. This was the situation that obtained before the Bar’s legal aid initiative and was precisely the argument advanced by those opposing the Bar’s 1983 resolution to set up its own legal aid programme. While our legal aid centres have worked closely with the Biro Bantuan Guaman on several projects for well over decade, the independence of our legal aid scheme cannot be overemphasised.
It is precisely because our legal aid scheme is both financially and ideologically independent that our legal aid lawyers through our legal aid centres have been able to take up cudgels on behalf of the orang asli (land rights), ISA victims (habeas corpus), abused prisoners (unjust treatment), peaceful demonstrators (freedom of assembly) etc. etc. As a matter of fact, the earliest legal aid cases taken up by our centres were cases rejected by the Government-run legal aid bureaux (the Biro Bantuan Guaman) as they were against the Government or a quasi-government bodies i.e. the City Council (for unlawful dismissal), the Police (for assault of a detainee) and the Land Office (for eviction of alleged ‘squatters’).
It is wishful thinking to assume that a governmentfunded and -run body would be willing to institute action against one of its limbs for wrongful doing. Admittedly, the Bar’s legal aid scheme is far from perfect and could do with a major overhaul in terms of organisation and effectiveness. However, critics of the scheme and advocates for dismantling our centres, should be reminded that it is perhaps the single most noble venture of the Malaysian Bar since its founding. Both regionally and internationally the Malaysian Bar’s legal aid scheme has been recommended time and again as the model for other Bars to emulate. It is the only legal aid programme in the world that is totally funded, managed and manned by members of the Bar with no outside funding or interference whatsoever. In other words, it is the only legal aid scheme anywhere that can claim to be truly independent. When the International Bar Association (IBA) first set up its legal aid desk in 1996, the Malaysian Bar was given the singular honour to address and advise the IBA on how fellow members could go about initiating and implementing legal aid programmes in their countries. In the 1999 Commonwealth Law Conference, Bar Associations in the Caribbean and Africa were urged to adopt the Malaysian legal aid model. And, at a recent South East Asian legal aid conference in Cambodia in 2003, the Malaysian Bar was specially invited to inspire, initiate and help implement legal aid programmes in Cambodia, Laos and Vietnam. It is all very well to sanctimoniously propose that ‘the government of the day should provide (legal) aid to its citizens’ and that ‘it be legislated that everyone be entitled to have (meaningful) access to the courts’. But this is so much pie in the sky! The Malaysian Bar would be better served if its members fulfill their minimal obligation to take up one legal aid case a year (less than 5% do so though it is hardly an ‘unreasonable burden’) and pledge greater support to our legal aid programme rather than propose illusions and chase chimeras. For while we cannot be sure that dismantling our legal aid centres tomorrow will enrich the Bar’s coffers by a single dollar, we can be indubitably certain that scrapping them will immeasurably impoverish the spirit and moral standing of the Malaysian Bar. It is not very SMART! MARCH / APRIL_2005
Burgers, fries & legal advice Kenneth Goh Secretariat Bar Council
ir David Clementi (photo), the former Deputy Governor of the Bank of England and the President of Prudential, was commissioned by the United Kingdom Secretary of State for Constitutional Affairs to make recommendations on regulatory options for the legal profession and new business structures, including Legal Disciplinary Practices (LDPs). Clementi published a consultation paper in March 2004 anda final report in December 2004. In his report, Clementi recommended that barristers, solicitors and lawyers from different disciplines be allowed to practice together in LDPs. The proposal is not limited to allowing partnerships between solicitors and barristers but it will also allow solicitors and barristers to form partnerships with non-lawyers.
investors, appears to militate against the fundamental precepts of the legal profession, in particular the independence of the profession and the avoidance of conflict of interests. Clementi considered the risks and drawbacks involved in this new business structure, including the likely conflict between the commercial interests of owners who are non-lawyers and the ethical duties of the LDP. He proposed certain safeguards to ensure that the fundamental attributes of the legal profession will not be compromised. In examining the situation as a whole, Clementi concluded that outside ownership can in fact lead to better business practices and improved customer service and accessibility. The Law Society of England & Wales, which represents solicitors, supports Clementi’ s call for LDPs. Janet Paraskeva, Chief Executive of the Law Society, said: We’ve long been in favour of allowing solicitors to form partnerships with other professionals to provide legal services.
Non-lawyers could be appointed as managers of an LDP, but their work would be to support the LDP’s activities in providing solely legal services. Proper office administration, effective management systems and consummate client care are crucial components of a successful legal practice and non-lawyers, such as accountants, HR specialists and IT experts have a crucial role to play in these areas. Clementi surmises that there is a demand from the provider of legal services for the services that these non-lawyers can provide and for which they ought to be rewarded with partnerships.
As regards outside ownership of LDPS, she said: In the future LDPs may also be owned by external investors. We’ll have to make sure the right safeguards are in place, but we welcome this new freedom.
Clementi has also recommended ownership of legal practices by non-lawyers. In economic terms, it is accepted that external capital would generally increase capacity and reduce prices. On the face of it, the concept of this new business structure, owned by external
Although, in England & Wales, outside ownership is already permitted in respect of legal practices which provide licensed conveyancing services, the prospect of this overarching ‘new freedom’ in the form of LDPs is not absolved from mutterings of
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The proponents of this new business structure see it as a practical and exciting prospect, where the injection of funds and fresh ideas from an external source that incorporates best practices can be translated into effective and consumer-friendly services for the public.
Comment own law firm. Among the proposals is for discounted legal advice to be given to customers who order a meal before 11am. A source at The debate is very much alive and it has spilt over McDonalds was quoted as into the political arena where the Conservatives have saying: We’re sure Sir David Clementi would approve taken the position that they will not allow non-lawyers since we are trying to provide a consumer-focused to own law firms, if they are elected (in the upcoming service that combines practical legal advice with elections in Britain). Dominic Grieve MP told leading great-tasting food. lawyers at a pre-election debate: I do not see how either I or my colleagues would Recently, the Lord Chancellor and Secretary of State ever accept the notion of outsiders being able to for Constitutional Affairs issued a statement supportive own law firms. of the Clementi report and the British government is Among the issues that cloud this proposal are the expected to publish a White Paper soon. If legislation manner of determining who would be ‘fit to own’ an is introduced to allow LDPs , it would be interesting LDP as there will be the risk of inappropriate owners. to observe whether one of these days, legal advice will This ‘fit to own’ test will most certainly be put to the be included on the menu at McDonalds alongside its test if the recent proposal by McDonalds is to be burgers and fries. One must surely question whether the core values of the legal profession can be preserved considered. if legal advice comes with a Happy Meal. It was reported in the Law Society’s Gazette (April 2005 issue) that McDonalds have plans to set up its discontent and anxiety. Some quarters remain unconvinced and feel that ownership by external investors will sound the death knell for the traditional principles of the legal profession.
Bar Council Subscriptions 2005 Members of the Bar are reminded that subscriptions to the following Funds for the year 2005 are now due and payable: 1 2 3 4.
Bar Council Subscription Bar Council Building Fund Bar Council Legal Aid Centre Bar Council Sports Fund
RM350 RM100 RM100 RM10
You are kindly requested to remit the abovesaid payments in ONE single cheque for RM560 made payable to ‘BAR COUNCIL’ without having to indicate the respective Funds by AR Registered Post as soon as possible. Please add the necessary Bank Commission for outstation cheque. Kindly also ensure that your name and Sijil Annual numbers are clearly written on the reverse side of the cheque. The receipt for the sum of RM560 will acknowledge same as ‘Bar Council Subscriptions’ to facilitate tax exemptions.
Your attention is drawn to Section 46(5) and (6) of the Legal Profession Act 1976, which reads as follows: ‘(5) Liability to pay any annual subscription to the Malaysian Bar shall arise when the subscription has been fixed by the Bar Council. All annual subscription to the Malaysian Bar shall be paid by the 30TH DAY OF JUNE OF EACH YEAR. (6) An advocate and solicitor shall, if he pays his annual subscription after the date mentioned in subsection (5), pay to the Bar Council, in addition to the subscription date, AN AMOUNT EQUIVALENT to the subscription so due.’ Please note that the deadline for payment of annual subscripion on June 30 will be stricly applied and no application for waver of penalty will be entertained
MARCH / APRIL_2005
Mediation – Is it ultra vires? Hamid Sultan Abu Backer
rder 34 rule 4 of the Rules of the High Court 1980 2 has been amended to include subparagraph (q) which reads as follows:Order the parties to refer the dispute to a mediator appointed by the Court within such time frame as deemed appropriate and as to who shall bear the mediator’s fees and any incurring costs 3
It is not clear whether the reference to a mediator under the rule means reference to mediation or conciliation.
It is said that mediation and conciliation are interchangeable terms. Though mediation and conciliation appear to be similar and interchangeable terms, there are subtle differences between the two. As a general rule, the mediator plays an active role by working out compromise solution after hearing both Under sub-para (q), the court has powers to refer the parties. However, the role of the conciliator is to bring dispute between parties to a mediator appointed by the parties together in a frame of mind to resolve their the Court. However, the rules do not provide any differences and prepare them for a compromise by guidelines for the role and the scope of the mediator’s adopting a mid-way approach. Thus the role of the function and the effect of his findings or decisions. It conciliator is more active and he is required to bridge will be appropriate for the court to issue practice the gap between the parties and suggest a solution, directions to furnish guidelines for the mediator’s which is acceptable to both the parties. function, before it is gazetted and/or implemented by the court. In the past, the mechanism of submitting to ADR was voluntary and on a without prejudice basis. However, Unlike an arbitrator, the role of a mediator is not clear. the new amendment appears to make it mandatory at The above rule attempts to make provisions for the option of the court. Further, the mediator’s fees Alternative Dispute Resolution, commonly referred to and the incurring costs are not capped under the rules. as ADR. ADR differs from arbitration and litigation. This is likely to cause great hardship to the litigants, in the event the court fails to address its mind as to the ADR is a means of resolving disputes by using the issue of reasonable fees and costs at the time of making service of an independent third party. This independent an order for the dispute to be referred to the mediator. third party is expected to help the parties to the dispute to reach their own solution. The independent third The issues as to fees and costs need to be reviewed party cannot impose a solution. If the parties to the urgently by the ‘Rules Committee’, headed by the Chief dispute are not in favour of each other’s proposed Justice, before the above rule is implemented, to avert solution, they have no obligation to accept it. inter alia exorbitant order as to fees and costs to the prejudice of the litigants. There are a number of advantages in ADR. The ADR is praised for its relative costs, speed and flexibility as Under the new rules, the court has the power to refer compared to dispute resolutions dealt through the court the matter to the mediator. It is not clear whether there process. However, this statement can only be true if will be any form of undue pressure from the court for the matter is resolved through the ADR process. If the the parties to settle the matter through the mediator. matter is not resolved, the litigant will have to spend Further, whether the reference to a mediator by a rule additional costs, time and delay in obtaining justice. of court is constitutional needs to be considered, on the grounds that there is no clear provision to abdicate Despite its merits, the greatest disadvantage of ADR is the function of the court in the guise of a mediator that parties cannot be forced to accept a settlement. under the Courts of Judicature Act 1964. Such an The whole process of ADR functions on a voluntary argument can be fortified by reference to Section 24A basis and any party may withdraw at any stage before a of the Courts of Judicature Act 1964 which deals with solution has been reached. reference to, under order of court to ‘special referee’ or ‘arbitrator’ and not a mediator. In consequence, it can Mediation and conciliation are types of ADR process. be argued that sub-para (q) is ultra vires the Federal Constitution and/or the Courts of Judicature Act 1964. 1
Hamid Sultan Bin Abu Backer, JANAB’s Series To ‘Law, Practice and Legal Remedies’, Kuala Lumpur, Janab (M) Sdn. Bhd., 2005. (Volume 1 and 2). 2 deals with case management 3 At the time of writing this article the sub-para (q) had not been gazetted INFOLINE 36
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Reforming the Corporate Insolvency Regime by the Secretariat to the Corporate Law Reform Committee (CLRC) Companies Commission of Malaysia
Reviewing the current corporate insolvency regime
Some of the general objectives of corporate insolvency law are1: ! The facilitation of the recovery of companies which are in financial difficulties; ! The suspension of legal actions by individual creditors through the creation of a moratorium; ! The removal of powers of management of the company by its directors, even if directors retain their position as directors; ! The avoidance of transfer and transactions which unfairly prejudice the general body of creditors; ! Ensuring that there is an orderly distribution of company’s assets; ! The provision of a fair system for the ranking of claims against the company; ! Making provisions for the investigation of the company’ failures and the imposition of liability of those responsible for the failure; ! The protection of the public from directors who might in future engage in improper trading; ! Maintaining the ethical standards and competence of insolvency practitioners; ! The dissolution of a company at the end of the liquidation process.
There is a discernable international trend in various jurisdictions to move towards corporate rescue mechanism as part and parcel of the corporate insolvency regime. In these jurisdictions, liquidation or winding up is no longer considered as the main outcome of an insolvent company. It is noted that the corporate insolvency framework in other jurisdictions covers matters pertaining to pre-insolvency procedures, liquidation process, consolidation of corporate and personal insolvency laws and corporate rescue mechanisms.
In most jurisdictions, an effective corporate insolvency regime is seen to be one that should be able to provide a system to enable the winding up of companies where there is no future prospect of the business becoming profitable and viable with the least possible cost and delay. At the same time, an effective corporate insolvency regime should be able to provide for mechanisms to rehabilitate companies and rescue companies from being wound up. The Harmer Report of Australia2 for example, whilst acknowledging the
n our first article ‘An insight to Corporate Law Reform in Malaysia’ we mentioned that the Corporate Law Reform Committee, (CLRC) established by the Companies Commission of Malaysia (CCM) for the purpose of reviewing the Companies Act 1965 (Act), has divided its review work into four separate Working Groups. Working Group D is reviewing the current law and practice relevant to corporate securities and insolvency. In conducting its review of this core area of company law, Working Group D is guided by the objectives that its review and recommendations, if any, must amongst other things, reduce the cost of compliance, increase efficiency and protect the interests of stakeholders. These objectives are in tandem with the overall objectives of the CLRC as set out in its consultative document titled ‘Strategic Framework for Corporate Law Reform Programme’.
See RM Goode, Principles of Corporate Insolvency Law (1990) Sweet & Maxwell, London pp 5-10; RW Harmer, general Insolvency Inquiry, Report No 45, AGPS (1988) Canberra; IF Fletcher, The Law of Insolvency (2nd Ed. 1996) Sweet & Maxwell London. 2 RW Harmer, general Insolvency Inquiry, Report No 45, AGPS (1988) Canberra. MARCH / APRIL_2005
general principles of corporate insolvency law, stated that there should be an effective release of the insolvent company from financial obligations and liabilities. Whilst most of the general principles of corporate insolvency law stated above are found in company’s liquidation provisions within the Companies Act 1965, the present framework is very much focussed on the liquidation or winding up of a company. Liquidation has also often been seen as the only viable option for companies which are insolvent. The corporate insolvency law in Malaysia, under the Companies Act 1965, envisages the following methods for dealing with company insolvency. The first is a receivership process where creditors may appoint a receiver and manager. Most often, the company will be wound up and the company’s assets are hived off and sold separately. The second is where an application for winding up may be made to the court (through a members’ voluntary winding up, creditors’ voluntary winding up or winding up by the court). It is also possible to use a scheme of arrangement for the reconstruction of companies. However, the present framework is inadequate as there has been a lack of focus on rescue mechanisms or attempts to rehabilitate companies. By combining a corporate insolvency regime that deals with company liquidation as well as corporate rescue mechanism, there will be rules which are more commercially realistic in terms of addressing the needs of companies and investors. Companies are primarily used as a vehicle to conduct business. It is a fact that just as there are businesses that prosper, there are also just as many businesses that fail. A company that is used as a vehicle to conduct business should be allowed to wind up its business where there is no viable prospect of the business becoming profitable. In such an instance, the corporate insolvency regime must be facilitative in that it should provide for the efficient winding up process of that company. The corporate insolvency regime should also be protective of the rights of creditors and members especially in cases where the company is wound up on the grounds that it is insolvent. Many factors can contribute to the failure of a business. In some instances, business failure may be attributed to mismanagement. Yet, in some cases, a business may fail not because of mismanagement but because of external economic factors which are beyond the company’s control. INFOLINE 38
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Where the failure of a company’s business is attributed to mismanagement by persons in control of the affairs of a company, one of the concerns is making those responsible for such mismanagement accountable for their actions. Further, there is also the need to prevent such persons in the future from setting up new companies with the view of doing the same with those new companies. Enhancing the accountability of those involved in the company’s management and liquidation process are one of the major issues that must be considered when reviewing the corporate insolvency regime. In some instances, where a company’s failure is not contributed by mismanagement but due to temporary financial difficulties or external economic factors, a rescue mechanism may enable the company to be rehabilitated and preserve its business as a going concern. A corporate rescue mechanism may also enable better returns for creditors and shareholders as fragmented sale of a company’s business in most cases may not be in the best interest of the company’s creditors and shareholders.
Is there a need for a single Omnibus Insolvency Act?
One issue that has often been raised in respect to corporate insolvency in Malaysia is whether there is a need to legislate a single Omnibus Insolvency Act. There are two approaches being adopted as far as the corporate insolvency regime is concerned. ! The first is the creation of an Omnibus Insolvency Act which consolidates both the corporate and individual insolvency and operates as a free-standing legislation from company legislation. The United Kingdom through its Insolvency Act (UK IA) has, since 1986, consolidated personal and corporate insolvency laws into a single insolvency regulatory framework although extensive crossreference is made in the companies legislation to the insolvency legislation. Singapore’s Report on the Company Legislation and Regulatory Framework Committee (CLRFC) issued in October 2002 has proposed the introduction of an Omnibus Insolvency Act and subsidiary legislation that are applicable to both companies and individuals to harmonise and consolidate any uncertainty in areas specifically relating to undue preference transactions, avoidance of dispositions of company’s property and floating charges.
! The second approach is to maintain two separate
regulatory regimes between the corporate and personal insolvency where the corporate insolvency framework is integrated into company legislation. Australia and New Zealand maintain separate insolvency regulatory frameworks for individual and corporate insolvency. In Australia, for example, the Corporations Act contains provisions relevant to corporate liquidation, receivership process and rescue mechanism. New Zealand has a similar regime although the receivership procedures are found in a separate Receiverships Act.
Refining the provisions in respect to corporate liquidation
There are several improvements in terms of substantive and procedural changes that may and should be made to the current company liquidation framework in Malaysia. This is in line with the objective of the CLRC to facilitate and provide simplified yet effective procedures in every aspect of company administration including the procedures for the proper closure of a company that may not be able to continue its business.
