page 17 page 34 page 41 peter mooney:petermoo

C HC R O N I C L E O F T H E M A L A Y S I A N B A R

JUL–DEC

For Malaysian Bar circulation only

www.malaysianbar.org.my

In collaboration with

PAGE 17

PAGE 41PETER MOONEY:PETER MOOMORE THAN A MEMBER OF THE BAR

PAGE 34THE TRANSBOUNDARY HAZE CRISIS IN MALAYSIA:THE TRANA CLEAR TRANSGRESSION OF INTERNATIONALENVIRONMENTAL LAW

EDITOR’S NOTE

PRESIDENT’S MESSAGE

PRESS RELEASES FROM THE BARFEATURES/ARTICLES17 The Offi ce of the Attorney General Part I: A Constitutional Conundrum19 The Offi ce of the Attorney General Part II: The Constitutional Validity

of the Termination of the Services of Tan Sri Abdul Gani B Patail as the Attorney General

23 Constitutional Patriotism: Towards Civic Nationalism vs Ethnic Nationalism

26 The Special Position of Sabah and Sarawak in Our Federal Set-Up31 Sedition Act — An Assault on Freedom of Speech and Expression34 The Transboundary Haze Crisis in Malaysia: A Clear Transgression of

International Environmental Law36 The Malaysian Environmental Court: The Need to Extend its Reach to

Civil Liability39 The Role of the Malaysian Bar in Environmental Law41 Peter Mooney: More than a Member of the BarEVENTS44 Upcoming Events46 Extraordinary General Meeting of the Malaysian Bar (12 Sept 2015)LIFESTYLE57 Paving the Way for a Crime-Free MalaysiaCASE NOTES — HIGHLIGHTS FROM THE FEDERAL COURT

STATE BAR NEWS NEW APPOINTMENTS

NEWSCONTINUING PROFESSIONAL DEVELOPMENTBAR UPDATES/NOTICES79 New Admissions to the Malaysian Bar80 List of Departed Members80 Notice Regarding Bar Circulars and E-Blasts80 Summary of Circulars81 General Information on Matters Discussed at Bar Council Meetings82 Library Update87 Notice Regarding Documents in Bar Council's Custody: Legal Firms in

which Bar Council has Intervened87 List Of Struck Off Members Wherein Appeal/Reinstatement Allowed87 Disciplinary Orders

17

41

31

46

CONTENTS

JUL-DEC 2015 | PRAXIS 1

BAR COUNCIL MALAYSIA

Bar Council15 Leboh Pasar Besar50050 Kuala LumpurTel No: (603) 2050 2050Fax No: (603) 2026 1313 / (603) 2034 2825 / (603) 2072 5818Email: [email protected]: http://www.malaysianbar.org.my

MEMBERS OF BAR COUNCIL MALAYSIA 2015/2016

President : Steven ThiruneelakandanVice-President : George VarugheseSecretary : Karen Cheah Yee LynnTreasurer : Abdul Fareed Abdul Gafoor

Abdullah Johari Hamzah | Ahmad Zaini Samsudin | Andrew Khoo Chin Hock | Brendan Navin Siva | Burhanudeen Abdul Wahid | Christopher Leong | Desmond Ho Chee Cheong | Hendon Mohamed | Honey Tan Lay Ean | Jeremiah R Gurusamy | Joseph Mathews PM Mathews | Kenny Lai Choe Ken | Kuthubul Zaman Bukhari | Low Beng Choo | Mudzafar Shah Mohd | Norazham Yahaya | R Jayabalan | Rajpal Singh Mukhtiar Singh | Ravi Nekoo | Ravinder Singh Dhalliwal | Richard Wee Thiam Seng | Roger Chan Weng Keng | Rosnah Zakaria | S Gunasegaran | Salim Bashir Bhaskaran | Salwa Mansor | Sarengapani K Rajoo | Shyama MM Narayanan Nair | Siti Hajar Che Ahmad | Sulaiman Abdullah | Surindar Singh Chain Singh | Syahredzan Johan | Thavamani Subramaniam | Victor Paul Dorai Raj

MEMBERS OF THE BAR COUNCIL PUBLICATIONS COMMITTEE 2014/2015

Raphael Tay (Chairperson), Aston Paiva, David Mathew, Gregory Vinesh Das, Janet Chai, KN Geetha, KS Shasha, Mariette Peters, Noor Arianti Osman, Alicia Tan

EDITORIAL BOARD

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Bar Council Malaysia, and its authorised authors and designers of Praxis, accept no liability for any loss arising from the use of, or reliance on, Praxis. Bar Council Malaysia does not warrant the accuracy of the contents thereof or any statement made by the contributors, writers or advertisers herein, and does not accept responsibility or liability in relation thereto. Statements of contributors, writers or advertisers herein represent their personal views and do not necessarily reflect the views of Bar Council or the Malaysian Bar. All users are permitted to view the content of Praxis, without prejudice to the intellectual property rights belonging to Bar Council Malaysia. However, any unauthorised reproduction, duplication, transmission or alteration, in any form or by any means, whether in part or in whole, of Praxis, is strictly prohibited. Bar Council Malaysia also prohibits the use of Praxis and all or any of its contents herein, for commercial and/or personal gain, profit or sale.

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COVER STORY

This issue of Praxis covers the ever-relevant topic of constitutional law as well as the environment. Even as Malaysia sees and experiences wave after wave of attempts to undermine the Constitution of Malaysia, a bulwark of defence arises to the fore, to clarify the abuse of the Constitution. While the most pressing matter with regard to the environment is the haze issue, which seems to be spiralling out of control, Malaysians need to realise that the environmental issue is far and above battling and complaining about the haze. The Constitutional Validity of the Termination of the Services

of Tan Sri Abdul Gani b Patail as the Attorney General questions the constitutional validity of the removal of Tan Sri Abdul Gani as the Attorney General. Each point is presented succinctly and tersely, so there is no question of obscurity. The Transboundary Haze Crisis in Malaysia: A Clear Transgression

of International Environmental Law thrashes out the issues and questions in respect of the haze crisis enveloping the Southeast Asian region. On a lighter note, Peter Mooney: More than a Member of the Bar is a tribute to the man himself, who had a wealth of experience serving as Crown Counsel in Sarawak, and later in the Peninsula. He passed away on 27 Apr 2015. Read these and more in this issue of Praxis.

COVER STORY

PRAXIS | JUL-DEC 20152

The Importance of Impartial and Effective Enforcement Institutions

This bumper issue of Praxis highlights two critical issues — fi rstly, a

major lacuna in our Constitutional and regulatory framework in relation to the Offi ce of the Public Prosecutor and secondly, the ever-pressing subject of our environment.

With regard to the fi rst matter, it is trite that if a holder of high political offi ce who wields vast infl uence and power is under investigation, and can eff ect a removal of key personnel within investigative bodies, it is the nation that will become the primary victim when high crimes are alleged to have been committed.

The controversies arising from the investigations of 1Malaysia Development Berhad (“1MDB”) and the purported “donation” in the sum of around USD700 million (RM2.6 billion) that is held in the personal account of the Prime Minister, is well known. Therefore, these controversies will not be repeated in this editorial. Instead, this editorial will calibrate its focus on institutions and the weaknesses they face.

In conjunction with the Extraordinary General Meeting (“EGM”) of the Malaysian Bar held on 12 Sept 2015, Praxis supports the motions proposed by Steven Thiru, President of the Malaysian Bar and Chairman of the Bar Council, and the resolutions which were passed at the said EGM. The resolutions serve as public records of

the deep unease and feeling of disquiet of the legal fraternity as to how these investigations have been handled. It is ironic that during the same period when the media carried reports of conviction and sentencing of government offi cials for bribery, that the elephant in the room of the so-called “donation” is set aside by the government of the day.

The legal literature on corruption distinguishes between petty and grand corruption. Grand corruption involves two major activities: (i) bribery and embezzlement; and (ii) abuse of power. Asif Zadari, husband of the late Benazir Bhutto and former President of Pakistan himself, was convicted in Pakistan for taking secret commissions from power stations and pipeline projects, airlines, rice deals and defence contracts. The late President Sani Abacha of Nigeria misappropriated state assets taking huge kickbacks from state contracts, siphoning hundreds of millions from sales of Nigerian crude oil, a sad example of grand corruption.

Within the common law tradition, which fi nds its way to our penal code and also anti-corruption laws, grave off ence is taken against those who abuse the powers entrusted to them by the people.

The great judge Lord Mansfi eld’s magisterial ruling rings true still through the annals of history:

The duty of the defendant is obvious; he was a trustee for the public and the paymaster, for making every charge and every allowance he knew of; … If the defendant knew of the omission … and if he concealed it, his motive must have been corrupt. That he did know was fully proved, and he was guilty therefore, not of an omission or neglect, but of a gross deceit. The object could only have been to defraud the public of the whole, or of part of the interest. … A man accepting an offi ce of trust concerning the public, especially if attended with profi t, is answerable criminally to the King for misbehaviour in his offi ce; this is true, by whomever and in whatever way the offi cer is appointed.

(R v Bembridge (1783) 3 Doug 327)

On a related matter, the dismissal of former Attorney General, Tan Sri Abdul Gani b Patail (“Tan Sri Gani”) is also highlighted in this issue of Praxis to discuss the legal position of Tan Sri Gani’s removal with clarity and with incisive analysis.

By now, it should be common knowledge that corruption “defi les” democracy. As a result of corruption, parliamentary democracy is diminished and is substituted by a system which defi es the rule of law. In order for parliamentary democracy to thrive and to work eff ectively, corruption must be stamped out and one of the ways to do so is to vigorously adhere to the principles of separation of powers. According to Australia’s Parliamentary Education Offi ce, “the separation of powers works together with another principle known as responsible government, to guide the way law is made and managed”.

Lord Bingham, in his book titled The Rule of Law, quoted Professor A V Dicey, the Vinerian Professor of English Law at Oxford, who coined the expression “rule of law” in his book An Introduction to the Study of the Law of the Constitution (1885). Lord Bingham clarifi ed that the expression means that “if anyone — you or I — is to be penalised it must not be for breaking some rule dreamt up by an ingenious minister or offi cial in order to convict us.”

Another hallmark of democracy in any country is the fourth estate — the media. Scottish philosopher Thomas Carlyle said in his book On Heroes, Hero-Worship, and The Heroic in History (1841): “Burke [Edmund Burke, Anglo-Irish statesman] said there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important than they all are.”

The fourth estate plays an important role and in this respect, we salute the brave editors, newsmen, and journalists of The Edge and other national newspapers and media agencies that despite facing numerous limitations, are trying their best to uphold their responsibilities. We are heartened to hear of the High Court’s order to review the decision that sets a three-month suspension order against

From the Editor´s KeyboardEDITOR’S NOTE


The Edge Financial Daily and The Edge Weekly and to reject the stay application by the Home Ministry to stay the same.

The second core matter which, this issue of Praxis highlights is environmental matters — the perennial haze problem, the Malaysian Environmental Court, as well as the role of the Malaysian Bar in environmental law.

I believe I speak for all Malaysians when I say that I am fed up with the haze problem. Although I will not deny that the blame falls on oil palm plantations owned by Malaysian and Singaporean companies, besides Indonesian companies (according to Wall Street Journal’s blog at http://blogs.wsj.com/briefly/2015/09/25/5-things-to-know-about-the-haze-shrouding-southeast-asia/, those companies earned about $18.4 billion in revenue in 2014), and that this year’s haze is the worst because of severe drought caused by El Nino, Indonesia ought to do more in strengthening enforcement measures

by, for example, prosecuting these companies, as the large-scale burning takes places in its jurisdiction. After all, isn’t Indonesia suff ering the most? Aren’t Indonesian lives being sacrifi ced for the sake of profi t? It surprises me that in Indonesia, where the haze has the highest air pollution index (“API”), even hitting a ridiculous level of between 1,000 and 2,000 API in Kalimantan, its Government has not demonstrated serious eff orts to resolve this cyclical problem. In the meantime, it is the hapless citizens who suff er, the most vulnerable being the infi rm, pregnant women, and young children.

What does the recent fi asco bode for Malaysia? Economically, our ringgit has shrunk, with some countries even refusing to accept the Malaysian ringgit. Will our leaders wait till the ship has fi nally sunk, before trying to bring it back to shore? Or with regard to the haze, do ASEAN leaders wait till the situation abates, and leave everything as status quo, until this same occurrence repeats

the next year? At the end of the day, as we have often highlighted in this editorial page, this country especially, sorely needs upright leaders and leadership with integrity. Otherwise this nation will continually be in decline.

What this country needs above all, are leaders with genuine love for the nation, who do the best for the nation, not for themselves. Nelson Mandela had this to say about leadership in April 1998, “real leaders must be ready to sacrifi ce all for the freedom of their people.” We do have people of character who can rise to the top and maturely address the concerns beleaguering the country. For them to be given a chance to do so, we must fi rst fi x the endemic weaknesses aff ecting our core institutions.

Raphael TayEditor-in-Chief

EDITOR’S NOTE


The Untimely Demise of a Doyen of the Malaysian Bar, Karpal Singh s/o Ram Singh (1940–2014)*

Dengan izin, Yang Arif-Yang Arif.

Nama saya adalah Steven Thiru dan saya mewakili Bar Malaysia. Rakan-rakan bijaksana saya, Dato’ K Kumaraendran, mewakili keluarga mendiang Karpal Singh, Puan Shyama Nair, mewakili Jawatankuasa Peguam Pulau Pinang, dan Tuan Zaharuddin Mohd Isa, mewakili Peguam Negara Malaysia.

Saya memohon kebenaran Yang Arif-Yang Arif untuk meneruskan ucapan saya dalam Bahasa Inggeris.

May I begin by thanking your Lordships for agreeing to this reference and making time to preside over it. This is a solemn and meaningful occasion that is unique to the legal profession. It is a time when the Bar recognises, as a matter of formal record, one of our very own who is no longer with us.

In the fi nest traditions of the Bar, we gather to pay tribute and record for posterity the achievements of a learned friend and colleague at the Bar that should be emulated and forever cherished. Karpal Singh was an eminent and distinguished Member of the Bar, and one of our foremost and leading advocates.

Your Lordships would permit me at the outset to tender the Malaysian Bar’s heartfelt condolences to Karpal’s immediate family, Madam Gurmit Kaur, Jagdeep Singh Deo, Gobind Singh Deo, Ramkarpal Singh Deo, Sangeet Kaur Deo and Mankarpal Singh Deo, and his loved ones. We can only imagine their deep loss, for Karpal was a giant of a man, a devoted husband, father and grandfather, and a towering Malaysian.

We are saddened. As it is in your lives, Karpal has also left a large void and vacuum in the legal profession that will not be easily or quickly fi lled. Karpal once said that even if he were gone, there would be hundreds of Karpals to take his place. We can only wish that this will come true as he was indeed a special and rare breed amongst us, a man of unshakeable principles.

My Lords, inasmuch as I am both humbled and singularly honoured to speak in these proceedings, my task today is quite daunting. How does one compress and portray justly a successful life in the law that has spanned more than four decades? My burden is made slightly lighter by the comprehensive and eloquent speech of my learned friend, Dato’ K Kumaraendran, who knew Karpal better than most of us here today, and who has done immense justice to his memory. I gratefully associate myself with his speech.

On my part, I wish to focus on some of Karpal’s enduring qualities at diff erent stages of the passage of his life, which will honour him, and which I hope will serve as a lesson and guide for the rest of us at the Bar as we continue in our journey in this noble and honourable calling in the law.

Karpal was born in Penang on 28 June 1940, to Ram Singh Deo and Kartar Kaur. Despite the diffi cult and debilitating wartime conditions, his parents imbued in him “an incorrigible and adventurous spirit”.1 He inherited tenacity and courage from his parents, which became some of the most enduring qualities that Karpal exuded as a lawyer.

His early education was at St. Xavier’s Institution, here in Penang. He excelled in English and History, which are the seeds of knowledge for anyone who pursues the law as a vocation.2 His parents wanted him to take up medicine but it was always clear that his calling was elsewhere. As a young man, he had a reputation for “speaking his mind”3, a trait that defi ned him both at the Bar and later in the thrust and parry of politics.

Karpal read law at the University of Singapore in 1961, and was in the fi rst batch of law students at the University. He was a resident at Dunearn Road Hostel and became President of the Hostel. Karpal was active in University politics and later rose to be President of the Student Union Council. He was well-known for his “ragging”4 skills, which was then part of the traditional induction or indoctrination to University life. Few of our judges may have had special cause to remember their introduction to University life by Karpal through “ragging”, such that perhaps later when he appeared before them, not all marginal decisions went his way.5

Karpal took his time — seven years — to fi nish his law degree. There is a story that Professor Tommy Koh, Karpal’s law lecturer and later Dean of the Law Faculty, once asked Karpal, “Look here, Karpal, don’t you want to go home?”, to which Karpal responded “Well, if you fellows will not let me go home, what can I do about it?” 6 We are glad today that Professor Koh took it upon himself to ensure that Karpal came home to Malaysia. He made him sit in the front of the class and according to Karpal, “I could not play the fool anymore”.7 He graduated with an LLB Honours degree in 1968.



Karpal was called to the Bar in 1969 and set up his legal fi rm, Karpal Singh & Co, in 1970. He rapidly established himself as formidable litigator, with an expertise in criminal law, constitutional law and administrative law. He was renowned as a fi rm and fair lawyer, with a reputation for presenting arguments that had the merit of brevity, force and focus. His strong conviction for equality for all, particularly justice for the downtrodden was evident from the very beginning of his practice. He has been called “the people’s lawyer”8. He was also our own “Attorney for the damned”9, which was a distinctive honour conferred on the legendary early 20th-century US lawyer, Clarence Darrow.

Karpal enjoyed tremendous respect from the Bench. Immediately after his earliest appearance before Tun Mohamed Suffi an Hashim, (who subsequently became Lord President), His Lordship remarked that Karpal “was a lawyer to watch as a person destined for legal pre-eminence”.10 Later, Dato’ Mahadev Shankar, a former Judge of the Court of Appeal, described Karpal as follows:

To say that the man had charisma would be a gross understatement. From start to fi nish, he left nothing to speculation. He had the unique ability of penetrating the façade and get into the core of the material issues without beating about the bush. What stood out was his transparent honesty together with his powerful voice and command of the language, never faltering as he moved like a juggernaut to the inexorable conclusion of his submission. Indeed he was a colossus who was greater than the sum of his parts.11

Karpal was involved in a number of landmark cases, and over 600 of his cases have been reported. He was a pioneer in drug traffi cking cases and a staunch opponent of the death penalty. Among his early high-profi le death penalty cases were those involving the Australian Kevin Barlow, and later the New Zealanders Lorraine and Aaron Cohen. In Public Prosecutor v Lau Kee Hoo,12 Karpal argued that the imposition of the death penalty was unconstitutional. The challenge failed but the case remains a leading authority on the constitutional approach to the death penalty. 13

His other landmark cases included:

• Johnson Tan Heng Seng v Public Prosecutor,14 where Karpal raised Article 8(1) of the Federal Constitution to challenge the Attorney General’s power to discriminate in the way he preferred charges and prosecuted accused persons under diff erent provisions of the law.

• Teh Cheng Poh v Public Prosecutor,15 which was one of several cases Karpal argued before the Privy Council. It clarifi ed the reversion of powers to Parliament post-Emergency, and the availability of judicial review in the form of mandamus against Cabinet decisions.

• Arulpragasam v PP,16 where a full bench of the Supreme Court decided that the prosecution in criminal cases was obliged to prove the guilt of an accused person beyond a shadow of a doubt at the close of the prosecution’s case, before defence is to be called.

• Ng Chuan Hock v Tan Sri Musa bin Dato Hj Hassan,17 one of the many cases in which Karpal appeared and argued for a member of the public service that he had not received procedural fairness in the hands of the disciplinary authority.

• More recently, in PP v Kok Wah Kuan,18 where Karpal argued that the power vested by the Child Act 2001 in the Yang di-Pertuan Agong, to detain at his pleasure a child convicted of an off ence carrying the death penalty, violated the doctrine of separation of powers. He argued that as the power to determine guilt and the measure of punishment is a judicial power, the vesting of a sentencing power in the Head of State constituted a violation of the doctrine of separation of powers. The Federal Court rejected that argument and held that as there was no specifi c provision in the Constitution incorporating the doctrine of separation of powers, it was not unconstitutional for Parliament to vest sentencing power in the Executive. However, Karpal’s argument was later vindicated by the decision of the Privy Council

in State of Mauritius v Khoyratty,19 where Lord Mance observed that new constitutions based on the Westminster model would not usually contain any express provision incorporating the doctrine of separation of powers but that the doctrine was nevertheless an integral part of such a constitution.20

• A whole host of other leading criminal cases, including his defence in the recently concluded Dato’ Seri Anwar bin Ibrahim case.

Karpal was also an uncompromising and dogged defender of the Federal Constitution against those who have tried to misconstrue or change its fundamental provisions and structure. In particular, he was a steadfast advocate against attempts to change the original and fundamental secular structure of the Constitution. He felt strongly about civil liberties, independence of the Judiciary, freedom of belief and religion, and about being true to the founding principles underpinning the Constitution.21

In this regard, it was also Justice Shankar who observed in his tribute to Karpal:

Good and responsible judges appreciate courageous lawyers who undertake unpopular causes even at the risk of courting offi cial disapproval. Such persons are as much offi cers of the court as they are defenders of the interests of their clients. They are an instrument in the search for truth and justice and a bulwark against bias, prejudice and perjury not to mention manipulators of the justice system and vested interests. 22

The same sentiments were expressed by my learned friend, Gobind Singh Deo, Karpal’s second son:

He was a man who always defended the Federal Constitution. Towards the end, he paid a heavy price for speaking up in defence of the Federal Constitution. But this didn’t discourage him from soldering on. He would help anyone who needed help and throughout his years, he touched the hearts of many. 23

My Lords, Karpal was also committed to the activities and functions of the



Bar, and supported the work of the Bar Council. He was a leading opponent of the Government’s proposal for the Essential (Security Cases) Regulations 1975 (“ESCAR”), which amended the law for the trial of off ences against national security. Prominent amongst the proposals were changes in the basic rules of evidence and the removal of the Judges’ discretion in passing sentences in such cases. At the Extraordinary General Meeting convened by the Bar, Karpal and Datuk R Rajasingam, also of the Penang Bar, moved a resolution to condemn the attempts by the executive to diminish the rule of law and to interfere with the independence of the Judiciary in sentencing.24 We see today vestiges or manifestations of ESCAR in the Prevention of Crime Act 2013 and the Prevention of Terrorism Act 2015. Karpal would have been with the Bar in our opposition to these repugnant and abhorrent laws.

I do not wish to dwell too much on Karpal’s incarceration under the Internal Security Act 1960 (in October 1987), the charges under the Sedition Act 1948 and the serious spinal injuries he suff ered that left him wheelchair-bound. But I wish to say that in all these challenges, his indomitable spirit, in the face of adversity, never fl agged. His commitment to justice, freedom and, above all, the rule of law, remained unabated, and his passion for the law and the well-being of his fellow citizens has inspired many generations of Malaysians. Karpal personifi ed the immortal words of Sir Winston Churchill, “All great things are simple, and many can be expressed in a single word; freedom, justice, honor, duty, mercy, hope”.

The Malaysian Bar today fondly remembers Karpal Singh, a legend of the Bar in our time. Karpal’s name will be mentioned over and over again for generations to come — for the times when we need encouragement and for the times when we need to draw strength to do what we must. He may no longer be with us but he will never be forgotten by the Malaysian Bar. As Thomas Carlyle said, “No great man lives in vain. The history of the world is but the biography of great men”.

My Lords, may I now respectfully move for the record of these proceedings to be preserved in the archivesof this honourable court, and for a copy to be extended to the family of the late Karpal Singh.

I am obliged to your Lordships.

Steven Thiru President Malaysian Bar

* This speech was delivered by Steven Thiru, President of the Malaysian Bar, at the Reference Proceeding for Karpal Singh s/o Ram Singh at the Penang Court Complex, Penang on 4 Sept 2015.

Notes

1 Tim Donoghue, Karpal Singh: Tiger of Jelutong, Marshall Cavendish, 2013, p. 6.

2 Ibid, p. 15.3 Ibid, p. 16.4 Ibid, p. 20.5 Ibid, p. 20.6 Ibid, p. 27.7 Shanker, Mahadev, “A Man who Touched

Many Minds and Many Hearts”, The Commonwealth Lawyer, Journal of the Commonwealth Lawyers’ Association, Vol 23 No 2 (August 2014), p. 29.

8 Lawyers’ Rights Watch Canada, Canadian Lawyers Defend the Independence of the Bar in Malaysia, 19 March 2002 (http://www.lrwc.org/canadian-lawyers-malaysia/).

9 Darrow, Clarence, Attorney for the Damned: Clarence Darrow In The Courtroom, University of Chicago Press, 1989.

10 Shanker, Mahadev, “A Man who Touched Many Minds and Many Hearts”, The Commonwealth Lawyer, Journal of the Commonwealth Lawyers’ Association, Vol 23 No 2 (August 2014), p. 29.

11 Ibid, p. 30.12 [1983] 1 MLJ 157.13 Sri Ram, Chandra, “A Tiger at Rest” The

Commonwealth Lawyer, Journal of the Commonwealth Lawyers’ Association, Vol 23 No 2 (August 2014), p. 22.

14 [1977] 2 MLJ 66.15 [1979] 1 MLJ 50.16 [1997] 1 MLJ 1.17 [2013] 3 MLJ 805.18 [2008] 1 MLJ 1.19 [2006] 2 WLA 1330.20 Sri Ram, Chandra, “A Tiger at Rest,” The

Commonwealth Lawyer, Journal of the Commonwealth Lawyers’ Association, Vol 23 No 2 (August 2014). p. 22-23.

21 Christopher Leong, “The President’s Tribute to Karpal Singh s/o Ram Singh”, Praxis, April – June 2014, p. 4.

22 Shankar, Mahadev, “A Man who touched Many Minds and Many Hearts,” The Commonwealth Lawyer, Journal of the Commonwealth Lawyers’ Association, Vol 23 No 2 (August 2014), p. 30.

23 Gobind Singh Deo, “The Man, My Father”, Praxis, April – June 2014, p. 11.

24 Bar Council Malaysia, Justice Through Law, 1997, p. 61.



Respect the Rights and Dignity of Asylum Seekers and Refugees, and Eliminate Human Trafficking and Migrant Smuggling

The Malaysian Bar acknowledges the indomitable spirit and courage of all refugees on World Refugee Day 2015.

The United Nations High Commissioner for Refugees (“UNHCR”) in Malaysia reported that as at July 2014 there were 47,352 asylum seekers (pending cases), 98,207 refugees, 40,000 stateless persons, and 80,000 individuals who do not fall into any of these other categories, residing in Malaysia. This brings the population of concern to a staggering total of 265,559.1

Unlike economic migrants, asylum seekers and refugees in Malaysia are often victims of various forms of persecution, oppression and deprivation. They are subjected to harassment, extortion, physical abuse or assault and ill treatment. These persons live in an environment of fear, and insecurity.

Our laws do not accord asylum seekers and refugees due recognition, care and protection. They are treated as “illegal immigrants” under the Immigration Act 1959/1963.2 Thus, they are exposed to arrest, detention, whipping and deportation. This unacceptable state of aff airs is compounded by Malaysia's obdurate reticence to ratify the 1951 Convention Relating to the Status of Refugees (“the 1951 Convention”) and the 1967 Protocol Relating (“the 1967 Protocol”) to the Status of Refugees, both which are instruments encapsulating customary international law in relation to the recognition of the socio-economic rights of refugees and the provision of humanitarian assistance and social integration.

Thus, asylum seekers and refugees are prohibited from seeking lawful employment. They are therefore forced to support themselves on a casual engagement basis without any lawfully binding employment contract. This makes them vulnerable to exploitation

and discrimination as regards the non-payment of wages, long working hours, and harsh working conditions.

The Malaysian Bar renews its call to the Government to ratify the 1951 Convention and the 1967 Protocol; to put in place a suitable legal and administrative framework for dealing with refugees and asylum seekers; and to work closely with stakeholders such as UNHCR Malaysia, civil society organisations, and the Bar towards achieving holistic and humane solutions for them.

The Malaysian Bar also calls on the government to ensure that a proper recruitment and monitoring system under the Ministry of Human Resources is put in place to ensure that asylum seekers and refugees are accorded basic employment rights in respect of wages, fair working hours, off -days, medical benefi ts, and workplace health and safety protection. In this regard, the various measures and recommendations contained in the proposal entitled “Developing a Comprehensive Policy Framework for Refugees and Asylum Seekers”, which was prepared by the Malaysian Bar in 2011, should be immediately implemented.3 This will lead to an overall improvement in the treatment of asylum seekers and refugees.

The Malaysian Bar also wishes to highlight the importance of a regional approach in dealing with concerns regarding asylum seekers and refugees. In this connection, a deeply worrying aspect of the problem is that of human traffi cking and migrant smuggling. All nations in this region share a common responsibility to confront and deal with this scourge. The recent reported allegation that the Government of Australia paid human traffi ckers to return 65 asylum seekers to Indonesia is very shocking.4 Such irresponsible conduct, if proven, deserves condemnation and must attract criminal prosecution. It certainly militates against the fi ght to eradicate human traffi cking and migrant smuggling in this region.

World Refugee Day assumes particular signifi cance to Malaysia this year due to the recent boat-people saga off

our shores and the discovery of mass graves as well as “death camps” at the Perlis-Thailand border.5 This was an unmitigated tragedy of human suff ering and loss of lives. It has brought into sharp focus Malaysia’s approach towards asylum seekers, refugees, as well as the perpetrators and victims of human traffi cking and migrant smuggling. It is a timely reminder to the Government to respect the rights and dignity of asylum seekers and refugees.


20 June 2015

Notes

1 “2015 UNHCR subregional operations profi le – South-East Asia”, UNHCR: The UN Refugee Agency (accessed on 17 June 2015).

2 Immigration Act 1959/1963 [Act 155] section 55E(7).

3 Bar Council Malaysia Memorandum on “Developing a Comprehensive Policy Framework for Refugees and Asylum-Seekers in Malaysia” dated 20 June 2011, developed at the Roundtable on Developing a Comprehensive Policy Framework for Refugees and Asylum-Seekers organised by the Bar Council on 23 June 2009.

4 “Prime Minister Tony Abbott dodges questions on people-smuggler payment claims”, Sydney Morning Herald, 14 June 2015 (accessed on 18 June 2015); “People smuggler cash: Stacks police say were paid to send asylum seekers on a ‘suicide mission’”, Sydney Morning Herald, 16 June 2015 (accessed on 19 June 2015).

5 “Rohingya and Bangladeshi Boat People Humanitarian Crisis: Prompt and Concrete Measures Needed”, Malaysian Bar, 19 May 2015 (accessed on 15 June 2015); “Malaysian Government Must Bring the “Death Camps” Human Traffi ckers and Migrant Smugglers to Justice”, Malaysian Bar, 28 May 2015 (accessed on 15 June 2015); “Eradicate Rampant Corruption, and Stem the Loss of Lives”, Malaysian Bar, 8 June 2015 (accessed on 15 June 2015).

PRESS RELEASES FROM THE BAR


At the Crossroads of the Rule of Law: Malaysia Must Confront Challenges to International and Domestic Justice Now

Tomorrow, 17 July 2015, marks the Day of International Criminal Justice, which commemorates the anniversary of the adoption of the Rome Statute on 17 July 1998, the founding treaty of the International Criminal Court (“ICC”). The Rome Statute seeks to protect people from genocide, crimes against humanity, war crimes and the crime of aggression, and the ICC has proven itself to be an eff ective mechanism to address international crimes.

In this regard, the fi rst-year anniversary of the shooting down of MH17 on 17 July 2014 serves to focus eff orts to bring the perpetrators of an international crime to justice. It also raises the question of how, and where, they are to be prosecuted once they are apprehended.

Eff orts are ongoing this week at the United Nations Security Council in New York to gather support for Malaysia’s proposal to establish an international tribunal to prosecute those responsible for the downing of MH17 over eastern Ukraine last year.[1] This will see the participation of the Netherlands, Australia, Britain and the Ukraine, who are all members of the Joint Investigation Team.

The Malaysian Bar supports the principle that the perpetrators of this heinous act must be brought to justice. However, the government has not explained why it has chosen the route of an ad hoc international tribunal instead of the well-established ICC system.

It is noteworthy that the Malaysian Government had announced, in April 2011, a Cabinet decision to join the ICC. This has not been acted upon. 123 Member States of the United Nations have joined the ICC. The apparent refusal to join the ICC signals a worrying “u-turn” on the part of our Government. The Malaysian Bar is also surprised by the reports that Malaysia has refused to entertain a formal request by the Australian Attorney-General’s offi ce for information relating to the alleged corruption scandal surrounding the award of a contract to print Malaysian polymer banknotes. Victoria’s Supreme Court recently revoked a suppression order that had prevented the publication of any information aired in the ongoing Australian Reserve Bank bribery court proceedings.[2] The request was made pursuant to the Mutual Cooperation in Criminal Matters arrangements between Malaysia and Australia. It has been reported that the Malaysian Government has declined to cooperate.

The Government’s vacillating stand on cooperating with friendly countries in the quest for cross-border justice is quite inexplicable. It does not bode well for our standing in the international community in an area that requires close cross-border cooperation. Moreover, Malaysia has already been wrong-footed with the recent discovery of the “death camps” at our border with Thailand, where the remains of many victims of human traffi cking have been unearthed.[3] This is yet another reminder that we cannot turn a blind eye to international criminal activities.