Some of the issues that have been considered in relation to liquidation in other jurisdictions relate to Essentially, in Malaysia, support for a single Omnibus the following: Insolvency Act for Malaysia is fuelled by the argument ! the commencement and termination of winding up that the current corporate liquidation or winding up Currently, in Malaysia in the case of compulsory framework is confusing due to the fact that extensive winding up of a registered company, the cross-reference needs to be made to the various commencement of winding up is not on the date bankruptcy principles and rules provided for in the the order is made but is instead deemed to have Bankruptcy Act 1967. One conspicuous example is the occurred from the date the petition for winding up application of section 53 of the Bankruptcy Act 1967 is presented to the court. under section 293 of the Companies Act 1965 for undue preference transactions. This has caused Several jurisdictions have actually departed from this confusion and in some instances, fails to facilitate easy approach and have provided, that the understanding of the corporate insolvency regulatory commencement of winding up in the case of framework. compulsory winding up, occurs either from: (i) the date the order for winding up is made, as ii However, the more important concern in relation the case in Australia; or to reviewing and reforming the corporate insolvency (ii) the date the liquidator is appointed, as is the regime for Malaysia is creating a corporate insolvency case in New Zealand. regime that is both facilitative to the winding up process and protective of the rights of creditors and stakeholders Another area of concern relates to the persons who of the company by providing a mechanism to enforce have the authority to apply to terminate the winding these rights without undue delay and difficulty. For up process. Currently, there is no provision example, this over-dependency on the bankruptcy laws empowering the courts to discharge a winding up may be resolved by incorporating into the company order that has been made. However, the Companies legislation provisions on corporate winding up and Act 1965 does empower the court to order a stay removing any cross references to the provisions of the of winding up. Case law has held that a stay order Bankruptcy Act 1967 that are incompatible with can also be of permanent effect. corporate insolvency. Australia and New Zealand have actually provided, It should be pointed out that with or without an by way of legislation, that its court can make an Omnibus Insolvency Act, further improvements can order terminating the winding up of a company. and should be made to reduce any confusion that may exist in respect to our existing corporate insolvency regime. This can be done by refining and streamlining ! the powers and duties of liquidator and an interim liquidator existing provisions in respect of corporate insolvency Some jurisdictions such as Australia and United as is currently provided for in the Companies Act 1965. Kingdom have codified the duties and powers of liquidators and interim liquidators.
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! the appointment and qualification of liquidator
Several jurisdictions have revised the necessary As the liquidation process remains an integral part of qualifications for liquidators specifically and the corporate insolvency law, there should also be a move towards enacting a comprehensive framework corporate insolvency practitioners in general. on the rescue mechanisms to help rehabilitate ailing ! the rights of secured creditors and the rights of companies that have the potential to be revived and to creditors to mutual credits and set-off make profits. The CLRC will constantly monitor the Currently in Malaysia, this issue is dealt with by progress in other jurisdictions to ensure that its the development of case. However, several recommendations, if any, will be on par with and in jurisdictions such as New Zealand and Australia have conformity to the international standards, without codified the rights of secured creditors and the rights compromising the values and needs of companies and of creditors to mutual credits and set-off. investors locally. In this respect, the review of the existing corporate insolvency regime is a gargantuan task as it ! setting aside void and voidable transaction. requires the balancing of numerous interests which, at As noted earlier, one of the general objectives of times, may be in conflict with each other. corporate insolvency is the avoidance of transfers The Bar Council gratefully acknowledges the and transactions which unfairly prejudice the general role played by ALIRAN in permitting us to run the body of creditors. It is important that adequate series of articles Crisis in the Judiciary by powers are given statutorily to recover assets of a Datuk George Seah which first appeared in company transferred in dubious circumstances. their publication. We neglected to so state in Several provisions of the Companies Act 1965 need the second instalment, published in Infoline to be considered for example sections 223, 224 and Oct/Nov/Dec 2004. We sincerely apologise to 293 of the Companies Act 1965. ALIRAN and its readers for the oversight.
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A Quick Peep Into The Child Act 2001 (Act 611) Puspanathan Sellam
who has attained the age of criminal responsibility he turn of the century witnessed the repeal of as prescribed in s 82 of the Penal Code 3 major Acts and the advent of a new one in so far as legislation pertaining to child The need and requirement for special provisions for protection is concerned. children arose as a result of Article 40 of the Convention on the Rights of the Child (‘CRC’) pertaining to the The repealed Acts are: administration of juvenile justice. ! Juvenile Courts Act 1947 ! Women And Girls Protection Act, 1973 Article 40(1) of the CRC reads as follows: ! Child Protection Act, 1991 1. States Parties recognize the right of every child alleged as, accused of, or recognized as having Nonetheless, the spirit sentiment and salient infringed the penal law to be treated in a components of the said Acts have been crystallized into manner consistent with the promotion of the the brand new Act called the Child Act 2001, (‘the child’s sense of dignity and worth, which Act’). reinforces the child’s respect for the human rights and fundamental freedoms of others The Act was pioneered and championed by and which takes into account the child’s age paragons of justice for the protection of the rights and and the desirability of promoting the child’s liberties of the child as being of paramount importance. reintegration and the child’s assuming a constructive role in society. The Act came into operation with effect from 1 August 2001. By and far, the hallmark and pride of As such, the state or the respective government is the Act, is the setting up of a Court For Children. entrusted with the responsibility of doing all it can to implement the rights as enshrined in the convention The Court For Children. adopted by the United Nations. Mention must be made The Court For Children is constituted under s 11 of here that Malaysia adopted the Articles of the the Act and consists of: Convention subject to exceptions and modifications, ! a Magistrate (1st Class) who is assisted by which I do not intend to dwell upon here. ! two (2) Advisers, one of whom shall be a woman Coming back to the Act, for the proper and efficient functioning of the Court For Children there The function of the advisers are: shall be established or appointed the following: ! to inform and advise the Court For Children with ! a co-ordinating Council for the Protection of respect to any consideration affecting the order made Children upon a finding of guilt or other related treatment ! a Child Protection Team of any child brought before it and ! Protectors ! if necessary to advise the parent or guardian of the ! Registrar General/Registrar child ! Probation Officers ! Advisers Function of Advisers
Definition of Child
Under the Act, a child is defined as: Jurisdiction (s 11) ! a person under the age of eighteen (18) and A Court For Children shall have jurisdiction to try all ! in relation to criminal proceedings, means a person offences except offences punishable with death. The CPC shall apply to Courts For Children except as MARCH / APRIL_2005
modified or extended by the Act. Reference is made to s 84 (3) (a) and s 97 of the Act.
Any member of the family of the child who reasonably believes that a child of the family is subjected to physical or emotional injury is duty bound to inform a Place of Sitting (s 12) Protector. In failing to do so, he commits an offence A Court For Children shall, if practicable, sit either: and shall on conviction be liable to a fine not exceeding ! in a different building or room from that in which RM5,000.00 or to imprisonment not exceeding 2 years sittings of Courts other than Courts For Children or to both. are held or ! on different days from those on which sittings of Offences Against the Child those other Courts are held Offences against the child is dealt with in Chapter 3 Part V of the Act which includes all forms of illIf a Court For Children sits in the same building as treatment, neglect, abandonment, exposure, sexual other Courts, the Court For Children shall have a abuse, used for begging, deprivation of shelter, food, different entrance and exit from those of the other clothing, medical treatment and education. Courts (in the interests of privacy). Attendance
No person shall be present in a Court For Children except: ! the child / children concerned ! the parents / guardian / advocates, witnesses of the child ! members and officers of the Court ! such other responsible persons as determined by the Court
Chapter 2 of the Act especially ss 43, 48 & 49 covers other and further offences such as trafficking, abduction, importation, removal from place of safety or refuge and harboring. Reference is also made to s 57 of the Act. Presumption
Section 43 shall be presumed until the contrary is proved Sentence
The Orders of the Court shall not extend beyond the date the Child attains the age of 18 years, subject to s 14 of the Act which has the effect of extending the period of such detention, supervision or probation beyond the date on which the child attains the age 18 years.
Ironically, in view of the Convention on the Rights of the Child, the introduction of a new Act for the protection of the child with the interest of the child being of paramount importance, the sentence for offences against the child, (in my opinion) does not commensurate with the purpose and spirit of the Act. Offences against the child are only punishable with
The mass-media shall not reveal the name, address, educational institution or identification pictures of the child. Contravention of the relevant s 15 (1) and (2) of the Act is punishable with a fine not exceeding RM10,000.00 or imprisonment not exceeding 5 years or both. Production before the Court
Every child taken into temporary custody under s 18 (subject to s 20) shall be brought before the Court within 24 hours.
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a fine not exceeding RM10,000.00 or imprisonment Courts And Custody not exceeding 5 years or both ONLY, which in my A child shall be separated from adults in police custody and in courts (s 85) opinion is far too lenient. Urgent Need of Protection
A child in urgent need of protection may on his own The parent or guardian of a child must be immediately make an application under s 41, to the Protector, to be informed of his arrest. received into a place of refuge subject to sub-s (2). Penalties and Sentences
Punishment for offences committed by a child is mainly A child found guilty under the Act may be placed in: covered by ss 91 to 104 and are in the nature of: ! a Probation Hostel ! detention ! an Approved School ! supervision ! a Rehabilitation Centre or ! probation ! the Henry Gurney School ! bond for good behaviour ! recovery A child under 10 years of age shall not be sent to ! compensation Approved Schools. ! costs A child under 14 years of age shall not be sent to Henry ! fines Gurney School. ! admonition & discharge A child above 21 years of age shall not be detained in ! whipping (not more than 10 strokes) Henry Gurney School or a Rehabilitation Centre for ! imprisonment. children. It is hoped that this brief peep into the Act has achieved Detention in Approved Schools or Henry Gurney the aim of giving an insight into the new-born Child School may me substituted with a term of Act 2001 which still leaves much to be desired in respect imprisonment under s 79. of its implementation and administration in seeking to achieve the desired justice for children for which the Act was designed. Jointly Charged Place of Detention.
A charge made jointly against a child and a person who has attained the age of 18 shall not be heard in a Court For Children. Charged After 18 ! Where an offence was committed while the offender
Malaysian Bar Souvenirs for Sale
was still a child but he is charged after he attains the age of 18 years shall not be tried in a Court For Children (s 83 (3)) ! No prouncement of death may be made against a person convicted of an offence where, at the time of the offence, he was a child (s 97) Prisons
A child below 14 years of age shall not be imprisoned subject to sub-s (2) and (3) of s 96. A child below 14 years of age, if imprisoned, shall not be allowed to associate with adult prisoners.
Silk Woven Tie Available in red, black or blue RM70.00
MARCH / APRIL_2005
The God-provision Nik Nazmi Nik Ahmad*, Fahri Azzat**, Amer Hamzah** and Edmund Bon**
n January 2004, a 5-member panel of the Federal Court in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd  2 MLJ 257 struck down one of the most revolutionary decisions to come out from the Judiciary for a long time. The well-written judgment of Gopal Sri Ram JCA in the same case at the Court of Appeal level, reported in  3 MLJ 1, was thought to have established a norm-setting precedent on the issue of access to justice in Malaysia. It however turned out to be a short-lived joy as the Federal Court overturned the judgment. The Federal Court, speaking through the sole written judgment of Augustine Paul JCA (a Court of Appeal judge who sat on the panel pursuant to article 122(2) Federal Constitution) in one fell swoop castrated judicial power in deference to parliamentary supremacy.
The Court of Appeal had declared section 72 of the Pengurusan Danaharta Nasional Berhad Act 1998 (‘the Danaharta Act’) unconstitutional. This particular section provides that the courts cannot give an order preventing, compelling, stopping or restraining the powers or any action taken by Danaharta or any committee or officer of Danaharta. Even if the courts were to make such an order, it ‘shall be void and uneforceable and shall not be the subject of any process of execution whether for the purpose of compelling obedience of the order or otherwise’.
The Court of Appeal had held that section 72 was unconstitutional because it infringed article 8(1) of the Federal Constitution, that all persons are equal before the law and entitled to the equal protection of the law. The provision elevated Danaharta above the law, and hence was unconstitutional. In the words of Gopal Sri Ram JCA: ‘We would sum up our views on this part of the case as follows: (i) the expression ‘law’ in art 8(1) refers to a system of law that incorporates the fundamental principles of natural justice of the common law: Ong Ah Chuan v Public Prosecutor; (ii) the doctrine of the rule of law which forms part of the common law demands minimum standards of substantive and procedural fairness: Pierson v Secretary of State for the Home Department; (iii) access to justice is part and parcel of the common law: R v Secretary of State for the Home Department, ex parte Leech; (iv) the expression ‘law’ in art 8(1), by definition (contained in art 160(2)) includes the common law. Therefore, access to justice is an integral part of art 8(1). Before leaving this part of the case, it is, we think, appropriate to say a word or two about constitutional interpretation. This is because the constitutional provision that is being relied upon to support the right of access to justice is one of those fundamental liberties guaranteed under Part II of the Federal Constitution. In our judgment, the fundamental liberties guaranteed by Part II, including art 8(1) should receive a broad, liberal and purposive construction.’
In effect, this ‘God provision’ allows Danaharta to do anything it likes, no matter how illegal, unfair or malicious it is. The Judiciary, which is there to protect the rights of citizens, can do absolutely nothing. This has further weakened the ideal of the separation of powers in our country. The learned judge continued: ‘Section 72 by its terms prohibits a court from, inter alia, granting an injunction against the
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second defendant. But it does not prevent the issuing of an injunction in the second defendant’s favour. The section therefore seeks to immunise the second defendant which is a private limited company from being restrained in any manner whatsoever, however illegal its acts may be. In other words, the second defendant enjoys blanket immunity from injunctive relief. In our judgment, adopting the principle stated by Lord Steyn in Pierson v Secretary of State for the Home Department, s 72 is contrary to the rule of law housed within art 8(1) of the Federal Constitution in that it fails to meet the minimum standards of fairness both substantive and procedural by denying to an adversely affected litigant the right to obtain injunctive relief against the second defendant under any circumstances, including circumstances in which the Act may not apply.’
affairs, the immigration authorities served him a notice of cancellation of his employment pass under the Immigration Regulations, 1963 on 26 September 1986. The Plaintiff then sought leave from the High Court to apply for an order of certiorari and prohibition but was refused. On appeal to the Supreme Court, Eusoffe Abdoolcader SCJ held that the Plaintiff acquired a legitimate expectation to be entitled to remain in Malaysia, at least until the expiry of the prescribed duration. The Court further concluded that the Plaintiff had not been given the opportunity to make representations regarding the cancellation of his employment pass, and that the requirements of natural justice had not been satisfied.
In an interview with Time magazine on 24 November 1986, our then Prime Minister said this: ‘The judiciary says [to us], ‘Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation’. If we disagree, the courts will say, This Court of Appeal decision is probably the first ‘We will interpret your disagreement’. If we go judicial reading of article 8(1) which properly enlarged along, we are going to lose our power of the same within its proper context. The broad reading legislation. We know exactly what we want to of article 8(1) is consistent with international rights do, but once we do it, it is interpreted in a diferent norms which stipulate that not only should there be way, and we have no means to interpret it our ready access to the courts but also that effective remedies way. If we find out that a court always throws us must be available as a means to securing justice. out on its own interpretation, if it interprets contrary to why we made the law, then we will An affirmation of the Court of Appeal decision have to find a way of producing a law that will was a good opportunity of our times to display a real have to be interpreted according to our wish.’ revival of the Judiciary. Unfortunately, this opportunity was not taken. By affirming the constitutionality of Interpret that statement any way you like. section 72 of the Danaharta Act, the Judiciary also affirmed its impotence. In Public Prosecutor v Dato’ Yap Peng  2 MLJ 311, the Deputy Public Prosecutor tendered a We do not understand why else one would seek certificate pursuant to section 418A of the Criminal to exclude the Judiciary’s participation in ensuring the Procedure Code requiring a lower court to transmit a fairness and propriety of Danaharta’s actions. case before it to the High Court. When the case was Nevertheless, history shows that the Judiciary has on transferred to the High Court, an objection was raised various occasions been undermined by the powerful that section 418A was unconstitutional on the ground Executive to the detriment of the people and dilution that it infringed, inter alia, article 121(1) of the Federal of democratic principles. Constitution. The then Article 121(1) provided that ‘the judical power of the Federation shall be vested in In JP Berthelsen v Director General of Immigration, two High Courts of co-ordinate jurisdiction and status...’. Malaysia & Ors (1987) 1 MLJ 134, the Plaintiff, an At the High Court, Zakaria Yatim J held that section American journalist, had been granted a 2 year 418A did encroach upon the judical power of the employment pass which was valid until 2 November Federation, which was vested in the High Courts. The 1986. However, after writing and publishing an article certificate was therefore invalid. in The Asian Wall Street Journal on cronyism in Malaysian banking and mismanagment in economic The Supreme Court by a majority agreed with MARCH / APRIL_2005
the decision of the High Court. Eusoffe Abdoolcader SCJ held that section 418A was both a legislative and executive intromission into the judical power of the Federation. The learned judge said: ‘I cannot but conclude in the circumstances that there is in fact by the exercise of the power conferred by section 418A on the Public Prosecutor an incursion into the judicial power of the Federation and that any other view would ex necessitate rei result in relegating the provisions of article 121(1) vesting the judicial power of the Federation in the curial entities specified to no more than a teasing illusion, like a munificent bequest in a pauper’s will.’ In response, the Federal Constitution was amended by Parliament. Article 121(1) was amended to excise the vesting of the judical power of the country in the courts. Therefore, the High Courts now only ‘shall have such jurisdiction and powers as may be conferred by or under federal law’. The result of this grotesque and obnoxious amendment is highlighted by the Federal Court decisions in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan  3 MLJ 72 and in Kekatong. Whilst it is open to argue that the amendment to article 121(1) destroyed the basic structure of the Federal Constitution and is hence unconstitutional, Gopal Sri Ram JCA in Kekatong took a different but equally sustainable route by saying: ‘Thirdly, in so far as the power of Parliament to grant, limit or remove the jurisdiction of a High Court is concerned, we would draw attention to art 121 which provides, inter alia, that the High Court ‘shall have such jurisdiction and powers as may be conferred by or under Federal law’. It is axiomatic that the ‘Federal law’ in that article refers to a valid Federal law. Take an extreme example. Let us say that a Federal law is enacted conferring advisory jurisdiction on the High Court. Prima facie, it is a Federal law that confers a particular jurisdiction. But, it is plain and obvious that such a law will be invalid because it would contravene art 130 of the Federal Constitution. Indeed, it is on this very basis that an Act of Congress purporting to confer original jurisdiction on the Supreme Court of the United States was held unconstitutional in the leading case of Marbury v Madison  1 Cranch 137. Thus, the Federal law to which art 121 refers
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may be held invalid on any constitutional ground available to a litigant. So, a bald statement to the effect that what statute gives, statute may take away is an oversimplification of the true constitutional position.’ The Court of Appeal decision in Kekatong was brave and noble. Brave because the decision was a concerted effort to unshackle the pusillanimity that has pervaded the Judiciary and push the envelope of our legal jurisprudence to progressive heights on par with other nations. Noble because here was the Judiciary living up to its duty to protect the people from the excesses of the Executive and the Legislature, and pouring justice to the people who would drink at its fountain. The Federal Court however consented to the continuous process of judicial castration. Rather interestingly, it was the Federal Court which had earlier overruled the Court of Appeal decision in Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor  3 MLJ 289 where in an illuminating and progressive judgment by Gopal Sri Ram JCA, a broad rights-based approach was taken to interpret ouster clauses in the context of personal liberty. It is sad. Sad because up to the events of 1988, we had a Judiciary that stood shoulder to shoulder with some of the leading judiciaries in the Commonwealth – fair and fearless. The crux is whether the Judiciary is willing to strike down hideous and offensive pieces of legislation and uphold the fundamental rights enshrined in the Federal Constitution. What is at stake here is nothing less than the future of the Judiciary for generations to come. We do not dramatize this for effect. We are worried because after this decision, we are not sure whether the Judiciary can castrate itself any further. Now that the Judiciary has in Kekatong and Sugumar demonstrated that it is not willing to protect the people, the question is, who is left to save us?