It should not be forgotten that today, 16 July 2015, marks the 6th anniversary of the death of Teoh Beng Hock.[4] Six years on, we are not even close to seeing

a prosecution of those responsible for his death. Notwithstanding the Court of Appeal decision that Teoh did not commit suicide[5] and a fi nancial settlement by the Malaysian Government and the Malaysian Anti-Corruption Commission with his family[6], the seeming lack of interest and urgency in pursuing the criminal investigation and prosecution is extremely alarming.

As a non-permanent member of the United Nations Security Council and current chair of the Association of Southeast Asian Nations, Malaysia must do more in establishing exemplary credentials as an upholder and respecter of justice, both internationally and domestically. If we are to take our place as a strong, trustworthy and dependable regional pillar, we need to reaffi rm our commitment to the rule of law and reinforce our foundations of law and order.


16 July 2015

Notes

[1] “Najib reiterates push for international tribunal to seek justice for MH17 crash”, The Malaysian Insider, 16 July 2015.

[2] “Bribery scandal linked to Malaysian Prime Minister Najib Razak”, Sydney Morning Herald, 14 July 2015.

[3] “Horrors unearthed at 28 sites used by human traffi ckers”, The Star Online, 26 May 2015.

[4] “Six years on, family of slain Teoh Beng Hock travels to Sabah in pursuit of justice”, Malay Mail Online, 9 July 2015.

[5] “Court overturns open verdict on Beng Hock”, Malaysiakini, 5 September 2014.

[6] “MACC to pay RM660k for Teoh Beng Hock death”, Malaysiakini, 12 May 2015.

Interference into 1MDB Investigations Shields Wrongdoers and Conceals Wrongdoing

Many burning questions in respect of allegations of fi nancial impropriety in 1MDB remain unanswered. There are also serious concerns that the evidence or statements of critical witnesses or suspects, including the Prime Minister, have apparently not been recorded, and that relevant documents have not been promptly (or at all) secured.

In this regard, the Malaysian Bar is astounded by the news reports today regarding the Government’s removal of the Attorney General, Tan Sri Abdul Gani Patail, who is a key member of the Special Task Force investigating the 1MDB matter. This lends to the perception of interference by parties with vested interests — such as the Executive, or even the Prime Minister himself — in the work of the Special Task Force.

The abrupt removal, and the manner of removal, of the Attorney General are shocking. It has been reported that

the Attorney General’s services were terminated on 27 July 2015 on health reasons and that he will remain as a Judicial and Legal Services offi cer until his retirement on 5 October 2015. It would seem unprecedented for a senior civil servant, let alone one with the rank of the Attorney General, to be removed so close to his offi cial retirement.

Moreover, his removal and reduction in rank are unconstitutional, inasmuch as there appears to be non-compliance with Articles 135(2) and 145(5) of the Federal Constitution, which include the requirement for reasonable opportunity



to be heard. The position of the Attorney General is constitutionally mandated, and any removal must comply with stringent standards of due process.

Further, the Bar Council has frequent and direct engagement with the Attorney General and, to the best of our knowledge, his recent health has not hindered the performance of his duties. The reason given for his removal is therefore questionable.

The unwarranted termination of the Attorney General’s services is in sequel to a series of administrative orders that have impeded and undermined the investigations into 1MDB. The latter seriously curtails fundamental rights such as the freedom of information, movement and expression.

Administrative orders are made by the Government and its agencies pursuant to discretionary statutory powers. The exercise of this governmental discretion is subject to overarching principles of fairness and natural justice. It would be a stark abuse of power if administrative orders were exercised in a biased manner or for ulterior purposes, including to shield wrongdoers or to conceal wrongdoing.

The recent actions by the authorities appear to demonstrate a pattern of abuse of power to impose dubious administrative orders. Instances include the following:

(1) The Malaysian Communications and Multimedia Commission’s decision to issue an administrative order under the Communications and Multimedia Act 1998 to block

the Sarawak Report website, due to perceived threats to national security. Sarawak Report has been one of the sources of allegations of wrongdoing involving 1MDB, which has also implicated the Prime Minister. Naturally, the common perception would therefore be that the order is an attempt to suppress the fl ow of, and access to, information on the allegations.

(2) The administrative orders imposed by the Director General of Immigration, under the Immigration Act 1959/63, on Tony Pua (Member of Parliament for Petaling Jaya Utara), Mohd Rafi zi Ramli (Member of Parliament for Pandan) and Datuk Tong Kooi Ong (owner of The Edge Media Group), which ban overseas travel without any reasons. The freedom of movement of these persons has been infringed, and they seem to have been targeted because of their strident criticism of 1MDB or the exposé of alleged wrongdoings concerning 1MDB. Ironically, the very persons who have been implicated in these allegations — such as the Prime Minister and some of the offi cers of 1MDB — have not been similarly barred from travel.

(3) The three-month administrative suspension order imposed by the Ministry of Home Aff airs, under the Printing Presses and Publications Act 1984, on The Edge Weekly and The Edge Financial Daily, on grounds of possible public alarm over the publication of reports concerning 1MDB and allegations in them that implicate the Government and

national leaders. These grounds are irrational, as the public alarm is in fact due to the failure to answer satisfactorily the allegations and the reports in the publications. The suspension order stifl es freedom of expression, and can easily be perceived as a blatant attempt to silence a contrary voice on a matter of grave public interest.

The resort to such administrative orders fuels the growing perception that critics in the 1MDB matter are being victimised and muzzled, whilst their allegations are being ignored and the persons against whom the allegations have been levelled are not being investigated fully.

The Malaysian Bar condemns the ostensible interference, through unconstitutional and unlawful conduct, with the ongoing investigations in the 1MDB matter. There must be no meddling with the Special Task Force, particularly the work of the MACC, since the nature of the allegations largely involves corruption.

The acid test of the integrity and credibility of any investigation is how allegations against persons in high offi ce are dealt with. The abuse of administrative powers, and now the removal of a key member of the Special Task Force, threaten to cripple the investigations into 1MDB and render the entire exercise a meaningless charade.


28 July 2015

Comprehensive Reform to the MACC Needed to Strengthen the Fight Against Corruption in Malaysia

The Malaysian Bar, in collaboration with the Institute for Democracy and Economic Aff airs (“IDEAS”), the Centre to Combat Corruption and Cronyism (“C4”), Citizens’ Network for a Better Malaysia (“CNBM”), and Transparency International Malaysia (“TI-M”), submitted a joint memorandum to the Malaysian Anti-Corruption Commission (“MACC”) on 28 July 2015 setting out our proposals to reform the MACC, for it to

comprehensively address and deal with corruption.

We hold the view that MACC’s limited success in its attempts to eradicate corruption in Malaysia is a result of corruption not having been addressed in a comprehensive and consistent manner. Thus, our reform proposals are aimed at ensuring a holistic treatment of the scourge of corruption through a viable constitutional and legislative framework.

The reform proposals are:

(1) to create an Independent Anti-Corruption Commission (“IACC”), a constitutionally mandated commission, beyond the scope,

control and infl uence of the Executive;

(2) to ensure the independence of Commissioners serving the commission; and

(3) to ensure security of tenure for the Chairman and Commissioners.

We also take the position that consequential amendments will be needed to the following legislation:

(1) Malaysian Anti-Corruption Commission Act 2009;

(2) Offi cial Secrets Act 1972; (3) Whistleblower Protection Act 2010;

and



Parliament Must Not Countenance Any Delay or Interference in PAC’s Investigation into 1MDB

The Malaysian Bar is disturbed by the media statement by the Speaker of the Dewan Rakyat, Tan Sri Datuk Seri Panglima Pandikar Amin Haji Mulia, of 30 July 2015, stating that the proceedings of the Public Accounts Committee (“PAC”) must be postponed.

The Speaker’s reasoning was that the PAC can only meet after a new Chairman has been appointed. His statement came after four members of the PAC, including the Chairman, had been appointed to government positions in the recent Cabinet reshuffl e announced by the Prime Minister on 28 July 2015.

According to Standing Order 77(4) of the Dewan Rakyat, a Minister (which includes a Deputy Minister) cannot be the Chairman or a member of the PAC. As such, Datuk Nur Jazlan bin Mohamed, the Chairman, is ineligible by virtue of his recent appointment as Deputy Minister of Home Aff airs; so too are Datuk Wilfred Madius Tangau (now the Minister of Science, Technology and Innovation), Datuk Mas Ermieyati Samsudin (now the Deputy Minister of Tourism and Culture), and Dato’ Seri Reezal Merican Naina Merican (now the Deputy Minister of Foreign Aff airs), who were members of the PAC.

The Speaker of the Dewan Rakyat has misconstrued the Standing Orders. Standing Order 82(1) states that any Select Committee (such as the PAC) shall, “so far as practicable”, refl ect the balance between the parties within the Dewan Rakyat. Thus, the provision clearly does not prohibit a Select Committee, which is not refl ective of the composition of the Dewan Rakyat, from functioning. The PAC still has nine members, four from the Barisan Nasional, and fi ve from the Opposition. The fact that the PAC is still composed of members from both sides of the aisle is suffi cient to allow it to continue.

Further, Standing Order 77(3) states that a Select Committee cannot meet in “the absence of the Chairman or Vice-Chairman due to illness or for any other reason whatsoever”. In the present case, while there is no longer a Chairman of the PAC, a Vice-Chairman remains. Therefore, Standing Order 77(3) is not contravened, and the PAC can still function.

Standing Order 83(3) states that the quorum for a Select Committee to meet is three members, including the Chairman. However, the reference to “Chairman” in this Standing Order must refer to a Chairman of the meeting, and not necessarily the Chairman of the Select Committee himself or herself. This is because Standing Order 77(3) states that in the absence of the Chairman or Vice-Chairman, the remaining members

can still proceed to meet so long as they elect a Chairman from among their number to preside over the Committee’s meeting. Therefore, there is no necessity for the Chairman of the PAC himself or herself to be present at a PAC meeting in order for it to proceed. If the Vice-Chairman is present, he or she is fully able to act as Chairman of the meeting, and the quorum requirement would be satisfi ed.

It is also to be noted that Standing Order 83(7) states that in the event of “the death or unavoidable absence of a member” of the Select Committee, the Committee of Selection of the Dewan Rakyat “may…nominate another member of the [Dewan Rakyat]” to fi ll that vacancy, and that this nomination shall be announced to the Dewan Rakyat at its next meeting. Again, the Standing Order does not suggest that the work of the Select Committee should cease pending that vacancy being fi lled. It is therefore the spirit underlying the Standing Orders, that a Select Committee should be able to continue to function, notwithstanding any vacancies. It cannot be that the important work of Parliament could be brought to a grinding halt whenever there is a vacancy. If this were the case, the work of Parliament could easily be frustrated by merely engineering one or more vacancies in any Select Committee in order to prevent it from functioning.

(4) Witness Protection Act 2009.

We propose the establishment of a constitutionally mandated IACC in the mould of the Election Commission, but with a unique structure, and the substance befi tting its position as an institution with suffi cient powers of oversight and accountability. This would involve amendments to the Federal Constitution in the form of the introduction of a standalone provision to cater for the new body.

The IACC is to have full autonomy and power over anti-corruption policies, practices and directives; recruitment and discipline of offi cers; as well as powers of oversight and supervision. The IACC would be headed by a constitutionally recognised and mandated Chairman with security of tenure and security from dismissal, akin to a Judge of the Federal Court. Additionally, the IACC

would be composed of independent commissioners to be voted in by Parliament, and with at least 40% of them coming from civil society. Further, as part of the structural reforms, we propose that the statutorily established MACC be renamed the Anti-Corruption Agency (“ACA”), to avoid confusion. The ACA will be responsible for operational matters involving detection and investigation of corrupt practices or activities.

The fi ght against corruption must be addressed in a comprehensive manner through these reforms, in order to make genuine progress towards a corruption-free Malaysia.


Wan Saiful Wan Jan Chief Executive Offi cer Institute for Democracy and

Economic Aff airs (“IDEAS”)

Cynthia Gabriel Director Centre to Combat Corruption &

Cronyism (“C4”)

Dr Loi Kheng Min Deputy President Transparency International

Malaysia (“TI-M”)

Dr Ho Chai Yee Chairman Special Interest Group on Anti-

Corruption and Good Governance Citizens’ Network for a Better

Malaysia (“CNBM”)

31 July 2015



Let the MACC Investigate Without Impediment, and Allow the Truth to Emerge

The Malaysian Bar denounces the current unrelenting onslaught against the Malaysian Anti-Corruption Commission (“MACC”) in connection with its investigation into the fl ow of funds from SRC International Sdn Bhd (a former subsidiary of 1MDB), as well as funds of RM2.6 billion, into the Prime Minister’s private bank accounts.

It cannot be denied that, since 28 July 2015, MACC personnel have been the focus of a police investigation into allegations of leaking of confi dential information and involvement in a supposed conspiracy to overthrow the Government, purportedly in violation of Section 124B of the Penal Code.

In particular, we have seen in recent days the arrest and questioning of Tan Sri Rashpal Singh, a former adviser to the MACC, and Ahmad Sazilee Abdul Khairi, a Deputy Public Prosecutor seconded to the MACC, before they were released. The latter’s offi ce and home were raided, and documents were reportedly removed.

The police have also questioned senior MACC offi cers, including Dato’ Hj Bahri Mohamad Zain (Director, Special Operations Division), Datuk Tan Kang Sai (Deputy Director, Special Operations Division), Datuk IG Chandran (Director, Forensic Division), and Tuan Roslan Tuan Mat (Offi cer, Special Operations Division).

They reportedly arrested two offi cers — one of whom was the investigator looking into SRC International Sdn Bhd — who were subsequently released. In addition, the police raided the MACC’s Special Operations Division and reportedly removed documents — which may well consist of crucial evidence, particularly concerning the investigation into SRC International Sdn Bhd — from the possession of MACC personnel.

Other recent developments include the following:

(1) In an unprecedented move, all fi ve panels that have oversight over the MACC issued a joint press statement on 29 July 2015 appealing for the MACC to be allowed to undertake its work as part of the Special Task Force without any interference or pressure from third parties;

(2) On 30 July 2015, MACC issued another press statement reportedly denying that its offi cers were involved in a conspiracy to topple the Government, and were instead only carrying out their duties “without fear and favour, in spite of anyone involved”;

(3) MACC Special Operations Division

Director Dato’ Hj Bahri Mohamad Zain has been reported as saying he was baffl ed by the arrest of Deputy Public Prosecutor Ahmad Sazilee Abdul Khairi, and raised the ominous spectre of “hidden hands” at work;

(4) On 4 August 2015, it was reported

that the MACC held a special “solat

hajat” session to pray for MACC staff , their families, their community and for a corruption-free country;

(5) Datuk Hj Mustafar Ali (MACC Deputy Chief Commissioner (Prevention)) has been reported to have said on 5 August 2015 that “when action is taken on an investigating offi cer [during an ongoing investigation], it somewhat jeopardises the investigation”;

(6) Senator Datuk Paul Low, Minister in the Prime Minister’s Department in charge of governance and integrity, reportedly stated yesterday that the police “are showing high-handedness”, and that it “is important that [MACC] do what they need to do”; and

(7) Also yesterday, Tan Sri Johan Jaafar (Chairman of MACC’s Consultation and Corruption Prevention Panel) reportedly expressed “dismay over the spate of raids and arrests by the police”, and “reiterated the need for the agency to be allowed to execute its duties unhindered”.

It is quite telling, and extremely disconcerting, that the beleaguered MACC as well as a Minister in the Prime Minister’s Department has had to make these statements and express indignation, as well as hold special prayers. It compounds the commonly held fear that the MACC’s investigation is being seriously derailed, and that there are strong forces at work to curtail the MACC’s eff orts. Astoundingly, at this critical time, MACC Chief Commissioner Tan Sri Abu Kassim Mohamed is on leave.

The proceedings of the PAC — which have already been scheduled for this coming week starting on 4 August, as well as later this month and in September 2015 — to hear from both past and present 1MDB executives, auditors and other persons connected with this aff air, must therefore proceed, and any absence by the summoned witnesses from these proceedings would be contempt of Parliament.

The imbroglio surrounding 1MDB is a serious matter. There is already much public disquiet that the investigations by the Special Task Force are being hindered or impaired, including by various actions directed at members of the Special Task Force.

A number of incidents this past week lend further credence to the perception of interference into the probe being conducted by the Special Task Force, particularly the abrupt termination of the services of the former Attorney General, and the arrest by the police of two individuals — an offi cer from the Attorney General’s Chambers, and a Deputy Public Prosecutor (“DPP”) seconded to the Malaysian Anti-Corruption Commission (“MACC”) — as well as the reported raid by the police on the DPP’s home and offi ce in the MACC, and the alleged removal of documentary evidence relating to MACC’s investigations into 1MDB. In addition, the Inspector General of Police is reported to have said that offi cials from Bank Negara Malaysia and

commercial banks will be called in to assist in investigations.

The Dewan Rakyat, as its name refl ects, is the forum where elected representatives of the people convene. The Government must be held accountable to Parliament for its conduct. It is therefore critical that Parliament, and particularly the PAC, must not countenance any delay or interference in their investigation into 1MDB. The proceedings of the PAC must proceed expeditiously.


2 August 2015



The investigation being conducted by MACC was part of the work of a Special Task Force that had been set up to look into allegations of fi nancial impropriety involving 1MDB. It is thus shocking to learn that the Attorney General has reportedly advised that the Special Task Force should be disbanded.

The reported incidents are wholly inconsistent with the Government’s publicly declared aim to uncover the unvarnished truth behind the alleged deposit of funds into the personal bank accounts of the Prime Minister, and to unearth dishonest dealings, if any, associated with that deposit, and other irregularities concerning 1MDB. The actions by the police, which have the appearance of an assault on the MACC, have seemingly caused irreparable harm to the standing of MACC as an agency to combat corruption. The launch of the investigation into the MACC, and the allegation of a plot to overthrow the Government, could be seen as a thinly-disguised attempt to block the truth from emerging. Moreover, the investigation into allegations of leaking of confi dential information and the purported breach of Section 124B of the Penal Code are not carte blanche

for the police to intrude into, and interfere with, the MACC’s investigation, and/or to remove or compromise vital evidence collated by MACC. It must be borne in mind that interfering with or obstructing an ongoing MACC investigation is in itself an off ence under Section 48 of the MACC Act 2009.

Thus, the announcement by the MACC on 3 August 2015 that the RM2.6 billion allegedly deposited into the personal bank accounts of the Prime Minister did not comprise monies from 1MDB but was instead a “donation”, raises more questions than provides answers. The events preceding as well as following it, as set out above, give rise to the inference that the announcement was a result of external interference, or was made to relieve the pressure faced by the MACC.

The MACC Act 2009 provides that even if the alleged deposit into the personal bank accounts of the Prime Minister may have been a donation, it does not necessarily mean that no corrupt act had occurred. The term “gratifi cation” in section 3 of the MACC Act 2009 includes a donation, and does not exclude a political donation. MACC should also look into section 17 (regarding the off ence of giving or

accepting gratifi cation by an agent), read with section 50 (regarding a presumption in certain off ences) of the MACC Act 2009.

It is therefore still imperative that the MACC identify the purpose, if any, of the donation, the conduct and activity of the recipient in relation to the use of that donation, and the reason why the donation was deposited into a private account of the recipient. Donations of this nature are seldom made for charitable purposes.

The Malaysian Bar demands that the MACC to be allowed to conduct its investigation independently and comprehensively, without any external threat, pressure or infl uence. The fl agrant level of intimidation infl icted on, and the climate of fear foisted upon, the MACC must stop. The role and responsibility of the MACC must not, and cannot be, perverted to excuse or exculpate anyone — including politicians — from allegations of corruption.


7 August 2015

Section 124B of the Penal Code Must Not Be Used to Curb Freedom of Assembly

The Malaysian Bar deplores the arrest and detention on 25 August 2015 of 17 persons — 16 of whom are reportedly university students — for participating in a peaceful sit-in outside the Parliament. They were remanded overnight and the police subsequently sought a seven-day extension of the remand. The Magistrate granted a remand of three days. The revision application was heard by the High Court yesterday, and the remand period for 16 of the detainees was reduced to two days.

It has been reported that the detainees are being investigated, inter alia, for an activity detrimental to parliamentary democracy, under Section 124B of the Penal Code (“Section 124B”). The phrase “activity detrimental to parliamentary democracy” is defi ned in Section 130A(a) of the Penal Code as “an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means”.

When Section 124B was tabled in Parliament in 2012 as an amendment to the Penal Code, the Government declared that it would be used to deal with violent off ences such as the assassination of a head of state, a coup d’état, an armed insurgency, or guerrilla warfare, and breaches of constitutional provisions.1 There was no intention to inhibit political dissent or peaceful assembly, and a Member of Parliament had observed, “Kalau nak buat perhimpunan aman atau bersih pun, itu tidak detrimental to Parliamentary Democracy.”2

The resort to Section 124B against the 17 persons, who had assembled peaceably, is therefore unjustifi able. This provision cannot be misused to erode or dilute the constitutional right — enshrined in Article 10(1)(b), read with 10(2)(b), of the Federal Constitution — to assemble peaceably and without arms. Further, it would be a gross abuse of Section 124B if it were to be used to cause fear or anxiety among members of the public.

In any event, the constitutional validity of Section 124B is questionable. Malaysia is a constitutional democracy, where the Federal Constitution is the supreme law of the land.3 The concept of parliamentary

democracy is only applicable in countries where the Parliament is supreme, such as the United Kingdom.

Thus, Section 124B purports to cover a subject matter — parliamentary supremacy — that is unknown to our constitutional scheme. It further off ends two cardinal principles: criminal law must be clear and precise, and the subject matter of criminal sanction must be known. The uncertainty in Section 124B is exacerbated by the oppressive penal sentence for the off ence, which is imprisonment for a term that could extend to 20 years.

Moreover, it is unacceptable for the police to have sought remand orders of one week. The duration sought was excessive, and lends to the widely held perception that the police are freely seeking remand orders to punish persons involved in peaceful assemblies, even before any fi nding of guilt by a court of law, as well as to further intimidate others who may wish to participate in any public assembly.

The Malaysian Bar strongly urges the police to cease misusing Section 124B, and to respect the right of all Malaysians



to assemble peaceably. Democracy is strengthened — not threatened — when Malaysians who wish to assemble in peace may do so without threats of reprisal or unjustifi ed arrest.


28 August 2015

Notes

Bar Council will send a monitoring team to observe the BERSIH 4 rally, which is scheduled to take place in Kuala Lumpur on 29 and 30 Aug 2015 (Saturday and Sunday).

The monitoring team will look out for, and document, possible violations of human rights — by any individual or group — during the event.

In addition, a team of lawyers from the Bar Council Legal Aid Centre (Kuala Lumpur), known as the “urgent arrest” team, will provide legal assistance in the event of arrests. The team can be contacted by SMS at the following telephone numbers:

(1) 018-321 1506(2) 011-1214 0877

Members of the public can send a SMS to one of these numbers, with the following information:

(1) Name of sender;

(2) The name, IC number and telephone number of the arrested person; and

(3) The police station to which the arrested person has been taken (if known).

The urgent arrest team will try to contact the arrested person and to arrange legal assistance as quickly as possible.

1 “Penyata Rasmi Parlimen Dewan Rakyat, 17 April 2012”, page 120, quoting the then-de facto Law Minister Dato’ Seri Mohamed Nazri Abdul Aziz.

2 Ibid., page 73, quoting the Member of Parliament for Rembau, Tuan Khairy Jamaluddin.

3 Article 4(1) of the Federal Constitution.

The Police Must Not Misuse SOSMA, and Must Not Ignore the Solicitor-Client Relationship

The Malaysian Bar is outraged over the detention of Matthias Chang — a Member of the Malaysian Bar and one of the lawyers representing Dato’ Sri Khairuddin Abu Hassan (“Dato’ Sri Khairuddin”), a politician and vocal critic of 1Malaysia Development Berhad (“1MDB”) — under the Security Off ences (Special Measures) Act 2012 (“SOSMA”). The detention is reportedly for investigations into allegations of having committed off ences under Sections 124K (sabotage) and Section 124L (attempt to commit sabotage), both under the Penal Code.

Matthias Chang was arrested by the police yesterday after visiting his client, who is currently being detained at the Dang Wangi District Police Station. It has been reported that Matthias Chang is now to be detained for up to 28 days.

It had been earlier reported that Matthias Chang and his client had both been barred from travelling outside Malaysia on 18 September 2015, and that they were about to travel to New York for the purpose of meeting with the Federal Bureau of Investigation in relation to allegations of fi nancial impropriety concerning 1MDB.1 Subsequently, Matthias Chang was questioned by the police on 28 September 2015 and 2 October 2015, as a witness in respect of the allegations levelled against his client.

It is inexplicable that the police have now detained Matthias Chang under SOSMA, as he has been cooperative in presenting

himself for questioning by the police thus far. His arrest is an absolute misuse of the power of arrest and detention under Section 4 of SOSMA.

The Malaysian Bar expressed reservations over the use of SOSMA on Dato’ Sri Khairuddin in our press release dated 2 October 2015.2 These same concerns apply to Matthias Chang. SOSMA was legislated to address terrorism threats and violent conduct. SOSMA must not be misused as a replacement for the repealed Internal Security Act 1960 (“ISA”). The manner in which the police have resorted to SOSMA against Dato’ Sri Khairuddin and Matthias Chang is disquieting, as it appears that SOSMA is becoming the new ISA.

The Malaysian Bar denounces the intimidation, harassment, arrest or detention of any Member of the Malaysian Bar in the discharge of his or her duties or obligations for and on behalf of any client. Every Member of the Malaysian Bar is obliged to, and must be allowed to, act without fear or favour in the client’s interest, with due regard to the rule of law and the administration of justice.

The Chief Justice of Malaysia, The Right Honourable Tun Arifi n Zakaria, has observed that “… the lawyer does not merely carry out the duties he is professionally trained for, but assumes a special role in safeguarding the sanctity of the legal system and more importantly to uphold the rule of law.”3

It is also important to note that Articles 16 and 18 of the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Off enders in 1990, state that:

16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suff er, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

…

18. Lawyers shall not be identifi ed with their clients or their clients’ causes as a result of discharging their functions.

The Malaysian Bar further condemns any attempt to transgress or erode the principle of legal professional privilege or solicitor-client privilege, in the guise of a purported investigation of a lawyer. The rationale underpinning the principle of legal professional privilege is that:

(a) it is of fundamental importance, for the proper administration of justice, that clients should enjoy absolute confi dence in respect of all communications with their lawyers for the provision of legal advice and/or representation;

(b) the principle promotes the public interest, because it assists and enhances the administration of justice by facilitating the representation of clients by their legal advisors; and

(c) the system of administration of justice depends for its vitality on



full, free and frank communication between those who need legal advice and those who are best able to provide it.

The principle of legal professional privilege must remain inviolate and absolute, as it protects all information provided by a client to the lawyer for the purposes of legal advice or representation, whereby the information cannot be divulged by the lawyer to anyone, unless the client waives the privilege. This principle is codifi ed in Section 126 of the Evidence Act 1950, with two limited exceptions that render the privilege inapplicable, namely, where there is “(a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate in the course of his employment as such showing that any

crime or fraud has been committed since the commencement of his employment”.

The police must scrupulously adhere to this salutary principle — well-entrenched in both statute and common law — of legal professional privilege, and must not seek to obtain from Matthias Chang any information given to him by his client, Dato’ Sri Khairuddin, by ignoring or breaching this long-standing principle. Any interference with the principle is wholly abhorrent, and obverse to the administration of justice.

The Malaysian Bar demands that the police recognise and respect the role and responsibilities of Matthias Chang as a lawyer, release him immediately, and refrain from any action that is likely to harass, impede or obstruct him from

performing his duties to his client.


9 October 2015

1 “Malaysia Blocks Critic of Prime Minister From Taking Case to U.S. ”, New York Times, 18 September 2015.

2 Press release by the Malaysian Bar entitled “SOSMA Must Not be Misused to Silence Critics of 1MDB”, 2 October 2015.

3 Opening Address by The Right Honourable Tun Arifi n Zakaria, Chief Justice of Malaysia at the International Malaysia Law Conference 2014 (24 September 2014).

Respect the Rule of Law and Release Dato’ Sri Khairuddin and Matthias Chang

The Malaysian Bar deplores the misuse of the Penal Code and the Security Off ences (Special Measures) Act 2012 (“SOSMA”) by the authorities in the recent arrest, detention and prosecution of Dato’ Sri Khairuddin Abu Hassan (“Dato’ Sri Khairuddin”), and his lawyer, Matthias Chang, a Member of the Malaysian Bar.

Dato’ Sri Khairuddin and Matthias Chang were arrested and detained under SOSMA on 18 September 2015 and 8 October 2015, respectively. It is reported that they were being investigated under Section 124K (sabotage) and Section 124L (attempt to commit sabotage) of the Penal Code. Dato’ Sri Khairuddin fi led a habeas corpus application, which was fi xed for hearing on 13 October 2015. It was reported that Matthias Chang was about to fi le a habeas corpus application as well.

However, both men were charged on 12 October 2015 in the Magistrates’ Court, for the off ence of attempting to commit sabotage under Section 124L of the Penal Code. It has been alleged that the act of sabotage is in relation to the lodging of reports about possible corrupt practices, with law enforcement agencies in fi ve foreign countries — France, the United Kingdom, Switzerland, Hong Kong and Singapore — that was purportedly intended to be a conspiracy to cause harm to the banking and fi nancial system of Malaysia. If convicted, they could be

sentenced for up to 15 years in jail. Both men have applied to the High Court to challenge the prosecution against them.

Section 124L of the Penal Code is within Part VI of the Penal Code. Under SOSMA, all off ences under Part VI and Part VIA of the Penal Code are considered security off ences, triable in the High Court.

It is therefore inexplicable that both men were charged in the Magistrates’ Court. Further, it is disconcerting that the prosecution then sought a further period of detention of 30 days pending an application to transfer their cases to the High Court. The Magistrate allowed a detention of 14 days.

Detention of an accused person subsequent to charge pending the prosecution’s transfer application is unjust and unlawful. In this case, it appears to be an undisguised attempt to detain both men for an additional period not sanctioned by law.

In any event, it is perplexing that the prosecution would see this case as involving a security off ence. Part VIA of the Penal Code was introduced to combat security off ences arising out of acts of terrorism. An action to expose possible corruption within the corridors of government cannot, by any stretch of the imagination, fall under Part VIA of the Penal Code, and neither is it a security off ence under international law.

The international law element cannot be ignored. Malaysia has signed the United Nations Convention against Corruption. It therefore recognises that

international cooperation is necessary in combatting corruption, terrorism and other international crimes. It has also launched numerous national initiatives calling on individuals to partner in the eff ort to end corruption.

As such, it beggars belief that when a person exercises his own personal initiative to ask overseas law enforcement agencies to investigate possible corrupt practices at the highest levels of the Government, it is seen by the authorities as an attempt to sabotage the banking and fi nancial system of Malaysia.

In this borderless world, transboundary corruption is a major scourge that requires global partnership and worldwide eff orts. Malaysia regularly asks law enforcement agencies from foreign countries for assistance. Here is a case of a Malaysian citizen seeking help — from law enforcement agencies in foreign countries — to address alleged cross-border corruption. Some of the parties allegedly involved in this nefarious web of transactions operate in the jurisdictions in which reports were lodged.

We are already witnessing cross-currents between the Attorney General’s Chambers and Bank Negara Malaysia about whether or not 1Malaysia Development Berhad (“1MDB”) had violated Malaysian law in terms of exchange control permission for overseas investments. We saw similar attempts to interfere with the Malaysian Anti-Corruption Commission in its attempts to investigate the transfer of MYR2.6 billion and MYR42 million into the Prime Minister’s private bank accounts.



When credible concerns are raised about whether our own mechanisms to investigate corruption have been crippled or compromised, it is understandable that recourse is had to overseas law enforcement agencies. The Government’s response is therefore highly questionable.

The charge against Matthias Chang attracts additional opprobrium because he has consistently stated that his actions were in his capacity as an advocate and solicitor advising his client. His arrest, detention and prosecution are therefore in clear violation of the United Nations Basic Principles on the Role of Lawyers, which mandates that lawyers not be identifi ed with their clients or their clients’ causes simply by the act of representing them. It would appear that the chilling eff ect

sought to be achieved by the authorities is to discourage lawyers from acting for known critics of the Government.

Moreover, the decision to charge both men on the eve of Dato’ Sri Khairuddin’s habeas corpus application (and before Matthias Chang’s intended habeas corpus application) could easily be construed as an attempt to avoid judicial scrutiny into the merits of the cases against them. It would appear that the prosecution was suffi ciently concerned that the habeas corpus applications would be allowed by the court, such that it took steps to pre-empt them. In this regard, it would be pertinent to know whether Bank Negara Malaysia fi led any affi davit in Dato’ Sri Khairuddin’s habeas corpus application confi rming that the purported conduct by him (and

Matthias Chang) was indeed an attempt to sabotage the banking and fi nancial system of Malaysia.

The conduct of the authorities in Dato’ Sri Khairuddin’s and Matthias Chang’s case leaves much to be desired. The misuse of SOSMA and criminal procedures for the purposes of alleged Penal Code off ences is unacceptable. The Malaysian Bar demands that the rule of law be respected, and urges that the prosecution against both men be withdrawn and they be released forthwith.


15 October 2015

For more press releases, please visit http://www.malaysianbar.org.my/press_statements/

Press Statements (December 2014 – October 2015)*Title Date

(1) Respect the Rights and Dignity of Asylum Seekers and Refugees, and Eliminate Human Traffi cking and Migrant Smuggling 20 June 2015

(2) Harmony and Unity in Our Schools Cannot be Achieved by the Curtailment of Rights 24 June 2015

(3) Rein In Overzealous Dress Code Enforcement and Reject Clothing or Moral Policing 4 July 2015

(4) Conduct Independent Investigation into Disclosures Relating to 1MDB Comprehensively and with Integrity 9 July 2015

(5) At the Crossroads of the Rule of Law: Malaysia Must Confront Challenges to International and Domestic Justice Now 16 July 2015

(6) Untimely and Unwarranted Upgrade in the Traffi cking in Persons Report Compromises the Fight Against Human Traffi cking 22 July 2015

(7) Interference into 1MDB Investigations Shields Wrongdoers and Conceals Wrongdoing 28 July 2015

(8) Appointment of New Attorney General of Malaysia 29 July 2015

(9) Comprehensive Reform to the MACC Needed to Strengthen the Fight Against Corruption in Malaysia 31 July 2015

(10) Parliament Must Not Countenance Any Delay or Interference in PAC’s Investigation into 1MDB 2 Aug 2015

(11) Let the MACC Investigate Without Impediment, and Allow the Truth to Emerge 7 Aug 2015

(12) Respect and Facilitate — and Not Deter — the Right to Assemble Peaceably and Without Arms 22 Aug 2015

(13) Section 124B of the Penal Code Must Not Be Used to Curb Freedom of Assembly 28 Aug 2015

(14) Malaysian Bar Expresses its Condolences on the Untimely Demise of Anthony Kevin Morais, and Calls for a Full Investigation 17 Sept 2015

(15) Reject the Racism and Violence that Occurred on 16 September 2015 21 Sept 2015

(16) SOSMA Must Not be Misused to Silence Critics of 1MDB 2 Oct 2015

(17) The Police Must Not Misuse SOSMA, and Must Not Ignore the Solicitor-Client Relationship 9 Oct 2015

(18) Respect the Rule of Law and Release Dato’ Sri Khairuddin and Matthias Chang 15 Oct 2015

*Only highlighted press statements are reproduced in full.



The Offi ce of the Attorney GeneralPart I: A Constitutional Conundrum1

Article 145 of the Federal Constitution sets out the Offi ce of the Attorney General (“AG”).

He is an appointee of the Yang di-Pertuan Agong (“YDPA”) who acts upon the advice of the Prime Minister (“PM”). The Attorney General’s offi ce must be held by a person who is qualifi ed to be judge of the Federal Court.

His duties as conferred by the Constitution is twofold: (A) that of a constitutional offi cer vested with legal advisory role to the YDPA, the Cabinet of the day, and any Minister for legal matters and performance of duties of legal character; and (B) that of Public Prosecutor:

(i) As legal adviser to the Government, the AG’s duties are as set forth under Article 145 (2) in the following terms:

(a) To advise the YDPA, the Cabinet, or any Minister upon such legal matters;

(b) To perform such other duties of a legal character, as may from time to time be referred or assigned to him by the YDPA or the Cabinet; and;

(c) To discharge the functions conferred on him by or under this Constitution or any other written law.

(ii) As Public Prosecutor, Article 145 (3) lays down that:

(a) the AG shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an off ence, other than proceedings before the Syariah Court, a native court or a court martial; and

(b) in the performance of his duties, the AG is the fi rst legal offi cer of the Federation and he has the “right of audience in, and shall take precedence over

any person appearing before, any court or tribunal in the Federation (see Article 145 (3)).

The hybrid nature of the AG as Constitutional Officer

The historical antecedents of the AG’s offi ce have been charted out by various commentators. The dual roles of the AG in Malaysia owed its origin from English practice. As Sir Elwyn Jones described it since 1900, the position in England is that,2 “now the outstanding function and the main duty of the Attorney-General is to be legal adviser of the Government as a whole, and of various government departments”.

Professor S A de Smith puts it succinctly,3

“Under the British constitution the Attorney-General occupies a peculiarly delicate position. Himself a politician, he must divest himself of political partisanship in carrying out a number of important functions — in appearing as guardian of the public interests at a judicial tribunal of inquiry, in deciding whether to give leave or instructions for certain classes of prosecutions nolle prosecui to be instituted, in deciding whether to enter a nolle prosecui to stop a trial on indictment.”

In English practice, the role is bifurcated and occupied by two individuals whilst in Malaysia, it is vested in a single person.4 The dilemmas of decision-making — “to prosecute or not to prosecute” — is therefore heightened in Malaysia.

The hybrid nature of the Malaysian AG’s offi ce is constitutionally demarcated under Article 145. He is not normally a member of the Cabinet and therefore the discharge of offi ce is expected to be non-partisan politically. However realistically politics is pervasive and inescapable, Sir Elywn Jones, a former Attorney General of the United Kingdom puts it well,5

“You may think that the Attorney General is some sort of detached creature who has nothing to do with politics. But that would be highly

disingenuous. In fact, the Attorney-General, when he is acting in political matters, is a highly political animal entitled to engage in contentious politics. I suppose the only thing one can say is that some Attorney-Generals are more contentious than others as politicians. But the basic requirement of our constitution is that however much a political animal he may be when he is dealing with political matters, he must not allow political considerations to aff ect his actions in those matters in which he has to act in an impartial and even quasi-judicial way.”

In one recent Canadian Supreme Court decision, it was observed tersely,6

“It is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.”

The vulnerability of the AG’s decision-making power to prosecute is now demonstrated by recent events that led to the termination of Tan Sri Abdul Gani b Patail, the AG who had served 13 years in offi ce. The government has stated that the early termination of Tan Sri Gani as AG is for health reasons.7

The events that led to the termination is now shrouded by denials and announcements that appear to obscure rather than illuminate. Was it that the former AG was taking steps to exercise his Public Prosecutorial powers that he was “taken out”8? If so, who made that decision which would constitute as serious abuse of powers of public offi ce ie the removal of a Public Prosecutor who was vested with clear constitutional powers which have been judicially recognised as unfettered in a host of cases. The circumstances that led to the AG’s unceremonious termination is a serious matter which merits investigation, and the disquietude that attends to its aftermath cannot be quelled as it involves questions of grave national import. Urgent restoration of the protection of the offi ce tenure as equivalent to a judge’s tenure is called

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for and clear answers as to why and what happened to the former AG is the sine qua non to restore legitimacy to the public governance of the nation.

Philip Koh Tong Ngee Advocate & Solicitor Co-editor, Sheridan & Groves, The Constitution of Malaysia (5th edition) (2004) (LexisNexis)

Notes:

1 Sir Elwyn Jones citing Patrick Hastings in “The Offi ce of the Attorney General”, Cambridge Law Journal, 27 (1) April 1969, pp 43–53, characterises the AG's Offi ce as being "... from hell".

2 Infra, p 46.

3 See SA de Smith, The New Commonwealth and Its Constitutions (1964) (Stevens & Sons) at p 143.

4 See English practice in John LL J Edwards, The Attorney General, Politics and Public Interest. The American experience where the AG’s offi ce is the principal legal adviser to the President and the Executive branch is ably highlighted in Chapter 3.

5 (1969) Cambridge Law Journal, 27 (1) April 1969, p 50.

6 Krieger v Law Society of Alberta [2002] SCC 65; see article discussing the case by Lori Sterling and Heather Mackay, “Constitutional Recognition of the Role of Attorney General in Criminal Prosecutions: Krieger v. Law Society of

Alberta”, Supreme Court Law Review (2003), 20 SCLR (2d), pp 169–195.

7 See the arguments in the article entitled “The Constitutional Validity of the Termination of the Services of Tan Sri Abdul Gani b Patail as the Attorney General” in this issue of Praxis that give rise to serious issues of dismissal of a public servant without adherence to natural justice.

8 An interview with Datuk Abdul Rahman Dahlan, the newly-appointed Barisan Nasional’s Strategic Communications Director, who alluded to “pre-emptive steps” which resulted in the untimely removal of the former AG, in The Star, titled “Swimming against the tide to get to the truth”, dated 16 Aug 2015.

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The Offi ce of the Attorney GeneralPart II: The Constitutional Validity of the Termination of the Services of Tan Sri Abdul Gani b Patail as the Attorney General

On the 28th of July 2015, the Chief Secretary of the Government, Tan Sri Dr. Ali Hamsa, announced that the services of Tan Sri Abdul Gani b Patail (“Tan Sri Gani”) as the Attorney General of Malaysia had been terminated on medical grounds with eff ect from the 27th of July 2015. It was also announced that Tan Sri Gani would remain in service as a Judicial Services Offi cer until his retirement on the 6th of October 2015.1

The sudden decision to terminate the services of Tan Sri Gani, a central member of the Special Task Force that was investigating the allegations of fi nancial impropriety related to 1Malaysia Development Berhad (“1MDB”) and the deposition of funds related or otherwise into the Prime Minister’s private bank accounts, has caused much public disquiet. Tan Sri Gani was also about 66 days away from his retirement.

The Malaysian Bar2 and several other parties3 have taken the position that Tan Sri Gani’s removal as the Attorney General was unconstitutional. However, the new Attorney General has argued that the removal was constitutional.4

This article proposes to briefl y examine the constitutionality of Tan Sri Gani’s removal as the Attorney General.

Article 135(2) of the Federal Constitution and the Requirement for Procedural Fairness

Tan Sri Gani was a member of the judicial and legal services when he was removed as the Attorney General. This is confi rmed by the decision of the Government that he is to remain as a member of the judicial and legal services until the date of his retirement.

Articles 132(1) and (2A) in Part X of the Federal Constitution provide that;

“132. Public services

(1) For the purposes of this Constitution, the public services are—

(a) the armed forces; (b) the judicial and legal

service; (c) the general public service

of the Federation; (d) the police force; (e) (Repealed); (f) the joint public services

mentioned in Article 133; (g) the public service of each

State; and (h) the education service. …

(2a) Except as expressly provided by this Constitution, every person who is a member of any of the services mentioned in paragraphs (a), (b), (c), (d),(f) and (h) of Clause (1) holds offi ce during the pleasure of the Yang di-Pertuan Agong, and, except as expressly provided by the Constitution of the State, every person who is a member of the public service of a State holds offi ce during the pleasure of the Ruler or Yang di-Pertua Negeri.”

Thus, members of the judicial and legal services are part of the public services of the country. They are public servants.

Next, Articles 135(1) and (2) in Part X stipulate that;

“135. Restriction on dismissal and reduction in rank

(1) No member of any of the services

mentioned in paragraphs (b) to (h) of Clause (1) of Article 132 shall be dismissed or reduced in rank…

(2) No member of such a service as

aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard:

Provided that this clause shall not apply to the following cases: (not applicable) ”

Accordingly, a member of the public services, or a public servant, listed in paragraphs (b) to (h) in Article 132(1) in Part X, cannot be dismissed or reduced in rank without fi rst being accorded a reasonable opportunity of being heard. Article 135(2) therefore clearly requires that any action to dismiss and/or reduce in rank a public servant must be eff ected in accordance with the principle of procedural fairness or natural justice. This entrenched right to “due process” has been recognised by our courts on numerous occasions.5

However, there are constitutional limitations to the concept of procedural fairness in Article 135(2). This is refl ected in Article 132(4)(b) which reads as follows:

“(4) References in this Part, except in Articles 136 and 147, to persons in the public service or to members of any of the public services shall not apply to—

… (b) the Attorney General or, if

provisions for the manner of his appointment and removal from offi ce is specifi cally included in the Constitution of the State, or if he is appointed otherwise than from among the members of the judicial and legal service or of the public service of the State, the legal adviser of any State;”(emphasis added)

The eff ect of the exclusionary provision in Article 132(4)(b) would very much depend on the occupational background of the person appointed as the Attorney General.

It is to be noted that since independence in 1957 we have had three classes of persons who have been appointed as the Attorney General. First, there have been Attorneys General who were members of the Cabinet or Members of Parliament,6 secondly, there have been those who were appointed under contract,7 and, thirdly, there have been appointees from the judicial and legal services.8

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In this respect, the following table sets out the backgrounds of the past Attorneys General:

Attorney General Tenure of service

Position prior to appointment as Attorney General

Thomas Vernor Alexander Brodie 1955–1959 Legal department in Kuala Lumpur as legal draftsman

Tan Sri Dato’ Cecil M Sheridan 1959–1963 Solicitor General

Tan Sri Datuk Haji Abdul Kadir b Yusof

1963–1977 Solicitor General

Tan Sri Datuk Haji Hamzah b Datuk Abu Samah

1977–1980 Minister of Commerce and Industry

Tan Sri Datuk Abu Talib b Othman 1980–1993 Solicitor General

Tan Sri Dato’ Seri Mohtar b Abdullah 1994–2000 High Court Judge

Tan Sri Dato’ Seri Ainum bt Mohamed Saaid

2001 Deputy Chief Executive of the Securities Commission, Malaysia

Tan Sri Abdul Gani Patail 2002–2015 Head of the Prosecution Division, Attorney General’s Chambers

appointed from the judicial and legal service, such as Tan Sri Gani. This arises from a plain interpretation of the phrase “appointed otherwise than from among the members of the judicial and legal service” in Article 132(4)(b). In other words, the exclusion of procedural fairness in Article 132(4)(b) would only be applicable to Attorneys General who were appointed to the offi ce from their position as a member of the Cabinet, or as a Member of Parliament or, alternatively, as an external appointment (ie by contract).11

By virtue of Article 132(4)(b), such appointments (of appointees from such backgrounds) would not carry with them the procedural safeguards enshrined within Article 135(2) as such appointees are not from the judicial and legal services.

Therefore, in view of his pre-appointment position within the judicial and legal services, it is indisputable that the exclusionary provisions under Article 132(4)(b) would not apply to an Attorney General of Tan Sri Gani’s professional background.

Accordingly, the requirements of procedural fairness within Article 135(2) would still apply to the termination of the services of Tan Sri Gani and his simultaneous reduction in rank.

The Constitutionally-Guaranteed Right to Procedural Fairness

In any event, it is important to note that the concept of procedural fairness and natural justice is not solely and exclusively contained within Article 135(2). Rather, the concept originates from, and is fi rmly entrenched within, Articles 5(1) (Right to life) read with 8(1) (Equality before the law) in Part II of the Federal Constitution.

In fact, Articles 5(1) and 8(1) have been accorded a wide interpretation to require that all forms of state action must be eff ected with the requisite levels of fairness and justice (most prominently procedural fairness). The following authorities are particularly instructive on this point:

(1) The Federal Court in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301:

“It is clear from this passage that the rules of natural justice, which is the procedural aspect of the rule of law, is an integral part of Articles 5(1) and 8(1). In short, procedural fairness is incorporated in these two Articles.” (emphasis added)

(2) The Court of Appeal in Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan & Anor [1996] 1 MLJ 481:

“I have made these observations in order to emphasize the existence in the Federal Constitution of provisions, such as arts 5(1) and

Now, pursuant to Article 145(5) read with Article 132(4)(b), Attorneys General who have been appointed from the Cabinet or who are Members of Parliament, hold the offi ce “during the pleasure of the Yang di-Pertuan Agong and may at any time resign his offi ce…”.9 Further, it is open to debate whether Article 145(6) requires the requisition of a tribunal (of the kind contemplated under Articles 125(3) and (4)) for the removal of an Attorney General with such a ministerial and/or parliamentary background. The doubt arises because it would then seem that latter Attorneys General enjoy less protection of tenure than the transitional Attorney General.10

However, Attorneys General who are appointed by a contract of service have tenure that operate on a fi xed-term basis. In this regard, a termination of service for such Attorneys General may be eff ected in accordance with the termination clauses in the said contracts.

However, and critically, Tan Sri Gani was appointed as the Attorney General from the judicial and legal services. In this connection, he held the position of Head of the Prosecution Division within the Attorney General’s Chambers prior to his appointment as the Attorney General. He continued as a member of the judicial and legal services throughout his tenure as Attorney General.

It is clear as a matter of ordinary interpretation that the exclusion in Article 132(4)(b) would not apply to Attorneys General who have been

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8(1), which are of wide import and contain principles that are capable of meeting any issue of public law that arises for decision. The combined eff ect of these two articles is to require all state action to be fair and just; and they strike at arbitrariness even in the discharge of administrative functions. Procedural fairness is accordingly part of our law, not by reason of the application of English cases, but because of the terms of arts 5(1) and 8(1). See Raja Abdul Malek Muzaff ar Shah v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 MLJ 308; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261.” (emphasis added)

(3) The Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261:

“As I have earlier said, the expression ‘law’ which appears in arts 5(1) and 8(1) of the Federal Constitution includes procedural law, and in particular, any procedure prescribed by written law. If a particular procedure prescribed by written law is found to be arbitrary or unfair or the procedure adopted in a given case is held to be unfair, then, generally speaking, it must be struck down as off ending art 5(1) read with art 8(1).” (emphasis added)

Therefore, Articles 132(4)(b) and/or 145(5) would be subject to the overriding application of Articles 5(1) and 8(1) and the embedded rule of procedural fairness.

Further, it is signifi cant that Articles 5(1) and 8(1) in Part II have not been excluded by any provision in Part X, and therefore remained as a safeguard in the present situation.

The Doctrine of Pleasure

It has been contended that the Attorney General’s services were “terminated” under Article 145(5).12

Article 145(5) provides, amongst others, that the Attorney General holds his offi ce “during the pleasure of the Yang di-Pertuan Agong…”

Now, the doctrine of pleasure has been defi ned to mean that the tenure and the conditions of employment of a public

servant are subject to the pleasure of the Yang di-Pertuan Agong. The Yang di-Pertuan Agong as a constitutional monarch acts (except in certain defi ned circumstances) at all times on the advice of the Cabinet.13 As an executive act, it has nevertheless to comply with constitutional safeguards. The following judicial observations of high authority are important on this point:

(1) The Privy Council in Mahan Singh v Government of Malaysia [1978] 2 MLJ 133:

“By Article 132(2A) of the Constitution, which applies to the appellant, it is provided

‘Except as expressly provided by this Constitution, every person who is a member of any of the services mentioned in paragraphs … of Clause (1) holds offi ce during the pleasure of the Yang di-Pertuan Agong…’

So prima facie, the Yang di-Pertuan Agong, and during the emergency the Director of Operations under his delegated powers, can terminate the employment of any public servant without notice and at any time he pleases; but this right is subject to the express provision of the Constitution contained in Article 135(2) that a public servant may not be ‘dismissed’ without being given a reasonable opportunity of being heard.”(emphasis added)

(2) The Federal Court in Pengarah Pelajaran Wilayah Persekutuan v Loot Ting Yee [1982] 1 MLJ 68:

“In our view, as a civil servant holds offi ce during pleasure, not only the length of his service is subject to pleasure but the place and time of his service is also similarly subject to pleasure. The only diff erence is that as regards dismissal and reduction in rank, procedural safeguards contained in Article 135 must be observed, whereas in cases of transfer and other matters no such safeguards need be followed.”

However, as observed in the judicial statements above, the doctrine of pleasure is subject to certain constitutional limitations such as the principles of natural justice.

In view of the principles set out above, it is clear that Articles 135(2), 5(1) and 8(1) and the inherent procedural safeguards therein apply to Article 145(5).

Further, Article 145(5) cannot be read as giving the Executive an unfettered power of termination. It must be noted that there is a diff erence between the doctrine of pleasure of yesteryears and the doctrine of pleasure in a democracy governed by the rule of law where arbitrariness in any form is eschewed. In any country where the rule of law prevails, unfettered discretion does not exist. This was the position adopted recently by the Indian Supreme Court in Narula v Union of India [2015] 1 LRC 355 where it was held that provisions akin to Article 145(5) ought to be read subject to the “fundamentals of constitutionalism”.14

On this point, it is also important to note the following oft-quoted observation of Raja Azlan Shah CJ in the Sri Lempah Enterprise Sdn. Bhd. case [1979] 1 MLJ 135 on the non-existence of the concept of the unfettered discretion of power in Malaysian jurisprudence:

“Unfettered discretion is a contradiction in terms. … Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression.”(emphasis added)

Further, and in any event, it should be noted that the “termination” of the Attorney General’s services was eff ected for a stated reason or “cause” (ie on grounds of health). This ex facie is inimical to invoking the “termination at pleasure” doctrine.

In this regard, it is must be noted that a termination and/or dismissal pursuant to the doctrine of pleasure is understood to be a termination and/or dismissal that is eff ected without cause (see Lord Reid in Ridge v Baldwin [1963] 2 All ER 66).

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It would follow that in these circumstances (where a “cause” has been provided for the termination of services), the concept of procedural fairness or due process (in Articles 5(1) read with 8(1) of Part II) would remain to be applicable to the termination and reduction in rank of the former Attorney General.

The Adherence to the Medical Boarding-Out Procedures

As the cause relied on to terminate Tan Sri Gani’s services was predicated on the grounds of health, it is pertinent to note that procedural fairness or due process requires compliance with the medical boarding-out procedures for persons engaged in the public services.

These procedures can be found in, for example, the “Pekeliling Perkhidmatan Bilangan 10 Tahun 1995: Prosedur Membersarakan Pegawai Atas Sebab Kesihatan” dated 10 Nov 1995 (issued pursuant to section 10(5) of the Pensions Act 1980).

The said procedures require the establishment of a Medical Board to, amongst others, receive representations as to the health of the public servant in question to enable a determination to be made as to whether the public servant is able to discharge the functions required of his/her position.

The medical boarding-out procedures were not invoked in respect of the removal of Tan Sri Gani and he was therefore deprived of the right to disabuse the contention that he was medically inept to continue in the offi ce of Attorney General.

In the result, questions abound whether the “termination” of the services of Tan Sri Gani as the Attorney General and, further, his reduction in rank, was unconstitutional.

Gregory Das Advocate & Solicitor Messrs Shook Lin & Bok

Notes:1 See Kenyataan Akhbar: Jabatan Perdana

Menteri Malaysia, Pusat Pentadbiran Kerajaan Persekutuan, Putrajaya titled “Pelantikan Peguam Negara Malaysia”, dated 27 July 2015.

2 See the Press Release of the Malaysian Bar President, Steven Thiru dated 28 July 2015 entitled “Interference into 1MDB Investigations Shields Wrongdoers and Conceals Wrongdoing”.

3 See the Press Release of Lawyers for Liberty dated 28 July 2015 entitled “Gani Patail’s removal as AG reckless and unconstitutional”; the Legal Bureau Chief of the Democratic Action Party (“DAP”), Gobind Singh Deo, was reported to have said that Tan Sri Gani’s removal “may be unconstitutional” (http://www.themalaysianinsider.com/malaysia/article/ganis-removal-as-a-g-may-be-unconstitutional-says-dap); several other lawyers were reported to have held the view that the removal was “unconstitutional” (http://www.themalaymailonline.com/malaysia/article/ags-sudden-removal-unconstitutional-lawyers-suggest).

4 See the Press Release of the newly-installed Attorney General dated 29 July 2015: http://www.agc.gov.my/pdf/L atest%20Info/press/TERMINATION%20OF%20THE%20APPOINTMENT%20OF%20TAN%20S R I % 2 0 A B D U L % 2 0 G A N I % 2 0PATAIL%20AS%20ATTORNEY%20GENERAL.pdf

5 See the Federal Court decisions of Yusof bin Sudin v Suruhanjaya Perkhidmatan Polis [2011] 5 MLJ 465 and Abdul Aziz bin Mohd Alias v Timbalan Ketua Polis Negara [2010] 4 MLJ 1.

6 Such as Tan Sri Datuk Haji Hamzah b Datuk Abu Samah.

7 Such as Tan Sri Dato’ Seri Ainum bt Mohamed Saaid and the present Attorney General, Tan Sri Dato’ Sri Haji Mohamed Apandi bin Haji Ali.

8 Such as Thomas Vernor Alexander Brodie, Tan Sri Dato’ Cecil M Sheridan, Tan Sri Datuk Haji Abdul Kadir b Yusof, Tan Sri Datuk Abu Talib b Othman, Tan Sri Dato’ Seri Mohtar b Abdullah, and Tan Sri Abdul Gani Patail.

9 See Article 145(5) of the Federal Constitution.

10 The term “transitional Attorney General” here is used in reference to the Attorney General specifi cally referred to in Article 145(6) as “The person holding the offi ce of Attorney General immediately prior to the coming into operation of this Article…”

11 However, it is to be noted that the pre-amendment version of Article 145(1) required the Yang di-Pertuan Agong to, “after consultation with the Judicial and Legal Service Commission”, appoint an Attorney General “from among the members of the judicial and legal service”. The rationale behind this version of Article 145(1) was to ensure that the offi ce of the Attorney General was of a non-political character (see the Federation of Malaya Constitutional Proposals, p 17, para 52 (Government Printer, 1957) and “The Offi ce of Attorney General, Malaysia” [1977] 2 MLJ xvi by Tan Sri Datuk Haji Abdul Kadir b Yusof.

12 See the Press Release of the newly-installed Attorney General dated 29 July 2015.

13 See the Federal Court in Abdul Ghani bin Ali v PP [2001] 3 MLJ 561.

14 See also the Indian Supreme Court case of BP Singhal v Union of India [2010] 6 SCC 331. The cases of Narula and BP Singhal relate to the doctrine of pleasure as contained in Article 156(1) of the Constitution of India which provides that the Governor of each State in India “shall hold offi ce during the pleasure of the President”.

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Constitutional Patriotism: Towards Civic Nationalism vs Ethnic Nationalism1

A patriot is one who cares for her nation. The Oxford English Dictionary puts it succinctly as “one who defends or is zealous for his country’s prosperity, freedom, or rights.”

Patriotism as a concept is highly bastardised. It has been said that the cry of patriotism is the last refuge of scoundrels.

Its retrieval in a constitutional version is the object of this introductory essay. That far from being “scounderalism”2, the constitutional version exemplifi es a defence of virtues of honourable citizenry and may be (with hope) be a bulwark against unethical behaviour that damages the body politic.

Of late there has been an outpouring of voices of groups representing the broken middle of Malaysia who showed they care.

The institutions of post-Merdeka Malaya and 1963 Malaysia have been besieged by ambitious political actors. The civil service appears to be hapless against the sheer use of power that cynically negates the rule of law.3

These voices go beyond the categories of ethno-identities that tend to divide and estrange a nation’s citizenry. There are passionate yearnings for a fresh approach that transcends our communal discourse. Diff ering solutions are being proff ered. But the idea of constitutional patriotism is worthy to be pursued and defended.

Who then is a constitutional patriot? The idea of constitutional patriotism “designates the idea that political attachment ought to centre on the norms, values and … procedures of a liberal democratic constitution.”4

Jan-Werner Műller has articulated and defended this concept well. In the words of a reviewer, “Constitutional patriotism … fi nds its distinctive voice not in relation to the state and its veneration but in civil society and its protean capacities for transparency, engagement, contestation, and self-

overcoming.”5 This notion is best placed to overcome the fragilities of post-colonial nation states that are but “imagined communities” and subject to its social fabric being torn by primordial sentiments of blood, kinship and tribes.6

When independence was declared by Tunku Abdul Rahman, he articulated clearly that the birthing of the Federation is one founded which “with God’s blessing shall be for ever a sovereign democratic and independent State founded upon the principle of liberty and justice and ever seeking the welfare and happiness of its people … ” (Proclamation of Independence, 31 Aug 1957).

Tunku’s vision of peoplehood united under one sovereign democratic nation taking her place amongst the comity of nation is a laudable one.7

No less when Sabah and Sarawak became part of the nation in 1963 and Malaysia was formed.

What are the norms and values of constitutional patriotism? Of late there has been much contestation in the public sphere. The acute problem of minority identities being subjugated by the majority has been accentuated by problematic construction by judicial and law enforcement authorities. The Executive has often chosen the path of ignoring the Constitutional norms that conduce to promoting democratic governance in its desire to hold power or to deny accountability.

Race and Religion and competing sovereignties are paraded out to trump the plain meaning of the text and the structure of the Constitution.

Offi cers at government and law enforcement agencies refuse to subject themselves to the bar of public reason8 and rule of law. Seizures of religious materials, prohibition of usage of terminology declaring the same as being the monopoly of one community, abuse of executive discretion in circumscribing freedom of expression and movement by suspending The Edge are disturbing

trends of refusal of accommodation to the foundations of a constitutional polity.

A nation’s Constitution is not just the textual proposition found within the printed page. It must inform, instruct and instigate adherence and compliance by both citizenry and those who wield authority. It is not malleable at the whims and dictates of political actors who cynically negate its meaning on grounds of expediency and power play.

Statements by groups of concerned citizenry lamenting the erosion of constitutional norms have now elicited much support and contestations. This is a sign of health as democracy is not just about the ballot box but also what happens within the practices of institutions and public discourse.

It is a continuous struggle to remind ourselves that our political system will adhere to the substance and strength of the Merdeka cry of a sovereign people. And that our nation’s birthing is based upon principles of liberty and justice9. As Tunku articulated it with the objective of ever seeking “the welfare and happiness of its people” and the “maintenance of a just peace among all nations”.

So fi rst of all, we became a nation state composed of equal citizenship and not “pendatangs” or merely “people from diaspora”.10 We are not just a pastiche of tribal groups, ethnic or religious communities. This nation state’s foundational document is the Merdeka Constitution which was reinstated with the formation of Malaysia. Being a foundational text, it operates as supreme law which must govern the aff airs, administration of laws and the executive, legislative and judicial powers of a nation. Its liberal secular nature was emphasised when Sabah and Sarawak were admitted into our polity. In all the founding documents (the Reid and Cobbold Commission and together with the twenty-point agreement, with the Borneo States) this reassurance was reiterated.

The Federal Constitution sets out the parameters of our nation‘s governance

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and delineates the equilibrium of Federal-State power and also minority rights in relationship of the majority. Construction has now been placed upon the constitution that completely defi es the logic and grammar of the text extrapolating upon it ideological elements that trump its basic structure.

Our Constitution has now been defi led and defaced.

The unceremonious termination of the Attorney-General on spurious grounds of medical condition (without due process), the dismantling of the Task Force that was investigating the 1MDB controversies and alleged fi nancial improprieties, and the neutralising of the Malaysian Anti-Corruption Commission (“MACC”) and its offi cers are naked examples of negation of constitutional governance.

Will you be a Constitutional Patriot to restore the fundamental norms of our polity as a healthy democratic nation giving recognition of equality to all and ruling with fairness and equity for all?

Will we reject wholly attempts at usurpation of power by the Executive whose concern is the holding on to power and position?

The wider ramifi cations of Constitutional patriotism must be teased out to address the legitimacy and constitutional defi cit that now besets Malaysia. It urges loyalty and sense of belonging to all communities, not ignoring shared

histories and problematic of identities but cleaving to the aspiration of a more inclusivist agenda. We need to set forth to build a “constitutional culture centred on Universalist liberal-democratic norms and values, refracted and interpreted through particular historical experiences.”11 Joseph M Fernando has argued that the legitimacy of the constitutional structure from its beginnings is based on civic and not ethnic nor religious nationalism. Only if our patriotism is based on this sound and wise foundation will it continue to be the “conscience of the nation”. 12

Philip Koh Tong Ngee Co-editor, Sheridan & Groves, The Constitution of Malaysia (5th Edition) (2004) (LexisNexis)

Notes

1 These distinctions and models of nationalism as stated by Anthony D Smith, National Identity (1991) (Penguin), was appropriated with historical fi nesse and care to the Federal Constitution by Joseph M Fernando, The Making of the Malayan Constitution (2002) (MBRAS) Monograph No 31 Chapter 6.

2 See the witty but insightful essay of being a scoundrel by CS Lewis, The Inner Ring, at http://www.lewissociety.org/innerring.php.

3 See Rais Yatim, Freedom under Executive Power in Malaysia: A Study of Executive Supremacy (1995) (Endowment); the learned author wrote this treatise when out of political power. See also Amanda Whiting, “Emerging from emergency rule? Malaysia Law ‘Reform’ 2011-2013”, Australian Journal of Asian Law (2013), Vol 14, No 2, Art 9:1-55.

4 Jan-Werner Műller, Constitutional Patriotism (2007), Princeton University Press.

5 Steven Johnston, Political Theory, (December 2008), Vol 6, No 4, pp 827-828.

6 See Benedict Anderson, The Spectre of Comparisons (1998) (Verso); and Cliff ord Geertz, The Interpretation of Cultures (1973) (Basic Books).

7 See also notion of peoplehood defended by John Rawls in his Law of Peoples (1999), Cambridge, Mass: Harvard University Press.

8 The notion of public reason has been best articulated by John Rawls in his Law of Peoples, ibid; see also Rex Martin and David A Reidy, Rawls’s Law of Peoples: A Realistic Utopia (Blackwell) (2006).

9 For a magisterial statement of what liberty and justice can mean in a polity, see John Rawls, Justice as Fairness: A Restatement (2001) (Harvard) which refi nes Rawls’ classic work, A Theory of Justice (1971).

10 A new phrase being wielded by certain groups (eg race-based NGO, Perkasa) in the wake of the Low Yat incident where strident polemic of radical ethnic-religious sentiments was expressed to provide an irrational apologetic to a theft.

11 Jan-Werner Műller at p 136 cited in Christopher J Hilson’s “Towards a Thicker Constitutional Patriotism?”, The Review of Politics, Vol 71, No 1 (winter 2009), pp 159-162. See also Patchen Markell, “Making Aff ect Safe for Democracy? On Constitutional Patriotism”, Political Theory, Vol 28, No 1 (Feb 2000), pp 38-63.