Friday & Saturday, 27 - 28 May 2005, Singapore see page 54
Hukuman Ke Atas Pesalah Bagi Perlakuan Jenayah Terhadap Wanita Masih Terlalu Ringan Shamsuddin bin Suhor Johan Pertandingan Menulis Makalah Undang-Undang 2003
Penulis membuat andaian awal bahawa hukuman lebih ekilas pandang mungkin tajuk di atas terungkap berat mempunyai pengaruh terhadap persekitaran bagi tujuan untuk mengenakan hukuman yang jenayah jenayah itu sendiri. lebih berat kepada mana-mana orang yang melakukan kesalahan jenayah terhadap wanita dengan harapan untuk mencegah kejadian seumpama itu Jenayah Dan Wanita berulang di samping mengenakan balasan yang setimpal. Ramai penulis 1 cuba memberikan takrifan dan Penelitian yang lebih khusus terhadap ungkapan penjelasan mengenai perkataan ‘jenayah’ serta hal tersebut akan membawa kepada tafsiran bahawa semua keadaan yang dikatakan sebagai perbuatan-perbuatan perlakuan jenayah terhadap wanita mesti dikenakan jenayah. Walau apapun pendekatan dan tafsiran yang hukuman yang berat kerana hukuman yang ada pada digunakan, secara mudahnya jenayah merupakan suatu hari ini bagi kesalahan-kesalahan yang berkenaan perbuatan atau perlakuan yang tidak baik oleh seseorang dirasakan masih terlalu ringan. Dalam memperkatakan yang lazimnya dilakukan di luar batasan nilai-nilai murni tajuk ini, dua perkara yang harus diberikan kemanusiaan atau yang tidak menepati kesesuaian pertimbangan; pertama, jenis atau kategori perlakuan budaya setempat yang mendatangkan kemudaratan jenayah khusus terhadap wanita, dan kedua, melihat sama ada terhadap dirinya sendiri atau mana-mana orang sejauh mana hukuman yang sedia ada itu setimpal atau lain. Jenayah adalah suatu kejahatan dan undang-undang tidak dengan kesalahan berkenaan. menetapkan sesuatu itu jenayah atau tidak. Perbuatan jahat yang dilakukan perlu disulam dengan niat Pegangan umum ialah setiap pesalah mesti jahatnya. Kejahatannya itu pasti akan memakan dihukum dan setiap ahli masyarakat mungkin mangsa. Mana-mana orang yang menjadi mangsa bersependapat mengatakan bahawa hanya hukuman sesuatu kejahatan tentunya akan mengalami sedikit yang berat sahaja yang dapat menghindar sesuatu sebanyak penderitaan sama ada terhadap tubuh perbuatan jahat itu daripada berlaku berterusan. badannya, kegusaran perasaannya atau ancaman Hukuman berat akan memberikan kesedaran dan terhadap nyawa dan harta bendanya. Sehubungan pengajaran kepada pesalah atau mana-mana orang yang dengan itu masyarakat mempercayai bahawa setiap berkemungkinan melakukannya. Seterusnya diharapkan perlakuan sama ada kebaikan atau kejahatan mesti ada jenayah yang dikenakan hukuman setimpal dapat balasan. Balasan kepada kejahatan adalah hukuman dan menghalang kemungkinan berulangnya kejadian serupa hukuman mestilah setimpal dengan kesalahannya. atau kesalahan yang sama. Mereka yang berpegangan sebegini mungkin lega jika hukuman ke atas pesalah Dalam pada itu, mangsa jenayah tidak mengenal bagi perlakuan jenayah terhadap wanita ditambah jantina lelaki atau perempuan, tidak mengenal usia tua, dengan siksaan yang lebih berat. Artikel ini melalui muda, kanak-kanak atau orang dewasa, tidak mengenal tajuk di atas akan membuat kupasan ringkas mengenai kedudukan dalam masyarakat berpangkat atau orang hukuman dan seterusnya membuat carian berhubung biasa, kaya atau miskin, dan yang paling jelas ia tidak kepercayaan bahawa hukuman berat dapat memainkan pernah mengenal keharmonian, keamanan dan erti nilai peranan dalam menangani jenayah terhadap wanita. kemanusiaan sejagat. Penjenayah akan bertindak mengikut niat, pemilihan mangsa dan peluang manakala
Smith & Hogan. 1996. Criminal Law. 8th Ed. London: Butterworths.; Card, Cross And Jones. 1995. Criminal Law. 13th Ed. London: Butterworths; Clarkson & Keating. 1994. Criminal Law: Text And Materials. 3rd Ed. London: Sweet & Maxwell. MARCH / APRIL_2005
mangsa pula terdedah kepada perbuatan jenayah tertakluk kepada keadaan diri dan persekitarannya.
disamping mengingatkan masyarakat tentang kekejaman dan tanggungjawab sosial. Pihak polis pula dalam isu yang sama mula merujuk kepada data-data Niat untuk melakukan sesuatu kejahatan serta perincian perkadaran kejadian jenayah yang berlaku didorong oleh banyak faktor yang kemudiannya dalam negara. Di pihak Kementerian, Menteri akan disusuli pula dengan usaha membuat perancangan bagi membuat kenyataan peripentingnya perlindungan menyempurnakan niat tersebut. Niat tidak dapat dilihat diberikan terhadap orang ramai manakala badan dan dengan mata kasar dan ianya hanya disedari setelah pertubuhan bukan kerajaan akan memperkatakan berlakunya sesuatu kejadian. Apabila niat terbentuk, hukuman yang dikenakan oleh mahkamah terhadap perancangannya telah disusun dan mangsa telah pesalah serta keberkesanan undang-undang dalam dikenalpasti, jenayah akan berlaku apabila wujud menangani jenayah berkenaan. Semua pihak seia sekata peluang. Suatu kesalahan jenayah akan dianggap tetapi jenayah masih berleluasa. Semua berusaha lengkap setelah kedapatan mangsa hasil perancangan mencari di mana silap, di mana punca bagi mencari terlaksana melalui gabungan niat (mens rea) dan penyelesaian segera. perbuatan (actus reus). Penjenayah akan berjaya dalam misinya jika perkiraannya tepat manakala mangsa pula akan menerima padahnya jika berada di tempat yang Jenayah Dan Hukuman: Cukup Atau Masih salah, pada masa yang salah dan di persekitaran yang Ringan salah. Secara umum penjenayah dan mangsa jenayah Kesalahan yang melibatkan tubuh badan wanita banyak bergantung kepada keadaan dan ada ketikanya sepertimana yang diperuntukkan Kanun Kesiksaan negara ini jika dilihat menurut susunan seksyen bermula disebut sebagai nasib. dengan menyebabkan keguguran, menjual budak bagi Apabila memperkatakan jenayah dan wanita, maksud persundalan dan rogol5. Hukuman yang pertamanya ia menyentuh perbincangan mengenai dikenakan bagi kesalahan berkaitan dengan sengaja jenayah yang melibatkan mangsa kejadian yang terdiri menyebabkan seorang perempuan yang hamil gugur daripada kaum wanita dan keduanya, jenayah khusus boleh disiksa dengan penjara maksimum tiga tahun atau terhadap wanita sahaja. Dalam situasi yang kedua ini sekiranya perempuan itu mengandung anak yang telah perlakuan jenayah terhadap wanita secara khusus seperti bersifat, penjara maksimum boleh sampai tujuh tahun mana yang terdapat dalam statut yang berunsur dan atau denda6. Dalam pada itu juga jika keguguran kesiksaan termasuklah kesalahan terhadap tubuh itu berlaku tanpa kerelaan perempuan sama ada badan2, kesalahan berkenaan dengan perkahwinan3 perempuan itu mengandung anak yang telah bersifat kesopanan dan nama baik4. Dalam jenayah seumpama atau tidak, hukuman penjara maksimum yang ini semua mangsa adalah perempuan manakala pesalah dikenakan boleh sampai dua puluh tahun. atau penjenayah mungkin terdiri daripada kalangan Manakala bagi kesalahan mengurusniagakan lelaki atau perempuan. mana-mana orang (perempuan) yang berumur kurang Jenayah terhadap wanita kini mula mendapat daripada dua puluh satu tahun bagi maksud perhatian umum. Berita kesalahan seksual, kekejaman persundalan, persetubuhan atau kelucahan, jika sabit dan keganasan terhadap wanita disalurkan dari semasa boleh dipenjara sampai sepuluh tahun7 dan denda. ke semasa kepada khalayak melalui perantara media Sementara itu bagi kesalahan rogol pula, jika sabit, dengan kaedah persembahan yang bercampur baur penjenayah hendaklah disiksa dengan penjara selama antara menyeronokan dan menakutkan. Ulasan demi tempoh tidak kurang dari lima tahun dan tidak lebih ulasan dibuat oleh pelbagai pihak menyentuh tentang dari dua puluh tahun, dan bolehlah juga dikenakan perkara yang sama dari sudut yang berbeza. Mahkamah sebat8. dalam keputusannya akan mengenakan hukuman 2
Sila lihat Kanun Kesiksaan (N.M.B.Bab 45), seksyen-seksyen 312, 313, 314, 372 dan 375. Sila lihat Kanun Kesiksaan (N.M.B.Bab 45), seksyen-seksyen 366, 493, 494, 495, 496 dan 498. 4 Sila lihat Kanun Kesiksaan (N.M.B.Bab 45), seksyen 509. 5 Rogol termasuklah segala perbuatan yang sama erti dengan zina, persetubuhan haram dan sumbang mahram. 6 Kanun Kesiksaan (N.M.B. Bab 45), s 312. Menyebabkan keguguran. 7 Kanun Kesiksaan (N.M.B. Bab 45), s 372. Menjual budak bagi maksud persundalan, dsb. 8 Kanun Kesiksaan (N.M.B. Bab 45), s 376. Siksaan bagi rogol. 3
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Kanun Kesiksaan juga memperuntukkan dengan jelas mengenai kesalahan-kesalahan berkenaan perkahwinan seperti memperdayakan seorang perempuan supaya percaya bahawa mereka telah berkahwin agar membolehkan lelaki itu bersekedudukan dengan perempuan tersebut secara tak sah9. Kesalahan ini boleh membawa kepada hukuman penjara sehingga suatu tempoh yang boleh sampai sepuluh tahun. Sementara bagi kesalahan memikat, melarikan atau menahan mana-mana isteri orang dengan niat jahat untuk melakukan peresetubuhan dengan perempuan tersebut boleh dikenakan hukuman penjara sehingga suatu tempoh yang boleh sampai dua tahun atau denda atau kedua-duanya sekali10. Perbuatan yang tidak melibatkan kecederaan fizikal atau kekerasan terhadap tubuh badan seorang perempuan tidak terkecuali daripada perlindungan undang-undang. Kanun Kesiksaan memperuntukkan bahawa barang siapa mengaibkan kehormatan seseorang menyebutkan apa-apa perkataan, membuat apa-apa bunyi atau isyarat, atau menunjukkan apa-apa benda, dengan maksud mengganggu kesantunan seseorang itu, hendaklah disiksa dengan penjara selama tempoh yang boleh sampai lima tahun, atau dengan denda atau dengan kedua-duanya11. Peruntukan ini ditujukan kepada perbuatan yang dilakukan bagi mengaibkan kehormatan seseorang
perempuan dan mendatangkan kegusaran dan kegelisahan kepada mana-mana perempuan adalah merupakan suatu jenayah. Selain daripada Kanun Kesiksaan, terdapat juga Akta Keganasan Rumahtangga 1994 (Akta 521), Akta Perlindungan Kanak-Kanak 1991 (Akta 468) dan Akta Perlindungan Wanita Dan Gadis 1973 (Akta 106)12 yang memperuntukan perlakuan jenayah terhadap wanita. Semua statut ini dan kebanyakan peruntukannya bertujuan untuk memberi perlindungan yang sewajarnya kepada wanita. Kuasa menjatuhkan hukuman terletak pada hakim bicara dengan menggunakan kuasa budi bicaranya berdasarkan kepada prinsip-prinsip kehakiman13 semasa. Perkara berhubung prinsip serta kaedah hukuman ini telah banyak ditulis14 dan sering diperbahaskan di mahkamah. Prinsip yang digariskan kepada mahkamah dalam membuat dan menentukan kadar hukuman yang dikenakan sama ada setimpal atau tidak dapat dilihat melalui keputusan seperti dalam keskes Rex v Kenneth John Ball15 dan Mohamed Abdullah Ang Swee Kang v pp16. Dalam membuat perkiraan kesesuaian hukuman yang dikenakan terhadap penjenayah, pertimbangan yang digunakan oleh mahkamah akan berkisar kepada perkara-perkara di antaranya termasuklah jenis dan beratnya kesalahan yang dilakukan (dalam hal ini jenayah terhadap wanita),
Kanun Kesiksaan (N.M.B. Bab 45), s 493. Bersekedudukan disebabkan oleh seorang lelaki mendorong dengan perdayaan seorang perempuan supaya percaya yang mereka tekah berkahwin dengan sah di sisi undang-undang. 10 Kanun Kesiksaan (N.M.B. Bab 45), s 498. Memikat atau membawa pergi atau menahan seseorang perempuan yang bersuarni dengan niat jahat. 11 Kanun Kesiksaan (N.M.B. Bab 45), s 509 Perkataan atau isyarat yang dimaksud mengaibkan kehormatan seseorang perempuan. 12 Seksyen 16, Akta Perlindungan Wanita Dan Gadis 1973 (Akta 106) menyenaraikan kesalahan-kesalahan di bawah Akta ini yang khusus melibatkan perempuan. 13 Re Chong Cheng Hoe & Ors 2 MU 252; PP v Jafa bin Daud 1 MU 315; Philip Lau Chee Heng v PP 3 MLJ 107. 14 sila lihat C.Kevin Boyle, Michael Allen. 1985. Sentencing Law And Practice, Sweet And Maxwell, London; Andrew Ashworth 1995. Sentencing And Criminal Justice, Butterworths, London,; Clarkson And Morgan (Ed), The Politics of Sentencing Reform, Clarendon, Oxford, 1995; Nigel Walker And Nicola Padfield. 1996. Sentencing, Theory, Law and Practice, (2nd. Ed), Butterworths, London; Cross. 1981 The English Sentencing System, (3rd Ed), Butterworths, London. 15 Rex. v Kenneth John Ball 35 Cr.App.R 164, ‘In deciding the appropriate sentence a Court should be guided by a certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crimes as seeming to offer easy money on the supposition that, if the offender is caught and brought to justice, the punishment will be neligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fixed a sentence for a particular crime, but fixes a maximum sentence and leaves it to the Court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the Court has the right and the duty to decide whether to be lenient or severe’ Dipetik daripada kes Zaidon Shariff v Public Prosecutor  4 CLJ 441 di hal.445. 16  2 CLJ 405. MARCH / APRIL_2005
keperluan memberikan perhatian tahap penerimaan dan tentangan oleh khalayak, melihat hukuman sebagai suatu peringatan kepada orang ramai, keperluan mengenakan siksaan terhadap penjenayah, keperluan menjamin keselamatan orang ramai dan seterusnya yang terpenting adalah melindungi kepentingan awam17.
convicted on the charge of rape. The minimum termn of imprisonment shall be not less than five years and that is clear from the peremptory language used in s 376.
Berhubung dengan pemenjaraan penjenayah, tempoh masa minimum dan maksimum jelas diperuntukkan Melihat kepada hukuman yang dikenakan ke oleh s 376 tetapi mahkamah menghadapi kesukaran atas pesalah bagi perlakuan jenayah terhadap wanita dan menjatuhkan hukuman yang setimpal dengan kesalahan membuat penilaian dengan mengaitkan peningkatan tersebut kerana banyak perkiraan perlu dilakukan. kadar jenayah yang berlaku, adakah ini bermakna ia Dalam kes Hairani bin Sulong v Public Prosecuto21 berpunca daripada hukuman yang ringan seperti mana mahkamah telah memetik ungkapan kata-kata YA yang telah diputuskan? Jawapannya mungkin benar jika Ketua Hakim Lord Lane dalam kes R v Billiam22 hukuman itu dilihat sebagai suatu kaedah bahawa: The variable factors in cases of rape are so numerous mengurangkan jenayah. Umumnya hukuman lazim that it is difficult to lay down guidelines as to the yang dijatuhi mahkamah adalah penjara untuk sesuatu tempoh tertentu, sebatan dan denda dan atau gabungan proper length of sentence in tenns of years... There 18 di antaranya menurut kesesuaian . Sebagai contohnya, are, however, many reported decisions of the Court bagi kesalahan terhadap tubuh badan seperti rogol, kes which give an indication of what current practice ought to be and it may be useful to summarise R v Roberts19 memberikan sedikit gambaran tentang their general effect. penghukuman dan YA Ketua Hakim Lord Lane, secara ringkasnya, dipetik sebagai berkata bahawa rogol For rape committed by an adult without any merupakan suatu jenayah berat dan pesalah perlu aggravating or mitigating features, a figure of five dikenakan tahanan atau penjara atas beberapa sebab years would be taken as the starting point in a antaranya beratnya kesalahan tersebut, contested case. Where a rape is committed by two ketidakbolehterimaan masyarakat terhadap perbuatan or more men acting together, or by a man who has tersebut, pengajaran kepada semua dan siksaan kepada broken into or otherwise gained access to a place pesalah serta perlindungan terhadap wanita. Tempoh where the victim is living, or by a person who is in masa dipenjarakan bergantung kepada keadaan. a position of responsibility towards the victim, or by a person who abducts the victim and hold her Penjara merupakan hukuman mandatori yang captive, the starting point should be eight years. tidak dapat dielakkan bagi kesalahan rogol dan ini bertepatan dengan kehendak Parlimen yang At the top of the scale comes the defendant who menetapkan tempoh minimum dan maksimumnya. lni telah diputuskan dalam kes Public Prosecutor v has carried out what might be described as a 20 campaign of rape, committing the crime on a Nordin bin Yusmadi dipetik dari kata-kata YA Hakim number of different women or girls. He represents K.C.Vorah seperti berikut : a more than ordinary danger and a sentence of 15 In the present case there can be no doubt that a years or more may be appropriate. tenn of imprisonment had to be imposed by the Judge on the respondent who was found guilty and
C.Kevin Boyle, Michael Allen. 1985. Sentencing Law And Practice. London: Sweet And Maxwell; Andrew Ashworth. 1995. Sentencing And Criminal Justice. London: Butterworths. 18 Sila lihat Jadual 1. 19 1 All ER 609 di hal. 610. ‘Rape is always a serious crime. Other than in wholly exceptional circumstances. It calls for a immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Second to emphasise public disapproval. Third, to serve as warning to others. Fourth, to punish the offender, and last, but by no means least, to protect the women. The length of the sentence will depend on all the circumstances. That is a trite observation, but these in cases of rape vary widely from case to case’. 20 2 CU 90 di hal.94. 21 2 CU 79. 22  1 All ER 985 di hal. 897. INFOLINE 50
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Where the defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personality disorder and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.
Jika hukuman penjara dan sebatan adalah pilihan yang terbaik sehingga kini dan tidak bersependapat dengan hukuman mati maka tempoh masa pemenjaraan dan jumlah sebatan seharusnya diberikan perhatian. Mengasingkan penjenayah untuk sesuatu tempoh tertentu perlu jika ia menimbulkan bahaya yang Jelas bahawa setiap kesalahan jenayah telah ditetapkan berterusan kepada masyarakat. Mungkin tempoh dua balasannya oleh undang-undang dan hukuman yang puluh tahun tidak mencukupi maka suatu tempoh dikenakan adalah sebagaimana yang ditetapkan oleh yang lebih panjang perlu diperuntukkan sehingga undang-undang. Perbincangan selanjutnya cuba melihat pesalah sudah tidak lagi mendatangkan bahawa kepada sama ada tempoh penjara itu sesuai atau tidak atau sama masyarakat khususnya wanita. ada denda yang dikenakan terlalu rendah atau tidak berpatutan dan seterusnya memperkatakan sama ada Sebatan sebagai hukuman dilihat bertujuan hukuman bagi kesalahan-kesalahan jenayah terhadap memalukan serta mengaibkan pesalah dengan wanita masih terlalu ringan atau sudah memadai. mengenakan kesakitan terhadap tubuhnya pada kadar yang munasabah harus dilaksanakan mengikuti jumlah Jika dibuat perbandingan hukuman jenayah yang sebatan yang lebih tinggi yang dilakukan dengan kaedah ditetapkan oleh Kanun Kesiksaan berhubung perlakuan dan garispanduan yang ditentukan jenayah terhadap wanita melalui Jadual 1 dengan peruntukan perundangan Islam melalui hukum hudud bagi kesalahan terhadap tubuh badan wanita seperti zina, Kesimpulan ternyata jurang yang luas tergambar di antara keduanya. Jenayah terhadap wanita seperti di Jadual 1 bukanlah Ketetapan hukum hudud, jika sabit kesalahan, perkara baru. Punca jenayah sedemikian berlaku ada hukuman memang berat tetapi selagi manusia masih kaitannya dengan peruntukan hukuman yang terlalu mempunyai sifat takut dalam diri terhadap siksaan yang ringan selain gabungan faktor hal keadaan persekitaran. pedih maka hukuman berat sahaja yang dapat Hukuman yang berat perlu dilaksanakan menangani jenayah seumpama ini. Perlaksanaan hukum memandangkan kepada keruncingan jenayah hudud yang melibatkan hukuman rejam sampai mati seumpama ini sejak akhir-akhir ini. Kelihatan juga atau sebatan antara 80 hingga 100 kali berdasarkan adanya perbezaan hukuman yang dikenakan terhadap kepada kes-kes kategori zina, maka tiada pilihan bagi kesalahan terjadi disebabkan oleh falsafah-falsafah pesalah dan tiada pilihan juga bagi mahkamah jika sabit disebalik dasar hukuman, prinsip penghukuman dan kesalahan atas keterangan yang jelas. pertimbangan yang dibuat oleh mahkamah berdasarkan kepada amalan kehakiman. Andaiannya, jika mana-mana lelaki yang telah berkahwin dan didapati bersalah melakukan zina, pada Pertimbangan ini masih perlu tetapi anjakan asasnya lelaki tersebut pasti menemui kematiannya. pendekatan perlu dilakukan kerana ia tidak bersesuaian Adalah dicadangkan hukuman mati bagi pesalah rogol bagi kesalahan yang melibatkan wanita secara langsung adalah wajar. Hukuman itu berat tetapi hukuman itu terutamanya bagi kesalahan seksual. Maksudnya di sini, setimpal dengan kekejaman yang dilakukannya terhadap pendekatan kekejaman dibalas kekejaman yang setimpal mangsa dan keluarganya, terhadap keluarga dan diri harus dilaksanakan dan tiada pertimbangan yang lebih pesalah itu sendiri serta perlakuan buruk yang dilakukan wajar selain mengenakan hukuman mandatori sama ada terhadap manusia sejagat. Tambahan pula kematian mati atau disebat23. Bagi perlakuan jenayah yang tiada seorang penjenayah sedemikian tidak merugikan negara keraguan munasabah dan dengan bukti jelas, nyata dan sebaliknya menyelamatkan masyarakat dalam jangka kukuh maka hukuman seperti yang dicadangkan ini masa panjang. Kerugian sebenarnya adalah terhadap sangat wajar. Semua pihak tiada pilihan untuk mangsa dan perkiraan berhubung bayaran pampasan mengenakan hukuman yang lebih berat jika terhadap mangsa perlu difikirkan sebagai suatu kepentingan awam dijadikan landasan berhujah24. Sebagai contoh, Akta Dadah Berbahaya 1952 (Akta hukuman terhadap pesalah. 23
Petikan kata-kata YA Hakim Lawton dalam kes Reg. v Sargeant (1974) 60 Cr.App. R. 74 perlu dinilai semula berhubungan dengan konsep balasan dalam prinsip hukuman. 24 Sila lihat kes-kes Pendakwa Raya v Ng Wah Lup  MLJU 124; Sahrin b Karim v Pendakwa Raya  MLJU 130. MARCH / APRIL_2005
234) boleh melalui proses pindaan sehingga kepada mengenakan hukuman mati mandatori atas kepentingan awam memandangkan kepada bahayanya kepada masyarakat maka tiada salahnya Kanun Kesiksaan dipinda bagi mengenakan hukuman mati ke atas pesalah bagi perlakuan jenayah terhadap wanita25. Begitu juga jika kepentingan awam dan kebimbangan umum perlu diutamakan maka kes Lim Hang Seoh v Public Prosecutor26 boleh dijadikan ikutan.
Sementara itu bagi perlakuan yang tidak melibatkan tubuh badan seperti yang dimaksudkan di atas, hukuman seperti mana yang ada sekarang boleh dipinda ke suatu tahap perkadaran yang lebih berat di samping memperkemaskan program dalam tempoh pemenjaraan. Melaksanakan pindaan terhadap hukuman yang sedia ada dan seterusnya beranjak kepada pendekatan yang lebih tegas, keras dan adil kepada semua akan dapat memastikan masyarakat agar lebih berhati-hati, perihatin, selamat dan tidak gusar.
Jadual 1: Senarai Perlakuan Jenayah Terhadap Wanita Dan Hukuman Yang Diperuntukkan Sehingga Kini Bil Statut 1 Kanun Kesiksaan (N.M.B.Bab 45)
Seksyen Kesalahan s.312 Menyebabkan keguguran. s.313 s.314
Menyebabkan keguguran dengan tiada kerelaan perempuan. Kematian disebabkan oleh perbuatan yang dilakukan dengan niat hendak menyebabkan keguguran, jika perbuatan dilakukan dengan tiada kerelaan perempuan. Mencolek atau melarikan perempuan bagi memaksa ia berkahwin, dsb. Menjual budak bagi maksud persundalan, dsb.
s.375 & Rogol & Seksaan bagi rogol. s.376 s.493 Bersekedudukan disebabkan oleh seorang lelaki mendorong dengan perdayaan seorang perempuan supaya percaya yang mereka telah berkahwin dengan sah di sisi undang-undang. Memikat atau membawa pergi atau menahan s.498 seseorang perempuan yang bersuami dengan niat jenayah. s.509 Perkataan atau isyarat yang dimaksud mengaibkan kehormatan seseorang perempuan. Berurusniagakan perempuan bagi tujuan s.16 pelacuran atau yang tidak bermoral.
Akta Perlindungan Wanita Dan Gadis 1973 (Akta 106) Akta Keganasan s.2 Rumahtangga 1994 (Akta 521)
Kesalahan bagi keganasan rumahtangga dibaca bersama peruntukan Kanun Kesiksaan.
Hukuman/Denda 3 tahun @ 7 tahun dan denda. 20 tahun dan denda. Penjara 20 tahun.
Penjara 10 tahun dan denda. Penjara 10 tahun dan denda. Penjara antara 5-20 tahun, denda dan sebat. Penjara 10 tahun dan denda.
Penjara 2 tahun dan atau denda atau keduaduanya. Penjara 5 tahun dan denda. Penjara 5 tahun dan denda. Hukuman seperti diperuntukkan di bawah Kanun Kesiksaan.
Lihat Public Prosecutor v Loo Choon Fatt (1976) 2 MLJ 256 YA Hakim Hashim Yeop A. Sani dipetik sebagai berkata ‘It is common sense to say that behind these legislative exercise was the government’s realization albeit gradual, of the problem of drug abuse in this country, the degenerating effect of the misuse of dangerous drugs and the attendant dangers it has posed to society itself. The amendments passed by Parliament therefore reflect the public policy. It must be presumed that behind the public policy is the consideration of public interest. The change in the attitude of the legislature itself during the last three years reflects the seriousness of the problem’, di hal 257. 26 (1978) 1 MLJ 68. INFOLINE 52
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The Right To Seek Alternative Employment – A Constitutional Safeguard Puthan Perumal*
n 1981, the Federal Court in K C Matthews v Kumpulan Guthrie Sdn Bhd (1981) 2 MLJ 320 agreed to and adopted an earlier 1964 Supreme Court judgment of Das Gupta J in Express Newspaper Ltd v Labour Court & Anor AIR 1964 SC 806 which stated:‘There can, in our opinion, be no doubt about the position in law that an employee appointed on probation for six months continues as a probationer even after the period of six months if at the end of the period his services had either not been terminated or he is confirmed. At the end of the six months period, the employer can either confirm him or terminate his services, because his service is found unsatisfactory.. If no action is taken by the employer either by way of confirmation or by way of termination, the employer continues to be in service as a probationer.’
however does not make mention the position of an employee whose work is satisfactory but who is neither confirmed or shown the door. There was no necessity to do so. A year later, the Federal Court in V Subramaniam & Ors v Craigielea Estate (1982)1 MLJ 317 again relied on the judgment in Express Newspaper Ltd and decided that an employee who is on probation but had not been confirmed or had their employment terminated at the end of their probationary period continues to be a probationer. Here, the court was dealing with employees who allegedly absented themselves without just cause or reason for a period of 9 days. Again, the judgment of the Federal Court does not make mention on the position of an employee whose work is satisfactory but is neither confirmed or shown the door. Twelve years down the road, a clerk in a legal firm faced the very same problem that the Federal Court thought did not warrant an answer. An experienced, diligent and hardworking clerk’s probationary period had expired but he was neither confirmed or shown the door. He continued to work for a period of about nine months after his period of probation expired. The employer did not pay the employee the increment which he felt he was justly entitled to have despite his having made several demands to the employer. The employee commenced an action for breach of contract.
The Federal Court in K.C Matthews was dealing with the issue where the appellant (KC Matthews) had been appointed as a clerk on probation. As his work was not satisfactory, the probationary period was extended. Subsequently, a notice was given to the Appellant that he would not be confirmed and he was given one month’s notice of termination. Again, the issue of unsatisfactory work performance is highlighted. The judgment of the Federal Court would only make sense if it was dealing with an employee whose performance Gopal Sri Ram JCA delivering the judgment of was not up to mark and his probationary period was extended. This was exactly what happened in KC the Court of Appeal in Abdul Majid bin Haji Nazardin Matthews where the appellant was given an extended & 2 Or v Paari Perumal (2002)2 AMR 2449 had this probationary period because his work was not to say:‘…At the end of the probationary period, the satisfactory. It is obvious that an employer cannot be plaintiff continued working and the defendants forced to confirm an employee who has not met the continued to pay him his salary. Additionally, company’s criteria for long term employment when they granted him annual leave on six occasions the probationary period has expired. The judgment *
Advocate & Solicitor, High Court of Malaya MARCH / APRIL_2005
after the expiry of the probation period. As may be seen from the terms of his letter of appointment, the plaintiff would be entitled to such leave if he were a confirmed employee………By acting towards the Plaintiff as if he were a confirmed employee, e.g. by giving him leave to which we referred to earlier the defendants were taking a position or must be deemed to have taken the position that the plaintiff was confirmed. That is an inference a reasonable tribunal will draw from the facts. It follows that the authorities strenuously advanced before us namely K C Matthews v Kumpulan Guthrie Sdn. Bhd (1981) 2 MLJ 320 and V Subramaniam & Ors v Craigielea Estate (1982)1 MLJ 317 do not apply to the facts and circumstances of the present instance. In those cases, there was not the kind of conduct that is to be found here. They are therefore readily distinguishable…’
the facts of Paari itself. Having to take care of six younger siblings, it took him up to 9 months to leave his place of employment albeit he knew at all material times that his manpower was being exploited.
What then is the position of an employee whose work is satisfactory, whose probationary period has expired and the employer remains silent and, quite distinct from the facts of Paari, does not take any step to enable one to arrive at a conclusion that the employer has taken the position or deemed to have taken the position that the employee is confirmed?
So, should there be a constitutional safeguard against the deprivation of the right of an employee to seek alternative employment in situations where the employer is silent,.i..e. they neither confirm nor terminate the services of the well deserving employee but leave him ‘hanging in mid-air’?
The decision of Paari did not deal with this issue. The right of an employee to earn a living has been placed on a constitutional footing and this has been settled by the Court of Appeal in Tan Tek Seng @ Tan Chee Meng v Suruhanjaya Perkhidmatan Pendidikan (1996) 2 AMR 1617 where Gopal Sri Ram JCA stated that deriving from Article 5(1) of the Federal Constitution, a person’s right to life includes the right to livelihood. This decision was supported by two Indian Supreme Court decisions which were in fact used as the basis to this concept in Tan Tek Seng.
In Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180, Chandrachud CJ held:‘If the right to livelihood is not treated as a part Based on Paari, an employee who is neither confirmed of the constitutional right to life, the easiest way expressly nor shown the door but who have been given of depriving a person of his right to lie would be annual leave after their probationary period has expired to deprive him of his means of livelihood to the is deemed to be a confirmed employee. It can be point of abrogation.’ inferred that any other benefits given by the employer, apart from giving annual leave, which only a confirmed In Delhi Transport Corporation v DTC Mazdoor Congress employee is entitled to, gives rise to the implication & Ors (1991) Supp SCC 600, Satwant J held:that that employee is deemed confirmed. ‘The right to life includes right to livelihood.’
This issue must be looked into while taking into account and keeping in mind of the fact that employees are almost always at the mercy of the employer as their livelihood depends, sometimes solely, on them. Contrary arguments to this issue would be that the employee is always at liberty to leave the existing company in which he or she is currently employed. However, it is not as simple as it sounds. This is a situation where the employer exploits the manpower of the employee by intentionally remaining silent and it can take up to months or even years before the employee realises that he is being taken for a ride and for him to finally react by leaving. A good example is INFOLINE 54
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If the employee’s probationary period ends and notice is given by the employer to terminate the employee’s services, then it can be said that the employer has not deprived the employee of the opportunity to seek alternative employment. On the other hand, if an employer does not confirm nor terminate the services of a ‘good’ employee at the end of the probationary period and does not give notice and the employee remains in the same employment for a period of time, then it can be said that the employer has deprived the employee of the opportunity to seek alternative employment. In situations like this, it is only fair and reasonable to say
that the employer has, by clear implication, undertaken to further provide for the employee’s livelihood based on terms of employment which include increment for the period he stays on. There is no automatic comfirmation. It must also be noted that employees in these times are hesitant to change places of employment without sound reasons, especially those who have families to provide for.
not limited to increment for that period of time and, in such circumstances, has infringed the employee’s fundamental right to livelihood, consequently contravening Article 5 (1) of the Federal Constitution.
This approach would do away with the necessity of the employee of having to show that the employer has taken steps to confirm him/her, like in Paari, simply because situations like this only occur when the If A stays in the employment of B under the employer does not in fact take any step for a tribunal circumstances stated above and he was earning RM1000 to infer that the employee was confirmed. during his probation period and was to receive an increment of RM300 should he be confirmed, B by When efforts are made to enforce such a remaining silent after the expiration of A’s probationary constitutional right, the employer, due to his period has deprived A the opportunity to seek indecisiveness (intentionally or otherwise) should be alternative employment elsewhere where A could be liable to compensate the employee with the difference earning RM1300. Therefore B should account for this between the amount of wages while he was on loss of RM300 due to his indecisiveness and his attempt probation and the amount of wages that he could have to exploit the manpower of A, for so long as A stays in obtained had he not been deprived of the opportunity his employment. There is no automatic confirmation to seek alternative employment after the expiration of here. the probationary period. In Delhi Transport mentioned above, Satwant J With this constitutional footing approach, one can went on further to hold:hope that it will create awareness among employers and ‘The right to livelihood therefore cannot hang it would cure the disease of indecisiveness and on the fancies of individuals in authority. The exploitation among employers as they would then have employment is not a bounty from them nor can to decide on the standing of the employee in their its survival be at their mercy. Income is the employment and the employee would also obtain a foundation of many fundamental rights and clearer picture of his position and role in the when work is the sole source of income, the right employment sector. to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.’ To summarise this can be said. If an employer does not confirm or terminate the services of an employee at the expiration of the probationary period by giving notice and the employee continues to remain in the same employment for a period of time, the employer has deprived the employee Harinder Veriah Trust Award of the opportunity to seek alternative employment based on terms of employment which include but are Reminder: closing date for applications - 24 May 2005
MARCH / APRIL_2005
To All Members of the Malaysian Bar Please be advised that members are requested to adhere to the prescribed forms for family matters as requested by the Kuala Lumpur Family Court. Kindly take note that these forms are only applicable to the Kuala Lumpur Family Court. The forms are available at the Bar Council Secretariat (2nd Floor) at RM5.00 each (photocopy charges) or members can download the forms from the Malaysian Bar website at the following address: http://www.malaysianbar.org.my/notices/pdf/circulars/2003/ FamilyLaw_pemfailan_dokumen.pdf. RULES MADE IN 2005 UNDER S 57(a) OF THE LPA BCR01/2005 - Use of Titles in Court An advocate and solicitor need not, in court, address or refer to another advocate and solicitor by title conferred upon the latter. Correspondingly, an advocate and solicitor who has been conferred a title should not request, require, expect or insist that he be addressed or referred to, in court, by his title. Explanatory Notes: A. Headings of Rules are for convenience of reference only, and shall not affect their interpretation. B. Any Rule or Ruling previously made by the Bar Council which is inconsistent with any of the above Rule (s) shall be treated as having been superseded or replaced by the above Rule(s) to the extent of such inconsistency, as from the latter’s stipulated effective date(s).