12 See Joseph M Fernando, “The Making of the Malayan Constitution” (2002) (MBRAS) Monograph No 31, concluding Chapter 7.

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Rakyat Guides

The Rakyat Guides, totalling nine in a series, are produced by the Bar Council Constitutional Law Committee. First launched in 2009, the Rakyat Guides are aimed at introducing to the public in simple terms, the essence of the Constitution of Malaysia.

The Rakyat Guides simplify the main themes of the Constitution and are written in a non-legalistic style, to enable any layperson to understand the content of the Constitution.

The content of the Rakyat Guides is drafted carefully and meticulously by a panel of highly-qualifi ed lawyers and academics.

The Rakyat Guides comprise the following:

1. What is the Federal Constitution2. Constitutional Institutions & the Separation of Powers3. Federal-State Relations4. Parliament5. The Executive6. The Judiciary7. Sabah & Sarawak8. Fundamental Liberties & Citizenship9. Elections & Democracy

The Rakyat Guides are available in English, Bahasa Malaysia, and most recently, Mandarin. They are sold as a set for RM6.40 (inclusive of 6% GST). You may obtain your copies of the Rakyat Guides from:

Bar CouncilNo 15 Leboh Pasar Besar50050 Kuala LumpurTel: 03-2050 2050

You may also download copies of the Rakyat Guides from the Malaysian Bar website, athttp://www.malaysianbar.org.my/. Scroll down to the bottom of the page, and you will see icons of the Rakyat Guides, in English, Bahasa Malaysia, and Mandarin, at the bottom right-hand side.

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The Special Position of Sabah and Sarawak in Our Federal Set-Up

When Malaya re-constituted into Malaysia, Sabah and Sarawak were constitutionally off ered many special terms. The special provisions for them were based on a number of historical events, among them the Inter-Governmental Committee Report and the Malaysia Agreement.

The sanctity of the Inter-Governmental Committee Report and the Malaysia Agreement has been reiterated by our apex court in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72; Datuk Hj Mohammad Tufail v Dato’ Ting Check Sii [2009] 4 MLJ 165; and by the High Court in Robert Linggi v Government of Malaysia [2011] 2 MLJ 741.

Fifty-two years down the road, the conviction remains strong in our East Malaysian states that due to their cultural, religious, linguistic and ethnic diversity, Sabah and Sarawak should continue to enjoy greater autonomy than the Peninsular Malaysian states. This is seen as justifi able due to a number of socio-political, economic, geographical

and legal factors. Among them are the following:

• Sabah and Sarawak’s special position in our federal set-up is not unique to world federations. To accommodate diversity, the State of Kashmir in India and Quebec in Canada have similar unique rights;

• Sabah and Sarawak have cultural and religious distinctiveness from Peninsular Malaysia;

• They contribute huge territories and massive resources to the federation. Their combined area is 198,069 sq km, exceeding Peninsular Malaysia’s 131,681 sq km. The coastline of the two States is 2,607 km compared to the peninsula’s 2,068 km;

• There are problems of poverty and underdevelopment in these two states; and

• The 1963 pact between the Federation of Malaya, United

Kingdom, North Borneo, Sarawak, and Singapore had international participation. Therefore there is international law basis to the guarantees for Sabah and Sarawak.

ALLOCATION OF LEGISLATIVE POWER

The Legislative ListThe legislative powers of the federal parliament and the State legislative assemblies are specifi ed in fi ve legislative lists in the Ninth Schedule of the Constitution of Malaysia. Under Articles 95B to 95E, there is special provision for the States of Sabah and Sarawak relating to the distribution of legislative power.

Sabah and Sarawak have a Supplementary State List and a Supplementary Concurrent List conferring on them many legislative powers not allocated to the peninsular states.

The Supplementary State List for Sabah and Sarawak confers additional powers

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on these States in seven matters including native law and custom, ports and harbours and, in Sabah, the Sabah Railway.

The Supplementary Concurrent List for Sabah and Sarawak extends the legislative competence of these states to cover nine matters including shipping under 15 tonnes, charities and theatres.

Uniformity of LawsParliament may legislate on state matters like land and local government for the purpose of promoting uniformity of laws of two or more states: Article 76(1)(b). However, this power of the federal Parliament is not applicable to Sabah and Sarawak: Article 95D. Land, agriculture, forestry and local government remain exclusive to Sabah and Sarawak.

International TreatiesUnder Article 76(1)(a), Parliament may make laws with respect to any matter enumerated in the State List for the purpose of implementing any treaty with a foreign nation, or any decision of an international organisation. If the law aff ects Islamic law, or the custom of the Malays, or native law and custom in Sabah and Sarawak, then there is a duty to consult with the States concerned: Article 76(2). But the duty to “consult” does not impose a duty to obey.

POWER TO AMEND FEDERAL CONSTITUTION

The power of amending the Constitution belongs largely to the federal Parliament, which can exercise this power sub�ect to procedures provided in Articles 2(b), 159 and 161E. It is noteworthy that except in relation to territorial changes to the boundaries of the States under Article 2(b), the � est Malaysian States have absolutely no power to prevent a constitutional amendment from going through.

The Constitution does not re�uire consultation with or consent of the States in the amendatory process of Article 1(1) and (2) � the articles that describe the name and territories of the �ederation. The point was dramatically illustrated in the case of Government of Kelantan v Government of the Federation of Malaya and Tunku Abdul Rahman (196�) ML� �55.

However, the power of amending the Constitution which belongs to the federal Parliament is not as extensive in relation to Sabah and Sarawak as it is in relation to the � est Malaysian States: Article 161E(2). The consent of the �over nors of Sabah and Sarawak is re�uired to a constitutional amendment under Article 161E aff ecting the special position of these states: Robert Linggi v Government of Malaysia �2�11� 2 ML� 7�1. It is notable that the consent of the �over nors, and not the Assemblies, is re�uired. The � overnors are federal appointees and unlikely to side with the States against the federal government despite a constitutional obligation to follow the advice of the Chief Ministers.

�ote also that the alteration of the boundaries of a State re�uire the consent of the legislature of the state plus the consent of the Conference of Rulers: Article 2(b). � id the “Labuan amendment” �Act A5�5� of 19�� meet these mandatory procedural re�uirements�

JUDICIAL POWERS

Native CourtsIn Sabah and Sarawak, besides the Syariah Courts, there is a system of native law and native courts.

High Court for Sabah and SarawakThe federal High Court has two wings � one in Malaya and the other in the States of Sabah and Sarawak: Courts of �udicature Act 196� (Act 91). The appointment of the Chief �udge of the Sabah and Sarawak High Court re�uires consultation with the Chief Minister of these States: Article 122B(�).

REPRESENTATION IN PARLIAMENT

Dewan Negara (Senate)The initial safeguard built into the �ederal Constitution of 1957 was that State Senators outnumbered the federally�appointed Senators by a margin of 22:16. This proportion gave some semblance of a restraining safeguard against constitutional amendments. But with subse�uent constitutional modi� cations in 196�, 196�, 1965, 197�, 197�, 19�� and 2��1 which were necessitated due to the enlargement of the territories of the federation, the separation of Singapore and the creation of the �ederal Territories of � uala Lumpur, Labuan and Putra�aya, the proportion of elected Senators to appointed Senators now stands at 26:��.

Dewan Rakyat (House of Representatives)Sabah has 25 Members of Parliament (“MPs”)� Sarawak �1. Together, Sabah and Sarawak have 56 out of a total 222 or 25.2� of the MPs in the �ewan Rakyat. This is disproportionately large based on their population.

However, it must be noted that this number is lesser than the �� envisaged for Sabah, Sarawak and Singapore in 196� in order to accord these States protection against amendments re�uiring two�thirds ma�ority.

PROTECTION AGAINST FEDERAL EMERGENCY POWERS

�hile a proclamation of emergency is in force, the executive authority of the federation may extend to any matter within the legislative authority of a

Parliament may legislate on state matt ers like land and local government for the purpose of promoting uniformity of laws … However, this power of the federal Parliament is not applicable to Sabah and Sarawak: Article 95D. Land, agriculture, forestry and local government remain exclusive to Sabah and Sarawak.

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State: Article 150(4). The federal system can operate as a unitary system, and Parliament can enter the State List. It can amend the State Constitution as for example the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966.

It is under emergency provisions that the removal of Dato’ Stephen Kalong Ningkan as Chief Minister of Sarawak was accomplished in 1966. Dato’ Ningkan’s challenge of the proclamation of emergency on the ground of mala fi de failed in the courts — Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238

However, even during an emergency under Article 150, the native law or customs of Sabah and Sarawak cannot be extinguished by emergency law: Article 150(6A).

DEVELOPMENT PLANS

In relation to national development plans, Article 92(1) empowers the �ang di�Pertuan Agong to proclaim an area of a State as a �development area�. Thereupon Parliament has power to give e� ect to the development plan notwithstanding State powers on the matter. � nder Article 95E(3), Sabah and Sarawak are excluded from national plans for land utilisation, local government and development, unless the consent of the �ang di�Pertua Negeri is obtained.

NATIONAL COUNCILS

Policies of the National Land Council are not binding on Sabah and Sarawak except with the consent of the �ang di�Pertua Negeri. Policies of the National Council for Local �over nment are not binding on Sabah and Sarawak except with the consent of the State Assemblies: Article 95E(2).

FISCAL FEDERALISM

According to Professor � H Hickling, �money represents power, and is at the heart of government�. An e�uitable distribution of � nancial resources between the federation and the states is the ultimate test of a true federation. As Harding says: �Finance is obviously crucial to a federal system, since both the federal and state governments are only able to do that which their resources

permit them�.

The federal government’s stranglehold over most of the lucrative sources of revenue is not as strong in relation to Sabah and Sarawak as it is in relation to other states. In some areas that are noted below, Sabah and Sarawak en�oy � scal privileges that are not available to the Peninsular States:

LoansThe Constitution sub�ects the � est Malaysian states to � scal control by the centre in another way. A state is not allowed to raise or borrow money except from the federation or a federally�approved bank: Article 111(2) and (3) and the case of Government of Malaysia v Government of the State of Kelantan (1968) 1 MLJ 129.

�nder Article 112�, Sabah and Sarawak are allowed to raise loans for their purposes with the consent of the Central �ank of Malaysia (��ank Negara�).

Special Sources of Revenue Sabah and Sarawak are allocated special revenues to meet their needs above and beyond what other States receive: Article 112C(1)(b).

Sabah and Sarawak are assigned eight sources of revenue not permitted to other States. These include import and excise duty on petroleum products, export duty on timber and forest produce and, sub�ect to a ceiling, export duty on minerals. Sabah and Sarawak are also entitled to earnings (taxes, fees and dues) from ports and harbours and state sales tax: Article 112C and Part � of Schedule 10.

Special GrantsSabah and Sarawak en�oy some special grants: Articles 112C(a) and 112D.

AuditsThere are special rules about audits in Sabah and Sarawak: Article 112A.

ARTICLE 153: SPECIAL POSITION AND PROTECTION ACCORDED TO THE NATIVES OF SABAH AND SARAWAK

�nder Article 153, the natives of Sabah and Sarawak en�oy a special position similar to that of the Malays of Peninsular Malaysia. Article 153 is, however, silent about whether the special protection

for the natives of Sabah and Sarawak applies throughout Malaysia or has limited territorial reach only within Sabah and Sarawak.

IMMIGRATION

The mobility of non�residents to Sabah and Sarawak is restricted: Article 161E(4) and Part �II of the Immigration Act (Act 155). There is also restriction on non�residents practising before the courts of Sabah and Sarawak: Article 161B. Sabah and Sarawak lawyers have exclusive right to practise law in their states and in relation to cases originating there.

ENGLISH AND NATIVE LANGUAGES

Sabah and Sarawak en�oy special protection in relation to the use of English and native languages, as enshrined in Article 161.

MALAY RESERVES

There is non�application of Malay �eserves to these States: Article 161A(5).

DEVELOPMENTS SINCE 1963

Fifty�two years down the road, not all is well with the (former) �or neo states’ relationship with the centre. In many areas, Sabah and Sarawak’s autonomy has su� ered retreat due to constitutional developments. A case in which Sabah’s grievances were unsuccessfully sought to be articulated is Fung Fon Chen @ Bernard & Anor v The Government of Malaysia and Anor [2012] 6 MLJ �24.

Governors and Chief MinistersThere is discontent about � arisan Nasional’s choice of � overnors and Chief Ministers.

LabuanLabuan’s federalisation is a sore point in Sabah. Labuan was ceded to the federal government in 1984 through an amendment inspired by the then Sabah government.

No State Religion in 1963At the time of the formation of Malaysia in 1963, there was no state religion in these two states. The Inter�� overnmental Committee (1962) had recommended that there should be no state religion in Sabah and Sarawak.

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No restriction on the propagation of religion (which restriction is permitted by Article 11(4)) should be enacted except by a two-thirds majority in the State Assembly. No federal funds should be used for religious purposes in Sabah and Sarawak, and these two States should receive for welfare purposes an amount equal to what the federal government spends in West Malaysia for religious purposes.

These principles were incorporated into Articles 161C and 161D, but were repealed by the Constitution (Amendement) Act 1976. Islamisation in Sabah and Sarawak is now a signifi cant phenomenon. Due to an amendment to the Sabah Constitution by its Assembly, Islam is now the offi cial religion of Sabah.

Article 153There are many signifi cant criticisms about the application of Article 153 to East Malaysia. It is alleged that the rights of the natives of Sabah and Sarawak are not being enforced in the same spirit as the rights of the Malays under Article 153.

It is a matter of contention whether the rights of the natives of Sabah and Sarawak apply only in their respective States or throughout the Federation. There are grumblings that the “real natives” are being displaced by the “new Bumiputeras”.

Other misgivings are that the term “native” ignores the “aborigines” of Sabah and Sarawak. Under Article 160(2), “aborigine” is confi ned to the Malay Peninsula.

The constitutional defi nition of “native of Sarawak” in Article 161A(7) includes 28 indigenous races and persons “of mixed blood deriving exclusively from these (28) races”. This leaves out children of mixed marriages where one parent belongs to one of the 28 indigenous races but the other parent does not. For Sabah, the defi nition of a native in Article 161A(6) suff ers from gender bias in that it emphasises the domicile of the father and not the mother contrary to Article 8(2).

Native Custom Versus Syariah LawThere is an intense but silent jurisdictional confl ict between native law and Native Courts on the one hand, and Syariah Law and Syariah Courts on the other,

when a native who is also a Muslim is subject to court proceedings.

PetroleumThere is an ongoing debate about how much Sabah and Sarawak must receive for the oil and gas being extracted off its shores. This question raises engaging issues of constitutional law, federal-state relations, and of the interpretation of the Petroleum Development Act 1974, the Petroleum Mining Act 1966 and the “Assignment Deed” between the signatory states and Petronas.

What is noteworthy is that “oil and oilfi elds”, “petroleum products” and “safety in mines and oilfi elds” are in the Federal List in Schedule 9, List I, Item 8(j). “Extra-territorial jurisdiction” is in the Federal List, Item 8(g). This means that prospecting for oil in the “Economic Zone” or the revenue from any oil found on land or in or outside of territorial waters is the exclusive right of the federal government.

The States are merely entitled to (i) “Import duty and excise duty on petroleum products”: Schedule 10, Part V, Item 1; and (ii) a maximum of 10 per cent ad valorem of royalty on any “mineral oils”: Schedule 10, Part V, item 3.

In Schedule 9, List II, Item 2, States are in control of “permits and licences for prospecting for mines”. However, oilfi elds are unlikely to be regarded as “mines”.

All this means that the state share of petroleum income is not well protected constitutionally. The matter is one of contract under the Petroleum Development Act 1974, the Petroleum Mining Act 1966 and the “Assignment Deed” between the signatory states and Petronas.

Federalisation of Critical State MattersTourism used to be a State matter. By the Constitution (Amendment) Act A885, tourism is now a federal matter. Disputes are also brewing over production, distribution and supply of water which are covered by the Federal List Para 11(b) and the federally-enacted Water Services Industry Act 2006 (Act 655). The problem is that “subject to the Federal List, water (including rivers and canals but excluding water supplies and services)” is in Para 6(c) of the State List.

EmergencyThe federal declaration of emergency in Sarawak in 1966 and the subsequent dismissal of its Chief Minister Stephen Kalong Ningkan, indicates that state autonomy is rather frail and cannot withstand the onslaught of emergency powers.

Strength in ParliamentWith the separation of Singapore and the creation of several Federal Territories — Kuala Lumpur with 13 MPs, Labuan with one MP, and Putrajaya with one MP — the relative strength of Sabah and Sarawak in the Dewan Rakyat has undergone signifi cant diminution from 35% in 1963 to 25% in 2014.

Federal Political InterferenceInterference by federal politicians in Sarawak’s politics in 1966 and in Sabah’s politics in 1994 led to the replacement of popularly elected local leaders. This underlines the ability of the federal government to dictate political outcomes.

Illegal ImmigrantsThe infl ux of illegal immigrants and the alleged “naturalisation” of thousands of them are being regarded as violations of Sabah and Sarawak’s rights over immigration.

Twenty-point Manifesto and 18-point AgreementIn opposition to the Peninsular’s views against special treatment for Sabah and Sarawak, some voices from across the South China Sea assert that the constitutional safeguards of 1963 have been whittled down. Specifi cally they point to violations of the Twenty-point Manifesto of the Sabah Alliance and the 18-point Agreement of Sarawak. A scrutiny of Sabah’s Twenty-Point Manifesto indicates that 13 out of 20 points show complete or substantial compliance. But there are grouses about the following seven clauses of the manifesto:

• Religion (para 1) Sabah was supposed to have no

state religion. During Tun Datu Haji Mustapha’s (popularly known as Tun Mustapha) tenure as third Chief Minister of Sabah, the Sabah Constitution was amended by the State Assembly to adopt Islam as the state religion and to appoint the Yang di-Pertuan Agong as the Head of the religion of Islam, in 1973.

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• Language (para 2) While Malay was to be the national

language, English could be used in Sabah for all purposes, State or Federal, without limitation of time. Sabah amended this to adopt Malay as the language of the Cabinet and the Assembly subject to some exceptions.

• Amendments to the Federal Constitution touching on Sabah and Sarawak’s rights (paras 3 and 16)

• Immigration Para 6 on Sabah’s rights over

immigration is intact but the infl ux of illegal immigrants and their alleged naturalisation has changed the ethnic landscape of Sabah.

• Borneonisation (para 8) There is strong discontent that

this is not proceeding vigorously enough.

• Education system under state control (para 15)

Policies relating to Bahasa Malaysia and common, nationally-recognised examinations, while good for national integration, pose a challenge to the idea of state control over education.

What is noteworthy is that paras 1 and 2 were tinkered with by Sabah itself. Likewise, the federalisation of Labuan by the federal government was with the consent of the Sabah executive. Clearly, there is some barking up the wrong tree by angry Sabahans.

The “Allah” IssueThe Court of Appeal’s decision on the “Allah” issue seriously impacts on the rights of Sabah and Sarawak Christians to preach and worship their religion in Bahasa Malaysia and to use the term “Allah” in their worship as they have done for centuries.

EnvironmentThis is in the Federal List. But as “environment” is a generic term involving many specifi c matters that are clearly in state hands (eg land, forests and rivers), questions of confl ict of jurisdiction are inherent in this area. The Bakun decision (Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23) illustrated this dramatically.

Constitutional AmendmentsArticle 161E(2)(b) states that no amendment shall be made to the Federal Constitution without the concurrence of the Yang di-Pertua Negeri of Sabah and Sarawak, if the amendment is such as to aff ect the operation of the Constitution as regards some matters including “the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court”.

Prior to 24 June 1994, the appointment of Judicial Commissioners (“JCs”) to the High Court of Sabah and Sarawak was made by the Governors (Yang di-Pertua Negeri) on the advice of the Chief Judge of the High Court of Sabah and Sarawak. However, on 24 June 1994, the constitutional amendment to Article 122A(3) and (4) transferred this power from the Yang di-Pertua Negeri to the Yang di-Pertuan Agong. The right of the Chief Judge of Sabah and Sarawak to advise was transferred to the Prime Minister and the Chief Justice of the Federal Court.

In Robert Linggi v Government of Malaysia, the plaintiff argued, and rightly so, that the concurrence of the Governors of Sabah and Sarawak was mandated to the insertion of the new Article 122AB. The Government conceded that no consent had been obtained, but amazingly argued that no such consent was needed. Rightly, the learned judge gave short shrift to this audacious argument and held that the 1994 amendment was invalid as far as Sabah and Sarawak were concerned.

Similar issues arise under the Judicial Appointments Commission Act 2009 (“JACA 2009”). While the Act is supportable in its content, its procedure appears contrary to Article 159(3). As a surreptitious constitutional amendment, that not only supplements but supplants the procedures of Article 122AB and 122B, it required a two-thirds majority. For the reason that JACA 2009 aff ects the appointment process of Sabah-Sarawak judges and the exercise of the discretion of the Chief Judge of Sabah and Sarawak, the Act should have been submitted to the Governors of Sabah and Sarawak for their consent. One must note with regret that the Robert Linggi decision has been overruled by the Court of Appeal.

CONCLUSION

Malaysia’s federal model provides for a heavy central bias. But in relation to Sabah and Sarawak, the federal government’s powers are not so pronounced.

Professor Harry E Groves has commented that for many signifi cant purposes, the federation has the appearance of a three-unit entity � Sabah being one, Sarawak the second, and the eleven Peninsular states together forming the third unit.

The disparity of powers between the West Malaysian states on the one hand, and Sabah and Sarawak on the other, is indeed very striking and one can appreciate it only by bearing in mind the favourable geographical size, wealth and the diff erent religious and racial composition of the peoples of Sabah and Sarawak.

�espite the constitutional grant to Sabah and Sarawak of considerable autonomy, some dissatisfactions seem to be boiling over. This is not surprising as tensions between federal and state governments are common in most federations. For example, petrol royalty issues have triggered separatist movements in many federations.

What is important is that tensions need to be kept in check and the embers of controversy doused as when fi res fl are. Leaders of the federal government must recognise that Sabah and Sarawak’s restiveness is real and must be addressed. Balancing the concerns of equity and e� ciency in inter-governmental fi nancial relations is paramount. And there is a need to strengthen institutional mechanisms for regular, non-partisan dialogue between the centre and the states.

There is no reason to believe that the spirit of accommodation that animated the body politic in 1957 and in 1963 cannot continue for a long, long time.

Professor Emeritus Datuk Dr Shad Saleem Faruqi

Professor of Law, Faculty of Law � niversiti Teknologi MARA

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Sedition Act — An Assault on Freedom of Speech and Expression

The easiest criticism one can level on the Sedition Act 1948 is in the way the Act has been used. One can recall, the incredulous charge against a university lecturer for a comment he made to an online news portal. Most will agree that the comments are his academic opinion on what is essentially a constitutional issue, yet for some reason the Public Prosecutor proff ered a charge of sedition against him.

Compare that with a politician, who some years ago made a call to adherents of a particular faith to search and burn the holy book of another faith. But for some reason, the said politician was not charged. Instead, the Public Prosecutor gave a statement to justify why the politician was not charged. Reasons given were, amongst others, that what the politician said was not a statement with seditious tendency as he had “no intention to create religious disharmony”.

Selective prosecution is but one issue with the Act. There are other more fundamental issues with the Act that necessitates its repeal.

The Sedition Act 1948 must be one of the most maligned laws in our statute

books. Again and again, calls are made to abolish the Act. It appeared at one point that the Government would fi nally do so when in 2012, the Prime Minister himself has stated that the Act will be abolished and replaced with a National Harmony Act. Two years later, the Prime Minister reneged on his promise. Instead of a repeal, the Act was “strengthened” and made more draconian.

The off ence of sedition originated in England some time in the 17th century. According to Jeyaseelan Anthony in his book Seditious Tendency?: Political Patronisation of Free Speech and Expression in Malaysia, sedition was born in a time when the absolute right of the Ruler was divine and cannot be criticised or questioned, let alone opposed. Criticisms and opposition towards the Ruler was a sin and thus must be punished.

Our Act is a colonial vestige. It was enacted before the Federation of Malaya achieved independence and it was largely used by the British to deal with militant communists insurgents at the time.

The Act criminalises “sedition” by making it an off ence to do anything

which has a “seditious tendency” or to utter any seditious words. “Seditious” is defi ned in the Act as any act, speech, word, publication or other thing qualifi es as one having a “seditious tendency”.

A “seditious tendency” meanwhile is defi ned as, amongst others, a tendency to bring into hatred or contempt or to excite disaff ection against any Ruler or to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or Government, the unlawful alteration of any matter established by law.

A seditious tendency can also be a tendency to bring into hatred or contempt or to excite disaff ection against the administration of justice or to raise discontent or disaff ection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia.

A seditious tendency can also be a tendency to promote feelings of ill will and hostility between diff erent races or classes of the population of Malaysia and to question certain constitutional provisions such as Articles 152 and 153 of the Federal Constitution.

A call for the repeal of the Sedition Act 1948, Walk for Peace and Freedom, 16 Oct 2014

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Clearly, the list of what can constitute “seditious tendency” is wide. Almost anything can and would have a “seditious tendency” by the Act’s defi nition. Any criticism of the Government would be seditious. Any comment made can raise ill will and hostility within the population. What is said or done may even be justifi ed, yet would still fall foul of the Act.

Earlier this year, the Parliament passed several amendments to the Act. At the time of writing, the amendment bill has been gazetted, but is not yet in force.

Under the amendments, criticisms of any Government or of the administration of justice are no longer seditious tendencies. But that is of little comfort to any of us, as the other listed seditious tendencies are wide enough to cover almost anything that is said or done.

The amendments have taken away judicial discretion in sentencing. The Court no longer has the option to impose fi nes upon conviction of a sedition off ence. Instead, there is now an imprisonment sentence of three years. The maximum sentence will be increased to up to seven years.

There is absolutely no justifi cation for this. For an Act as wide as the Sedition Act 1948, with no element of intention that must be proven, as well as the disproportionately high conviction rate, judicial discretion in sentencing may at least cushion some of the more draconian aspects of the law. It may be diffi cult for the Court to acquit a person as the Act casts a wide net on what is deemed to be seditious, but at the very least the Court has options when it comes to sentencing. The amendments have taken away that option.

The amendments also empower the Court to prevent a person who is charged with a sedition off ence from leaving Malaysia. It provides that if an application is made by the Public Prosecutor, the Court shall order the person to surrender his travel documents such as his or her passport or order the Director General of Immigration not to issue any travel documents to the said person. The keyword here is “shall”, which suggests that the Court has no discretion on the granting of such an order once an application is made.

The amendments also introduce a new off ence — an aggravated off ence where the seditious act “causes bodily injury or damage to property”. The sentence upon conviction is a minimum of three years, and maximum 20 years, imprisonment.

The amendments also insert a new seditious tendency of promoting feelings of ill will, hostility and hatred between persons or groups of persons on the ground of religion. The words used mirror sections 298 and 298A of the Penal Code; the off ences of uttering words and others with deliberate intent to wound the religious feelings of any person and causing disharmony, disunity, enmity, hatred or ill will on grounds of religion. The crucial diff erence is that unlike the Penal Code off ences, the element of intention need not be proven, as long as it can be shown that there is the requisite seditious tendency.

The amendments also empower the Sessions Court to make what is known as a “prohibition order” for publication which is “likely” to lead to bodily injury or damage to property; “appears” to promote feelings of ill will, hostility or hatred between races or classes of persons; or “appears” to promote feeling of ill will, hostility or hatred between people on grounds of religion.

Unlike many other provisions of the amendments, it appears that the Sessions Court does have some discretion in granting the order. However, the threshold will be low as the bill uses words such as “likely” or “appears”.

For seditious publication by way of electronic means, a prohibition order shall require the person making or circulating the seditious publication to remove the said publication. The person making or circulating the seditious publication will also be prohibited from accessing “any electronic device”. So, if a person tweets something deemed to be seditious and a prohibition order is issued against the person, he will be prohibited from using a smartphone, tablet, desktop and any other electronic device. Failure to comply is in itself a criminal off ence.

It is also now an off ence to “propagate” seditious publication. “Propagation” is not defi ned in the bill; the ordinary meaning of the word would be to reproduce, disseminate or spread the publication.

There are other worrying aspects of the amendments which shall not be delved into here. Suffi ce to say, the State will have in its arsenal, tools to severely restrict freedom of speech and expression. If the Act is bad in its present form, the amendments will make it much worse.

If a person is charged for sedition, the prosecution does not even have to prove that the words uttered or the act done is actually seditious. All that needs to be established is a tendency to be seditious. Even the intention of the accused is irrelevant, as long as the act done or words uttered have a seditious tendency, it would be enough to fulfi l the elements of the off ence and to establish the guilt of the accused.

This articleʼs writer, Syahredzan Johan speaking during the Walk for Peace and Freedom, 16 Oct 2014

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With such a wide defi nition and such an easy off ence to establish guilt in Court, it is no wonder that the Act has been used to stifl e political opposition and dissidents.

When the police cannot fi nd an off ence in other Acts of Parliament to investigate a person, they will fall back on the Act. That is why for example, we see the Act being used against those who allegedly insult the Rulers, in the absence of lèse-majesté laws specifi cally for that purpose.

The imprecise nature of what constitutes seditious tendency, and the width of the provisions resulted in the Act being used to harass, intimidate and detain citizens.

This restriction on free speech does not uphold the spirit of democracy which forms the basis of our country’s constitutional framework. Freedom of speech and expression is protected by the Federal Constitution, and the interpretation of the law as it currently stands is that any form of restriction placed by the State on fundamental liberties must be reasonable. The criminalisation of those matters listed as “seditious tendency” in the Act should not measure up to the standard of “reasonableness” when it comes to restricting fundamental liberties. The Act severely encroaches upon the public enjoyment and exercise of fundamental civil liberties and has no place in our maturing and modern society.

We should be freed from such archaic laws — laws promulgated by our colonial masters that no longer can stand the test of time. Even the British have discarded the law long ago; the last documented prosecution for sedition in the United Kingdom was in 1972. It is time for us to follow suit.

Syahredzan Johan Partner RamRais® & Partners

The #MansuhAktaHasutan Campaign — What is it?

The #MansuhAktaHasutan campaign is a nationwide campaign by the Bar Council spearheaded by the National Young Lawyers Committee. The campaign is pursuant to the position of the Malaysian Bar as expressed through the Malaysian Bar resolution dated 19 Sept 2015.

The campaign seeks the following through this campaign:

• To repeal the Sedition Act 1948;• To call for the Attorney General to withdraw all pending charges, cases and appeals, and to concede to all pending

appeals, under the Sedition Act 1948 in the courts of Malaysia;• To call for the Malaysian Government to impose a moratorium on the use of the Sedition Act 1948 pending its repeal; and• To call for the police to cease all investigations pursuant to the Sedition Act 1948.

The Rakyat Guides #1 What is the Federal Constitution?The Federal Constitution (“Constitution”) is the supreme law of Malaysia. It is the most important document of our country because it determines the kind of country we live in:

• It sets up our democratic system; • It limits the power of government; and • It sets out our rights.

The Constitution consists of 16 parts:

Part 1: The States, Religion and Law of the FederationPart 2: Fundamental LibertiesPart 3: CitizenshipPart 4: The FederationPart 5: The StatesPart 6: Relations between the Federation and the StatesPart 7: Financial ProvisionsPart 8: ElectionsPart 9: The JudiciaryPart 10: The Public ServicePart 11: Special Powers Against Subversion, Organised Violence, and Acts and Crimes Prejudicial to the Public and

Emergency PowersPart 12: General and MiscellaneousPart 12A: Additional Protections for States of Sabah and SarawakPart 13: Temporary and Transitional ProvisionsPart 14: Saving for Rulers’ Sovereignty, etc Part 15: Proceedings against the Yang di-Pertuan Agong and the Rulers

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The Transboundary Haze Crisis in Malaysia: A Clear Transgression of International Environmental LawMalaysia is in the middle of an environmental haze crisis for weeks. The air quality no less has deteriorated to such an extent that it is unhealthy to venture outdoors. The word crisis is deliberately used to show that if this perennial problem is not handled properly it may spiral out of control to become an environmental catastrophe. The haze by the way is only an individual environmental issue, discounting all other sources of pollution such as those emitted daily from industries, private and commercial vehicles, that most of us have to put up with daily.

The haze is not peculiar to the South East Asian nations alone as Japan experiences wind-blown haze from the factories in mainland China, and even Hong Kong encounters haze from industrial activity in the nearby Shenzhen region. But that is no reason to be smug. The haze that we experience here in the ASEAN region, though diff erent in particulate matter, is aff ecting the health of over one hundred million people almost perennially and is substantially damaging the environment.

The Regional and International Dimensions of the Haze Problem

The haze originates from Indonesia. It is due to open burning of forests and peat-land. Open burning can be controlled through deployment of water bombers whereas peat-land fi res are more diffi cult to control as these fi res are subterranean in nature. As the haze is carried by the seasonal monsoon winds, the haze problem assumes both regional and international dimensions. Here is where domestic environmental laws are limited in their capacity to deal with the problem. We need some kind of regional environmental mechanism in place and this brings into focus the ASEAN Transboundary Haze Pollution Agreement (“THPA”).

The ASEAN Transboundary Haze Pollution Agreement (“THPA”)

The THPA was signed by all ASEAN member states on 10 June 2002 in Kuala

Lumpur during the World Conference on Land and Forest Fire Hazards. It came into force on 25 November 2003, sixty days after the deposit by Thailand of the 6th instrument of ratifi cation by Thailand with the Secretary-General of ASEAN. But strange to say it took another eleven years for the tenth and fi nal ASEAN member, Indonesia, to ratify the THPA on 20 January 2015.

That being the case, it does not mean that nothing was done about the haze problem over the years before the THPA. In fact a lot has been done; the only question remaining is whether those eff orts were suffi cient or eff ective. It started in 1985 where ASEAN began to acknowledge the haze problem by adopting the Agreement on the Conservation of Nature and Natural Resources, which included a reference to air pollution and transfrontier environmental eff ects. This was followed the Kuala Lumpur Accord on Environment and Development 1990 and the Singapore Resolution on Environment and Development 1992, both making references to transfrontier pollution. Then ASEAN member states adopted the Cooperation Plan on Transboundary Pollution in 1995, as a result of which a Haze Technical Task Force (“HTTF”) was set up to put into operation the measures included in the cooperation plan, one of which was the activation of an alert system. In 1997, the haze in ASEAN was edging to catastrophic proportions. The ASEAN Ministerial Meeting on Haze was established the same year to give haze a special importance in the organisation. The Meeting formulated the Regional Haze Action Plan (“RHAP”) whose primary objectives includes inter alia, establishing operational mechanisms to monitor land and forest fi res, and strengthening of regional monitoring mechanisms. In 1998, the ASEAN Summit issued the Hanoi Plan of Action which called for the full implementation of the RHAP by 2001, and in 1999, ASEAN adopted a zero-burning policy, following which dialogues and workshops were convened to promote

such policy among plantation owners and timber concessionaires. However, there was no regional enforcement mechanism and RHAP was not binding on ASEAN states. Hence, the THPA was proposed in 2001 with the goal of having a full-fl edged treaty with binding obligations to solve the transboundary haze issue.

Some Important Features of the THPA

Is the THPA consistent with the “no harm” principle under International Environmental Law? This principle was articulated in clear terms in the famous Trail Smelter Case 1941 following complaints from the residents of the State of Washington of sulphur dioxide emissions from a smelter in Trail, British Columbia. The arbitral tribunal enunciated the principle that no state has a right to permit the use of its territory in such a manner as to cause injury by fumes to the territory of another. The THPA addresses crucial issues of monitoring and prevention that relate to haze pollution through Article 7 and 9 respectively. These Articles use of the word “shall” refl ect a commitment to the “no harm” principle, and that sounds encouraging. Article 3 Para 1 states: “The Parties have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment and harm to human health of other States or of areas beyond the limits of national jurisdiction”. The wording is a refl ection of the core environmental law principle under Principle 21 of the 1972 Stockholm Declaration of the United Nation Conference on Human Environment. States therefore are not free to act on their territory but bear responsibility to ensure that activities within their jurisdiction do not cause

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damage to the environment and harm to human health of other states.

Article 5 of the THPA provides for an ASEAN Centre whose purpose is to facilitate cooperation and coordination among the Parties in managing the impact of land and/or forest fi res in particular haze pollution arising from such fi res. However, the ASEAN Centre shall work on the basis that the national authority will act fi rst to put out the fi res. When the national authority declares an emergency situation, it may make a request to the ASEAN Centre to provide assistance. So the ASEAN Centre cannot act on its own accord if a member state chooses to act unilaterally though the Centre can be an eff ective tool if assistance is requested.

Apart from the ASEAN Centre, request and off er of assistance may not be a smooth process in view of the wording of Article 12 (2) which states that “Assistance can only be employed at the request of and with the consent of the requesting Party, or, when off ered by another Party or Parties, with the consent of the receiving Party.” It means that assistance can be refused even if a member states choose to off er.

The Failure of the THPA in Addressing Haze Pollution

In the last haze crisis of 1997, unprecedented damage for the region was estimated at USD 9 billion. The losses arose from the destruction of crops, land and decline in tourism and foreign investment not to mention loss of biodiversity, reduced photosynthesis and impairment in the state of health of hundreds of millions of people. How much damage this region will sustain this time around is left to be seen.

Judging from the present crisis, the THPA has failed to respond swiftly. Though the THPA refers to fundamental principles of international environmental law such as the “no harm” rule and the precautionary principle, no swift concerted regional action seems to have been taken under the THPA. On the other hand, a case can be made out against Indonesia (the source state) in transgression of international environmental law. Yet again, no action, and “why is that so?” one may ask. We only have to examine the root cause.

The Root Cause of Failure of the THPA

Many reasons can be given as to why the THPA fails and the list seems to be long. We need not go into that. It is suffi cient and relevant to identify the root cause that presents a major stumbling block for a regional treaty so painstakingly written, to be eff ective and it is this. There is the ASEAN way of doing things when it comes to regional aff airs. This ASEAN way is normally prescribed in the various ASEAN treaties including the 1967 Bangkok Declaration. It means a set of norms to search for consensus, the principle of non-interference in internal aff airs of a member state. It also means politeness and non-confrontational attitudes and approaches, behind- doors discussions, and informal and non-legalistic procedures. Hence it is not surprising that no formal sense of urgency is felt at least at the regional level.

To elucidate the point further, diplomatic tension occurred in 2006 when Singapore raised the haze issue at the General Assembly of the United Nations, calling for international support and

expertise. Indonesia reacted by stating the move as tantamount to interference in the domestic aff air and sovereignty of Indonesia. Singapore however contended that there was intrusion in its domestic environment and pointed to the Article 2 of the ASEAN Transboundary Haze Pollution Agreement (“THPA”) which mentions that transboundary haze pollution should be prevented and monitored by domestic eff ort as well as international cooperation.

Can We Rely on ASEAN and the Governments to Solve the Haze Pollution Problem for Us?

Not totally. Besides, to be realistic, an individual environmental issue like the haze cannot and should not be treated in isolation. It fi ts into the larger context of Climate Change and Goals of Sustainable Development, and that context is already indicating a very frightening picture. The problem is too important to be left to ASEAN and the respective governments alone. In the fi nal analysis, we are the ones who are breathing in the haze. We have to take action ourselves too in terms of awareness campaigns, public or strategic interest litigation, education, name-and-shame campaigns, peaceful protests and assemblies and refrain from unethical purchases until the whole idea of environmental protection sinks in. The people of this region have a right to environmental justice for themselves and posterity, and to be protected from those who are incrementally destroying the world. At one point in the Riau province of Indonesia this year, it was reported that the Air Pollutant Index (“API”) hit 1,000 points. That is more than three times the hazardous level of 300 points. Who will choke to death fi rst?

This article is the personal opinion of the writer and does not necessarily represent the views of the Bar Council.

Roger Chan Weng Keng Chairperson Bar Council Environment and

Climate Change Committee

The people of this region have a right to environmental justice for themselves and posterity, and to be protected from those who are incrementally destroying the world. … Who will choke to death fi rst?

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The Malaysian Environmental Court: The Need to Extend its Reach to Civil LiabilityA Working Definition

An environmental court is a specialised court dealing with all issues relating to the environment, and could cover many dimensions. The details and functionality of such a court vary from jurisdiction to jurisdiction, though dealing with the same subject matter. For example, an environmental court could envisage both judicial and scientifi c experts on the Bench so that the court is vested with the discretion to make the best choices based on existing scientifi c knowledge that is presented to it. Such expertise could be in the fi eld of ecology, hydrology, geotechnical science, environment biology, forest hydrology and the ecosystem. This is due to the fact that in some environmental cases, complexity and uncertainty can underpin two or more sets of scientifi c evidence. Such a specialised court can also be known and referred to as a “Green Court” or a “National Green Tribunal” or by whatever name that connotes a nexus with the environment. Malaysia is no diff erent in this regard, and has what is called the “Malaysian Environmental Court”.

The Prelude to the Malaysian Environmental Court

On 14 Jan 2012, the Chief Justice, in his speech at the Opening of the Legal Year 2012, invited the attention of his audience to a glaring disproportionality in sentencing between the case of a man found in illegal possession of a dead tiger and walked out a free man after having paid a fi ne of RM7,000 as compared to the case of a man who was convicted of theft of 11 cans of Tiger Beer and Guinness Stout worth RM70, and was subsequently sentenced to fi ve years’ imprisonment. This statement tells of the misplacement of our values that seem to make light of the importance of the environment. With respect, perhaps the Chief Justice left something out of the story. There are cases in the Malaysian environment that refl ect something even worse than killing. Massive clearing of lands and deforestation, for instance, have threatened endangered species driving them almost to extinction, and have caused destruction of ecosystems. Little do the perpetrators realise that they are also destroying themselves in that intricate web of relationships that is Mother Nature. It therefore came as no surprise that plans were made to set up an environmental court in Malaysia.

The Establishment of the Malaysian Environmental Court

The Malaysian Environmental Court (“MEC”) was therefore established on 3 Sept 2012 vide the Chief Registrar’s Practice Direction No 3 of 2012. The MEC is based on the existing environmental legislative framework covering all aspects of land, air and water. (Please see sidebar for the existing environmental framework).

The Objectives of the MEC

The objectives of MEC are:

1. To expand and improve access to environmental justice.

2. To provide an expeditious disposal of environmental related cases.

3. To harness expertise relevant to the specialised fi eld.

4. To monitor environmental cases closely and to ensure that environmental cases are not taken lightly.

5. To ensure uniformity of decision-making in environmental cases.

6. To increase public participation and confi dence.

The MEC is Functional Only at the Sessions and Magistrates’ Court Level

The structure of the MEC involves the assignment of environmental cases to the designated courts at the Sessions Courts and the Magistrates’ Courts level (42 Sessions Courts and 53 Magistrates’ Courts). It also Involves 38 Acts and Ordinances, 17 Regulations, Rules and Orders. Environmental cases are being given priority under this structure, and special codes are given for certain off ences registered in the respective courts. Speedy disposal of environmental cases is also an important feature, ranging to three months or six months depending on whether it is in the Sessions or Magistrates’ Court, and also whether the jurisdiction concerned is in Peninsular Malaysia or Sabah and Sarawak. Any appeal will lie in the High Court.

Will the MEC Solve Our Environmental Problems?

Though objectives 2 to 5 regarding disposal, expertise, monitoring and

uniformity of environmental cases are laudable, it must be remembered that it is only of limited application as environmental civil cases are still within the civil courts exclusive domain. Properly considered, these are grounds that the MEC or an exclusive environmental High Court should cover.

However, the important question to ask at this stage is whether the objectives of the MEC refl ect the standards as set out under international and domestic environmental law and policy as enunciated under the Rio Declaration 1992. This declaration is an important milestone in the development of international environmental law, and by using this internationally accepted benchmark, one can somehow gauge the effi cacy of the MEC to address complex problems of environmental protection. However, this is in no way to suggest that the MEC is not important. The other reason to use this benchmark is because Malaysia is a party to the declaration. Many principles there set out the benchmark that are now widely established in law and court practice such as the precautionary principle, polluter pays principle, inter-generational equity and sustainable development. However, it is proposed to evaluate the effi cacy of the MEC by taking into consideration Principle 10 of the Rio Declaration 1992 as this principle has three pillars of right to relevant information, grassroots participation, and access to judicial remedies.

Principle 10 states:

Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Eff ective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Objectives 1 and 6 of the MEC seem to accord with the provisions of Principle

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10 in terms of access to justice and public participation. However on closer examination, the issue of public participation and ambit of peoples’ access to environmental justice in Malaysia could face practical problems. For one, the MEC is solely a court for environmental cases of a criminal nature. Therefore, environmental cases of a civil nature cannot fi nd their way to the MEC. Litigants will have to access the civil courts and face the hurdle of locus standi before being able to have their cases heard on the merits. As for prosecutorial powers in respect of

The MEC is based on the existing environmental legislative framework, which can suffi ciently, though not exhaustively, be represented as follows:

Existing Environmental Framework1. Environmental Quality Act 1974 (Act 127) i. Environmental Quality (Licensing) Regulations 1977 [P.U. (A) 198/77] ii. Environmental Quality (Prescribed Premises) (Crude Palm Oil) Order 1977 [P.U. (A) 199/77] iii. Environmental Quality (Prescribed Premises) (Crude Palm Oil) Regulations 1977 [P.U. (A) 324/77] iv. Environmental Quality (Prescribed Premises) (Raw Natural Rubber) Order 1978 [P.U. (A) 250/78] v. Environmental Quality (Clean Air) Regulations 1978 [P.U. (A) 280/78] vi. Environmental Quality (Compounding of Off ences) Rules 1978 [P.U. Environmental Quality (Prescribed Premises)

(Raw Natural Rubber) Order 1978 [P.U. (A) 250/78] (A) 281/78] vii. Environmental Quality (Prescribed Premises) (Raw Natural Rubber) Regulations 1978 [P.U. (A) 338/78] viii. Environmental Quality (Sewage and Industrial Effl uents) Regulations 1979 [P.U. (A) 12/79] ix. Environmental Quality (Control of Lead Concentration in Motor Gasoline) Regulations 1985 [P.U. (A) 296/85] x. Environmental Quality (Motor Vehicle Noise) Regulations 1987 [P.U. (A) 244/87] xi. Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 [P.U. (A) 362/87] xii. Environment Quality (Schedule Wastes) Regulations 1989 [P.U. (A) 139/89] xiii. Environmental Quality (Prescribed Premises) (Schedule Wastes Treatment and Disposal Facilities) Regulations

1989 [P.U. (A) 141/89] xiv. Environmental Quality (Prescribed Premises) (Schedule Wastes Treatment and Disposal Facilities) Order 1989 [P.U.

(A) 140/89] xv. Environmental Quality (Prescribed Premises) (Delegation of Power on Marine Pollution Control) Order 1993 [P.U.

(A) 276/93] xvi. Environmental Quality (Prohibition on the Use of Chlorofl uorocarbons and other Gases as Propellants and Blowing

Agents) order 1993 [P.U. (A) 434/93] xvii. Environmental Quality (Delegation of Power on Marine Pollution Control) order 1994 [P.U. (A) 537/94] xviii. Environmental Quality (Prohibition on the Use of Controlled Substances in Soap, Synthetic Detergent and Other

Cleaning Agents) Order 1995 [P.U. (A) 115/95] xix. Environmental Quality (Control of Emission from Diesel Engines) Regulations 1996 [P.U. (A) 429/96] xx. Environmental Quality (Control of Emission from Petrol Engines) Regulations 1996 [P.U. (A) 543/96] xxi. Environmental Quality (Refrigerant Management) Regulations 1999 [P.U. (A) 451/99] xxii. Environmental Quality (Halon Management) Regulations 1999 [P.U. (A) 452/99] xxiii. Environmental Quality (Delegation of Power) Order 1999 [P.U. (A) 501/99] xxiv. Environmental Quality (Prescribed Activities) (Open Burning) Order 2000 [P.U. (A) 308/2000] xxv. Environmental Quality (Clean Air) (Amendment) Regulations 2000 [P.U. (A) 309/2000] xxvi. Environmental Quality (Compounding of Off ences) (Open Burning) Rules 2000 [P.U. (A) 310/2000] xxvii. Environmental Quality (Delegation of Power) (Investigation of Open Burning) order 2000 [P.U. (A) 311/2000] xxviii. Environmental Quality (Sewage and Industrial Effl uents) (Amendments) Regulations 2000 [P.U. (A) 398/2000] xxix. Environmental Quality (Control of Emission from Diesel Engines) (Amendments) Rules 2000 [P.U. (A) 488/2000] xxx. Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order 2000 [P.U.

(A) 489/2000] xxxi. Environmental Quality (Delegation of Power) (Halon Management) Order 2000 [P.U. (A) 490/2000] xxxii. Environmental Quality (Delegation of Power) (Perbadanan Putrajaya) Order 2000 [P.U. (A) 233/2000] xxxiii. Environmental Quality (Appeal Board) Regulations 2003 xxxiv. Environmental Quality (Declared Activities) (Open Burning) Order 2003

environmental off ences, they are vested solely with the Attorney General.

The Way Forward

It can be argued simply that it is in the realm of environmental civil cases where the maximum adverse impact can be done to the environment. Massive land development for mega projects such as dams, housing developments, plantations and logging need closer scrutiny because of the scale of its potential to wreak damage, and it is here that easier citizens’ access to the MEC or

a specialised environmental High Court would be a useful proposal to consider. In this regard, it is time to review of our environmental laws with a view to extend the reach of the MEC to include civil liability. Such review could include possible law reforms to incorporate a specialised environmental High Court to hear all environmental cases exclusively and to bolster the structure of the MEC.



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xxxv. Environmental Quality (Dioxon and Furan) Regulations 2004 [P.U. (A) 104/2004] xxxvi. Environmental Quality (Prescribed Conveyance) (Schedule Waste) Order 2005 [P.U. (A)293/2005]

2. Atomic Energy Licensing Act3. Biosafety Act 20074. Drainage Works Act 19545. Fisheries Act 19856. International Trade in Endangered Species Act 20087. Irrigation Areas Act 19538. Land Conservation Act 19609. Local Government Act 197910. Merchant Shipping (Oil Pollution) Act 199411. National Forestry Act 198412. National Park Act 198013. Parks Enactment 198414. Plant Quarantine Act 197615. Pearl Oyster Shell Fishery Ordinance (Sabah Ordinance)16. Pesticides Act 197417. Protection of Wildlife Act 197218. Radioactive Substance Act 196819. Sewerage Services Act 199320. Street, Drainage and Building Act 197421. Town and Country Planning Act 197422. Water Enactment 1920 (Revised) Act 197923. Water Services Industries Act 200624. Wildlife Conservation Act 201025. Sabah Animal Ordinance 196226. Sabah Biodiversity Enactment 200027. Sabah Drainage and Irrigation Ordinance 195628. Sabah Environment Protection Enactment 200229. Sabah Forest Enactment 196830. Sabah Mining Ordinance 196031. Sabah Wildlife Conservation Enactment 199732. Sarawak Biodiversity Centre Ordinance 199733. Sarawak Forest Ordinance 195434. Sarawak Natural Resources and Environment (Amendment) Ordinance 2001

Environment and Climate Change CommitteeChairperson: Roger Chan Weng KengOffi cer-in-Charge: Shegi Nair

The Environment and Climate Change Committee (“ECCC”) was formed to address issues in respect of environmental rights and protection in general.

The mainstreams that characterise the work of ECCC, can be broadly identifi ed as those that relate to the following:

(1) Environmental rights explicitly as governed by Malaysian environmental laws under framework legislation; and (2) Already existing rights in relation to the environment, eg rights to life and health, the protection of which are found in

global human rights treaties such as the International Covenant on Economic, Social and Cultural Rights; and sources other than human rights instruments, such as Principle 10 of the 1992 Rio Declaration on Environment and Development.

The ECCC focuses on a myriad of issues at local, regional and international levels, such as the controversy involving alleged radioactive waste disposal from the Lynas plant in Kuantan; the issue of massive deforestation in Gua Musang and Lesong, in Kelantan and Pahang, respectively; the Trans-Pacifi c Partnership Agreement (“TPPA”); and the haze and our right to better air quality.

The ECCC also engages with stakeholders on the eff ectiveness of regulatory and legal framework matters in addressing environmental issues aff ecting all segments of society.

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The Role of the Malaysian Bar in Environmental LawThe Purpose of the Existence of the Malaysian Bar

The answer to that question is spelt out in section 42 of the Legal Profession Act 1976 (“LPA”) and the key word seems to be “cause of justice.”

Section 42(1)(a) of the LPA says that the purpose of the Malaysian Bar shall be “to uphold the cause of justice without regard to its own interest or that of its members, uninfl uenced by fear or favour”.

Section 42(1)(g) of the LPA further points out that one other purpose is “to protect and assist the public in all matters touching ancillary or incidental to the law”.

Arguably cause of justice includes rule of law, right to life, liberty and even environmental justice. And the term “law” must include environmental law which is the determinant of our survival in a world of fi nite resources. Imagine that we managed to solve all problems related to civil liberties, but commit massive environmental degradation to the land, air and water; it would be like having solved one problem without solving another. Besides, there is always another stakeholder organised around environmental rights: Mother Earth. She must not be abandoned. Her rights are slowly being whittled away and it is argued that just as every self-respecting, sentient, Malaysian lawyer has a duty to salvage and restore whatever is left today of Malaysian liberty, he or she plays the same role in respect of environmental rights.

The Nature of Environmental Rights

Lord Hope in Walton v Scottish Ministers [2012] UKSC 44 says “environmental law … proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone.” It is upon this basis that environmental rights are born and developed.

This area of law, at least from an international perspective, was in full

swing in the 1990s with the enunciation of the Rio Declaration in 1992. Today, a huge amount of literature on this has proliferated and the momentum is still taking hold.

Environmental rights have a peculiarity because many a time it does not recognise territorial boundaries. Therefore, they are organised spatially into their local, regional and international dimensions. So it can all at once be in the same spatial dimension or bear that distinction depending on a particular environmental context. For example, climate change laws can assume the form of national legislative framework, regional environmental instrument, or a United Nation Framework Convention on Climate Change (“UNFCCC”) all at once, or bear that same distinction.

But How are Environmental Rights Engaged by Lawyers?

There are a number of tools or models that can be employed and this article will discuss some of the important ones only.

The use of these tools may depend on the issues ranging from components of land and air, to water, all of which have been cropping up relentlessly over recent years. The issues invariably fall into a list that includes radioactive waste disposal, massive deforestation, illegal logging, endangered species, climate change, solid waste management, bio-diversity, displacement of people due to fl ood disasters, constructions of highways, building of dams, land clearing and hill slope development, pollution of lakes, rivers and waterways, haze and poor air quality.

The Legislative Framework Tool

We have a plethora of environmental laws, enactments, ordinances and regulations to govern almost every conceivable aspect of the environment, and it is within this framework that environmental advocacy is carried out. To get an idea on the environmental laws of Malaysia within this tool or model, it is suggested that reference be

made to “Practice Direction of the Chief Registrar of the Federal Court (No 3 of 2012): Establishment of Environmental Court” (Arahan Amalan Ketua Pendaftar Mahkamah Persekutuan Bil 3 Tahun 2012: Penubuhan Mahkamah Alam Sekitar) dated 27 August 2012.

The nature of environmental rights can also be argued as being protected by Article 5(1) of the Federal Constitution which says “No person shall be deprived of his life or personal liberty save in accordance with law.” In the case of Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261, the Court of Appeal says:

“The expression ‘life’ appearing in Article 5 does not refer to mere existence. It incorporates all those facets that are an integral part of life and those matters that go to form the quality of life itself. Of these are the rights to seek and be engaged in lawful and gainful employment and to receive those benefi ts that our society has to off er to its members. It includes the right to live in reasonably healthy and pollution free environment.”

These dynamics of environmental rights which are based on the framework legislative tool can be seen in motion almost every day both inside and outside our courts, where environmental lawyers play their role.

The broad view is that environmental activism is covered too in this approach, and there is no short supply since the days of alleged radioactive poisoning in Bukit Merah and the Bakun Dam environmental fi asco. But one interesting feature of this development is the emergence of the Malaysian Bar that is seen as carving out a role for itself on environmental issues.

On 15 March 2014, the Malaysian Bar unanimously passed a resolution on environment and climate change, which inter alia strongly called on the Government to:

“take immediate action to ensure

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eff ective enforcement of environmental laws, and to undertake urgent law reform, where required, including ensuring transparency and proper public consultation with all stakeholders and independent specialised assessment of safety aspects of industrial processes, and not allowing ouster clauses to prevent judicial review for better enforcement and more eff ective punishment for off ences against the environment, which increase global warming and threaten Planet Earth.”

Regionalisation and Internationalisation as Tools of Environmental Rights Engagement

Environmental rights can be engaged by environmental lawyers through both the regional and international environmental governance tools. For example, paragraph 28(f) of the ASEAN Human Rights Declaration incorporates “the right to a safe, clean and sustainable environment” as an ingredient to adequate standard of living.

The ASEAN Agreement on Transboundary Haze Pollution that entered into force on 25 November 2003 is another such regional tool. The Rio Declaration of 1992, of which Malaysia is a party, provides an international governance tool to engage environmental rights upon the polluter pays principle, precautionary principle, intergenerational rights principle, right to information, and public participation in environmental decision-making.

The other environmental instruments are the many outcomes of the 2002 World Summit on Sustainable Development (“WSSD”) and Rio+20 that have consistently maintained focus on sustainable development.

The Environmental Human Rights Tool for Malaysian Lawyers

What the Universal Declaration of Human Rights (“UDHR”) is to human rights, the Stockholm Declaration of 1972 is to environmental rights. In the 1968 resolution to convene the Stockholm Conference, the United Nations General Assembly noted its concern about the eff ects of “the continuing and accelerating impairment of the quality of the human environment

… on the condition of man, his physical, mental and social well-being, his dignity and his enjoyment of basic human rights, in developing as well as developed countries”. This concern led to the Stockholm Declaration of 1972 which states that both the natural and man-made environment are essential to the well-being and to enjoyment of basic human rights.

This in turn led to a new set of rights known as environmental rights which are being enacted in the constitutions of many countries. Portugal became the fi rst country, not long after the Stockholm Declaration, to adopt a constitutional “right to a healthy and ecologically-balanced human environment”. Since then, more than 90 countries have followed suit by adopting similar rights in their constitutions.

In the meantime, the United Nations was not prepared to formulate a new set of rights. Rather, it expanded human rights in two directions, namely human rights vulnerable to environmental harm, and human rights vital to environmental policymaking.

The fi rst direction means that the enjoyment of human rights depends on a supportive environment, though some human rights are more susceptible to certain types of environmental harm, for example “environmental degradation, desertifi cation and global climate change are exacerbating destitution and desperation, causing a negative impact

on the realization of the right to food, in particular in developing countries” (see Human Rights Council Resolutions 7/14, 10/12 and 13/4).

The second direction identifi es rights whose implementation is vital to environmental policymaking, such as freedom of expression, and freedom of peaceful assembly and association. These rights are stipulated in the UDHR and elaborated in the International Covenant on Civil and Political Rights (“ICCPR”), some of which found their way into our own constitution, though with qualifi cations.

Conclusion

The Malaysian Bar necessarily means and includes the Malaysian lawyer as well as the collective Malaysian lawyers. Their tools of environmental rights engagement do not fall within the very narrow confi nes of just tortious liability. Around 25 years ago before the Rio Declaration of 1992, there was hardly any literature in international environmental law. However, in this day and age, the environmental rights tools for engagement have increased and are at the service of every Malaysian environmental lawyer. This trend, while consistent with the very objective upon which the Malaysian Bar is set up, also represents hope for a sustainable future in the management of our fi nite environmental resources.

This article is the personal opinion of the writer and does not necessarily represent the views of the Bar Council.



… just as every self-respecting, sentient, Malaysian lawyer has a duty to salvage and restore whatever is left today of Malaysian liberty, he or she plays the same role in respect of environmental rights.

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Peter Mooney: More than a Member of the Bar

Background and Early Years

Born in Ballybrack in Donegal, Ireland in 1923, Peter Mooney attended the University of Glasgow between 1940 and 1942, obtaining an education steeped in the classics — learning about the Greco-Roman world, alongside the study of Greek, Latin, French, Mathematics, and English. After serving in Burma with the Royal Scots Regiment, the oldest regiment in the British Army, as Captain, he returned to the University of Glasgow to complete his Master of Arts in History in 1948.

He only decided to pursue law after completing this qualifi cation, and went on to read for the Bachelor of Laws degree at the University. He graduated in 1951 having received numerous prizes for his academic abilities, including Firsts for Forensic Medicine, Jurisprudence, Evidence and Procedure, and Scots Law.

Upon graduation, he was awarded a Legal Scholarship by the Secretary of State for the Colonies, and he accepted a series of diff erent appointments, including Extramural Lecturer in Law, Lecturer in Law to the Institute of Company Accountants, and Lecturer in Mercantile Law to Glasgow and West of Scotland Commercial College.

The Illustrious Sarawak Years

In 1952, Peter Mooney was admitted to the Faculty of Advocates in Scotland, and shortly thereafter, having had a taste of legal practice as illustrated in his book1, he made the crucial decision to accept an appointment as Crown Counsel in Sarawak. This appointment, by the Secretary of State for the Colonies was, at the time, considered a tremendous honour, and allowed Peter Mooney to continue his Southeast Asian journey that began when he had served in Burma from 1942 to 1947.

His early years in Sarawak were a time of discovery, and the development of what would become a deep and passionate understanding of the people of Sarawak — their diff erent cultures and perspectives, strengths and weaknesses, and an overall appreciation of the beauty of Sarawak as a country. His penchant for languages served him well during this time, allowing him to easily pick up on the Malay language as well as the diff erent languages spoken by the natives of Sarawak.

His early years there were spent traversing the inlands of Sarawak by boat and car as part of his responsibilities. His keen sensitivity to the people and his strong sense of justice was rewarded when he was

appointed Acting Attorney General and Public Prosecutor in Sarawak between 1956 and 1959, as well as a member of the Supreme Council of Sarawak (the cabinet) and a member of the Council Negri (the legislature) during the same period. His deep abiding love for the people of Sarawak is best manifest in his own words, “I had become familiar and at home in Sarawak. I had no home elsewhere.”

His approach and attitude to the peoples of this diverse land is best described by Philip Koh Tong Ngee, Member of the Bar, who, in his citation for Peter Mooney when he was conferred the Malaysian Bar Lifetime Achievement Award 2013, said:

His contribution to the land of Sarawak and his benevolent disposition towards its indigenous people was a rare occurrence in those colonial times. As famously depicted in EM Forster’s Passage to India and George Orwell’s Burmese Days, members of the colonial establishment haughtily disdained involvement with the lives and culture of the natives, and were inclined to ostracise those who did so. Peter Mooney was an exception to such attitudes. Forgoing opportunism and careerism, he invariably placed integrity above fear or favour.

These early years established not only the beginnings of a lifelong dedication to Sarawak and its people, but also developed Peter Mooney’s perspectives on key legal issues. Amongst his many contributions to Sarawak were the crucial role he played as Chairman of the Select Committee of the Legislature on the Land Code, which amended, consolidated and codifi ed the Land Law of Sarawak. He also represented the Sarawak Government at the United Nations Conference in Sri Lanka on “Administrative Power and its Abuse” in 1959.

During his time in Sarawak, there were a number of distinguished visitors whom he met. These included HRH Princess Marina, Duchess of Kent and the widow of the Duke, who was the younger son of King George V; the Secretary

Peter Mooney, with Lim Chee Wee, President of the Malaysian Bar, at the conferment of the Lifetime Achievement Award 2013, during the Malaysian Bar Annual Dinner and Dance 2013.

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of State for the Colonies, the Earl of Selkirk; HRH the Duke of Edinburgh, the Consort of Queen Elizabeth II; and the Commissioner-General for Southeast Asia, Malcolm MacDonald; all of whom visited Sarawak briefl y and with whom Peter Mooney spent time in his offi cial capacity.

Peter Mooney travelled through the interior of Sarawak extensively, often armed with a camera, and in his book A Servant of Sarawak: Reminiscences of a Crown Counsel in 1950s Borneo, there are countless photographs of the peoples of this land that refl ect his fascination and respect for their way of life, and the protection of their indigenous rights.

On his exposure to the Ibans, he said of them,

I had met many Ibans. They were egalitarian, unimpressed by rank or titles; to them one man was as good as another. They were courteous and considerate. They said what they thought and were as good as their word. If they made a promise they kept it. No matter their wild past, I had always found them friendly and likeable.

In his interactions with the diff erent communities in Sarawak, the relationship was one of sharing — Peter Mooney learnt to appreciate the diff erent cultures and lifestyles of the people of these diverse communities, and shared with them where possible, the developments outside their own personal experience.

Move to Malaya

In 1960, Peter Mooney made the diffi cult decision to move to Malaya. The need to do this arose because of the possibility that the Colonial Offi ce would probably transfer him to another British territory outside Southeast Asia, taking into account the fact that Malaya had become independent. Determined not to leave this part of the region, and with many off ers to join law fi rms in either Singapore or Malaya, he resigned from his responsibilities in Sarawak and moved to the Peninsula.

This move resulted in him being called to the Sarawak Bar, Malayan Bar and Singaporean Bar in 1961, and in 1963, he became a founding partner in Skrine & Co with the late John Skrine.

Between 1978 and 1997, his contributions to the law extended directly to the legal community where he served fi rst as an elected Bar Council member and later as Vice-President. He also served indefatigably as Chairperson of the Legal Profession Committee, and the Complaints Committee.

It was also during this time that Peter Mooney articulated many of his views about the progress and growth of the legal profession in Malaysia, with regular contributions to a variety of publications, including Insaf.

The Bar Council Years and Other Involvements

In April 1993, in an Insaf article titled, “Are Lawyers Underqualifi ed”, he reported

on the decision by the Ministry of Law in Singapore to reduce the number of lawyers in the country (at the time, 77 per 100,000 in Singapore, compared to 23 per 100,000 in Malaysia), and considered whether it would be necessary to do the same for Malaysia at some point.

He emphasised the point by stating strongly,

The standard of the profession is very important for the well-being of the country. For the profession to function well and to serve the country as it should, we need a high standard of ability, a high standard of academic training, a high standard of professionalism and a high ethical standard. The present system is not producing a high standard in any of these areas. Perhaps the time has come to stop …

In a refl ective article about “Judgments and their Backgrounds” published on the Malaysian Bar website in July 2005, he outlined the standards of conduct to be expected of judges. He noted,

A judge’s conduct on the Bench is of great importance. Fairness and courtesy to all, patience, forbearance, the capacity to listen with an open mind and, not unimportant when so many people are involved in the proceedings before him, punctuality in sitting and rising, all these are very necessary if the public, the litigants and counsel are to feel that proper consideration is being given and justice is being done. Most important of all is the responsibility to arrive at the right decision according to law. This, ultimately, is both the test and the justifi cation of the judiciary.