MALKIT SINGH A/L INDUR SINGH DECEASED (NRIC NO: 320308-71-5153) We act for Kartar Kaur, wife of the abovenamed deceased who passed away on 6th November 2004 in Kuala Lumpur. We are instructed to enquire if any firm of solicitors or anyone has knowledge of or is in possession of a Will executed by the deceased in Malaysia. Parties with any information are kindly advised to contact:MESSRS NOOR NILAM, P Y YAP & ASSOCIATES Advocate & Solicitors No.63A, Jalan Medan Midah Taman Midah, Cheras 56000 Kuala Lumpur Tel: 03-91309098, Fax: 03-91303098
No Ruj: SC/ECU/Policy Tarikh: 6 January 2005 Yang Berbahagia Tan Sri/Dato’/Tuan CADANGAN KORPORAT BAGI TERBITAN HAK Dl BAWAH GARIS PANDUAN MENGENAI PEROLEHAN KEPENTINGAN, PENGGABUNGAN DAN PENGAMBlLALlHAN OLEH KEPENTINGAN TEMPATAN DAN ASING (GARIS PANDUAN FOREIGN INVESTMENT COMMITEE - FIC)
Kami merujuk kepada perkara di atas. 2. Seperti yang Tan Sri/Dato’/Tuan sedia maklum, di bawah surat pekeliling FIC yang bertarikh 7 April 1990, cadangan korporat bagi terbitan hak memerlukan kelulusan FIC dalam keadaan di mana jumlah kepentingan baru yang dilanggan oleh kepentingan tempatan dan asing melebihi 50% atau 15% masingmasing, hak mengundi syarikat tersebut atau RM10 juta, yang mana lebih rendah. Sehubungan dengan ini, cadangan korporat bagi terbitan hak tersebut telah dikemukakan bagi pertimbangan Suruhanjaya Sekuriti (SC) untuk tujuan pematuhan kepada Garis Panduan FIC. 3. Dimaklumkan bahawa cadangan tersebut tidak lagi memerlukan pertimbangan SC bagi pematuhan kepada Garis Panduan FIC. INFOLINE 56
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4. Diharapkan Yang Berbahagia Tan Sri/Dato’/Tuan dapat memaklumkan kepada ahli-ahli pertubuhan Yang Berbahagia Tan Sri/Dato’/Tuan untuk makluman mereka. Sekian, terima kasih. Yang benar SURUHANJAYA SEKURITI MD NOOR ABD RAHIM Bahagian Terbitan Sekuriti dan Pelaburan b/p Pengerusi
MARCH / APRIL_2005
PRESS STATEMENTS All statements were issued by Yeo Yang Poh, Chairman, Bar Council 2005/2006 unless stated otherwise
Unending Plight of Mig ker s Migrr ant Wor ork ers 25 March 2005
n many developing and developed countries, migrant workers play a significant role in the economy, embracing low-paid menial jobs that the more affluent locals shun. Tragically, they are often compelled to also “embrace” discrimination and prejudice.
Declaration on Irregular Migration in April 1999) to ensure that all migrant workers are granted “humanitarian treatment, including appropriate health and other services”.
The plight of migrant workers is a current and continuing affair. The Bar Council urges the Government to ensure that its assurances of humane treatment are in fact translated into actual practice on the ground; and to immediately direct all Immigration Officers to fully cooperate with lawyers (including allowing free and adequate access to detainees) so that basic human rights are accorded to all, and due process can take place in a manner that is meaningful in The on-going Ops Tegas targets these illegal workers, substance. resulting in thousands being rounded up. It is of course not wrong for the Government to want to regulate the migrant workforce. However, in so doing, there is a Trea tment of R efug ees & eatment Refug efugees duty to ensure humane treatment. If nothing else, in g al Mig Illeg Migrr ants treating them we should remember to weigh the nature Ille of their immigration offence (i.e. to what extent has 10 April 2005 their staying and working here become in itself a menace to our society) against their pittance-paid toil the fruits of which we have collectively enjoyed. inister of Home Affairs Datuk Azmi Khalid has announced that Rohingyas will, in addition to Recognising these detainees’ need for legal assistance, having been recognised as refugees since late last year, the Bar Council’s Legal Aid Centre has set up an Urgent Arrest Team to provide free legal representation. be permitted to work in Malaysia and be given jobUnfortunately, it has come to the attention of the Bar related training for that purpose. He also said that the Council that there has been less than adequate Rohingya children would be provided with education. Those migrant workers who commit crimes in our country must obviously be dealt with, in the same way that the locals would be. However, for the vast majority of them who are criminalized, their offence goes no further than being illegal in that they do not possess the proper documents allowing them to stay and work in Malaysia.
cooperation from some officers of the Immigration Department in providing full and timely information on the proffering of charges against migrant workers, or in granting volunteer lawyers free and useful access to the detainees. This has resulted in the lack of adequate representation in many cases. Illegal migrant workers already face dire, and sometimes disproportionately harsh, prospects. Denying them full and adequate legal representation adds insult to injury; and is a serious infringement of their basic rights. This runs counter to the Government’s open pledge of humane treatment of illegal workers, as well as its international commitment (under the Bangkok INFOLINE 58
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The Government should be commended for taking these steps forward. They are among the measures the implementation of which the Bar Council has urged in the past. They accord with international humanitarian principles, as well as the Convention on the Rights of the Child. It now remains for the Government to expeditiously implement these measures, and put an end to the daily suffering of the Rohingyas as early as possible. In the interim, the Government must ensure that these Rohingyas (while waiting for their identification documents to be issued) are not harassed,
arrested or detained by the police or the Immigration of the modern world, there is no justification Department on the ground of their “illegal” presence whatsoever for Malaysia to administer such a merciless in our country. punishment on any human being, let alone on the ones who have worked and toiled in our country (thus The Bar Council calls upon the Government to contributing to its economy) and whose only offence likewise make progress in other areas connected with is the absence of proper status. the treatment of illegal migrant workers. One of the most urgent measures required is for the Government Even though our laws deny them legal status, let to immediately revoke the imposition of whipping on us not take away their human dignity. Let their dignity illegal migrant workers, a punishment (we are given to not be violently torn apart, as it is when their naked understand) that has already been inflicted upon skin splits open in indescribable agony. Let us not reduce thousands of these ill-fated persons. these human beings to a chorus of uncontrollable screams that echo only within the confines of their four Whipping is widely regarded as a cruel and barbaric walls, unheard and unheeded by the rest of us who go form of punishment, which has been shown to produce about our daily lives believing that we are all part of a long-term and harmful psychological effects. It has been compassionate society. discarded by most of the countries in the world. For a nation that subscribes to humanitarian principles and The whipping must stop. Not next week, not aspires to be in the top (rather than bottom) quadrant tomorrow, but today.
Freedom of the Pr ess Press 21 April 2005
No doubt, in a free environment, sometimes things are said or written that may embarrass or hurt a person or a body of persons. At times the comments or criticisms may be overboard or unjustified. However, even if so (and we are speaking here generally and certainly not with reference to Zainul’s article), the right way to deal with such situations is never to curb or bludgeon the freedom by going after the speaker or This would be taking many steps backward, in writer; but rather to provide ample and equal the arduous but crucial journey that Malaysian society opportunities for the airing of a response or rebuttal to has embarked upon to protect, promote and enhance the criticism. the freedom of speech and freedom of the Press. These are retrogressive steps that we must not take. It must always be remembered that, in a free society, a proper response is one that uses the force of Freedom of the Press encompasses the freedom argument, and not the argument of force. This of speech as well as the freedom of information. particularly applies to those wielding power or holding Freedom of speech is the heart of any democratic public office, who are expected to be much more open society. It is the bedrock upon which a truly free and to criticisms. progressive society is founded. This freedom must be constantly nurtured, protected and rejuvenated. Malaysia must move forward on the road to greater freedom, and not backward. he Bar Council is perturbed that an article in the New Straits Times on 20 April 2005 by columnist Zainul Arifin has received a chorus of condemnation led by the Leader of the Opposition and joined by a few BN Members of Parliament. A proposal was even made to refer En Zainul to the Committee of Privileges, for having allegedly humiliated Members of Parliament.
MARCH / APRIL_2005
DISCIPLINAR Y ORDERS RY Suspended Order under s 94(4)(c) Legal Profession Act 1976 1. Mohamad Ridhuwan bin Rasol, M/s Yacob & Rakan-Rakan (immediate effect from 19 February 2005, until further notice) 2. Kushairi bin Abdul Karim, M/s Kushairi & Co (immediate effect from 19 February 2005, until further notice) 3. Yaacob bin Othman, M/s Ismayatim Yaacob & Associates (immediate effect from 12 March 2005, until further notice) 4. Maideen bin Mohamad, M/s Ravi Nair Maideen & Assoc (immediate effect from 12 March 2005, until further notice) 5. Yusmira bt Yusoff, M/s Yusmira & Co (immediate effect from 12 March 2005, until further notice) 6. Dato' Khairul Anuar bin Abdul Latif, M/s Khairul Latif & Assoc (immediate effect from 12 March 2005, until further notice) 7. Datin Salina bt Mahmud, M/s Khairul Latif & Assoc (immediate effect from 12 March 2005, until further notice) 8. Cheong Kei Choong, M/s Cheong & Chong (immediate effect from 12 March 2005, until further notice) 9. Badrul Hisham bin Haji Mohammad, M/s Badrul Hisham & Assoc (immediate effect from 2 April 2005, until further notice) 10. Sazali bin Abdul Wahab, M/s Sazali Wahab & Co (immediate effect from 2 April 2005, until further notice)
9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.
Order under s 103D Legal Profession Act 1976 1. Yacob bin Haji Atan, M/s Yacob Atan & Assoc (two years with effect from 19 February 2005) 2. Mohinder Kaur d/o Balbir Singh Deol, M/s Nora Hayati Deol & Partners (three years with effect from 5 March 2005) Penalty Order under s 103 Legal Profession Act 1976 1. Cheong Kei Choong, M/s Cheong & Chong - 8 March 2005 (RM1,000) 2. Doraisamy s/o Govindasamy, M/s G Doraisamy Siva & Co - 8 March 2005 (RM1,000) 3. Krishnamurthy s/o Karthikesu, K Krishnamurthy & Assoc - 31 March 2005 (RM1,000) 4. Zakaria bin Md Saad, M/s Zakaria & Co - 31 March 2005 (RM1,000) 5. Eg Kaa Chee, M/s Rajah Lau & Assoc - 31 March 2005 (RM2,000) 6. Hatijah bt Mohamed Salleh, M/s Awi & Co - 31 March 2005 (RM1,000) 7. Abdul Malik bin Mat Judi, M/s Kas Abdul Malik - 31 March 2005 (RM1,000) 8. Asmuni bin Awi, M/s Awi & Co - 31 March 2005 (RM1,000)
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25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.
Ahmad Badri bin Othman, M/s J J Singh & Assoc - 31 March 2005 (RM1,000) Suhani bt Mat Daud, M/s Suhani & Co - 31 March 2005 (RM1,000) Khoo Soo Eng, M/s Khoo Soo Eng - 31 March 2005 (RM1,000) Kamarulzaman bin Mohamad Buhari, M/s Buhari Kamarul & Associates - 31 March 2005 (RM1,000) Jag-Jit Singh a/l Peritam Singh, M/s J J Singh & Assoc - 31 March 2005 (RM1,000) Syed Ali Akbar bin Syed Husain, M/s Ali Akbar & Co - 31 March 2005 (RM1,000) Salasia bt Abdullah, M/s Chris Lee & Partners 31 March 2005 (RM500) Agus bin Rosman, M/s Nordin Hamid & Co 31 March 2005 (RM1,000) S Ravi Chandran Nair a/l R Shreedharan, M/s Ravi Nair & Assoc - 31 March 2005 (RM1,000) Mohd Azhar bin Yeop Ismail, M/s Mohd Azhar & Co - 31 March 2005 (RM1,000) Han Seng Kwang, M/s Han & Co - 31 March 2005 (RM1,000) Amir Anuar bin Ghani, M/s Abdul Rahman & Assoc - 31 March 2005 (RM1,000) Nizam bin Yahya, M/s Azizi, Nizam & Anwar 31 March 2005 (RM1,000) A Razak bin A Rahim, M/s A Razak & Associates - 31 March 2005 (RM1,000) Yap Peter, M/s Chor Pee Anwarul & Co - 31 March 2005 (RM1,000) Rozita bt Abdul Rahman, M/s Rashid & Co - 31 March 2005 (RM1,000) Mohamad Khoirun bin Salamat, M/s Affendy & Khoirun - 31 March 2005 (RM1,000) Sufian bin Jusoh, M/s Sufian Jusoh & Co - 31 March 2005 (RM1,000) Cheong Kei Choong, M/s Cheong & Chong 31 March 2005 (RM1,000) Hood Bin Osman, M/s Osman & Associates 31 March 2005 (RM1,000) Syed Nongchik bin Syed Hussain, M/s Bahari Choy & Nongchik - 31 March 2005 (RM1,000) Suraiya bt Haji Hanafi, M/s Suraiya & Co - 31 March 2005 (RM1,000) Dato' Daud bin Daros, M/s Hamzah Daud Daros & Siti Nor - 31 March 2005 (RM1,000) Asmahan bt Haji Sulaiman, M/s Asmahan Sulaiman & Assoc - 31 March 2005 (RM1,000) Gurpreet Singh a/l Jugh Singh, M/s Gurpreet Singh Sidhu - 31 March 2005 (RM1,000) Wan Mohd Nizar bin Wan Fauzi, M/s Wan Nizar Rais - 31 March 2005 (RM1,000) Ting Shiew Yii, M/s Hazam Tan - 31 March 2005 (RM1,000) Cheong Bee Lee, M/s Nazli Ghazali & Cheong 31 March 2005 (RM1,000)
37. Nazli Anim bin Mohd Ghazali, M/s Nazli Ghazali & Cheong - 31 March 2005 (RM1,000) 38. Wan Mohd Asraf bin Wan Salleh, M/s Shamsuri & Co - 31 March 2005 (RM1,000) 39. Mohamed Lias bin Mohamed Marzuki, M/s Lias Ainul & Co - 31 March 2005 (RM1,000) 40. Mohd Fauzi bin Abd Latif, M/s Fauzi Yurina & Co - 31 March 2005 (RM1,000) 41. Lee Choon Ping, M/s Wong & Partners - 31 March 2005 (RM1,000) 42. Ha Wai Yee, M/s Azim, Tunku Farik & Wong 31 March 2005 (RM1,000) 43. Damian Pheny, M/s Rina Noor & Co - 31 March 2005 (RM1,000) 44. Agripa Anak Aman, M/s A B Ng & Associates 31 March 2005 (RM1,000) 45. Armiy Rais bin Ahmad Sharifuddin, M/s Wan Nizar Rais - 31 March 2005 (RM1,000) 46. Abdul Khaidir bin Zainal, M/s Zul & Co - 31 March 2005 (RM1,000) 47. Sulaimi bin Sulong, M/s Sulaimi, Sharmini & Partners - 31 March 2005 (RM1,000) 48. Raja Ismail bin Raja Mohd Ali, M/sRaja Ismail &Amril Ghazaly - 31 March 2005 (RM1,000) 49. Yacob bin Mat Yim, M/s Yacob Mat Yim & Rakan-Rakan - 31 March 2005 (RM1,000) 50. Faizal bin Abd Jalil, M/s Faizal Jalil & Co - 31 March 2005 (RM1,000) 51. Song Teik Kim, M/s Murthy Song & Partners 31 March 2005 (RM1,000) 52. Marhaen bt Mohamad Nor, M/s Thana Marhaen & Partners - 31 March 2005 (RM1,000) 53. Deborah Celestine Tan Chee, M/s Manjit Singh Sachdev Mohammad Radzi & Partners - 31 March 2005 (RM1,000) 54. Chandragesan a/l Suppiah, M/s S C Gesan & Assoc - 31 March 2005 (RM1,000) 55. Sivakumar a/l Valla Krishnan, M/s V S Kumar & Co - 31 March 2005 (RM1,000) 56. Harcharanjit Singh a/l Gurbax Singh, M/s Harcharanjit Singh & Assoc - 31 March 2005 (RM1,000) 57. Azwani bt Abdul Jalil, M/s Radzi & Abdullah 14 April 2005 (RM1,000) 58. Mustaffa bin Idris, M/s Mustaffa Idris & Co 14 April 2005 (RM1,000) 59. Nik Abdul Rahman bin Nik Mat, M/s Rahman & Co - 14 April 2005 (RM1,000) 60. Yeap Eng Kheng, M/s Yeap Eng Kheng & Co 14 April 2005 (RM1,000) 61. Rusuzaimi bt Ishak, M/s Rusuzaimi & Co - 14 April 2005 (RM1,000) 62. Rajehgopal a/l Velu, M/s Rajehgopal Velu & Assoc - 14 April 2005 (RM1,000) 63. Krishnamurthy s/o Karthikesu, M/s K Krishnamurthy & Assoc - 14 April 2005 (RM1,000) 64. Mohan Singh a/l Booda Singh, M/s Mohan & Assoc - 14 April 2005 (RM1,000)
65. Koo Yoke Fah, M/s Koo & Associates - 14 April 2005 (RM1,000) 66. Vasudevan a/l Appu, M/s Vasudevan A & Co 14 April 2005 (RM1,000) 67. Zainal bin Abdul Rahman, M/s Zainal & Partners - 14 April 2005 (RM1,000) 68. Anne a/p Marianathan, M/s Amir, Lim & Partners - 14 April 2005 (RM1,000) 69. Abby Saifuzzam bin Abdullah, M/s Abby & Norlia - 14 April 2005 (RM1,000) Order under s 103D Legal Profession Act 1976 1. Pushpam d/o Subramaniam, M/s Pushpam & Co - 8 March 2005 (RM5,000) 2. Maria Leonard H V Peters, M/s Leonard Peters & Co - 8 March 2005 (RM5,000) 3. C Jegathesan, M/s C Jegathesan - 17 March 2005 (RM1,000) 4. Tan Kok Kwang, M/s Tan Kok Kwang & Co - 17 March 2005 (RM2,000) 5. Datuk M Kayveas, M/s Blanche & Kayveas - 17 March 2005 (RM5,000) 6. Datin Blanche O'Leary, M/s Blanche & Kayveas - 17 March 2005 (RM5,000) 7. Mohammad Rafaei bin Adnan, M/s Rafaei & Co - 17 March 2005 (RM10,000) 8. Mohd Hamdi bin Abdul Hamid, M/s Sucha Singh & Partners - 17 March 2005 (RM20,000) 9. Pok Yong Chan, M/s Y C Pok & Zurina - 31 March 2005 (RM1,500) 10. Johan Nor Zaimi bin Johari, M/s Johan & Co 17 March 2005 (RM5,000) 11. Deepa Anna Vargis, Zaitoon Othman & Assoc 17 March 2005 (RM5,000) 12. Tan Sun Cheong, M/s KW Chong & Partners 17 March 2005 (RM2,000) 13. Ho Kam Phaw, M/s Amara & Ho - 14 April 2005 (RM15,000) Struck Off Order under s 103D Legal Profession Act 1976 1. Gurmit Singh Hullon, M/s Hullon & Co (w.e.f. 21 days from 8 March 2005) 2. Abdul Aziz bin Ahmad, M/s Sajali & Aziz (w.e.f. 21 days from 16 March 2005) 3. Nur Hafizah bt Haji Mohd Saleh, M/s S Mathavan & Nur Hafizah (w.e.f. 21 days from 16 March 2005) 4. Ranjit Singh s/o Sharimi Singh, M/s S H Ranjit Singh & Co (w.e.f. 21 days from 16 March 2005) 5. Philip Loh Yin Fah, M/s Philip Loh & Assoc (w.e.f. 21 days from 16 March 2005) 6. Shao Kam San, M/s LH Wong & Shao (w.e.f. 21 days from 16 March 2005) 7. Mohd Mazuar bin Mohd Noor, M/s Noorhelmee & Mazuar (w.e.f. 21 days from 14 April 2005)
MARCH MARCH // APRIL_2005 APRIL_2005
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Conf er ence Diar y Confer erence Diary Inter-Pacific Bar Association 15th Annual Meeting and Conference BALI, 5 – 7 MAY 2005
Children & the Law Conference 2005 27 & 28 MAY 2005 SWISSOTEL MERCHANT COURT HOTEL, SINGAPORE
The Inter-Pacific Bar Association (“IPBA”) is an international association of business and commercial lawyers with a focus on the Asia-Pacific region. Members are either Asia-Pacific residents or have a strong interest in this part of the world. The IPBA, founded at an organising conference in Tokyo in April 1991, has grown to become the pre-eminent organisation in the area of Asia law and business with a membership of over 2,000 lawyers from 75 jurisdictions around the world.
Jointly organised by the Law Society of Singapore and LAWASIA, the conference will see an international panel of speakers. Featured talks include posthumous sperm donation, separate representation for children and the impact of the recent tsunami on affected children. At the plenary session, current issues on custody & access, the role of experts, child abduction & cross border enforcement, juvenile justice and children with special needs will be addressed.
The IPBA provides an opportunity for business and commercial lawyers to network with lawyers of similar interests and fields of practice, and also to stay abreast with latest development in the areas of practice. Supported by major Bar Associations, Law Societies and other Organisations, the IPBA plays a significant role in fostering ties among members of the professions. For further inquiries please contact us: IPBA 2005 Bali Secretariat: Pacto Convex Ltd. Lagoon Tower Level B1 Jakarta Hilton International Jl. Jend. Gatot Subroto Jakarta 10270 Indonesia Phone: +62 (021) 570 5800 Fax: +62 (021) 570 5798 Email: [email protected]
IBA Mid-Year Meeting LISBON, 19 – 21 MAY 2005 The launch of the Bar Issues Committee (BIC) marks the creation of a forum whose sole purpose is to support the activities and interests of Member Organisations, creating a platform to discuss issues of common interest. Following the highly successful launch of the BIC at the IBA Conference in Auckland, the IBA looks forward to the next gathering of Bar Leaders and other Member Organisation representatives in Lisbon, Protugal.
MARCH / APRIL_2005
Special discounted rates have been secured by the organizers at some of the leading hotels. The room situation is expected to be critical at this time of the year so participants are requested to make reservations ASAP. Queries may be addressed to Ms June Tan, Director of Training and CPD at the Law Society at 65300226 or at [email protected]
14th International Mergers and Acquisitions Conference HILTON HOTEL, NEW YORK 9 – 10 JUNE 2005 This prestigious Conference has established itself as the international mergers and acquisitions event. Over two days, leading practitioners and M&A experts will assess the significant trends and development in M&A practice through a comparative focus on the US, EU and other major jurisdictions. The Conference offers an excellent opportunity to meet leading M&A specialists. Topics will include: ! A review of the worldwide M&A marketplace ! Update on EU Takeover Directive and related developments ! A conversation with two Delaware judges ! Current M&A issues ! The view from the SEC ! Current developments in leveraged buy-outs
SPEECHES ! How to conduct an auction ! Current developments in antitrust policy affecting
in Xi’an, scheduled from 10th to 13th September 2005, will cost USD760 per pair.
M&A ! Spotlight on Asia
International Legislative Drafting Institute NEW ORLEANS, LOUISIANA USA 13 – 24 JUNE 2005
Please address enquiries to the World Jurist Association at [email protected]
or visit their website at www.worldjurist.org
IBA Annual Conference PRAGUE, 25 – 30 SEPTEMBER 2005
This training, intended for both lawyer and non-lawyer drafters, emphasises pragmatic learning – not theory but practice. Participants will “learn by doing” through drafting exercises, research assignments, and preparation of a formulary for use in their own drafting offices. Afternoon roundtable discussions will enable participants to share ideas and information with each other, learning “how we did it” in response to numerous common problems of interest to drafters.
What will Prague 2005 offer? ! A meeting place for over 3000 lawyers from around the world ! Over 100 working sessions covering all areas relevant to international legal practitioners ! A chance to share in the knowledge and expertise of the leading international lawyers from across the globe ! A variety of social functions providing ample opportunities to network Lecture topics include the ethics of drafting, ! Continuing Legal Education accreditation confidentiality, matters of style (gender-neutral ! Integrated guests programme language, grammar, and punctuation), agency ! Convenient location: Prague is situated in the centre rulemaking, constitutional revision, international trade of Europe and is easily accessible from cities agreements, and codification agencies. The training worldwide emphasises the importance of public participation and describes an appropriate role for interest groups and Showcase Sessions individuals in the legislative process. ! Enforcement of EU law and competition law by private parties This Annual Institute will again offer training that ! How far can laws reach? The problem of responds to the worldwide demand on legislative extraterritoriality drafting personnel for new laws to support the ! The European Court of Human Rights – what emergence of free market economies and democratic business lawyers need to know forms of government. ! The lawyer’s role in society To register for the Conference, you must complete the 22 Biennial Congress on appropriate registration form and send it, together with the Law of the World your payment, to: 4 – 10 SEPTEMBER 2005 International Bar Association BEIJING, CHINA 10th Floor, 1 Stephen Street London W1T 1AT, United Kingdom In addition to the regular Congress programme, the Tel: +44 (0)20 7691 6868. organizers have also organized an additional, optional Fax: +44 (0)20 7691 6545 programme of tours both before and after the Congress. E-mail: [email protected]
for enquiries. A pre-Congress Tour of Beijing including The Great You can also register online at Wall, The Forbidden City and the Summer Palace, http://prague.ibanet.org/registration.html scheduled for the 1st to 4th September 2005, will cost USD490 per pair. A post-Congress Tour of the West Lake in Hangzhou and the Terracotta Warriors display nd
MARCH / APRIL_2005
LAWYERS UPDATE LAWYERS UPDATE
Lawyers’ Change Of Address Abdul Wahad @ Abdul Aziz bin Muhammad: Messrs Abdullah Abd Rahman & Co, 10th Floor, Wisma Yakin, Jalan Masjid India, 50100 Kuala Lumpur. Abun Sui Anyit: Messrs Surjan Singh Shidu & Co, 5th Floor, Wisma Harwant (G S Gill’s) No.106, Jln Tuanku Abdul Rahman, 50100 Kuala Lumpur. Tel: 03-2692 9355 Fax: 03-2693 6355 Ahmad Fadzli bin Abdul Salam: Messrs Mohd Akhir & Partners Lot 959,Tingkat Bawah & Satu, Banunan Peruda TWJ 1B,Jalan Sultan Badlishah, 05000 Alor Star, Kedah. Tel: 04-731 2211 / 731 0344 / 731 2533 Fax: 04-731 6622 E-mail: [email protected]
Andek Noor Hudayah bt Bachok: Messrs J S Pillay & Mohd Haaziq, Suite 16.01, Level 16, Menara MAA, No. 15, Jalan Dato’ Abdullah Tahir, 80300, Johor. Tel: 07-334 0999 Fax: 07-332 6999: E-mail: [email protected]
Anita Kaur a/p Sarjit Singh: Messrs Zaid Ibrahim & Co, 51-22-B & C, Menara BHL, Jalan Sultan Ahmad Shah, 10050 Penang. Tel: 04-2270 888 Fax: 04-2286 752 E-mail: [email protected]
Azrulhisham Mohd Affandi: Messrs Wan Haron Sukri & Noordin, PT 1180-1183, 2nd Floor, Jalan Kebun Sultan, 15300 Kota Bharu, Kelantan. Chen Siew Foon: Messrs Koh & Associates, No. 21-M, Jalan SS 21/1A, Damansara Utama, 47400 Petaling Jaya, Selangor. Tel: 03-7710 0088 Fax: 03-7710 0089 Choo Kok Soon: Messrs Ngan Arifah & Chai, Suite 1502,15th Floor, Wisma Lim Foo Yong, 86 Jalan Raja Chulan,50200 Kuala Lumpur. Tel: 03-2144 0077 Fax: 03-2143 3077 Datin Pang Lik Liam @ Cecilia: Messrs Soo Thien Ming & Nashrah, Wisma Selangor Dredging 10th Floor, South Block, 142-A, Jalan Ampang, 50450 Kuala Lumpur. Tel: 03-2161 2588 Fax: 03-2161 8997 E-mail: [email protected]
Harikrishnan a/l Kanapathy: Messrs Christina Chia Ng & Partners, Suite 4028, 4th Floor, President House (Parkroyal), Jalan Sultan Ismail, 50200 Kuala Lumpur. Tel: 03-21417711 Fax: 03-2141 1219 Koh Mui Tee: Messrs Koh & Associates, No. 21-M, Jalan SS 21/ 1A, Damansara Utama, 47400 Petaling Jaya, Selangor. Tel: 03-7710 0088 Fax: 03-7710 0089 Krishnan Papoo & Associates: Messrs Krishnan Papoo & Associates, No. 50-A2, 2nd Flr, Persiaran MPAJ, Jalan Pandan Utama, Pandan Indah, 55100 Kuala Lumpur. Tel: 03-4295 9055 Fax: 03-4296 9055 Leela a/p Velayuthan: Messrs A Rahim & Co, Suite 808 & 809, 8th Floor, Johor Tower, 15, Jalan Gereja, 80100 Johor Bahru, Johor Darul Takzim. Tel: 07-2244 922 Fax: 07-2236 939 E-mail: [email protected]
/ [email protected]
Lee Mee Kam: Messrs Zain & Co, 6th & 7th Floors, Bangunan Datu’ Zainal, 23, Jalan Melaka, 50100 Kuala Lumpur. Tel: 03-2698 6255 Fax: 03-2698 6969 / 03-2693 6488 E-mail: [email protected]
Lee Mun Peng, Rachel: Messrs Ngan Arifah & Chai, Suite 1502, 15th Flr, Wisma Lim Foo Yong, No. 86, Jalan Raja Chulan, 50200 Kuala Lumpur. Tel: 03-2148 4501 / 2142 0077 Fax: 03-2143 3077 E-Mail: [email protected]
Malathi a/p Krishnan: Messrs Adha Selvi & Associates, 8A, 8th Floor, Pearl Court, No. 61, Jalan Thamby Abdullah, Brickfields, 50470 Kuala Lumpur. Tel: 03-2693 1698 Fax: 03-2692 3170 E-mail: [email protected]
Mazlan bin Mohd Noor: Messrs Ismael Alabas & Hashim, 14B & 15,1st Floor, Bangunan Lembaga Padi, Jalan Tungku Ibrahim 05000, Alor Setar, Kedah. Tel: 03-733 9050 Fax: 04-730 7050 Muhammad Fadzil bin Hassan: Messrs Yusof Rahmat & Co, No.136-4, Tingkat 3, Kompleks Munshi Abdullah, Jalan Munshi Abdullah, 75100 Melaka. Tel: 06-2849 106 / 06-2867 141 Fax: 06-2822 291 E-mail: [email protected]
Muhammad Faisol bin Hashim: Messrs Raja Nor & Su Lynn (Penang branch), 72, Jalan Prai Jaya 2, Bandar Prai Jaya, 13700 Prai, Penang. Tel: 04-390 4888 Fax: 04-398 4888 Mohd Alami bin Lazin: Messrs Lim & Chua, No. 383, Jalan Dato Perdana 3, 15000 Kota Bharu, Kelantan. Tel: 09-7449 689 Fax: 09-7484 691 Noor Hanani bt Nusa: Messrs Fatimah Zainudin & Associates, Unit 307, 3rd Flr, Block B, Pusat Perdagangan Phileo Damansara 1,No.9, Jln 16/11, Off Jalan Damansara 46350 Petaling Jaya, Selangor. Tel: 03-7955 3121 Fax: 03-7956 2122 E-mail: [email protected]
Nor Adilah binti Amat Talib: Messrs Sithra & Partners, B-2-2, 2nd Floor, Block B, Megan Avenue II, 12 Jalan Yap Kwan Seng, 50450 Kuala Lumpur. Tel: 03-2713 1870 Fax: 03-2713 1872 Nor Azlin bt Adam: Messrs Adri, Hisham & Rakan-Rakan, A-408, Glomac Business Centre, 10,Jalan SS 6/3,Kelana Jaya, 47301 Petaling Jaya, Selangor Darul Ehsan. Tel: 03-7803 2434 Nordina bt Mohd Tajudin: Messrs Michael Chai & Co Level 5, Wisma Hong Leong, 18, Jalan Perak, 50450 Kuala Lumpur. Nasrul Hakim bin Mohamad Ali: Messrs Ahmad Fuad & Co, No. C12-1, Jalan Selaman 1, Dataran Palma, 68000 Ampang, Selangor Darul Ehsan. Tel: 03-4270 4838 / 4219 Fax: 03-4270 4832 Rahimah @ Damisah bt Hassin: Messrs Yu & Ling, No. 43-C, 3rd Floor, Jalan Kenari 21, Bandar Puchong Jaya, 47100 Puchong, Selangor. Tel: 03-8076 4043 Fax: 03-8070 9826 Rathi Nair a/p Narayanan Kutty Nair: Messrs N R Nair & Associates, No. 20B, 2nd Floor, Jalan Market, 30000 Ipoh, Perak Darul Ridzuan. Tel: 05-2431 918 Fax: 05-255 6434 Sudharshini a/p Maniam: Messrs Azhar & Goh, Unit B-8-11, Level 8, Block B, Megan Phileo Avenue II, No. 12 Jalan Yap Kwan Seng, 50450 Kuala Lumpur. Tel: 03-2164 5566 Fax: 03-2164 2822 E-mail: [email protected]
Branches Messrs Nordin Yusoff & Co: No. 42-1B, Jalan Raya Barat, 41100 Klang, Selangor Darul Ehsan. Tel: 03-3378 2740 Fax: 03-3374 4541 Messrs Siau Suen Miin & Tan: No. 118A, Jalan PSK 4,Bandar Baru Simpang Kuala, 05400 Alor Setar, Kedah. INFOLINE 64
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Messrs Suhaili & Song: No. 45a, 1st, Floor, Jalan SS 2/75,47300 Petaling Jaya, Selangor. Messrs Y P Tan & Ong: No. 2, Jalan 37/154,Taman Dahlia, 56000 Cheras, Kuala Lumpur.
LAWYERS UPDATE LAWYERS UPDATE
New Firms Aisha Mubarak & Co: Unit 807, Block A, Level 8, Kelana Businnes Centre 97, SS 7/2, Kelana Jaya, 47301, Petaling Jaya, Selangor. Tel: 012-3758086 ; Fax: 03-78807745. Ali & Fariz: No. 8B, Tingkat 2, Wisma Bandaran, Jalan Ibrahim, 08000 Sungai Petani, Kedah. Tel: 04-4223254 ; Fax: 04-4253693. B S Loh & Associates: No. 35-37, 2nd Floor, Perak Chinese Chamber of Commerce and Industry Building, Jalan Tun Sambanthan, 30000 Perak. Bashir & Rakan Rakan: No. 6-GF, Jalan 15/1F, Seksyen 15, 43650, Bandar Baru Bangi, Selangor. Tel: 03-89265770 ; Fax: 03-89266620. Boestaman Ahmad & Co: No. 227-A Jalan 4D, Subang New Village, 40000 Shah Alam, Selangor. Tel: 03-78467387. C C Lee & Co: 5th Floor, Tower 1, Wisma MCIS, Jalan Barat, 46200 Petaling Jaya, Selangor Darul Ehsan. Chai Yong & Co: 26 Up, Jalan Raya Kulai Besar, 81000 Kulai, Johar Chris Koh & Chew: Level 19, Menara TA One, 22 Jalan P Ramlee, 50250 Kuala Lumpur. Tel : 03-27118930 ; Fax : 03-27118931. Dzahara & Associates: No. 11A, Jalan 6/7, 55100 Pandan Indah, Kuala Lumpur. Tel: 03-42964796 ; Fax: 04-42964796 Fuad Razak & Co: EE-205, Jalan Pinggiran 3/1, Taman Pinggiran Batu Caves, 68100 Batu Caves, Selangor. Tel: 03-61891934 ; Fax: 03-61891934. G H Lim & Associates: No. 130, 1st Floor, Jalan Bakek, 82000 Pontian, Johor. Gopal & Co: Pt 4756, Jalan T.S. 1/19 Taman Semarak Nilai, 71800 Negeri Sembilan. Tel: 06-7990720. Hani & Co: 1st Floor, No. 3, Jalan Cempaka 1/1, Bandar Aman Jaya, 08000 Sungai Petani, Kedah Darul Aman. Hanita & Associates: 1-23, Perdana Avenue, Jalan KP3, Taman Kajang Perdana, 43000 Kajang, Selangor. Tel: 03-87347596 ; Fax: 03-87342482. Hoe & Moira: Suite 123-Upper P, 5th Floor, Wisma Lister Garden, 10400 Macalister Road, Penang. Tel: 04-2266220 ; Fax: 04-2286220. Idris Zain & Co: No 11, Jalan SS 5D/13, 47301 Petaling Jaya, Selangor. J S Gill & C. Surendran: No. 5A, Jalan Melaka Raya 13, Taman Melaka Raya, 75000 Melaka. Tel: 06-2815670; Fax: 06-2813670. Jeremy & Sazlin: No. 6-2B, Jalan PJU 1/3A, SunwayMas Commrcial Centre, 47301, Petaling Jaya, Selangor. Tel: 03-78808110 ; Fax: 03-78808115. Jeyaratnam & Co: No, Ground Floor, Jalan Tun Sambanthan, 30000 Ipoh, Perak Darul Ridzuan. Tel: 05-2548866 ; Fax: 05-2540244. Jimmy M P Ng: No. 19, Tingkat Atas, Jalan Masjid, Pusat Perniagaan Bahau, Negeri Sembilan. Tel: 012-3133153. K Ranjit Singh & Partners: No. 108(1st Floor), Lebuh Turi, Taman Chi Liung, 41200 Klang, Selangor. Tel: 03-3371463 ; Fax: 03-33714669. Kanda & Associates: Unit LP 12, 13th Floor, Menara TJB, No.9, Jalan Syed Mohd Mufti, Johor Bahru, 80000, Johor. Tel: 07-2245667 ; Fax: 07-2234667. Maha & Co: No. 29A, Jalan Mawar, 81750 Masai, Johor. Tel: 07-2554657 ; Fax: 07-2551658.