Commenting on how judges should make decisions on appeal cases, he said in the same article,

Two considerations have to be balanced. On the one hand, it is important that judicial time should not be wasted and that reasonable expedition should prevail in the disposal of appeals. On the other hand, it is important that the submissions of Counsel should have a patient and courteous hearing and

A younger Peter Mooney at a dinner at John Skrine’s house, undated

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The founding of Skrine & Co:

“I have been pondering on why Providence has been so kind to Skrine & Co up to date, and how this fi rm founded by a polo-playing Anglican Englishman, a bridge-playing Presbyterian Scotsman, a piano-playing Roman Catholic Irishman, a north country beer connoisseur Englishman (religion unknown) and an Ipoh Chinese Methodist managed to cohere as well as it did and to attract a string of Asian partners, and to keep and then expand its clientele.”

~ John Skrine (1922-1993)

that, particularly in the fi nal court of appeal, any fundamental issues of law, should be given unhurried and patient examination. … The very essence of justice is to give each party a fair hearing. Someone has to lose and it is important that he should leave the Court knowing that his case has been fairly and patiently heard and not dismissed without any proper consideration on the basis of a misconception or an over-hasty preconception.

As Chairman of the Professional Liability Committee2, the work Peter Mooney and his committee did resulted in the Peter Mooney Memorandum of 1992. The Committee was responsible for the setting up of the Professional Indemnity Insurance Scheme for the Malaysian Bar. In an interview with Peter Mooney3, he explained that the rationale for the Scheme was to protect Members against claims of negligence.

Peter Mooney explained that at the time, it would not have been possible to set up a self- insurance scheme, although he clearly hoped that with accumulated fi gures, and experience on the administration of the Scheme, the Malaysian Bar would be able to consider self- insurance at some point in the future. He took the view that this would be justifi ed on the basis that it would then be possible to “tailor it to accord closely with the wishes of the Bar, economise on the expenses of running the scheme and hope to have a scheme all round more satisfactory to all members.”

In explaining the value of the Scheme and the need for risk management for Members of the Bar, he highlighted that, “it rapidly became evident that protection for members required not insurance alone but education in risk management. The two go together. Awareness of the importance of risk management and setting up effi cient system in all fi rms greatly reduces the volume and amount of claims on the insurance fund and this in turn enables premiums to be reduced.”

Peter Mooney was conferred the title Dato’ Bergelar (Dato DiRaja) by HRH the Sultan of Selangor then, Sultan Salahuddin Abdul Aziz Shah, with the personal title of Dato’ Kurnia Bakti DiRaja in 1985, and made Knight Commander of the Order of St Gregory the Great by His Holiness Pope John Paul II in 2003.

During his lifetime, Peter Mooney served on various hospital boards, including the Assunta Hospital in Petaling Jaya, Mt Miriam Cancer Hospital in Penang, the Fatima Hospital in Ipoh, and the Tun Hussein Onn Eye Hospital in Petaling Jaya. In addition, he was involved with the Befrienders and Hospis Malaysia, and was was the catalyst for the establishment of the Seri Seronok Retirement Home and Stella Maris schools and an inspiration for the setting up of the Catholic Lawyers Society.

In his citation for Peter Mooney at the Malaysian Bar Lifetime Award, Philip Koh Tong Ngee said,

His conduct of court cases and advisory work bears the hallmarks

of courtesy and grace found solely in those for whom law is a genuine vocation rather than a trade or business.

Professor Dr Ghazali Musa, one of Peter Mooney’s adopted sons, wrote a touching poem titled My Dad, which was read at a celebration of Peter Mooney’s 90th birthday in May 2013, organised by the Catholic Lawyers Society, of which he was its advisor. The poem reads:

My Dad is the source of my knowledge, power and wisdom

My Dad anticipates my every need and always puts me fi rst in his life’s agenda

My Dad empathises with my every grief and sadness and rejoices in my every dream and achievement

My Dad is my life’s greatest blessing. My Dad is the wind beneath my

wings.

Santhi Latha Bar Council

Notes

1 Mooney, Peter. A Servant of Sarawak: Reminiscences of a Crown Counsel in 1950s Borneo. Singapore: Monsoon Books, 2011.

2 The forerunner of the present Bar Council Professional Indemnity Insurance Committee

3 The interview was published in Jurisk! March 2009, Volume 5, Issue 1; published by the Bar Council Professional Indemnity Insurance Committee; http://www.prakt is .com.my/CMSPages/GetFile.aspx?guid=d3827f87-cf90-467b-bebb-14f3d1f7771a

Peter Mooney at a forum, undated

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21 and 22 Jan 2016

International Conference and Launch of the Asian Business Law Institute (ABLI) | Doing Business Across Asia: Legal Convergence in an Asian Century, Singapore

Venue: Raffl es City Convention Centre, 80 Bras Basah Road, Singapore 189560Date: 21 and 22 Jan 2016 (Thursday and Friday)

This conference is organised by the Singapore Academy of Law. The stellar cast of speakers will address the need for increased convergence of cross-border business laws, improved legal infrastructure and harmonisation of regulatory standards across Asia. Register soon as the closing date is on 6 Jan 2016 (Wednesday). Members of the Bar are entitled to a 15% online discount (key in the discount code: LCMYBAR). For more details, please visit its website at www.legalconvergenceasia.com.

19 and 20 May 2016

CLA Finance and Banking Master Workshop 2016, Cyprus

Venue: Limassol, CyprusDate: 19 and 20 May 2016 (Thursday and Friday)

This workshop is organised by the Commonwealth Lawyers Association (“CLA”) and the Cyprus Bar Association. This master workshop will provide participants with a fresh view of fi nance and banking practices, while engaging with lawyers from within the Commonwealth and internationally. Members of the Bar are entitled to special reduced rates (Developing Country registration fees). For more information, please contact Janine Koeries of Paragon Group (+972(0)3-576-7737; [email protected]), or visit www.claworkshops.com, for more details.

17 and 18 Mar 2016

Global Pound Conference Series 2016-17, Singapore

Venue: Auditorium, Supreme Court of Singapore, 1 Supreme Court Lane, Singapore 178879Date: 17 and 18 Mar 2016 (Thursday and Friday) The Global Pound Conference Series (“GPC Series”) is organised by the International Mediation Institute. The GPC Series aim to facilitate the development of 21st century commercial and civil dispute resolution tools, at domestic, regional and international levels. Please visit its website at http://singapore2016.globalpoundconference.org, for more details about this event.

13 to 16 Apr 2016

IPBA 26th Annual Meeting and Conference, Kuala Lumpur

Venue: Kuala Lumpur Convention CentreDate: 13 to 16 Apr 2016 (Wednesday to Saturday)

The 26th Annual Meeting and Conference of the Inter-Pacifi c Bar Association (“IPBA”) is organised by a host committee of 26 law fi rms. The conference is themed “Diverse Challenges, Global Situations”, and centres on the international fl avour and global nature of business transactions. Members of the Bar are entitled to an early bird rate, which is valid till 15 Jan 2016. IPBA is also accepting applications for the IPBA Scholarship Programme to enable practising lawyers to attend this event. Please contact Ida by telephone at 03-6205 3389 or by email at [email protected], or visit www.ipba2016.com for more details.

Upcoming Events January to May 2016

EVENTS


Constitutional Law Committee

Co-Chairpersons: Roger Chan Weng Keng Firdaus Husni

Deputy Chairpersons: Elaine Gan Peay Er Melissa Sasidaran

Offi cer-in-Charge: Anusha Gopala Krishnan

In 2009, Bar Council formed the Constitutional Law Committee to promote constitutional awareness and constitutionalism amongst Malaysians. The Committee consists of lawyers, pupils in chambers, academics, students, media personnel, and activists.

A nationwide programme by the Committee is the ongoing MyConstitution Campaign (Kempen Perlembagaanku), which aims to bring the content of Malaysia’s Federal Constitution to all Malaysians in a summarised and simplifi ed format. This Campaign is Bar Council’s commitment to improve public awareness of the Constitution and promote constitutionalism amongst all Malaysians.

The MyConstitution Campaign is the fi rst of many initiatives by the Committee and it seeks to achieve the following goals:

• Increased public awareness and understanding of the nature and content of the Constitution; • Recognition and acceptance of the role and importance of constitutionalism in national

governance and the social structure; and• Promotion of the study of the Constitution amongst youths and young adults.

In addition to the Campaign, the Committee carries out various activities and events with diverse sections of the Malaysian community, including holding forums and workshops, to promote the aims of the Campaign.

Search for the Will of the Late LEOW TOOK HINGTh e late LEOW TOOK HING (NRIC no: 480102-10-5758 / 3300602) passed away on 22 May 2015.

Any legal fi rm that has knowledge about her WILL, please contact Leong Ooi Seong of M/S Leong Ooi Seong & Co. by telephone at 012-206 8889 or 03-4297 2889, by fax at 03-4297 6889 or by email at [email protected].

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Extraordinary General Meeting of the Malaysian Bar (12 Sept 2015)

At the Extraordinary General Meeting (“EGM”) on 12 Sept 2015 — held at the Renaissance Kuala Lumpur Hotel — quorum was achieved at 9:59 am, with 502 Members signed in. The number picked up quickly, with 871 Members signed in at 10:38 am.

The Chairman, Steven Thiru (President of the Malaysian Bar), called the EGM to order at 10:43 am, and proceeded directly to the heart of the issue.

One motion had been proposed for consideration at this EGM:

“Motion proposed by Steven Thiruneelakandan, as Chairman of the Bar Council and on behalf of the Bar Council, at the Extraordinary

General Meeting of the Malaysian Bar to be held on 12 September 2015”.

Steven Thiru drew the attention of Members to the amendment he wished to make to the title of the motion, as follows:

“Motion on the allegations of fi nancial impropriety concerning 1MDB and its related companies, the transfer of MYR2.6 billion and the fl ow of MYR42 million into the Prime Minister’s personal bank accounts, and matters in connection therewith, proposed by Steven Thiruneelakandan, as Chairman of the Bar Council and on behalf of the Bar Council, at the Extraordinary

General Meeting of the Malaysian Bar on 12 September 2015”;

as well as various amendments to the content of the motion. After almost two hours of debate, which included additional proposals for amendments to the motion, the vast majority of the Members adopted the resolution that is reproduced in the following pages

1,040 Members registered their attendance at the EGM, which was adjourned at 12:47 pm.

Joane Sharmila / Chin Oy Sim Bar Council

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Resolution Adopted at the Extraordinary General Meeting of the Malaysian Bar Held at Renaissance Kuala Lumpur Hotel(Saturday, 12 Sept 2015)Resolution on the Allegations of Financial Impropriety Concerning 1MDB and its Related Companies, the Transfer of MYR2.6 Billion and the Flow of MYR42 Million into the Prime Minister’s Personal Bank Accounts, and Matters in Connection Therewith

WHEREAS:

1. There have been numerous media reports on allegations of serious fi nancial impropriety concerning 1Malaysia Development Berhad (“1MDB”), a company wholly owned by the Government of Malaysia.

2. On 11 May 2015, the then-Chairman of the Public Accounts Committee (“PAC”) of Parliament and Member of Parliament for Pulai, Datuk Nur Jazlan bin Mohamed, issued a statement stating that the PAC would start its inquiry into 1MDB and that it intended to question several persons, including the present Chief Executive Offi cer of 1MDB, Arul Kanda Kandasamy, as well as his predecessor, Datuk Shahrul Ibrahim Halmi.1 Both were initially scheduled to give evidence on 26 May 2015.2 This was later adjourned to 4 and 5 August 20153 at their request (but did not ultimately take place).

3. On 2 July 2015, the Wall Street Journal (“WSJ”)4 and Sarawak Report (“SR”)5 reported that government investigation documents had disclosed that:

a. funds amounting to approximately USD700 million (MYR2.6 billion) were transferred into the personal bank accounts of the Prime Minister of Malaysia, Dato’ Sri Mohd Najib bin Tun Abdul Razak (“Prime Minister”), in AmIslamic Bank Berhad in March 2013.

WSJ also reported that the original source of the funds was unclear and the subsequent use of the funds was unknown; and

b. another set of funds totalling MYR42 million was transferred from SRC International Sdn Bhd (“SRC”, a former subsidiary of 1MDB) to Gandingan Mentari Sdn Bhd, then to Ihsan Perdana Sdn Bhd, and fi nally to the personal bank accounts of the Prime Minister.

4. On 3 July 2015, the Prime Minister responded to the aforementioned reports by WSJ and SR, stating, “I have never taken funds for personal gain as alleged by my political opponents — whether from 1MDB, SRC International or other entities, as these companies have confi rmed.”6 On 8 July 2015, the Prime Minister issued another statement reiterating, “I have never taken 1MDB funds for personal gain.”7

5. The Prime Minister’s solicitors wrote a letter to WSJ seeking “clarifi cation” of the aforementioned report.8 WSJ’s publisher replied stating, “We stand behind our fair and accurate coverage of this evolving story.”9

6. The Prime Minister has not expressly denied that MYR2.6 billion and MYR42 million were deposited into his personal bank accounts, as reported by WSJ and SR.

7. On 4 July 2015, the then-Attorney General of Malaysia, Tan Sri Abdul Gani bin Patail (“Tan Sri Gani”) announced that a multi-agency task force (“Special Task Force”) had commenced investigation into the allegations of funds transferred to the Prime Minister’s personal bank accounts.10 The Special

Task Force consisted of Tan Sri Gani; the Governor of Bank Negara Malaysia (“BNM”), Tan Sri Dato’ Sri Dr Zeti Akhtar Aziz (“Tan Sri Zeti”); the Inspector General of Police (“IGP”), Tan Sri Khalid bin Abu Bakar; and the Chief Commissioner of the Malaysian Anti-Corruption Commission (“MACC”), Tan Sri Abu Kassim bin Mohamed.

8. On 7 July 2015, in a joint media statement, the Special Task Force announced that based on the investigations undertaken by the agencies represented in the Special Task Force, an order to freeze six bank accounts of suspected parties was issued on 6 July 2015.11 In addition, investigators seized documents relating to 17 bank accounts from two banks to facilitate the investigation. Investigators also seized documents pertaining to non-compliance of BNM’s rules and procedures by the banks involved.

8A. On 8 July 2015, the Special Task Force raided the offi ce of 1MDB in Kuala Lumpur and seized documents and computers. Earlier, on 3 July 2015, the Special Task Force had also raided the offi ces of SRC, Gandingan Mentari Sdn Bhd and Ihsan Perdana Sdn Bhd, and also seized documents.

9. On 8 July 2015, the Malaysian Bar issued a press statement12 urging:

a. The Special Task Force to conduct a comprehensive, detailed, and unfettered investigation into the allegations made by WSJ and SR; and

b. The Prime Minister to take a leave of absence from offi ce pending the outcome of the ongoing investigation of the Special Task Force, to avoid any perception of interference by him in the investigation,

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as the Attorney General is the chief legal adviser to the Government, the MACC is under the purview of the Prime Minister’s Department, and BNM falls under the portfolio of the Minister of Finance (who is the Prime Minister).

10. Between 21 to 26 July 2015, fi ve individuals were detained by the MACC over the investigation into 1MDB, and subsequently released. They were Jerome Lee, group executive director of Putrajaya Perdana Berhad, Datuk Shamsul Anwar Sulaiman of Ihsan Perdana Sdn Bhd, and three other individuals — Ariffi n Ismail Shahul Hameed, Datuk Rosman Abdullah and Tazri Talib.13

11. Various actions, including administrative action, have been taken to harass and intimidate those who have been critical of 1MDB and the Prime Minister:

a. On 24 June 2015, the Minister of Home Aff airs, Dato’ Seri Dr Ahmad Zahid bin Hamidi, accused The Edge Media Group (the publisher of The Edge Financial Daily) and its owner Datuk Tong Kooi Ong, of publishing inaccurate reports and false information relating to 1MDB.14 On 29 June 2015, the Ministry of Home Aff airs issued a show-cause letter to The Edge Financial Daily over its reports on 1MDB,15 giving it seven days to provide a written explanation on why action should not be taken against it under the Printing Presses and Publications Act 1984;

b. On 1 July 2015, the publisher and Chief Operating Offi cer of The Edge Media Group, Ho Kay Tat, in response to the show-cause letter, sought clarifi cation as to which were the off ending articles relied upon by the Ministry of Home Aff airs, and reiterated that all their articles were based on carefully evaluated evidence and were truthful;16

c. On 19 July 2015, the Malaysian Communications

and Multimedia Commission issued an administrative order17 under Section 211 and Section 233 of the Communications and Multimedia Act 1998 to block the SR website, due to perceived threats to national security. SR has been one of the sources of allegations of wrongdoing involving 1MDB, which has implicated the Prime Minister;

d. On 20 July 2015, subsequent to the said disclosure by WSJ and SR, The Edge Financial Daily, which had been publishing a series of articles critical of fi nancial transactions involving 1MDB, published a fl ow-chart detailing the money trail involving global banks in an article entitled “How Jho Low & PetroSaudi schemed to steal money from the people of Malaysia via 1MDB”.18 In an accompanying note, the publisher stated that its report was based on evidence that included bank transfer documents and bank statements, and that they would be handing over these documents, and the hard disk that contained them, to the investigators. The publisher maintained that their reports on 1MDB “had exposed how a group of individuals — Malaysians and foreigners — schemed a multi-billion ringgit fraud against the people of Malaysia”;

e. On 22 July 2015, it was discovered that the Director General of Immigration, under the Immigration Act 1959/63, had imposed a ban on overseas travel on Member of Parliament for Petaling Jaya Utara, Tony Pua Kiam Wee; Member of Parliament for Pandan, Mohd Rafi zi Ramli;19 and Datuk Tong Kooi Ong;20 without providing any reason. These persons had been at the forefront of criticism of 1MDB or in the exposé of alleged wrongdoing concerning 1MDB;

f. On 23 July 2015, the Ministry of Home Aff airs, under Section

7(1) of the Printing Presses and Publications Act 1984, imposed a three-month suspension order on The Edge Weekly and The Edge Financial Daily, on grounds of possible public alarm over the publication of reports concerning 1MDB and allegations in them that implicate the government and national leaders.21 The Edge has commenced a judicial review action against the Minister of Home Aff airs, and has been granted leave to challenge the suspension order but has failed to obtain a stay against the order;22 and

g. On 23 July 2015, Ho Kay Tat was summoned for questioning by the Royal Malaysian Police (Polis DiRaja Malaysia, “PDRM”) over articles relating to 1MDB that were carried in The Edge Financial Daily, for an off ence under Section 124B of the Penal Code.23 On 28 July 2015, it was reported that PDRM had summoned Ho Kay Tat for questioning again, and further, Datuk Tong Kooi Ong as well.24

12. During the UMNO Cheras Division gathering held on 26 July 2015, the then-Deputy Prime Minister Tan Sri Dato’ Haji Muhyiddin bin Mohd Yassin (“Tan Sri Muhyiddin”), said, “I must speak the truth. I cannot bluff because I know millions of people. Berjuta rakyat bersamamu. Apakah ada di dalam kerajaan yang rasa bertanggungjawab dan mahu berbuat sesuatu dan pecahkan sesuatu supaya satu pembetulan mesti dibuat. Sebab itu saya kata, “apa hal 1MDB.” Kalau mereka sudah membawa beban besar kepada negara 42 billion lebih, katanya tanggungan, maka ahli-ahli Lembaga Pengarah harus bertanggungjawab. Betul? … Dan saya beritahu Perdana Menteri, “sack them, remove them.” Sepatutnya you sack them. Saya kata kalau saya ada sebuah syarikat, saya tak ada syarikat, dulu saya punya dan saya tahu bisnes dan sebab tunggang terbalik, rugi begitu banyaknya, apa saya buat? What you do? Stay? Don’t stay. Go. Resign. Leave. You are responsible. You have to

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bear the responsibility. Tapi saya minta maaf. I am sorry to say Prime Minister, maybe he listen but that is not important. Saya sebut di sini sebab inilah pertama kali, platform yang saya cakap dalam parti.”25

13. On 28 July 2015, the following events occurred:

a. Tan Sri Gani, the then-Attorney General and a pivotal member of the Special Task Force, was abruptly removed from offi ce, barely 69 days from his retirement date, purportedly due to his failing health. In his place, the Government appointed Federal Court Judge Tan Sri Dato’ Sri Haji Mohamed Apandi bin Haji Ali (“Tan Sri Apandi”);26

b. The Director of the Special Branch (“SB”) of the PDRM, Datuk Seri Akhil Bulat, was abruptly replaced, three weeks before his contract expired, and put on retirement leave;27

c. The then-Deputy Prime Minister, Tan Sri Muhyiddin; and the then-Minister of Rural and Regional Development, Dato’ Seri Haji Mohd Shafi e bin Haji Apdal (both of whom had publicly called on the Prime Minister to explain the scandal engulfi ng 1MDB) were dismissed from Cabinet by the Prime Minister;28 and

d. Four of the 13 members of the PAC — which had been investigating the 1MDB allegations — including its Chairman, were appointed Minister or Deputy Minister, in eff ect disqualifying them from membership of the PAC and crippling the PAC’s ongoing investigation into 1MDB.29 The PAC proceedings scheduled on 4 and 5 August 2015, for the evidence of the present and former CEO of 1MDB to be taken, were postponed by the Speaker of the Dewan Rakyat, who said the PAC could not proceed until the new Chairman is selected.30

14. On 29 July 2015, the fi ve MACC oversight panels issued a joint press statement appealing for the Special Task Force to be allowed to conduct the investigation without any interference or pressure from third parties.31

15. On 30 July 2015, SR disclosed two purported draft charge sheets in an article entitled “Arrest Warrant for the Prime Minister — The Real Reason the Attorney General Was Fired”, and alleged that the purported draft charge sheets were the reasons for the removal of Tan Sri Gani.32 The fi rst alleged charge sheet stated that the Prime Minister and other persons had committed corruption off ences under the MACC Act 2009. The second alleged charge sheet stated that the Prime Minister, as Finance Minister and “Ameritus [sic] Advisor” to SRC, had committed criminal breach of trust under the Penal Code. Both Tan Sri Apandi33 and the MACC34 have denied the existence of these alleged charge sheets.

16. On 30 July 2015, MACC issued a press statement,35 denying that its offi cers were involved in a conspiracy to topple the Government, and that, as an independent commission, it is responsible for conducting investigation freely, transparently and professionally, without fear and favour, regardless of the persons involved.

17. On 1 August 2015, a former adviser to the MACC, Tan Sri Rashpal Singh; a member of the secretariat for administration and fi nance of the anti-money laundering task force at the Attorney General’s Chambers (“AGC”), Jessica Gurmeet Kaur; and a Deputy Public Prosecutor seconded from the AGC to the MACC, Ahmad Sazilee Abdul Khairi; were arrested, and subsequently released.36 The offi ce and home of at least one of them were raided, and documents related to MACC’s investigation were reportedly removed.37

18. As at early August 2015, MACC personnel became the focus of police investigation into allegations of leaking of confi dential information and involvement in a

supposed conspiracy to overthrow the Government, purportedly in violation of Section 124B of the Penal Code. These actions taken by the authorities against the MACC are listed in Appendix A. In this regard:

a. Minister in the Prime Minister’s Department in charge of governance and integrity, Senator Datuk Paul Low Seng Kuan, reportedly stated on 6 August 2015 that PDRM “are showing high-handedness”, and that it “is important that [MACC] do what they need to do.”38

b. The Chairman of MACC’s Consultation and Corruption Prevention Panel Tan Sri Johan Jaaff ar expressed “dismay over the spate of raids and arrests by the police”, and “reiterated the need for the agency to be allowed to execute its duties unhindered”.39

19. On 3 August 2015, the MACC issued a statement stating that the MYR2.6 billion in the Prime Minister’s personal bank accounts did not originate from 1MDB but was a “donation”.40 The MACC also announced that it intended to question the Prime Minister on the “donation”.41 To date, there has been no indication that the MACC has indeed questioned the Prime Minister.

20. On 5 August 2015, PDRM obtained a warrant of arrest42 against Clare Rewcastle-Brown @ Clare Louise Brown, a journalist based in the UK who runs the SR website, in relation to investigation under Sections 124B and 124I of the Penal Code, for publishing a false report on the purported draft charge sheets in the article entitled “Arrest Warrant for the Prime Minister — The Real Reason the Attorney General Was Fired” in order to implicate the Prime Minister for criminal off ences. PDRM subsequently submitted a request for a “red notice” to Interpol. The request was reviewed by Interpol, and subsequently refused on 9 August 2015.43

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21. On 5 August 2015, the Special Task Force was disbanded by Tan Sri Apandi Ali.44 Further, it was reported that a new task force named the National Revenue Recovery Enforcement Team (“NRRET”) — consisting of the AGC, BNM, PDRM, Customs Department, and Inland Revenue Board — was set up by the AGC.45 The Acting Chief Commissioner of the MACC reportedly said that the MACC had been excluded from the NRRET but it will continue with its investigation.46 Subsequently, on 25 August 2015, the AGC announced that the MACC is one of the eight entities in NRRET, and that “NRRET is not in any way involved with any investigations involving 1MDB and its related companies.”47

22. On 9 August 2015, the IGP announced that the investigation into the MACC has been temporarily postponed to avoid “various assumptions that were made that had altered public perception”,48 and the MACC has recently announced that it is still investigating the “donation”49 as well as the funds transferred from SRC into the Prime Minister’s personal bank accounts.

23. On 13 August 2015, the IGP stated that PDRM had questioned seven BNM offi cers under the Financial Services Act 2013 over the leak of confi dential information/documents.50 He had earlier said that PDRM would haul up several offi cers from BNM and other commercial banks for questioning in its investigation into the leaking of confi dential information/documents.51 PDRM has also taken action against the offi cers of BNM.

24. On 13 August 2015, Tan Sri Zeti stated that BNM had completed its investigation, which was relating to transactions by 1MDB, and had submitted its investigation papers to the Attorney General with recommendations for the appropriate enforcement action.52 She also said, “I have to be very careful with what I say that it has to be within the confi nes of the law. Otherwise, the moment I step out of this door, I will face arrest for talking about an individual account. I am sure you don’t want that to happen.”53

24A. Also on 13 August 2015, Tan Sri Zeti is reported to have said that investigating MYR2.6 billion in donations to the Prime Minister’s personal bank accounts is not within BNM’s purview.54

25. Subsequent to the replacement of the Director of the Special Branch of the PDRM on 28 July 2015, the Deputy Director of the Special Branch, Datuk Abdul Hamid Bador, was abruptly transferred out of the Special Branch on 19 August 2015 to the Prime Minister’s Department.55 He has since alleged that there was a secret “Hang Tuah” gang behind moves to hide information56 and witnesses57 relating to 1MDB, and that his transfer to the Prime Minister’s Department was to put him in “cold storage” in a post that was “non-existent”.58 He has also alleged that witnesses are hiding abroad with the help of certain parties.59 He has since been issued with a show-cause letter.60

25A. On 20 August 2015, it was reported that the AGC had terminated the services of Jessica Gurmeet Kaur, and there were subsequently issues concerning the revocation of her permanent residency status in Malaysia.61

26. In an interview to the press on 16 August 2015,62 the Urban Wellbeing, Housing and Local Government Minister Datuk Abdul Rahman Dahlan appeared to imply that the Prime Minister had interfered in the MACC’s investigation into the deposit of funds from SRC and the transfer of MYR2.6 billion, into the Prime Minister’s personal bank accounts.

27. In the said interview, Datuk Abdul Rahman Dahlan spoke of an alleged deliberate attempt to “criminalise” the Prime Minister and force him out of offi ce. It was also reported that he had stated that “drastic action” was needed to “take these people out fi rst”, and there was a “… fl urry of action taken by the Prime Minister”.

28. On 30 August 2015, former Prime Minister Tun Dr Mahathir Mohamad

held a press conference, where he is reported to have said, “… He (The Prime Minister) had no proof so to tackle the PAC, Public Accounts Committee, he off ered them jobs to become Deputy Minister. This is a kind of bribery. And now the PAC is not functioning. The other agencies also cannot work because whenever you make a report, the police will not take action. And the new AG will not take action. So, he has undermined the constitution and the legal system of this country. There is no more rule of law ... He created 1MDB to borrow money and then the money disappeared. And suddenly 2.6bil ringgit appeared in his account. Not in UMNO but in his account. He is using this money to bribe people. So, we want to ask, why did you stop the investigation on your 2.6bil. Where did this money come from? Don’t tell lies about Arabs giving 2.6bil. No Arab will give to anybody that kind of money. Nobody will give a lot of money to anybody, not that amount, 2.6bil. So, where does the money come from? The only money that can come maybe through 1MDB.”63

29. The categorisation of the funds as a “donation” raises more questions than answers. There has been further varying and contradictory accounts or explanations as to the origin and purpose of the “donation”, as seen in Appendix B. Questions also abound as to why a substantial part of the funds was subsequently remitted out of the country to Singapore. The Prime Minister’s personal bank account was then closed.64

30. The series of events since the disclosure by WSJ and SR has given rise to the inference that there has been interference in, and obstruction of, the investigation to the point where investigation has been compromised.

31. The drastic, oppressive and chilling measures taken since 28 July 2015 appear to have derailed, hindered or obstructed the investigations or inquiries into 1MDB, the remittance of MYR2.6 billion, and the remittance of MYR42 million by SRC into the personal bank accounts of the Prime Minister.

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32. The far-reaching actions taken since 28 July 2015 have been an assault on the independence of the Special Task Force that had been investigating the allegations made by WSJ and SR that implicated the Prime Minister, and these actions have further impaired or compromised the integrity of the investigation by the Special Task Force.

32A. The abovementioned measures and actions have been attributed to the Prime Minister, the Government, and/or agencies under the Government.

33. The manner in which the PAC has been crippled and its investigation stymied gives rise to serious questions about the ongoing proceedings of the PAC and the ability of the Legislature to act as an eff ective check and balance on the activities of the Executive.

34. The action taken by PDRM against the MACC was intimidatory and oppressive, and is widely seen as having interfered with, and obstructed, MACC’s investigation into the transfer of funds into the Prime Minister’s personal bank accounts, as well as an attack on the independence of the MACC and its emasculation as a corruption-combating agency.

35. The abrupt and unexplained disbanding of the Special Task Force — which was established to solely focus on investigating the allegations of funds transferred to the Prime Minister’s personal bank accounts, and issues relating to 1MDB — before the completion of its tasks casts doubt on the sincerity and commitment on the part of the Government to investigate the said allegations. The announcement by Tan Sri Apandi that the individual agencies that were represented in the Special Task Force would continue carrying out their individual investigations within their respective purview detracts from the original focus and coordinated collaboration between the heads of the agencies of the Special Task Force.

36. In light of the action taken against offi cers of BNM, and the statements made by Tan Sri Zeti, there are serious concerns raised as to whether the investigation by BNM, as a member of the Special Task Force, has been thwarted and compromised. Further it is inexplicable that BNM has concluded that the “donation” of MYR2.6 billion is not within its remit, despite the relevant provisions in the Central Bank of Malaysia Act 1958; Financial Services Act 2013; Exchange Control Act 1953; Capital Markets and Services Act 2007; and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.

37. The replacement of the Director of the Special Branch and now the transfer of the Deputy Director of the Special Branch suggest that there has also been interference with, and obstruction of, the investigation conducted by the Special Branch of the PDRM.

38. Datuk Abdul Rahman Dahlan’s statements in reference to the pre-emptive measures taken by the Prime Minister appear to validate the already pervasive public perception that there had been active and deliberate steps taken by the Prime Minister or the authorities to interfere, impede and derail the investigation, to mask wrongdoings, and to exculpate wrongdoers.

39. In light of Datuk Abdul Rahman Dahlan’s statements, it can be inferred that the Prime Minister or the authorities — under his instruction or the instruction of his subordinates — have undermined and subverted the investigation into the transfer of funds into the Prime Minister’s personal bank accounts.

40. There appears to be a concerted eff ort to weaken and compromise various institutions involved in the investigation into the transfer of funds into the Prime Minister’s personal bank accounts.

41. There are grave concerns that there would be a cover-up or whitewash of wrongdoing, and the exoneration or exculpation of wrongdoers.

42. In light of the above, and the tremendously grave concerns that have arisen, and recalling the objects of the Malaysian Bar as set out in Section 42(1) of the Legal Profession Act 1976, in particular:

Section 42(1)(a): to uphold the cause of justice without regard to its own interests or that of its members, uninfl uenced by fear or favour;

Section 42(1)(d): where requested so to do, to express its view on matters aff ecting legislation and the administration and practice of the law in Malaysia;

Section 42(1)(g): to protect and assist the public in all matters touching ancillary or incidental to the law;

THEREFORE, it is hereby resolved that:

a. The Malaysian Bar condemns the interference with, and the subversion of, the cause and administration of justice, and the investigation and inquiry into the allegations of fi nancial impropriety concerning 1MDB and its related companies, and the transfer of MYR2.6 billion and the fl ow of MYR42 million from SRC, both into the Prime Minister’s personal bank accounts.

b. The Malaysian Bar condemns the abrupt removal of Tan Sri Gani; the crippling of the PAC; and the harassment, intimidation and oppression of investigating offi cers or personnel of the AGC, MACC, BNM, and the Special Branch of the PDRM.

c. The Malaysian Bar demands that the Malaysian Government immediately advise the Yang di-Pertuan Agong to establish a Royal Commission of Inquiry (“RCI”), which should comprise members who are independent, impartial and of unimpeachable integrity, to inquire into and investigate:

i. the allegations of fi nancial impropriety concerning 1MDB and its related companies;

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ii. the transfer of MYR2.6 billion into the Prime Minister’s personal bank accounts; and

iii. the fl ow of MYR42 million from SRC into the Prime Minister’s personal bank accounts;

and to report on, and make public, its fi ndings and recommendations, including any further action that needs to be taken.

d. The Malaysian Bar notes that several members of the administration are advocates and solicitors of the High Court of Malaya, and the Malaysian Bar reminds such members of the administration that, whether in active practice or not, all advocates and solicitors are expected at all times to protect and further the rule of law and to uphold justice. The Malaysian Bar further reminds such members of the administration that the failure to maintain the core values of the legal profession would render them liable to disciplinary action under the Legal Profession Act 1976.

e. The Malaysian Bar mandates the Bar Council to take any and all steps that it deems appropriate in order to affi rm and preserve the rule of law, to uphold the Federal Constitution, and to protect the administration of justice, including but not limited to, instituting a legal suit(s) against any person(s) responsible for the interference with, impediment to, or obstruction or perversion of, the administration of justice, and the investigation into:

i. the allegations of fi nancial impropriety concerning 1MDB and its related companies;

ii. the transfer of MYR2.6 billion into the Prime Minister’s personal bank accounts; and

iii. the fl ow of MYR42 million from SRC into the Prime Minister’s personal bank accounts.