Mahendran & Fernandez: 33rd Floor, 33-01, Menara Keck Seng, 203, Jalan Bukit Bintang, 55100 Kuala Lumpur. Tel: 03-21165953 ; Fax: 03-21165954. Masniyati & Associates: No. 9A, Jalan 13/28, Section 3, 40100 Shah Alam, Selangor. N Suneth: No. 3-2, Jalan Puteri 7/11, Bandar Puteri , 47100 Puchong, Selangor . Nailah Ramli & Partners: Setiawangsa, Wilayah Persekutuan, Kuala Lumpur. Tel: 03-21165699 ; Fax: 03-21165799 Ong Gim Choo & Associates: No. 59 Jalan USJ 2/4R, 47600 Subang Jaya, Selangor Darul Ehsan. Tel : 03-56333963. Ranjeet Gendeh & Associates: B-3A-14 Megan Phoenix, Phoenix Business Park, Jalan 2/142A Off Jalan Cheras, 56000 Kuala Lumpur. Tel: 03-91016399 ; Fax: 03-91917399 Robert Lau & Co: No. 6, 2nd Floor, Wisma RKT, Jalan Raja Abdullah, 50300 Kuala Lumpur. Tel: 019-6194449 ; Fax: 03-26913188. Rohayati Sidik & Associates: 10C, Tingkat 1, Jalan Tok Lam, 20100 Kuala Terengganu, Terengganu. Tel: 09-6229242 ; Fax: 09-6229242. Rosli Kamaruddin & Co: 1.2, 1st Floor, 85A , Jalan Pulai 7, Taman Pulai Utama, 81300 Skudai, Johor. Tel: 07-5213200 ; Fax: 07-5211179. S V Chelliah & Associates: No.23 Jalan SS3/51, Petaling Jaya, 473000, Selangor. Tel: 03-78759102. Salbiyah Fazilah & Partners: Unait No. 11-6-1, Jalan 2/50, Diamon Square Commercial Center, Off Jalan Gombak, 53000 Kuala Lumpur. Tel: 03-40238834 ; Fax:03-40238834. Selva Veeriah: No. 65-2, Bangsar Aman Apartment, 59000 Kuala Lumpur. Tel: 03-22873834 ; Fax: 03-22873832 Shima Rajadran Domnic & Co: No. 19A, Jalan Bandar Timah, 30000 Ipoh, Perak. Tel: 05-2431044 ; Fax: 05-2417110. Sidhu & Associates: No. 51-1A, Jalan 3/93, Taman Miharja, 552000, Cheras, Kuala Lumpur. Tel: 03-92821223 ; Fax: 03-92816113. Siti Aishah & Co: No. 12B, 2nd Floor, Jalan Saujana Indah 1, Taman Saujana Indah, Seksyen U2, 40150 Shah Alam, Selangor. Tel: 03-78465461 ; Fax: 03-78465461. Siti Rohani & Partners: No. 33-1A, Jalan 3/10, 55100 Pandan Jaya, Kuala Lumpur . Tel: 03-92821225 ; Fax: 03-92851224. Sundra Rajoo: B-13-5, Condo Vista Kiara, 9 (Concorde Tower) Jalan 1/61A, Mount Kiara, 50480 Kuala Lumpur. Tel : 012-3292721. Woo kok Wai: No. 199, Jalan Cyber 12, Kawasan Perindustrian Senai 4, Senai, 81400, Johor. Tel: 07-2375497. Y A Anwar & Co: A710-L, Kg. Telaga Daing, Off Jalan Teluk Ketapang, Seberang Takir, 21300 Kuala Terengganu, Terengganu. Yek Lai: No. 96, Jalan Muda 73B, Off Jalan Sungai Putus, Batu Belah, 41050 Klang, Selangor. Tel: 03-33787507 ; Fax: 03-33442395. Zarinah, Tan Lean Tee & Co: No. 51-10-D2 Level 10, Menara BHL Bank, Jalan Sultan Ahmad Shah, 10050 Penang. Tel: 04-2286699 ; Fax: 04-2286645.
MAC / APR_2005
LAWYERS UPDATE LAWYERS UPDATE
Firms: Change Of Address, Tel, Fax Number Abd. Razak & Co: No. 3023, Taman Nadira, Jalan Dusun Langgar, Kota Kubang Labu, 16250,Wakaf Bharu, Kelantan F L Teng & Co: No. 13, (1st Floor), Jalan Abdullah, 84000 Muar, Johor. Hakem Arabi & Associates: No. 15-1 & 15-2, Jalan Seksyen 3/ 9,Taman Kajang Utama, 43000 Kajang, Selangor Darul Ehsan. Tel: 03-8737 0320 Fax: 03-8737 0319 M Bala Simenchalam & Co: JA 9961 1A, First Floor, Bandar Baru Jasin III, 77000 Jasin, Melaka. Mohd Azmi Tan & Co: 3542-D, Aras 1, Jalan Telipot, 15150 Kota Bharu, Kelantan.
Par Govind & Co: 3rd Floor, Beacon House, No. 1, Jalan Gereja, P.o.Box No.10159, 50100 Kuala Lumpur. Tel:03-2031 8977 Fax: 03-2031 4977 Raja Azhar & Husain Safri: KCP 48, Tingkat Satu, Kemaman Business Centre, Jalan Lebai, Saras, 24000 Kemaman,Terengganu Darul Iman. Tel: 09-8591 727 / 8592 037 Fax: 09-8591 729 E-mail: [email protected]
S Callay & Co: L2-10, Times 89 Business Plaza, Jalan Seri Sentosa 11,Taman Seri Sentosa, 58000 Kuala Lumpur. Tel / Fax:03-7770 2449 T A Fadzil, Hairul & Associates: No. 6A, Aras 2, Jalan Raja Chulan, 3300 Kuala Kangsar, Perak Darul Ridzuan.
Members who have ceased practice Kuala Lumpur A/1223 Azreena bt Che Omar A/1270 Abbas b Nejamdeen B/197 Bazlinda bt Bahrin C/273 Choo Yem Kuen C/900 Chew Chiew Leong C/1030 Choong Wai Ling F/83 Fong Phaik Yoong H/600 Haniza bt Hanafi I/158 Izreen Fara bt Ismail K/533 Kong Su Yin K/677 Caroline Kong Li Leng K/759 Kang Siew Lian L/937 Liau Y-Ky L/1262 Henry Leong Wye Keong L/1377 Lim Tien Sim L/1526 Lau Le Bin L/1562 Liew See Hoong H/296 Harlina Mohamad Haron I/176 Ida Mariam bt Abdul Rahim L/1194 Justin Lee M/937 Madzlan b Mohamad Hussain N/943 Nor Aida bt Ahmad Ali N/1125 Ng Yueng May N/1152 Nurul Bariah bt Md Jamil N/1153 Ng Jo-Anne O/267 Omar b Mohammad Istino R/830 Rosmiati bt Ahmad S/1378 Salina Lim bt Abdullah S/1443 Sherley Eleza Ramli S/1678 Sophia Kasturi Dass S/1677 Suhaizak bin Ab Wahab Y/355 Yoong Chee Min Z/244 Zainal Marshan W/492 Wong Tze Wei
1.1.2005 1.2.2005 1.6.2004 31.3.2005 12.3.2005 1.9.2004 2.4.2005 June 2004 14.11.2004 16.2.2005 27.12.2004 9.10.2004 31.2.2005 23.2.2005 1.1.2005 1.3.2005 28.2.2005 1.1.2005 31.7.2004 25.2.2005 1.4.2004 1.12.2004 1.3.2005 26.3.2005 10.11.2004 28.2.2005 31.10.2004 June 2004 30.6.2004 31.12.2004 1.1.2005 1.1.2005 17.3.2005 20.2.2004
Selangor C/590 Chin Yuet Yoon E/148 Edman a/l Anthony G/373 Gelnda Pearl Majaway K/469 Kua Siew Kim, Carol K/644 Khaw Su Ming L/932 Lai Mun Onn M/897 Mohd Sofian b Abdul Rahman
31.3.2005 28.2.2005 14.4.2005 23.3.2004 30.3.2004 1.3.2003 1.1.2005
MAC / APR_2005
S/918 S/1680 T/579 T/708 U/33 U/35 Z/276
Edmund Sia Wei Keong Suraya Khaireen bt Khalis Tan Ai Gaik Alex Tan Ken Seng Umi Kalusom bt Ahmad Ummi Kalsom bt Mohamed Zarina bt Barharudin
20.3.2005 1.1.2005 31.12.2004 31.1.2004 1.4.2005 30.4.2003 9.4.2005
Kelantan F/320 Fauzana bt Arifin G/365 Gan Peng Kun N/1187 Nor Asmadi b Ashari N/1189 Norsima bt Senawi
30.12.2004 1.11.2004 30.5.2004 16.5.2004
Melaka M/1136 Mahendra Kumar Balakrishnan S/1513 Siti Azzyati bt Abu Bakar
Perak C/1122 D/24 D/131
Chiang Kian Hong Devadason, Juliana Manohari Deepa a/p A Kesavan
9.4.2005 31.10.2003 28.5.2004
Penang C/1034 M/1340 O/232 P/183 L/190 L/1167 T/483
Catherine Vasnthy a/p Paul Peter Mohd Sani b Mohd Akier Ong Yin Ee Pauziah bt Ahmad Lim Tatt Keong, Andrew Lim Li Yen Tan Su Syan
3.4.2004 7.7.2004 18.3.2005 1.1.2005 31.12.2004 1.2.2004 24.3.2005
Johor Bahru F/204 Foo Jick Liang L/1340 Lue Swee Ping M/8 Mahani bt Abdul Hamid S/697 Saw Kim Hong T/194 Tan Kok Hong
7.1.2005 3.3.2005 31.1.2004 1.1.2005 30.3.2004
Amiza bt Nasrun
Terengganu R/804 Raja Kamariah bt Raja Abdul Rahman 1.3.2005
LIBRARY LIBRARY UPDATE UPDATE
INDEX TO SELECTED P.U.(B) SERIES 2005 TITLE Communications and Multimedia (Amendment) Act 2004 [Act A1220] Appointment of Date of Coming into Operation w.e.f:-1.4.2005 Federal Aricultural Marketing Authority (Amendment) Act 2004 [Act A1235] Appointment of Date of Coming into Operation w.e.f:-31.3.2005 Hire-Purchase (Amendment) Act 2004 [Act A1234] Appointment of Date of Coming into Operation w.e.f:-15.4.2005 Weights and Measures (Amendment) Act 2002 [Act A1180] Appointment of Date of Coming into Operation w.e.f:-4.4.2005
P.U.(B) NO. 112/2005
Trafficking in Women and Children. Human Right Commission of Malaysia. Kuala Lumpur: Suhakam, 2004.
Mohd Akram bin Hj Shair Mohamad. Law of Confessions. Petaling Jaya: Sweet & Maxwell, 2004.
Ida Madieha bt Abdul Ghani Azmi.Trade Marks Law in Malaysia. Petaling Jaya: Sweet & Maxwell, 2004.
Jaques, Rachel, Gavin A. Xavier, Aravnid Subbiah et al .Istilah Istilah Undang – Undang. 4th ed. Petaling Jaya: Sweet & Maxwell, 2003.
Andrew Chew Peng Hui,Dr. Caveat System in Sarawak. 3rd ed. Petaling Jaya: Sweet & Maxwell, 2002.
Norchaya Talib. A Malaysian Perspective.Petaling Jaya: Sweet & Maxwell, 2002.
Ruth Charlton and Dewdney. Skills and Strategies for Practitioners. 2nd ed. Sydney: Law Books Co, 2004.
Erratum New Law Reports The following continuing series of law reports have been obtained by the Bar Council Library and reported in the Jan/Feb 2005. 1. South Australian State Reports [SASR] 1865 – present 2. Family Law Reports [FLR] 1980 – present
FOR LATEST LEGISLATION UPDATES PLEASE VISIT OUR
W E B S I T E w w w. m a l a y s i a n b a r. o r g . m y A N D C L I C K O N ‘ LIBRARY’
JAN / FEB_2005
LIBRARY LIBRARY UPDATE UPDATE
AMENDING ACTS 2002 ACT NO ACT A1180…
TITLE Weights and Measures (Amendment) Act 2002 Notes:-Amends ss.2 and 27, Insert new ss.26A, 26B, 26C, 26D, 26E, 26F, 26G and 26H w.e.f:-4.4.2005 [PU(B) 113/2005]
AMENDING ACTS 2004 ACT NO ACT A1220…
TITLE Communications and Multimedia (Amendment) Act 2004 Notes:-Amends ss.4, 6, 16, 24, 30, 34, 36, 80, 104, 147, 157, 187, 188, 193, 204, Inserts new ss. 23A, 24A, 26A, 26B, 26C, 26D, 26E w.e.f:-1.4.2005 [PU(B) 112/2005] Hire-Purchase (Amendment) Act 2004 An Act to amend the Hire-Purchase Act 1967 Notes:-Amends ss.1, 2, 4, 14, 15, 18, 34, 39, Insert new ss.6a, 6b, 6c, 57A w.e.f:-15.4.2005 [PU(B) 119/2005] Federal Agricultural Marketing Authority (Amendment) Act 2004 An Act to amend the Federal Agricultural Marketing Authority Act 1965 Notes:-Amends long title, ss.1A, 2, 3, 3A, 9, 12, 14, 18, 19,21A,22,24, 25, 27, Deletes ss.6, 6A, 6B, 11A, 12A,23, Insert new ss.6C, 15A and 24A, w.e.f:-31.3.2005 [PU(B) 108/2005]
INDEX TO SELECTED P.U.(A) SERIES 2005 TITLE Anti-Money Laundering Act 2001 [Act 613] Anti-Money Laundering (Amendment of First Schedule) Order 2005 Issued under s.85, Anti-Money Laundering Act 2001 Notes:-Amends Sch 1, Anti-Money Laundering Act 2001 w.e.f:-31.3.2005 Anti-Money Laundering Act 2001 [Act 613] Anti-Money Laundering (Amendment of Second Schedule) order 2005 Issued under s.85, Anti-Money Laundering Act 2001 Notes:-Amends Sch 2, Anti-Money Laundering Act 2001 w.e.f:-31.3.2005 Hire-Purchase Act 1967 [Act 212] Hire-Purchase (Amendment of Schedule) Order 2005 Issued under s.57A(1), Hire-Purchase Act 1967 Notes:-Amends Sch 2, 4, 5 and 6 , Hire Purchase Act 1967 w.e.f: 15.4.2005
Infoline is printed by Sri Sedaya, No 31A, Jalan Sahabat, 50200 Kuala Lumpur. Malaysia JAN / FEB_2005
P.U.(A) NO. 111/2005
PULL - OUT
MARCH / APRIL 2005
An Open Letter to SUHAKAM by Nik Nazmi Nik Ahmad and Edmund Bon
Dear Human Rights Commission of Malaysia (SUHAKAM)
unceremoniously arrested following a commando raid on his house. In his dank and dreary cell, he was viciously assaulted by no other than the nation’s highest ranking police officer, the Inspector-General of Police. He was denied medical attention until, some nine days later, he was produced before a court, still bloodied and bruised, and charged with corruption, sparking outrage both locally and around the world.
We, one a law student and the other a legal practitioner, write to you not only in our respective capacities as aforementioned, but more importantly, as concerned citizens of Malaysia. You were established by the Human Rights Commission of Malaysia Act 1999 (HRCMA) and imbued with the mandate, power and responsibility to protect and promote human rights in Malaysia. The year 2004 has come and gone and, with the dawn of 2005 and your 5th year in existence, we felt it appropriate to reflect on, and review, your achievements thus far. Your brief history, as set out in your website, does not do you justice and fails to paint the full picture of how you came to be. The story there does not describe the political environment in which you were formed. Context is always important for comprehension and must not be disregarded.
Mass protests and assemblies in support of Anwar were held and ruthlessly quelled by the authorities. International condemnation mounted, putting pressure on the Government to stop the increasing and on-going abuses of human rights. The Government eventually saw the need to improve its
Musa Hitam - Claimed partial credit for setting up of SUHAKAM
Commissioners Simon Sipaun and Hamdan Adnan
In your case, in late-1998, prior to your formation, the then Malaysian Deputy Prime Minister, Datuk Seri Anwar Ibrahim, was sacked giving birth to the Reformasi movement. Despite, or perhaps of his high profile, he was Abu Talib Othman - Present Chairman
Commissioners K C Vohrah and Ramon Navaratnam 1
Human Writes Issue 14 March / April 2005
image internationally and to deflect such criticisms. Hence your conception and birth. An indication, if not confirmation, of the Government’s motive is the fact that you were placed under the purview and portfolio of the Ministry of Foreign Affairs. The Government must have felt that you had a role to play in the arena of international relations.
At the end of the day however, you should realise that not everyone is an optimist, and that in order to retain your credibility, you must convince ordinary Malaysians that you can fulfil your function and potential, as we are convinced that you can. Flowing from your reports, media statements, press releases, workshops, lectures, seminars, consultations, training courses, educational programmes and conferences, you have increased the level and quality of discourse and awareness of human rights in Malaysia. For this achievement alone, we wish to commend you.