Notes

1 Press statement entitled “KENYATAAN MEDIA YB DATUK NUR JAZLAN TAN SRI MOHAMED, PENGERUSI JAWATANKUASA KIRA-KIRA WANG NEGARA (PAC) PARLIMEN MALAYSIA

MENGENAI PROSIDING SYARIKAT 1MALAYSIA DEVELOPMENT BERHAD (1MDB) KEMENTERIAN KEWANGAN MALAYSIA”, issued by Chairman of the Public Accounts Committee (“PAC”) of Parliament, Datuk Nur Jazlan bin Mohamed on 11 May 2015

( h t t p : / / w w w. p a r l i m e n . g o v. m y /images/webuser/pac/kenyataan%20media/110515-1MDB.pdf).

2 (a) “Arul, Shahrol no show at PAC inquiry on 1MDB”, The Star Online, 25 May 2015 (http://www.thestar.com.my/Business/Business-News/2015/05/25/Arul-Shahrul-no-show-at-PAC-inquiry-on-1MDB/?style=biz).

(b) “Arul Kanda explains why he could meet Shahrir but not PAC”, The Malaysian Insider, 29 May 2015 (http://www.themalaysianinsider.com/malaysia/article/arul-kanda-explains-why-he-could-meet-shahrir-but-not-pac).

3 “1MDB’s Arul, ex-CEO to face PAC in early August”, New Straits Times Online, 17 June 2015

( h t t p : / / w w w . n s t . c o m . m y /news/2015/09/1mdb%E2%80%99s-arul-ex-ceo-face-pac-early-august).

4 “ Investigators Believe Money Flowed to Malaysian Leader Najib’s Accounts Amid 1MDB Probe ”, Wall Street Journal, 2 July 2015 (http://www.wsj.com/articles/SB10130211234592774869404581083700187014570)

5 “SENSATIONAL FINDINGS! - Prime Minister Najib Razak’s Personal Accounts Linked To 1MDB Money Trail MALAYSIA EXCLUSIVE!”, Sarawak Report, 2 July 2015 (http://www.sarawakreport.org/2015/07/sensational-findings-prime-minister-najib-razaks-personal-accounts-linked-to-1mdb-money-trail-malaysia-exclusive/).

6 “Najib: I have never taken funds for personal gain”, The Star Online, 3 July 2015 (http://www.thestar.com.my/News/Nation/2015/07/03/PM-statement-on-allegations/).

7 Press statement entitled “Kenyataan YAB Dato’ Sri Mohd Najib Razak”, issued by the Prime Minister of Malaysia, Dato’ Sri Mohd Najib bin Tun Abdul Razak on 8 July 2015 (https://najibrazak.com/bm/blog/kenyataan-yab-dato-sri-mohd-najib-razak/).

8 “Najib’s lawyers ask WSJ for “clarifi cation””, Free Malaysia Today, 8 July 2015 (http://www.freemalaysiatoday.com/category/nation/2015/07/08/najibs-lawyers-ask-wsj-for-clarifi cation/).

9 “Dow Jones stands by WSJ reports”, The Star, 8 July 2015 (http://www.thestar.com.my/News/Nation/2015/07/08/Dow-Jones-stands-by-reports/).

10 Press statement entitled “Media Statement: Special Task Force Investigates Allegations of Funds

Transferred to the Prime Minister’s Account”, issued by Tan Sri Abdul Gani Patail on 4 July 2015 (http://www.bnm.gov.my/documents/2015/statement_20150704.pdf).

11 Press statement entitled “ Special Task Force Investigation on Allegations of Transfer of Funds Into Prime Minister’s Accounts ”, issued by Tan Sri Abdul Gani Patail, Tan Sri Zeti Akhtar Aziz, Tan Sri Khalid Abu Bakar, Tan Sri Abu Kassim Mohamed on 7 July 2015 (http://www.bnm.gov.my/index.php?ch=en_press&pg=en_press_all&ac=3225&lang=en).

12 Press statement entitled “Conduct Independent Investigation into Disclosures Relating to 1MDB Comprehensively and with Integrity”, issued by the Malaysian Bar on 8 July 2015 (http://www.malaysianbar.org.my/press_statements/press_release_%7C_conduct_independent_investigation_into_disclosures_relating_to_1mdb_comprehensively_and_with_integrity.html).

13 (a) “In 1MDB-linked case, Jerome Lee freed on RM100,000 bail”, The Malaysian Insider, 24 July 2015 (http://www.themalaysianinsider.com/malaysia/article/in-1mdb-linked-case-jerome-lee-freed-on-rm100000-bail).

(b) “Datuk from 1MDB-linked company second person remanded”, The Malaysian Insider, 22 July 2015 (http://w w w. t h e m a l a y s i a n i n s i d e r. c o m /malaysia/article/datuk-from-1mdb-linked-company-second-person-under-remand).

(c) “3rd person linked to 1MDB case remanded”, The Malaysian Insider, 24 July 2015 (http://www.themalaysianinsider.com/malaysia/article/3rd-person-linked-to-1mdb-case-remanded).

(d) “4th person remanded in 1MDB probe, court allows bail for another”, The Malaysian Insider, 25 July 2015 (http://www.themalaysianinsider.com/malaysia/article/1mdb-investigators-arrest-4th-suspect-bail-for-another).

(e) “Despatch rider latest to be remanded in 1MDB probe”, The Malaysian Insider, 26 July 2015 (http://www.themalaysianinsider.com/malaysia/article/despatch-rider-latest-to-be-remanded-in-1mdb-probe).

14 “Zahid: The Edge must be held responsible for inaccurate reports”, The Star Online, 24 August 2015 (http://www.thestar.com.my/News/Nation/2015/06/24/Zahid-on-incorrect-news-reports).

15 “The Edge gets show-cause letter over 1MDB reports”, MalaysiaKini, 1 July 2015, (http://www.malaysiakini.com/news/303691).

16 “The Edge wants Home Ministry to specify off ending articles on 1MDB”, The Malay Mail Online, 1 July 2015 (http://

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www.themalaymailonline.com/malaysia/article/the-edge-wants-home-ministry-to-specify-off ending-articles-on-1mdb).

17 Press statement entitled “MCMC Sekat Laman Sesawang Yang Mengganggu-gugat Kestabilan Negara”, issued by the Malaysian Communications and Multimedia Commission on 19 July 2015 (http://www.skmm.gov.my/Media/Press-Releases/MCMC-Sekat-Laman-Sesawang-Yang-Mengganggu-gugat-Ke.aspx).

18 “How Jho Low & PetroSaudi schemed to steal money from the people of Malaysia via 1MDB”, The Edge Financial Daily, 20 July 2015 (http://www.theedgemarkets.com/my/article/how-jho-low-petrosaudi-schemed-steal-money-people-malaysia-1mdb).

19 “Pua and Rafi zi barred from leaving country”, MalaysiaKini, 23 July 2015 (http://www.malaysiakini.com/news/305833).

20 “The Edge’s boss faces travel ban, too” MalaysiaKini, 22 July 2015 (http://www.malaysiakini.com/news/305851).

21 (a) “The Edge Weekly, daily suspended for 3 months from July 27”, The Malaysian Insider, 24 July 2015 (http://w w w. t h e m a l a y s i a n i n s i d e r. c o m /malaysia/article/the-edge-weekly-daily-suspended-for-3-months-from-july-27).

(b) Letter from Kementerian Dalam Negeri to Ketua Pengarang The Edge Malaysia & The Edge Financial Daily dated 23 July 2015.

22 “The Edge publisher fails to get stay on suspension order”, The Malaysian Insider, 14 August 2015 (http://www.themalaysianinsider.com/malaysia/article/the-edge-publisher-fails-to-get-stay-on-suspension-order).

23 “The Edge’s Ho Kay Tat summoned for questioning over 1MDB reports”, The Malay Mail Online, 23 July 2015 (http://www.themalaymailonline.com/malaysia/article/the-edges-ho-kay-tat-summoned-for-questioning-over-1mdb-reports).

24 “The Edge group owner, publisher summoned by police again”, New Straits Times Online, 28 July 2015

(http://www.nst.com.my/news/2015/09/e d g e - g r o u p - o w n e r - p u b l i s h e r -summoned-police-again).

25 “Muhyiddin reiterates 1MDB board should be sacked”, The Star Online YouTube Channel, 26 July 2015 (https://www.youtube.com/watch?t=21&v=ZqfYfUJrfYk).

26 Press statement entitled “PELANTIKAN PEGUAM NEGARA MALAYSIA”, issued by Tan Sri Dr Ali bin Hamsa on 27 July 2015 (http://www.pmo.gov.my/ksn/dokumenattached/media_statement/fi les/KENYATAAN_AKHBAR_PELANTIKAN_PEGUAM_NEGARA.pdf).

27 “Home Ministry appoints new Special Branch director eff ective today”,

The Malaysian Insider, 28 July 2015 (ht tp: / /www.themalays ian ins ider.com/malaysia/article/home-ministry-appoints-new-special-branch-director-eff ective-today).

28 “Malaysian PM reshuffl es cabinet, dumps deputy after 1MDB criticism”, Reuters, 28 July 2015 (http://uk.reuters.com/article/2015/07/28/uk-malaysia-politics-idUKKCN0Q206V20150728).

29 “PAC members’ elevation into Cabinet puts 1MDB probe in doubt”, The Malaysian Insider, 28 July 2015 (ht tp: / /www.themalays ian ins ider.com/malaysia/article/pac-members-elevation-into-cabinet-puts-1mdb-probe-in-doubt).

30 “Pandikar: No PAC hearing till new chair appointed”, MalaysiaKini, 30 July 2015 (http://www.malaysiakini.com/news/306725).

31 Press statement entitled “1MDB: MACC INDEPENDENT OVERSIGHT PANELS WANT INVESTIGATION TO BE INDEPENDENT AND FREE FROM INTERFERENCE”, issued by the fi ve MACC Independent Oversight Panels on 29 July 2015 (http://www.sprm.gov.my/files/1MDB%20MACC’S%20O V E R S I G H T % 2 0 P A N E L S % 2 0WANT%20INVESTIGATION%20TO%20BE%20INDEPENDENT%20AND%20FREE%20FROM%20INTERFERENCE.pdf)

32 “ARREST WARRANT FOR THE PRIME MINISTER! - The Real Reason The Attorney General Was Fired - EXCLUSIVE!”, The Sarawak Report, 30 July 2015 (http://www.sarawakreport.org/2015/07/arrest-warrant-for-the-prime-minister-the-real-reason-the-attorney-general-was-fi red-exclusive/).

33 “Malaysia says charge sheet against Najib is false, an attempt to topple PM”, Channel News Asia, 31 July 2015 (http://www.channelnewsasia.com/news/asiapacifi c/malaysia-says-charge-shee/2021350.html).

34 “MACC lodges police report denying draft charge sheet against Najib”, The Malay Mail Online, 3 August 2015 (http://www.themalaymailonline.com/malaysia/article/macc-lodges-police-report-denying-draft-charge-sheet-against-najib).

35 Press release entitled “SPRM NAFI PEGAWAI SPRM TERLIBAT KONSPIRASI JATUHKAN KERAJAAN”, issued by the Malaysian Anti-Corruption Commission on 30 July 2015 (http://www.sprm.gov.my/fi les/SPRM%20NAFI%20PEGAWAI%20SPRM%20T E R L I B AT % 2 0 K O N S P I R A S I % 2 0J AT U H K A N % 2 0 K E R A J A A N % 2 0300715.doc.pdf).

36 “Police arrest DPP in today’s 1MDB sweep”, The Malaysian Insider, 1 August 2015 (http://www.themalaysianinsider.com/malaysia/article/police-arrest-dpp-

in-todays-1mdb-sweep-say-sources). 37 “Special Branch raids deputy public

prosecutor’s offi ce at MACC for 1MDB documents”, The Malaysian Insider, 2 August 2015 (http://www.themalaysianinsider.com/malaysia/article/special-branch-raid-deputy-public-prosecutors-offi ce-at-macc-for-1mdb-docum).

38 “Police crackdown on MACC high-handed, says Paul Low”, The Malaysian Insider, 6 August 2015 (http://www.themalaysianinsider.com/malaysia/article/police-crackdown-on-macc-high-handed-says-paul-low).

39 “Allow MACC to do its work to allay public distrust, says commission’s panel”, The Malaysian Insider, 6 August 2015 (http://www.themalaysianinsider.com/malaysia/article/allow-macc-to-do-its-work-to-allay-public-distrust-says-commissions-panel).

40 Press statement entitled “HASIL SIASATAN BERKAITAN DANA RM2.6 BILION”, issued by the Malaysian Anti-Corruption Commission on 3 August 2015 (http://www.sprm.gov.my/fi les/HASIL%20DANA%20RM%202.6%20BILION.pdf).

41 Press statement entitled “PENJELASAN MENGENAI ISU DANA RM2.6 BILION DAN SIASATAN SRC INTERNATIONAL”, issued by the Malaysian Anti-Corruption Commission on 5 August 2015 (http://www.sprm.gov.my/fi les/PENJELASAN%20MENGENAI%20I S U % 2 0 D A N A % 2 0 R M 2 . 6 % 2 0BILION%20DAN%20SIASATAN%20SRC%20INTERNATIONAL.pdf).

42 “Cops obtain arrest warrant for Sarawak Report founder”, The Malay Mail Online, 4 August 2015 (http://www.themalaymailonline.com/malaysia/article/cops-obtain-arrest-warrant-for-sarawak-report-founder).

43 “No Red Notice on Clare Rewcastle-Brown”, Free Malaysia Today, 9 August 2015 (http://www.freemalaysiatoday.com/category/nation/2015/08/29/no-red-notice-on-clare-rewcastle-brown/).

44 “1MDB special task force disbanded, says MACC”, The Malaysian Insider, 5 August 2015 (http://www.themalaysianinsider.com/malaysia/ar t ic le/1mdb-specia l - task- force-disbanded-says-macc).

45 “New task force minus MACC set up to probe 1MDB”, Free Malaysia Today, 21 August 2015 (http://www.freemalaysiatoday.com/category/nation/2015/08/21/new-task-force-minus-macc-set-up-to-probe-1mdb/).

46 “MACC excluded from new task force probing 1MDB”, MalaysiaKini, 20 August 2015 (https://www.malaysiakini.com/news/309333)

47 Press statement entitled “NATIONAL REVENUE RECOVERY ENFORCEMENT TEAM (NRRET)”, issued by the Attorney

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General’s Chambers on 25 August 2015 (http://www.agc.gov.my/pdf/Latest%20Info/press/PRESS%20RELEASE%20N AT I O N A L % 2 0 R E V E N U E % 2 0RECOVERY%20ENFORCEMENT%20TEAM%20NRRET.pdf).

48 “IGP: Cops postpone probe on MACC info leak”, Free Malaysia Today, 9 August 2015 (http://www.freemalaysiatoday.com/category/nation/2015/08/09/igp-cops-postpone-probe-on-macc-info-leak/).

49 “MACC says it again: Probe on RM2.6b, SRC still ongoing”, Malay Mail Online, 23 August 2015 (http://www.themalaymailonline.com/malaysia/article/macc-says-it-again-probe-on-rm2.6b-src-still-ongoing).

50 “IGP: Bank Negara offi cials probed under FSA”, MalaysiaKini, 13 August 2015 (http://www.malaysiakini.com/news/308474).

51 “IGP: Cops to question Bank Negara offi cers next over Sarawak Report info leak”, Malay Mail Online, 1 August 2015 (http://www.themalaymailonline.com/malaysia/article/igp-cops-to-question-bank-negara-o ff ice rs-next -over-sarawak-report-info-lea).

52 “1MDB: Probe by Bank Negara done, says Zeti”, Astro Awani, 13 August 2015 (http://english.astroawani.com/malaysia-news/1mdb-probe-bank-negara-done-says-zeti-69652, on 3 September 2015).

53 “Dr Zeti: Bank Negara’s 1MDB probe fi nished”, The Star Online YouTube

Channel, 12 August 2015 (https://www.youtube.com/watch?v=eHCInPG9ChU).

54 “RM2.6 billion donation to Najib not within Bank Negara’s purview, says Zeti”, The Malaysian Insider, 13 August 2015 (http://www.themalaysianinsider.com/malaysia/article/rm2.6-billion-donation-to-najib-not-within-bank-negaras-purview-says-zeti).

55 “Now Special Branch deputy director transferred to Prime Minister’s Department”, The Malaysian Insider, 19 August 2015 (http://www.themalaysianinsider.com/malaysia/article/special-branch-deputy-director-gets-transfer-letter-after-weeks-of-rumours).

56 “SB man to expose brains behind 1MDB clampdown”, Free Malaysia Today, 22 August 2015, (http://www.freemalaysiatoday.com/category/nation/2015/08/22/sb-man-to-expose-brains-behind-1mdb-clampdown/).

57 “Man wanted by MACC in SRC probe hiding in New Zealand, ex-SB deputy claims”, Malay Mail Online, 23 August 2015 (http://www.themalaymailonline.com/malaysia/article/man-wanted-by-macc-in-src-probe-hiding-in-new-zealand-ex-sb-deputy-claims).

58 “Ex-Special Branch No. 2 fi nally receives letter from Bukit Aman”, The Malaysian Insider, 2 September 2015 (http://www.themalaysianinsider.com/malaysia/article/ex-special-branch-no.-2-fi nally-receives-show-cause-letter).

59 “Certain parties helping witnesses in SRC probe hide abroad, says ex-SB man”, The Malaysian Insider, 23 August 2015 (http://www.themalaysianinsider.com/malaysia/article/certain-parties-helping-witnesses-in-src-probe-hide-abroad-says-ex-sb-man).

60 “Ex-SB deputy given two weeks to explain media remarks on transfer”, Malay Mail Online, 3 September 2015, (http://www.themalaymailonline.com/malaysia/article/ex-sb-deputy-given-two-weeks-to-explain-media-remarks-on-transfer).

61 “Former A-G offi cer in 1MDB probe faces deportation”, The Star Online, 20 August 2015 (http://www.thestar.com.my/News/Nation/2015/08/20/ex-ag-lawyer-faces-deportation/).

62 “Swimming against the tide to get to the truth”, The Star Online, 16 August 2015, (http://www.thestar.com.my/News/Nation/2015/08/16/Swimming-against-the-tide-to-get-to-the-truth-Barisan-Nasional-strategic-communications-director-Da/).

63 “HANGAT! Tun Dr Mahathir sertai Bersih 4”, Taiping kiniTV YouTube Channel, 30 August 2015 (https://www.youtube.com/watch?v=l_mKmWFHuho).

64 “PM’s Anonymous ‘Donation’ Was Transferred Back To Singapore! MAJOR EXCLUSIVE”, Sarawak Report, 14 August 2015 (http://www.sarawakreport.o r g / 2 0 1 5 / 0 8 / p m s - a n o n y m o u s -donation-was-transferred-back-to-singapore-major-exclusive/).

Appendix A: Action Against MACC by the Authorities1. On 4 August 2015, it was reported

that the MACC held a special “solat hajat” session to pray for MACC staff , their families, their community and for a corruption-free country.1

2. On 5 August 2015, MACC Special Operations Division Director Dato’ Haji Bahri Mohamad Zin reportedly said that he was baffl ed by the arrest of Deputy Public Prosecutor Ahmad Sazilee Abdul Khairi, and raised the ominous spectre of “hidden hands” at work. He also reportedly said, “You may have (political) powers, but I have Allah.”2

3. As at 5 August 2015, the police had questioned senior MACC offi cers, including Director of the Special Operations Division, Dato’ Haji Bahri Mohamad Zin ; Deputy Director of the Special Operations Division, Datuk Tan Kang Sai; Director of the Forensic Division,

Datuk IG Chandran; and Offi cer in the Special Operations Division, Tuan Roslan Tuan Mat. 3 The police reportedly arrested two offi cers who were investigating the SRC, who were subsequently released. In addition, the police raided the MACC’s Special Operations Division and reportedly removed documents from the possession of MACC personnel.4

4. On 5 August 2015, MACC Deputy Chief Commissioner (Prevention), Datuk Hj Mustafar Ali, was reported to have said that “when action is taken on an investigating offi cer [during an ongoing investigation], it somewhat jeopardises the investigation”.5

5. On 7 August 2015, two MACC offi cers, Director of Special Operations Division, Dato’ Haji Bahri Mohamad Zin, who was key

to the investigation into SRC (and who had protested that “hidden hands”6 were behind the arrests of MACC offi cers), and Strategic Communications Director Datuk Rohaizad Yaacob were abruptly transferred into the Prime Minister’s Department.7 The transfer orders were subsequently rescinded on 10 August 2015 after widespread criticism. The two offi cers were reinstated to their previous positions in MACC.8

Notes

1 “MACC holds solat hajat for their staff ”, The Star Online, 4 August 2015 (http://www.thestar.com.my/News/Nation/2015/08/04/MACC-prayers-recent-events/).

2 “MACC director: By God, I’ll fi nd the culprits”, Malaysiakini, 5 August 2015 (http://www.malaysiakini.com/news/307499).

3 (a) “MACC Special Operations deputy director hauled up over 1MDB probe”,

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Astro Awani, 5 August 2015 (http://english.astroawani.com/malaysia-news/macc-spec ia l -ope ra t i ons -deputy-director-hauled-over-1mdb-probe-68562).

(b) “Another two MACC offi cers give police statements”, The Star Online, 4 August 2015 (http://www.thestar.com.my/News/Nation/2015/08/04/1mdb-t w o - m o r e - m a c c - o f f i c e r s - g i v e -statements-to-police/).

4 “Cops disrupted or SRC probe, decries MACC”, MalaysiaKini, 6 August 2015

(www.malaysiakini.com/news/307509). 5 “Arrest of MACC offi cers jeopardises

investigation – MACC deputy chief”, Astro Awani, 6 August 2015 (http://english.astroawani.com/malaysia-news/arrest-macc-off icers-jeopardises-i n v e s t i g a t i o n - m a c c - d e p u t y -chief-68650).

6 “Hidden hands behind arrests, hints MACC man”, MalaysiaKini, 8 August 2015 (http://www.malaysiakini.com/news/307222).

7 “Two MACC directors transferred to PM’s Department over ‘disciplinary issues’, source confi rms”, MalayMail Online, 7 August 2015 (http://www.themalaymailonline.com/malaysia/article/two-macc-directors-transferred-to-pms-department-over-disciplinary-issues-s).

8 “Reinstated – Two directors remain in MACC”, The Star Online, 10 August 2015 (http://www.thestar.com.my/News/Nat ion/2015/08/10/MACC-offi cers-transfer/).

Appendix B: “Donations”1. The Minister in the Prime Minister’s

Department, Dato’ Seri Azalina binti Dato’ Othman Said was reported, on 31 July 2015,1 to have said:

“Bagi saya kalau orang derma duit kat saya suruh jaga anda semua dan simpan atas nama saya, itu hubungan saya dengan penderma… apa salahnya.

Kecuali orang kata, ‘Datuk saya derma duit ini untuk Umno , untuk Parlimen, untuk NGO’, saya kena ikut cakap penderma.

Dalam isu duit (RM2.67 bilion), saya tak melihatnya sebagai isu besar… bagi saya itu budi bicara orang yang derma duit,….”

2. The Minister for Urban Wellbeing, Housing and Local Government, Datuk Haji Abdul Rahman bin Haji Dahlan was reported, on 1 August 2015,2 to have said:

“I wish to inform that the Umno constitution provides for the party president to have a trust account on behalf of the party. It is not impossible or surprising if the (current) Umno president and previous presidents have a trust account for the party.”

It was further reported that Datuk Abdul Rahman Dahlan and fellow party members felt more confi dent with the donations being placed in the president’s account as it was safer there, further stating, “in fact it is the responsibility of the party president to fi nd funds for party activities.”3

3. The Minister for Youth and Sports, Khairy Jamaluddin was reported, on 4 August 2015,4 to have said:

“Not only Umno and BN, every politician receive donations from their

supporters to help them in political works … So there’s nothing to prohibit an individual from receiving it as long as he receives it in trust for the party.”

Khairy Jamaluddin was further reported to have said that he “was made to understand the contribution came from supporters and donors. We hold to MACC’s statement that the donation came from one donor and supporter.”5

4. A statement by Member of Parliament for Johor Bahru, Tan Sri Datuk Seri Shahrir bin Abdul Samad who, in a report dated 8 August 2015,6 in response to questions posed by the Chief Minister of Johor, Datuk Seri Khaled Nordin’s son, Akmal Saufi , was reported to have said:

“… As stated by MACC, the money was a donation. Were these donations contributed to the government, for UMNO’s purpose or personal purposes?

Answer: For politics - UMNO and BN...”

… .”

5. Further statements made by Datuk Abdul Rahman Dahlan in a report dated 11 August 2015 state that “there are donors out there who believe in certain objective that they want to donate and in this case, they donated to UMNO.” He added, “[t]hey (donors) do want “orang kampong” houses and rural roads to be fi xed, giving better access to education and raise the quality of lives.”7

6. The Minister of Tourism and Culture, Dato’ Seri Mohamed Nazri bin Abdul Aziz, stated in a report dated 11 August 2015, that “[t]he donation was given to us by a friendly nation, a nation which is not much stronger

than us. Not like the US that can infl uence us.” He went on to state that “this is just a brotherly nation which wants to see certain parties win in the general election because we are friendly to them. There’s nothing wrong.” He also said that the “money [was] a donation for the election.”8

7. A statement by UMNO Kuantan division chief, Dato’ Wan Adnan bin Wan Mamat, saying that the money was a form of appreciation to Malaysia stating that “[i]t was an appreciation to Malaysia for championing Islam and for practising Sunni Islam (Ahli Sunnah Wal Jamaah)”, as reported on 17 August 2015.9

8. Deputy Prime Minister and Minister of Home Aff airs, Dato’ Seri Dr Ahmad Zahid bin Hamidi confi rmed, in a report dated 22 August 2015, “that the donation was from the Middle East because I saw the documents and met with the chief investment offi cer of the donor and the fi nancial trustee of the family of the donor.” As to why the money was donated to Malaysia, he added, “He gave three reasons – the fi rst because Malaysia is fully committed to anti-terrorism and Malaysia had the Prevention of Terrorism Act (POTA), the Penal Code and the Security Off ences (Special Measures) Act 2012, as we do not want terrorists to disrupt (the nation).”10

9. A statement by the Deputy Minister of Transport, Datuk Abdul Aziz bin Kaprawi, who claimed that DAP was funded by the Jews during the 13th General Election in 2013, saying “[i]f we loose [sic], DAP will be in power. DAP with its Jewish funds will control the country.” He then went on to say that it was “[b]ased on this fact, [that] our friends in the Middle East saw the Jewish threat through DAP.”11

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10. According to Kepong UMNO Division Chief, Datuk Haji Rizuan bin Abdul Hamid, in a report dated 23 August 2015, the donation was donated by an “Arab king and prince”, stating that it was because of the Prime Minister’s anti-Jewish stance that the Arab royal family decided to make the large contribution. He went on to state that it was “[b]ecause of that, the Arab king, Arab prince generously made the political donation for use during the 13th general election.”12

Notes

1 “RM2.6 billion masuk akaun Najib bukan isu besar, kata menteri”, The Malaysian Insider, 31 July 2015 (http://www.themalaysianinsider.com/bahasa/article/rm2.6-bilion-masuk-akaun-najib-bukan-isu-besar-kata-menteri).

2 “Umno allows trust account under president’s name”, Malaysiakini, 1 August 2015 (http://www.malaysiakini.com/news/306984).

3 “Rahman: ‘Safer’ if funds in Najib’s account”, The Star Online, 4 August

2015 (http://www.thestar.com.my/News/Nation/2015/08/04/rahman-dahlan-umno-members-agree-funding-goes-to-president-account/).

4 “No law against political donations in Malaysia, Khairy says”, MalayMail Online, 4 August 2015 (http://www.themalaymailonline.com/malaysia/a r t i c le /no- law-aga ins t -po l i t i ca l -donations-in-malaysia-khairy-says).

5 “Khairy: RM2.6b came from supporters”, Malaysiakini, 4 August 2015 (http://www.malaysiakini.com/news/307272).

6 “RM2.6 billion donation: Shahrir responds 15 questions by Johor MB’s son”, Astro Awani, 8 August 2015 (http://english.astroawani.com/malaysia-news/rm2-6-billion-donation-shahrir-responds-15-questions-johor-mbs-son-68947).

7 “Abdul Rahman defends RM2.6b donation by overseas donors to Umno president”, The Sun Daily, 11 August 2015 (http://www.thesundaily.my/news/1516733).

8 “Donation came from ‘brotherly’ nation, says Nazri”, The Malaysian Insider, 11 August 2015 (http://www.

themalaysianinsider.com/malaysia/article/donation-came-from-brotherly-nation-says-nazri).

9 “Najib’s RM2.6 billion is from Saudi Arabia as thanks for fi ghting Isis, claims Umno leader”, The Malaysian Insider, 16 August 2015 (http://www.themalaysianinsider.com/malaysia/article/najibs-rm2.6-billion-is-from-saudi-arabia-as-thanks-for-fi ghting-isis-claim).

10 “Zahid: RM2.6b donation was for M’sia’s anti-terrorism eff orts”, The Sun Daily, 22 August 2015 (http://www.thesundaily.my/news/1527589).

11 “RM2.6b donation given is help UMNO fi ght ‘Jewish infl uenced’ DAP – Aziz Kaprawi”, Astro Awani, 22 August 2015 (http://english.astroawani.com/malaysia-news/rm2-6b-donation-given-help-umno-fi ght-jewish-infl uenced-dap-aziz-kaprawi-70842).

12 “RM2.6b a political donation from ‘Arab king, prince’, Umno leader reveals”, The Malay Mail Online, 23 August 2015 (http://www.themalaymailonline.com/malaysia/article/rm2.6b-a-political-donation-from-arab-king-prince-umno-leader-reveals).

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Paving the Way for a Crime-Free Malaysia

Living in fear is not living. With that realisation in mind, coupled with the feeling of helplessness of seeing loved ones becoming victims of crime, as well as the unending and constant news reports of crime occurrences, the Safer Malaysia Committee (“Safer Malaysia”) was birthed. Helmed by a group of lawyers, the very life of this committee revolves around the participation of the general public in a collective eff ort to fi ght crime.

The group of lawyers who helm this committee — whether they chose the legal profession out of custom, the desire to correct injustice, as an act of rebellion, or passion for logical and legal strategising, or even out of the infl uence of a music teacher — the idea of contributing to a safer Malaysia where her people are able to walk without fear, drew them to join Safer Malaysia. These “unsung heroes” — Darren Lai, Saha Deva, Sarah Kambali, Richard Wee, and Yip Huen Weng — are the lawyers who uphold the highest law by ensuring the safety of Malaysians through Safer Malaysia.

So, what led to the birth of Safer Malaysia?

In the words of Richard Wee, the idea was to “stop Botak Chin from becoming Botak Chin”. The logic was that there is no use just complaining about the state of things, and it is better to have a plan to change the way things are done with regard to crime-fi ghting.

“We should stop blaming the victim and start to ask why did the crime happen and how do we prevent it from happening. That would be a better solution,” added Richard Wee. In short, Safer Malaysia strongly advocates the messages “Don’t Rob” instead of “Don’t Get Robbed”; “Don’t Rape” instead of “Don’t Get Raped”. This is the basis of Safer Malaysia, Richard Wee said.

Crimes often thrive under the cover of darkness, but where there is light, there is hope and evildoers are exposed. As philosophical as it may sound, Safer Malaysia traces its beginnings to a purchase of a 20 sen candle for a candlelight vigil which was organised by Richard Wee and Yip, and took place on 27 Apr 2013. That simple purchase lit the path for Darren Lai to join this group (it was not a committee then), which culminated in him becoming the current Co-Chairperson of Safer Malaysia. “Well worth the 20 sen spent for providing Darren with a candle,” quipped Yip.

“In the beginning we had no clout, and nobody paid attention to us. Although the candlelight vigil led to Safer Malaysia being interviewed by the papers, it was only until Bar Council adopted Safer Malaysia that it all took off ,” noted Yip.

“We forget that as lawyers we have the means and access to make a change, but for lay people they need an avenue to make a change. With Safer Malaysia, we can see that people make their own eff ort and sacrifi ce their time, even though they have full time jobs. These

people really opened my eyes that we can do so much in improving matters. It just shows that although we think society is getting more selfi sh, there is a silver lining on how much we can achieve if we all took the eff ort to help each other,” continued Yip.