Democratic societies believe in the importance of respecting and upholding human rights as the cornerstone of civilisation. Your establishment was to us a heartening move as the perceived climate in Malaysia then was (and still may be) seemingly hostile to human rights. It would be fair to say that your establishment marked, at that point in time, the success of the struggles of countless courageous human rights advocates throughout the history of the nation.
We are also encouraged that a good number of events that you have organised were well-attended, not least because you possess a certain degree of influence with the Government and have ready access to the Government and its various departments. You are in a privileged position compared to the NGOs and CSGs in Malaysia vis-àvis the Government and this is an advantage.
Having articulated your beginnings, may we now proceed to review your achievements thus far, to highlight what needs improvement and most importantly, to give voice to our hope for you in the future. We have learnt that human rights advocates must be perpetual optimists and it is in this spirit that we have penned this letter.
We are further gladdened to see that you have managed to reach out to organisations who traditionally, have not understood or practised human rights governance in their affairs. Your work with the police and the immigration authorities are the clearest examples.
Since your inception, you have actively carried out your mandate to assess and report on the status of humans rights in Malaysia. This exercise of yours has culminated in no less than 15 reports. All of these reports have been submitted to Parliament but not one has been tabled or debated. The Government appears to be reluctant to discuss the matters contained in the reports. No formal reason has been given as to why the reports have not been addressed.
The steady trickle down effects of your efforts in creating, sustaining and enhancing human rights awareness is that human rights is now seen as a part of Malaysian society rather than an exception. You have managed to steer the discourse on human rights in Malaysia to the mainstream. The press has cautiously, but surely, begun to publish human rights issues, stories and concerns. The people speak about it more freely and do not view ‘human rights’ as a taboo subject. The fact that many Malaysians have lodged complaints with you and that you have addressed their concerns is evidence of your slow but sure influence. The Government is slowly realising that human rights articulation and implementation do not necessarily plunge Malaysia into chaos or compel it to disorder.
We are heartened to note that, in general, the positions you have taken in your reports are wellfounded and accord with international human rights norms and humanitarian principles. The issues you have covered also deal with a wide-range of human rights concerns. These concerns were, in the past, before your establishment, articulated consistently and vociferously by various non-governmental organisations (NGOs) and civil society groups (CSGs). You have confirmed these concerns and in reply to accusations that you were merely formed for show and serve no substantive purpose, we offer the alternative and optimistic view that perhaps your reports have been too damning that the Government has shied away from addressing them.
In summary, you have successfully created a new platform for human rights awareness and advocacy in Malaysia. It was not easy but we feel that your achievements so far have been a pleasant surprise to many. All these achievements are well and good, but having proved your critics wrong, can you now exceed the expectations of your supporters? Having
Human Writes Issue 14 March / April 2005
set the benchmark, it is now up to you to set the bar higher.
which compels us to progress beyond awareness. We should not rest easy at the first tier. Whilst there are signs that we are progressing to the second tier, such progress is marked by many stops and starts, and the transition is expected to be an uneven and difficult one. The way to tackle any problem is to firstly identify and acknowledge it. At the moment, we have identified 8 areas besetting your role in developing human rights in Malaysia.
When you started out, there was no benchmark to speak of, the situation then being characterised by what we would term the ‘anything-goes’ approach. In other words, until you came along, Malaysia was deprived of an official body or platform which could command the respect and acceptance by the Government on human rights issues. Then, as you commenced your work, your articulation of various issues connected with the people, the NGOs and the CSGs. This connection allowed you to expand and expound your chosen areas of human rights with the support of various human rights advocates. Any matter looked into or considered by you was encouraged and applauded. No doubt, due to the ‘deprivation’ as aforementioned, beggars cannot be choosers.
But when we say you need to set the bar higher, we mean that you must work with more circumspection, more authority and take more action. Expectations of you have risen. People are more aware and articulate of their rights. No longer will mere reports, numerous recommendations or controversial media statements suffice. Despite the inroads you have made, you will cease to be effective if you fail to render yourself relevant to the needs of the people whom you serve. You may have won the battle, but not the war. Complacency should not be allowed to set in, as there is still much to be done. Optimists we may be, but our optimism can only be sustained by a continuous and relentless effort on your part to uphold, protect, promote and enforce the basic human rights of our fellow country men and women. There are three tiers to the human rights agenda in Malaysia – the first tier: awareness, the second tier: advocacy/articulation and the third tier: action –
Lobbying of the Government ! Our immediate hope for the moment is that you will intensify your lobbying of the Government to debate and act on your reports. Surely the intent of Parliament, when designating it your duty, pursuant to section 21 of the HRCMA, to submit reports to it, is for the reports to be digested, discussed, debated and acted upon, and not for them lie abandoned in the august building, collecting dust. ! You should personally and directly lobby Government Ministers or Members of Parliament to answer issues raised in your reports. It is insufficient to just write letters to them and expect a favourable reply. Just as rights do not fall into people’s laps, your right for your report to be taken seriously must be claimed by you. NGOs and CSGs can only provide support, you yourself must act on it first. ! You should progress from merely issuing general statements on human rights to initiating high-level talks with policy-makers on what is needed to accomplish your human rights agenda. A viable strategy which you should adopt is to call for and hold regular roundtable dialogues and meetings with the Government and its departments. This is to
Bengkel Hak Asasi Manusia untuk Orang Asli Semenanjung Malaysia, 29-30 Disember 2002
Meeting the Commissioners at the SUHAKAM office. 3
Human Writes Issue 14 March / April 2005
ensure constant communication and frequent access in, and effective monitoring of, the implementation of human rights in Malaysia. We believe the Attorney-General’s Chambers has now set up under its International Affairs Unit an International Unit III dealing specifically with human rights and international organisations. These dialogues and meetings should as much as possible, include various interested parties such as the Bar Council, NGOs and CSGs. ! We note that in pages 177-327 of your Annual Report 2003, you have reproduced the Government’s responses to your observations and recommendations since your establishment. Whilst this is a good start, some of the Government’s responses are unsatisfactory. You should not leave the responses as they are but should also followup on them, for example, by proposing the aforesaid dialogues and meetings. You must take concrete steps to influence a change in Government practices and policies to be in line with human rights norms and principles. 2.
rights policing, but do not ignore them for they too have valid points and are invaluable to your work. You should strive to be more inclusive in this regard. A permanent network with the Bar Council, NGOs and CSGs should be formalised for the benefit of all. Your meetings with the Government should include these partners. A leading example of this model was when Working Group ‘A’ of the Special Commission to Enhance the Operation and Management of the Royal Police Force chaired by Tun Mohd Salleh Abbas held closed-door meetings with representatives of the Bar Council and senior police officers on various laws pertaining to police powers. These were, at times, tense but highly effective discussions and led to a greater understanding of the problems faced by both the police and public on the ground. ! The aforesaid represents the next step in the human rights struggle and sets the groundwork for a support system. The resulting dialogue between parties will see a broad range of views being represented, and will further provide you with a credible and useful source of information in your dialogue with the Government.
Be more inclusive 3.
! The Bar Council, NGOs and CSGs are strategic
partners in the development of human rights in Malaysia. Whilst there has been some interaction between yourself and some of these bodies, it is not enough. Many times, it is only due to ‘forced’ or ad hoc situations that you all meet and work together. ! You should start regular roundtable dialogues and meetings with the Bar Council, NGOs and CSGs on the basis, and for the reasons, stated above vis-à-vis the Government. Some organisations or groups may take the confrontational approach towards human
Be more visible ! We feel that you should be more visible and
pro-active in the people’s and media’s eye. Human rights litigation has boomed in Malaysia. Numerous human rights test cases have been filed or are being litigated. The range of matters litigated include issues of freedom of religion, education rights, child rights, women’s rights, preventive detention, death in police custody and native land rights. Why have you yet to appear through counsel or made representations by way of written submissions to the courts in those cases? You
Bengkel Hak Asasi Manusia untuk orang asal negeri Sabah, 12 Oktober 2002
Bengkel Kebebasan Media, 1 Ogos 2002 4
Human Writes Issue 14 March / April 2005
have not attempted to intervene in human rights cases or filed an action in court as a plaintiff for human rights violations so far. Why is that so? You are THE human rights body and THE statutory authority on human rights in Malaysia – entrusted to promote and articulate the cause of human rights. As such, taking up such cases would be a clear endorsement of the causes you support. Lawyers have on previous occasions offered their services to you on a pro bono basis for this purpose but you have not taken them up on their offers. It is common practice in countries such as the UK and the US for human rights groups, such as Amnesty International, Human Rights Watch and Liberty, to appear in court to submit their interventions. This was done, for example, in the Guantánamo Bay detainees’ hearings and most recently before the House of Lords in A (FC) and others (FC) v Secretary of State for the Home Department and other appeals  UKHL 56 in respect of the detention in the UK of foreign terror suspects without trial. Some may argue that section 12(2) of the HRCMA bars you from doing so. We beg to differ. That provision only prevents you from inquiring into a complaint which is already before the court, but to either hold a watching brief or make submissions or an intervention in respect of the complaint in court is a different matter and certainly does not constitute commencing an inquiry within the said provision. Sadly, the reverse has happened. When a suit was brought against you and some of your Commissioners for not commencing an inquiry into the infamous Kampung Medan incident vide Subramaniam Vythilingam v The Human Rights Commission of Malaysia (SUHAKAM) & Ors  6 CLJ 175, you resisted the suit and raised, among others, a technical objection that the plaintiff had no locus standi. The court accepted your arguments and the suit was struck out. Numerous complaints prior to the suit have been lodged with you regarding the Kampung Medan incident. Allegations have been made and evidence of human rights abuses were provided. Without going into the merits of the suit, why did you not commence an inquiry? The plaintiff wanted an inquiry into a serious complaint and you had the power to commence such an inquiry but you did not do so. Had you
commenced such an inquiry, you would have been seen to be carrying out your functions pursuant to your mandate. As it stands, it appears that you abdicated your duty and had to rely instead on technicalities to absolve yourself of blame. 4.
Be more transparent and accountable ! This brings us to our next point. The people do not know how you decide matters before you. It is valid to ask why you would commence an inquiry into a human rights complaint which appears less serious than the Kampung Medan incident, but not the said incident. Do not get us wrong. All human rights complaints must be looked at and considered. But from the perspective of a layperson, some of your decisions have been puzzling. ! We wish you to consider drawing up guidelines,
policy principles or checklists on how you decide on matters such as when an inquiry should be held or when an investigation should be taken a step further. Time frames for your action should be given as a yardstick and guide to assist in managing the expectations of complainants. This will provide an objective basis for Commissioners present and future to act. ! There should be as little secrecy as possible in your decision making. After all, you serve the people. The people should be able to know who decided what and why a decision was made this way or that. Minutes of meetings or at least a summary thereof should be published. We should know who attended the meetings, what was said and who was entrusted to carry out the decisions. ! There have also been questions asked about the allowances for, and allocation of funds to, your Commissioners. Your silence on this issue is disquieting. 5.
Be more pro-active ! The human rights cause is not about you, the
Commissioners, the lawyers, the politicians or the activists. It is about the people. It can only be effective if driven by the people. You have to be more pro-active with the people. You must present the human face of human rights to the people. You should ‘go-down-to-theground’ with the people although we are aware
Human Writes Issue 14 March / April 2005
that your Commissioners are eminent and ‘important’ people in society. Always start at the grassroots. In this regard, all your Commissioners should be approachable by the people. You should mobilize the people at planned events. If a peaceful demonstration or protest is called for, you should lead it. You have previously stated in your progressive ‘Freedom of Assembly’ report that you were of the ‘firm belief that it is definitely possible in present day Malaysia to have peaceful assemblies at which participants voice their views about issues that are a matter of concern for them’. You have further recommended that peaceful assemblies are ‘a healthy way for members of civil society to express dissatisfaction over matters that affect their lives’. Your Commissioners are after all protected from any action, suit or prosecution by section 18 HRCMA in the course of their duties carried out in good faith. You should regularly visit and work with the marginalized groups such as the Orang Asli communities, the estate and plantation workers and the disabled; not just visit them when complaints are made to you. You should also draw up legal policy papers to critically analyse court decisions in Malaysia from a human rights perspective. These papers will be a useful advocacy and lobbying tool for various NGOs and CSGs. Human rights concerns cannot survive if they are not published. Your public relations with the media, the people and the international community can be improved. Every human rights concern should be lobbied by you personally with the media in order that it is published, and published accurately. Press statements must be made swiftly and your Commissioners must be more media savvy. Frustratingly, we have read on numerous occasions that your Commissioners made certain press statements only to state, on the next day, that they had been misquoted. There should also not be only a handful of Commissioners who act as the spokespersons for you, as is the present trend, but all should speak. Information from the ground is necessary to ensure urgent responses to any incident. You should demand that every governmental organisation have a liaison officer assigned to deal with you, and that the Attorney-General’s Chambers establish a human-rights desk.
! You should dedicate funds for a SUHAKAM
human rights page or advertisements in every major newspaper. Human rights advertisements are frequent in Thailand. The advertisement we last saw was in the ‘Bangkok Post’, November 18, 2004, where a full page was taken out for the remembrance of the 18 Thai conservationists and human rights defenders who had been killed. It was titled ‘As the World Conservation Congress meets in Bangkok today to work for ‘a just world that values and conserves nature’, what has been happening in Thailand these past few years?’. Pictures of each activist were printed together with short summaries of their work below the pictures. 6.
Be committed ! We question the commitment of some of your Commissioners who are too engaged with their other responsibilities and neglect their duties at SUHAKAM. Such neglect raises concern of how seriously you are regarded by your own Commissioners. Why were there no Commissioners to receive the urgent complaints from the family members of the Simpang Renggam detention camp hunger strikers? There have been occasions when the Commissioners receiving the complaints were not even aware of what the complaints were about even after the incident was widely reported in the media! We humbly suggest that it is time all Commissioners be appointed on a full-time basis. ! If your Commissioners are not committed, they should not continue to be appointed. When we say committed, we mean committed to the human rights cause. You do not need Commissioners who are there to ride the wave and use you as a vehicle for personal advancement. You do not need Commissioners who will take an idea which is not theirs, and re-package it for themselves and use it to gain personal publicity. You do not need Commissioners who do a disservice to the human rights movement by whitewashing human rights abuses by the Government. For NGOs and CSGs to provide ‘report cards’ on your Commissioners, information is needed and that is why we call for more transparency in respect of your meetings as stated above. ! Your commitment must be beyond doubt. Your ‘turn-around’ time must be swift in terms of processing of and responses to complaints.
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Further, you have been very quiet on the issues of religion, constitutionalism and the Islamic state in Malaysia. Why? Have you attempted to initiate any inter-faith dialogue or even restate the human rights position on these issues? The Bar Council, along with the NGOs and CSGs have already done so. Your input would be useful in this ongoing debate and your lack of participation is acutely missed. 7.
Demand your rights ! Just as you set out commendably to educate the people to insist on their rights, you too should do the same where necessary. At present, you lack wide-ranging investigatory and enforcement powers. That should be looked into. You should study the HRCMA and propose changes in line with the above suggestion. You also definitely require more funds and staff. Ask for them.
Have a human rights agenda and vision for the future, and articulate it ! We are of the view that only with a structured agenda and vision will you be effective in you work. The ‘anything-goes’ period is over. You cannot forever be ‘fire-fighting’ which is shortterm and ad hoc in effect. You need to draw up two blueprints for the future, mapping out your agenda and goals for the future. One blueprint will cover your work for the next 5 years and the other for the next 10. These blueprints should bind successive Commissioners and will give, not only the
people, the NGOs and the CSGs, but also the Government, a clear picture as to your direction and development. ! The blueprints should include an immediate ‘shopping list’ of what you would like the Government to implement in the next 5 years or less. Whilst all rights are equally important, they need to be prioritised in accordance with your resources. A list should be drawn up, setting down the issues which you think are the most imperative and realistically achievable at the moment. It could be freedom of the press by abolishing certain restrictive laws, or detainees’ rights such as reducing the number of days a person may be remanded pending investigations. ! Of course, there should be greater emphasis on the your educational role in Malaysia. Human rights will only prevail when its beneficiaries (i.e. the people) value and appreciate them. Children are an important target group as they are the future of Malaysia. It is encouraging that you are in the midst of completing the human rights syllabus to be incorporated in the national education curricula. We propose that you seek the assistance of the NGOs and the CSGs who have immense experience in training human rights defenders. ! Further, there should be greater articulation of your position on the argument that human rights is a Western, rather than Asian concept. The negative connotations of human rights as being anti-establishment, or even anti-Asian should be tackled; as it is anything but. The preservation of human rights is in accordance
Forum on the Convention on the Elimination of all Forms of Disrimination Against Women (CEDAW), 30 March 2004 Kuching, Sarawak
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Human Writes Issue 14 March / April 2005
with the vision of Malaysia’s founding fathers, and its spirit is encapsulated in the Federal Constitution, the bedrock of the country’s system of government. The idea of human rights is not unique to the West, but is a universal concept and exists in Confucian and Muslim traditions inasmuch as in JudeoChristian tradition. The fundamental ideas are universal and cannot be monopolised by any one culture or tradition. Malaysians have the right to freedom of speech, just as Americans do, because we are all sentient beings, each with our own thoughts and ideas. ! More education is needed on this as the recent Statement by Dato’ Seri Syed Hamid Albar, the Minister of Foreign Affairs to the 61st Session of the United Nations Commission on Human Rights on 14 March 2005 at Geneva revealed. On behalf of Malaysia, the Honourable Minister resisted the recommendation of the United Nations to prepare an annual report on the situation of human rights worldwide in view ‘of the varying human rights perspectives and different political, historical, social, religious, cultural and developmental characteristics’. Yet, in the same breath, he maintained that not enough is being done to address poverty, underdevelopment, marginalization and instability as ‘the universality and indivisibility of all human rights have been accepted as far back as 1993, at the Vienna World Conference on Human Rights’. This statement is a contradiction in terms. ! Once formulated, the blueprints should be published as an indication of your commitment to staying relevant in the development of human rights in Malaysia. We recognise that the challenges and obstacles facing you are enormous. The September 11 attacks leading to increased human rights violations on a global
scale have not helped. The struggle for human rights is never-ending. You must not waver in the face of adversity. We hold strong to the belief that, just like us, as an institution created to protect human rights, you too share our optimism. We trust we were able to offer you some useful thoughts for your attention. We believe your success is integral to the nation’s efforts to become a truly democratic nation by 2020. We fervently hope that, just as we are today proud of our nation, we can one day be equally proud of our nation’s achievements in the area of human rights. The nation’s stability, harmony, development and progress go hand in glove with the development of human rights of all Malaysians. Though a measure of basic goals such as creating awareness and heightening discourse has been achieved, much more awaits completion. We remain incorrigible optimists and thank you for taking the time to read our letter. We very much look forward to hearing from you.