Darren Lai recalled the fi rst Safer Malaysia meeting that he attended, which was held at Old Town White Coff ee where he met Auntie Eileen (Eileen Lim Thong), Mark Soh and Fong Peng Lim — all concerned citizens who came together from diff erent walks of life to achieve a change.

Buoyed by the encouraging response from the public, Safer Malaysia embarked on training programmes to educate the public on their handbook, called the Rakyat Module.

Sarah expounded: “If we can activate the mind of just one person, that person can be an agent of change who will tell their friends. It is just like throwing a pebble into the water; two or three pebbles are enough to create a ripple. Another example would be Facebook pages. It is clear to see that the eff ect of one person’s post can become viral almost instantly, and subsequently become a force to be reckoned with; a force that could aff ect change; a force to make the Government take action.”

The Rakyat Module encapsulates the three principles of Vigilance, Deterrence and Prevention, which is widely advocated by Safer Malaysia during their training sessions. According to them, Vigilance is what we can do to protect ourselves from becoming victims of crime; while Deterrence is the co-operation between each vigilant person to create a deterrence to the occurrences of crime. Lastly, Prevention is the importance of policy changes and education, as well as the promotion of expanding the study of criminology, in order to fi nd the root cause of a person becoming a criminal and stopping that process before it happens.

Apart from conducting training, Safer Malaysia has worked alongside the National Defence University of Malaysia (Universiti Pertahanan Nasional

Safer Malaysia’s Candlelight Vigil outside the Bar Council building, 27 Apr 2013

LIFESTYLE


Malaysia) to organise the fi rst-ever Safer Malaysia Conference, on 22 Jan 2015. The conference was a success, and it was attended by the relevant government departments, Prison Department of Malaysia, Royal Malaysia Police (Polis Diraja Malaysia, “PDRM”), Malaysian Armed Forces, town planning units of Jabatan Perancangan Pembangunan and Majlis Bandaraya Petaling Jaya, and others.

Saha reminisced: “It is amazing that, as young as Safer Malaysia is, we not only managed to reach out to such departments, and get them all in one place to hear what Safer Malaysia had to say, but also, the measures proposed in our memorandum, as well as the principles of Vigilance, Deterrence and Prevention, were adopted.”

Richard Wee added: “We have seen some of our ideas being adopted by the police, which is good, as it is proven that

our proposal can turn things around, and that is a testament to our work, and how we have played a part.”

Although Safer Malaysia provides a path for those who are interested in their cause, it is merely a platform for people who wish to make Malaysia safe. “Safer Malaysia would not be possible if not for the people of Safer Malaysia. They all run on pure passion; they are people who genuinely want to make a diff erence,” noted Saha.

The same can also be said of the lawyers who drive Safer Malaysia. Juggling legal practice with commitments to the committee, Yip sheepishly admitted that he “totally failed” in this aspect as his involvement in Safer Malaysia diminishes as the years go by. But Richard pointed out that Yip was the co-founder of Safer Malaysia, and while he was heavily involved with Safer Malaysia, Yip on the hand, held fort at

the fi rm. Co-fi nding a fi rm and partners in crime-fi ghting, they have mastered the art of good partnership with respect and gratitude for each other.

For Sarah, her motivation to work on the Safer Malaysia projects comes from fi nding time. She said: “It is where there is a will that there is a way. You have to organise your time and the timelines, put across what needs to be done, and ensure that the members are synergised and synced accordingly.”

“There speaks the conveyancing lawyer,” Saha joked, but also noted that Sarah is the one who gets things organised and up to speed. Indeed, even getting these practising lawyers in one room is no mean feat, even with the assistance of technology. That is how busy they are.

Despite their hectic schedules, their commitment to Safer Malaysia is never diminished. Darren Lai noted: “We understand how legal practice can be overbearing sometimes, but don’t let work drown you out. If you are passionate about a cause, take the time out and work on it, and you will fi nd that legal practice is not all about staying back late in the offi ce and working overtime. There is a bigger picture to being a Member of the Bar. So, to those who are interested to join us, just follow your passion and you can help make Malaysia a safer place.”

KS Shasha Advocate and Solicitor

Any individual who wishes to join Safer Malaysia or contribute to make Malaysia a safer place to live in, may contact Sarah Kambali from Messrs Richard Wee & Yip or Anusha Gopala Krishnan from Bar Council via email at [email protected]. You may also visit Safer Malaysia’s Facebook page at https://www.facebook.com/SaferMalaysia?fref=ts.

The fi rst-ever Safer Malaysia Conference, titled “Crime Prevention is Everyone’s Business”, held at National Defence University of Malaysia, 22 Jan 2015

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Safer Malaysia Committee

Co-Chairpersons: Richard Wee Thiam Seng Darren Lai XuenweiDeputy Chairperson: Sarah KambaliOffi cer-in-Charge: Anusha Gopala Krishnan

The Safer Malaysia Committee (“Safer Malaysia”) is a unique committee as it was originally a community project established back in June 2012. The community project was the brainchild of a few concerned individuals who were determined to counter the menace of crime which seemed to be rapidly increasing by the day. The project became a full-fl edged committee when Bar Council adopted it in March 2013. Today, Safer Malaysia subcommittees are established in most states, including Malacca, Perlis, Perak, Kedah and Pahang.

Safer Malaysia is an initiative to push for security reforms within the country, and to help Malaysians reclaim the ownership of safety in Malaysia. This Committee was specifi cally set up to propose suggestions on ways to curb crime eff ectively. The ultimate goal of this Committee is to make Malaysia a safer place, and the committee is robustly thriving to achieve this.

Safer Malaysia also off ers ideas to minimise the opportunities of crime. This includes awareness campaigns and dialogues with the relevant government authorities to stop the criminal itself. One of our themes is “Stop the criminal, and we stop the crime”.

Among the initiatives taken to battle crime is by educating the younger generation on delinquency and crime. Safer Malaysia has embarked on a project with emphasis on educating children about crime, and it aims to promote safety awareness in children through this project, called Safer Malaysia Kids. Among others, Safer Malaysia Kids off ers guidance for parents, and provides information and solutions to common crimes against children. Parents are also given handy safety tips as well as pointers on how to eff ectively exercise parental control.

The long-term goals of Safer Malaysia Kids are to introduce crime awareness in schools across the country to educate children on crime, and to raise crime awareness among this group. The fi nal objective is to convince the Ministry of Education to adopt this project and implement it on a national level so that crime awareness can be raised among students. The Performance Management and Delivery Unit under the Prime Minister’s Department (“PEMANDU”) is working very closely with Safer Malaysia to make this project a reality.

In addition, Safer Malaysia carries out various activities and events with diverse sections of the Malaysian community all over the country, including holding forums and workshops, to promote crime awareness.

LIFESTYLE


CASE NOTES – HIGHLIGHTS FROM THE FEDERAL COURT

Case Notes — Highlights from the Federal CourtTort: Duty of Care — Pure Economic Loss

The Federal Court in Loh Kok Beng & Ors v Loh Chiak Eong & 1 Other (Civil Appeal No: 02(f)-4-02/2013) was required to decide if a project architect owed a duty of care to the purchasers of units in a building project and was liable to them for the fi nancial loss caused by his alleged negligence.

The Appellants were the purchasers of industrial units in a building project. They each entered into a sale and purchase agreement with the developer (“the SPAs”). The Respondents were appointed as the project architects by the developer and, under the SPAs, they were required to prepare and submit the building plans for the project. The SPAs also provided that vacant possession of the units was to be delivered within 24 months from the date of the approval of the building plans. There was a delay of eight years in the delivery of vacant possession. This was caused by amendments that were made to the building plans and also the delay in the Department of Environment’s (“DOE”) grant of the Certifi cate of Fitness for Occupation (“CFO”) for the units.

The Appellants sued the Respondents in negligence for causing the delay. The relief claimed by the Appellants were purely fi nancial in nature and it included loss of rental profi ts, loss of use of the units and the costs that they incurred for having to use alternative buildings. In response, the Respondents argued that they were not the cause of the delay and, further, that they should not be under a duty of care to the Appellants to deliver vacant possession within the stipulated period under the SPAs, to which they were not a party.

The High Court found the Respondents liable for the delay in the completion of the project. The Court of Appeal reversed the High Court’s decision and held that there was no duty of care owed by the Respondents to the Appellants and, further, that the Respondents were not liable for the fi nancial loss suff ered by the Appellants.

The Federal Court dismissed the appeal and decided that the Respondents

could not have reasonably foreseen that the delay in the submission of the building plans would cause the Appellants the fi nancial loss that they claimed. Further, Zainun Ali FCJ found that the matters that occasioned the delay were not within the scope of duty of the Respondents but were rather obligations required of the developer (ie the securing of the CFO for the units and the matters that gave rise to the required amendments to the building plans).

The appeal was also dismissed on the grounds that it was improper to allow an action against an architect if the remedy sought by the purchaser was contractually provided for in the sale and purchase agreement with the developer. Further, it was observed that it would not be fair, just and reasonable under the Caparo principle (Caparo Industries Plc v Dickman [1990] 2 AC 605) to impose a liability for economic loss on professionals acting under a contract.

Company Law: Scope of an Oppression Petition under Section 181 of the Companies Act 1965

In Looh Siong Chee v Numix Engineering Sdn Bhd & 2 Ors (Civil Appeal No: 02(f)-75-10/2012 and Civil Appeal No.: 02(f)-77-10/2012) and Sejahtera Saluran Sdn Bhd v Numix Engineering Sdn Bhd & 2 Ors (Civil Appeal No: 02(f)-76-10/2012 and Civil Appeal No: 02(f)-78-10/2012), the Federal Court was invited to reconsider the applicable test for an oppression petition under section 181 of the Companies Act 1965 in view of recent developments in the law of oppression in England.

The appeals arose from an oppression petition and a related civil suit that were jointly heard by the High Court. The actions resulted from the breach of a set of agreements entered into between one Looh Siong Chee (“Mr Looh”), Numix Engineering Sdn Bhd (“Numix”), and Magic Telecom Sdn Bhd (“Magic”), which was a subsidiary of Numix. The agreements were executed to enable Mr Looh to assist Numix with its application to procure a particular telecommunications licence for its satellite transmission business.

Pursuant to the agreements, Mr Looh was to, amongst others, secure the requisite approval for the said telecommunications licence, and invest RM1 million in Magic for 35% of its shares. Conversely, Numix agreed to approve a budget of RM1 million for Mr Looh’s future utilisation at his discretion and, further, transfer its satellite transmission business to Magic.

Mr Looh failed to fulfi l his obligations under the agreements and Magic was thereafter placed in a critical fi nancial condition. The shareholders and directors of Numix, at the instance of Mr Looh, then issued 4 million shares in Magic to a company named Sejahtera Saluran Sdn Bhd (“Sejahtera”) for the latter’s grant of a RM4 million loan to Magic. Sejahtera then requisitioned an Extraordinary General Meeting (“EGM”) to appoint two additional directors to the Board of Directors of Magic. Numix and its directors opposed these appointments.

Accordingly, Numix and its directors fi led an oppression petition against Mr Looh and Sejahtera, seeking a declaration that the allotment of the 4 million shares to Sejahtera was void, and further, to injunct Mr Looh and Sejahtera from taking further steps in the conduct of the aff airs of Magic.

In turn, Mr Looh and Sejahtera fi led a civil suit against Numix and its directors claiming specifi c performance of the agreements.

The High Court allowed the oppression petition and dismissed the civil suit. In this regard, the High Court found that the allotment of the 4 million shares to Magic, at the instigation of Mr Looh, amounted to an act of oppression under section 181 as it diluted Numix’s shareholding in Magic from 65% to 13%. Further, it was held that the appointment of the two additional directors was prejudicial to the rights of Numix and its directors as members of Magic, as it eff ectively wrested control of the company away from them to Sejahtera. The High Court thereafter ordered that Magic be wound up. The Court of Appeal upheld the fi ndings of the High Court, and Mr Looh and Sejahtera were subsequently granted leave to appeal to the Federal Court.


CASE NOTES – HIGHLIGHTS FROM THE FEDERAL COURT

On appeal, Mr Looh and Sejahtera argued that the test for what constitutes oppressive conduct under section 181 should be redefi ned in the light of recent developments in the English law of oppression. This, it was argued, would result in the breaches of private shareholder agreements, such as the impugned conduct in the instant case, being deemed to be beyond the scope of reviewable conduct under section 181.

The Federal Court dismissed the appeals and held that the recent developments in the English law of oppression had been previously examined in full in the context of a section 181 oppression petition in the Federal Court cases of Pan-Pacifi c Construction Ltd v Ngiu Kee Corporation (M) Bhd [2010] 6 CLJ 721 and Jet-Tech Materials Sdn Bhd v Yushiro Chemical Industry Co Ltd [2013] 2 CLJ 277.

Further, it was observed that section 994 of the United Kingdom’s Companies Act 2006 (which formed part of the English developments upon which the Appellants relied in the appeals) was not in pari materia with (or identical to) Malaysia’s section 181. Therefore, Apandi Ali FCJ (as he then was) held it to be improper to transpose the legal tests connected with the United Kingdom’s section 994 onto Malaysia’s statutory law of oppression as contained in section 181.

The Federal Court proceeded to affi rm the operative test to be that under Re Kong Thai Sawmill (Miri) Sdn Bhd v Ling Beng Sung [1978] 2 MLJ 227 and that “fairness” was “commercial fairness” as defi ned by Hoff mann LJ (later Lord Hoff mann) in Re Saul D Harrison & Sons Plc [1995] 1 BCLC 14.

Lastly, the Federal Court decided against interfering with the concurrent fi ndings of fact of the High Court and the Court of Appeal on the oppressive conduct that led to the decision to wind up Magic in the case.

Probate and Administration: Sale of Estate Property Pursuant to an Impugned Consent Order — Sections 39 and 60 of the Probate and Administration Act 1960 — Validity of Sale of Estate Property Pursuant to a Will Declared to be a Forgery

The appeal in Poraviappan a/l Arunasalam Pillay v Periasamy a/l Sithambaram Pillai & 1 Other (Civil Appeal No: 02(f)-6-02/2013) concerned the validity of the sale of estate property pursuant to a consent order entered into by the legal representative of the deceased.

In 1982, one Mr Nadarajah died intestate. Among his assets were an oil palm and coconut estate in Teluk Bharu, Perak. In August 1983, the Appellant, who was the brother in law of Mr Nadarajah’s only nephew, obtained Letters of Administration over Mr Nadarajah’s estate. Subsequently, in 1984, the fi rst Respondent, who was Mr Nadarajah’s younger brother, produced an alleged Will of Mr Nadarajah wherein he was named as the Executor and a benefi ciary of the estate. This led to the fi rst Respondent obtaining a grant of probate over the estate of Mr Nadarajah in August of 1984. Then, in 1997, in separate proceedings, the Federal Court declared the Will to be a forgery and thereby revoked the probate obtained by the fi rst Respondent.

Now, in February 1982, Mr Nadarajah had entered into an agreement with one Madam Ponnamal pursuant to which the oil palm and coconut estate was to be transferred to the latter (“the sale agreement”). Following the death of Mr Nadarajah, Madam Ponnamal commenced a suit against the fi rst Respondent and her former solicitors seeking specifi c performance of the sale agreement. In 1985, the fi rst Respondent entered into a consent order under which the oil palm and coconut estate was to be transferred to Madam Ponnamal (“the Consent Order”).

In 1985, the Appellant fi led the instant suit to, amongst others, seek a declaration that the Consent Order was a nullity and that the sale agreement was a sham and, further, that the Respondents be ordered to deliver the title and transfer documents related to the oil palm and coconut estate.

The High Court dismissed the Appellant’s claim and the Court of Appeal affi rmed the High Court’s decision. The Appellant was granted leave to appeal on questions of law that related to the validity of the consent for the sale of estate property under a will that has subsequently been declared to be a

forgery, the sustainability of a consent order for the sale of estate property where an interpleader summons1 that challenged the legitimacy of the sale had not been disclosed to the Court and, further, the propriety of a sale of estate property under sections 39 (which relates to the vesting of property of an intestate) and 60 of the Probate and Administration Act 1960 (which relates in part to the sale of estate property by an administrator of an estate) without an empowering court order.

The Federal Court dismissed the appeal. In so doing, it was held that the fi rst Respondent had not consented to the sale of the oil palm and coconut estate as the executor of Mr Nadarajah’s Will, but rather as the legal representative of his estate. In this regard, the Federal Court noted that Madam Ponnamal’s suit (in which the Consent Order was entered) included a prayer for an order to appoint the fi rst Respondent to represent Mr Nadarajah’s estate (under Order 15 Rule 6A of the Rules of the High Court 1980). Therefore, Madam Ponnamal’s suit was not predicated on Mr Nadarajah’s Will or the probate obtained by the fi rst Respondent (both of which had been revoked by the Federal Court in 1997). Accordingly, the Federal Court found it unnecessary to answer the questions of law that pertained to the forged Will or the propriety of the sale under the Probate and Administration Act 1960.

On the question of the non-disclosure of the interpleader summons, Ahmad Haji Maarop FCJ held, amongst others, that the Appellant had not pleaded the said non-disclosure as a separate and/or alternative ground to nullify the Consent Order in the High Court suit.

Gregory Das Advocate and Solicitor Messrs Shook Lin & Bok

Note

1 Where a defendant to a suit fi les a summons against multiple claimants to determine the issue of ownership of goods or the proceeds from a sale.


Johore Bar CommitteeSeminar on Family Law On 9 Apr 2015, the Johore Bar Continuing Professional Development (“CPD”) Committee, together with the Bar Council CPD Department, jointly organised a seminar on Family Law as part of the CPD Regional Training Series. Pushpa Ratnam was the invited speaker and she gave a lively and engaging talk to members of the Johore Bar. A total of 33 participants were present.

Seminar for Lawyers on “Managing Office and Client Account(s)” On 8 May 2015, the Johore Bar Continuing Professional Development (“CPD”) Committee organised a seminar for lawyers on “Managing Offi ce and Client Account(s)”. Presented by Lim Kien Chai@KC, the seminar was held at the Johore Bar Auditorium with a total attendance of 90 participants. Naming Ceremony of the Johore Bar Auditorium

The Johore Bar held a naming ceremony of its auditorium on 15 June 2015. The Johore Bar Auditorium was renamed the Abdullah A Rahman Auditorium, after the late Abdullah A Rahman who was the longest serving Chairman of the Johore Bar, and the fi rst Chairman of the Johore Bar who was elected as President of the Malaysian Bar. The ceremony was graced by his family and past Chairmen of the Johore Bar. S Balarajah gave a citation for the late Abdullah A Rahman, and Steven Thiru, President of the Malaysian Bar, offi ciated the ceremony.

Advocacy Training Course On 12 and 13 June 2015, the Advocacy Training Course (“ATC”) was conducted at the Johor Bahru Court Complex. Jointly organised with the Bar Council Continuing Professional Development (“CPD”) Department, the ATC saw the participation of eleven members. The trainers involved were Shahareen Begum, Ooi Huey Miin, Jaspal Singh and T Sudhar.

Seminar on “Technology for Law Firms: Revised To Cover GST Accounting” The Johore Bar Continuing Professional Development (“CPD”) Committee organised the above seminar on two diff erent dates. Conducted by Ng Sheau Feng, the fi rst instalment of the seminar took place at Hotel Pelangi in Muar, Johore, on 27 May 2015, while the other instalment was held at the Johore Bar Auditorium on 28 May 2015. The total number of participants in Muar was 70, and 90 participants in Johor Bahru.

North vs South Johore Bar Games 2015 The Johore Bar Sports and North Johore Aff airs Sub Committees jointly organised

Public Forum on the Prevention of Terrorism Act 2015 (Revival of ISA?); and Amendments to the Sedition Act 1948 On 15 June 2015, the Johore Bar Human Rights Sub Committee and Bar Council, jointly organised the above forum at Tropical Inn Johor Bahru. The forum featured three eminent

Talk on “Procedures in Industrial Court” On 12 May 2015, the Johore Bar Continuing Professional Development (“CPD”) Committee invited Tuan Roslan b Mat Nor, Chairman of the Industrial Court of Malaysia, Johor Bahru, to give a talk on “Procedures in Industrial Court” to members of the Johore Bar. The talk drew the attendance of 30 participants.

the North vs South Johore Bar Games 2015 on 6 June 2015 at Batu Pahat, after the event went on hiatus in 2007. Five games were played namely golf, netball, futsal, table tennis and badminton. The games ended with a prize-giving ceremony, followed by high tea at Pinetree Hotel in Batu Pahat, Johore.

Group photograph of the members and trainers involved in the ATC

Family members of the late Abdullah A Rahman (middle) stand with members of the Johore Bar at the naming ceremony

Seminar on “Milestone Cases in Malaysian Land Law” The Johore Bar Continuing Professional Development (“CPD”) Committee organised a seminar that was conducted by Sudharsanan Thillainathan on 11 June 2015 at the Johore Bar Auditorium. A total of 90 participants attended.

speakers — Steven Thiru, President of the Malaysian Bar; Yeo Yang Poh, Past President of the Malaysian Bar; and Syahredzan Johan, Co-Chairperson of the Bar Council National Young Lawyers Committee. The forum was moderated by R Jayabalan, Chairman of Johore Bar. The forum kicked off at 5:30 pm with a welcoming speech by Mathews George of the Johore Bar Human Rights Sub

STATE BAR NEWS


Committee, followed by presentations from the three speakers. The forum was attended by members of the public and Members of the Bar, as well as members of the press.

Welcoming High Tea for YA Tuan Mohd Nazlan b Mohd Ghazali On 16 June 2015, the Johore Bar Social Committee organised a High Tea at Grand BlueWave Hotel, Johor Bahru to welcome YA Tuan Mohd Nazlan b Mohd Ghazali, who

Pupils Introduction Session Organised by the KL Bar Pupils Committee, the pupils introduction session for March was held on 12 Mar 2015. The session, attended by 67 pupils, was led by Shashi Devan. Pupils were briefed on the structure of the Malaysian Bar and the Kuala Lumpur Bar, the election to both the Bar Council and the Kuala Lumpur Bar Committee (“KLBC”), and the highlights of the Malaysian Bar. It included a session for pupils to raise issues and problems faced by them during their pupillage period and other members of the KL Bar Committee were also present to provide input and possible solutions. The pupils were also shown a video montage of the history of the Malaysian Bar.

Seminar for Lawyers on Managing Office and Client Accounts Organised by the KL Bar Professional Development Committee (“PDC”), this seminar was presented by Lim Kien Chai on 24 Mar 2015 at the KL Bar Auditorium. The objective of the seminar was to introduce and familiarise lawyers with the world of accounting and fi nance of a legal fi rm, which is so intertwined. It gave a general yet practical insight into the following areas: “Accounting for legal fi rm and practices”, “Specifi c to offi ce and client accounts”, “Pitfalls to avoid”, “Revenue and expenses and its taxability or ‘allow-ability’”, “The capital and current accounts of a partnership accounts”, and “Eff ective supervision of accounting staff and staff dealing with monies”. The seminar was attended by 98 participants.

Seminar on the Personal Data Protection Act 2010 (“PDPA”) This seminar was organised by the KL Bar Professional Development Committee (“PDC”), and presented by Jeremiah R Gurusamy, on 26 Mar 2015 at the KL Bar Auditorium. The seminar covered the following topics: “Overview of the PDPA”, “Understanding key provisions in the Act”, “Dealing with the various parties — data user, data processor and data subject”, “How to deal with sensitive personal data”, “PDPA compliance”, “Who does the PDPA apply to?”, “Processing of personal data in a commercial transaction”, “What is personal data?”, “Definition of a commercial transaction”, “Dealing with the 7 data principles”, “Obtaining consent from the data subjects”, “Privacy notification prior to data processing”, “Data subject request”, “Data correction request”, and “Dealing with data transfer outside Malaysia — Sec 129”. The seminar was attended by 36 participants.

Seminar on the “Law of Joint Ventures” Organised by the KL Bar Professional Development Committee (“PDC”), this seminar was presented by Lim Kien Chai on 17 Mar 2015 at the KL Bar Auditorium. Attended by 86 participants, the main objective of the seminar was to share with the participants, in a practical context, the variety of diff erent legal arrangements within which entrepreneurs describe or hold them out as being in a “joint venture”.

Introduction to the Legal Profession of Law Undergraduates at Taylor’s Law School Organised by the KL Bar Young Lawyers Committee (“YLC”), this event was held on 21 Mar 2015 at the Lakeside Campus of Taylor’s University, and was attended by 40 students.

Kuala Lumpur Bar CommitteeConveyancing Workshop for Pupils Organised specifi cally for pupils by the KL Bar Pupils Committee, this workshop was held on 4 Mar 2015 at the KL Bar Auditorium. The workshop, which was presented by Michael Leow Yon Meng, focused primarily on the practical aspects of handling a conveyancing brief covering the following areas: “Overview of the conveyancing process”, “Essential clauses found in a Sale & Purchase Agreement”, “How to fi ll up the relevant NLC Forms”, and “Practical pointers for the conveyancing lawyer”. A total of 50 pupils attended this workshop.

Seminar on Goods and Services Tax (“GST”) and Business Contracts Organised by the KL Bar Professional Development Committee (“PDC”), this seminar was presented by Thenesh Kannaa on 9 Mar 2015 at the KL Bar Auditorium. Attended by 150 participants, the seminar covered these topics: “The Malaysian GST model and its mechanism”, “An overview of the GST Act 2014 and the Ministerial Orders issued”, “Existing contracts — who bears the tax?”, “GST-related issues to be stated on future business contracts”, and “Does GST apply to disbursements?”.

had been posted as Judicial Commissioner in Johor Bahru on 20 Apr 2015. The event was attended by 50 members of the Johore Bar and four Judges and Judicial Commissioners of the High Court in Johor Bahru, the Director of Johore Courts, as well as the Chairman of the Industrial Court, Johor Bahru.

The topic of GST drew the crowd.

A group photo of aspiring lawyers.

Seminar on “Companies Bill 2013: Highlight on Key Changes” Organised by the KL Bar Corporate and Conveyancing Practice Committee (“CCPC”), this seminar was presented by Chong Kok Seng and Lim Siew Ming on

10 Mar 2015 at the KL Bar Auditorium. The seminar was attended by 76 participants.

STATE BAR NEWS


Pupils Workshop on Civil Litigation The KL Bar Pupils Committee organised a civil litigation workshop specifi cally for pupils on 2 Apr 2015. Presented by Colin Andrew Pereira and Sanjeev Kumar Rasiah, the workshop focused primarily on the practical aspects of handling a brief covering the following areas — “Opinion writing exercise”, “Drafting of pleadings exercise”, and “Presenting a case in court”. A total of 50 pupils attended the workshop.

Pupils Introduction Session Organised by the KL Bar Pupils Committee, the Pupils Introduction Session for April was held on 9 Apr 2015. The session, attended by 82 pupils, was led by Shashi Devan. Similarly like at previous sessions, pupils were briefed on the structure of the Malaysian Bar and the Kuala Lumpur Bar, the election to both the Bar Council and the Kuala Lumpur Bar Committee (“KLBC”), as well as the highlights of the Malaysian Bar. It included a session for pupils to raise issues and problems faced by them during their pupillage period and other members of the KL Bar Committee were also present to provide input and possible solutions. The pupils were also shown a video montage of the history of the Malaysian Bar.

SARC Trail Running Organised by the KL Bar Social, Arts and Recreation Committee, the trail run was held on Saturday, 18 Apr 2015 at Taman Rimba Kiara, Taman Tun Dr Ismail (on Jalan Haji Openg). Twelve Members of the Bar and pupils participated in this run.

KL Car-Free Morning On 19 Apr 2015, the KL Bar Environmental Committee (“KLBC EC”) participated in the Kuala Lumpur City Hall (“DBKL”)’s initiative in dedicating the fi rst and third Sunday mornings of the month as “car-free mornings”.

Seminar on “Trending Cases in the Malaysian Intellectual Property Landscape” Organised by the KL Bar Professional Development Committee (“PDC”), this seminar was presented by Professor Ida Madieha Azmi on 21 Apr 2015 at the KL Bar Auditorium. The seminar covered the following topics: “Copyright over computer programme”, “The boundary and interface between copyright and privacy rights”, “What amounts to an invented word capable of trade mark registration?”, “Who is the rightful proprietor of a mark?”, “Can the patent owner apply for the amendment of his patent claims during infringement proceedings?”, “Invalidation of patents”, “Registrability of car parts for industrial design”, “Power of the court to issue injunctive relief for breach of confi dential information”, and “Duty of employee to maintain the confi dentiality of the employer’s trade secrets”. The seminar was attended by 36 participants.

Meeting with the Police in Dang Wangi Police District Headquarters (“IPD”) A meeting was held on 8 May 2015 between the KL Bar Criminal Practice Committee (“CPC”) and police offi cers from IPD Dang Wangi to discuss various issues, in particular, the issue of lawyers’ access to their clients/accused persons at the Dang Wangi Remand Centre.

Seminar on the “Law of Parallel Imports in the Context of Trademark Infringement and Passing Off” Organised by the KL Bar Professional Development Committee (“PDC”), this seminar was presented by Ng Kim Poh on 12 May 2015 at the KL Bar Auditorium. Attended by 41 participants, the seminar covered the following topics: "What does ‘Parallel Imports’ mean?”, “Trademark Infringement”, “Passing Off ”, “Parallel Imports Cases”, and “Potential Instances of Infringement and/or Passing Off ”.

Seminar on “Understanding Annual Reports and its Financial Statements” Organised by the KL Bar Professional Development Committee (“PDC”), this seminar was presented by Lim Kien Chai on

Kuala Lumpur Bar Grand Prix 2015 Organised by the KL Bar Social, Arts and Recreation Committee, the Kuala Lumpur Bar Grand Prix 2015 was held at the Shah Alam Stadium Go Kart Circuit on 9 May 2015. A total of seven teams comprising four drivers each participated in this event.

Annual Kuala Lumpur-Selangor Bar Committees Get-Together Hosted by the Selangor Bar Committee (“SBC”) this term, the annual get-together between the Kuala Lumpur Bar Committee (“KLBC”) and SBC was held on 24 Apr 2015 at the Merchant Lounge, Armada Hotel, Petaling Jaya. This annual meet was for the offi ce bearers of the new term of both the KLBC and SBC to get to know each other and to discuss how to work closely to cater to the mutual needs of members of both the Kuala Lumpur and Selangor Bars.

Pupils Introduction Session Organised by the KL Bar Pupils Committee, the Pupils Introduction Session for May was held on 7 May 2015. The session, attended by 80 pupils, was led by Shashi Devan. Pupils were briefed on the structure of the Malaysian Bar and the Kuala Lumpur Bar, the election to both the Bar Council and the Kuala Lumpur Bar Committee (“KLBC”), and the highlights of the Malaysian Bar. It included a session for pupils to raise issues and problems faced by them during their pupillage period and other members of the KLBC were also present to provide input and possible solutions. The pupils were also shown a video montage of the history of the Malaysian Bar.

Seminar on “Equity and Trusts in Malaysia: Profits from Bribes and Construction Trusts — Personal or Proprietary Claims” This seminar was organised by the KL Bar Professional Development Committee (“PDC”), and presented by Harcharan Singh, on 8 May 2015 at the KL Bar Auditorium. The seminar covered the following topics: “When a fi duciary accepts a bribe, what is, or ought Cycling to raise awareness

Future F1 drivers on the podium?

to be, the response of Malaysian Equity?”, and “Should an institutional constructive trust be imposed on the bribe in the hands of the fi duciary in favour of the party with whom he stands in a fi duciary position (the ‘Benefi ciary’), or should the Benefi ciary be limited to a personal claim for the recovery from the fi duciary of an amount equivalent to the bribe?”. The seminar was attended by 28 participants.

STATE BAR NEWS


Corporate Workshop for Pupils The KL Bar Pupils Committee organised a corporate workshop specifi cally for pupils on 20 May 2015. Presented by Sheba Gumis and attended by a total of 52 pupils, the workshop focused primarily on the practical aspects of handling a brief covering the following areas: “Overview: Negotiation, due diligence and drafting process”, “Commercial considerations”, “Practical pointers including common mistakes when drafting”, “Salient clauses including consideration, conditions precedent, completion etc”, “Covenants and warranties by both Vendors and Purchasers”, “Boiler plate clauses”, and “Remedies for breach of contract”.

Seminar on Islamic Wills Organised by the KL Bar Professional Development Committee (“PDC”), this seminar was presented by Amir Bahari on 22 May 2015 at the KL Bar Auditorium, and attended by 24 participants. As a brief introduction to Islamic Wills, the seminar covered the following topics: “Key Objectives in Estate Planning”, “Legal Framework of Estate Administration”, “Faraid — Islamic Laws of Inheritance”, “Sources of Islamic Will”, “6 Steps in Estate Planning”, “Issues in Islamic Estate Planning”, and “Sample of Islamic Basic Will”.

Seminar on “Insights to GST Appeal Processes and Jurisprudence of Tax Statute Interpretation” This seminar was organised by the KL Bar Young Lawyers Committee (“YLC”), and presented by S Saravana Kumar and Siti Fatimah Mohd Sharom, on 25 May 2015 at the KL Bar Auditorium. The seminar covered the following topics: “An overview of the Goods and Services Tax (‘GST’) regime in Malaysia”, “The GST appeals process, including appearances before the GST Appeal Tribunal”, “Judicial review as a remedy to resolve GST controversies”, “Application for an error or mistake and

19 May 2015 at the KL Bar Auditorium, and attended by 62 participants. The seminar covered, among others, the following topics: “Introductory on its importance”, “Accounting jargons made understandable for lawyers”, “What are the components of an annual report?”, “What are these: ledger accounts, journal entries, double-entries, T-accounts?”, “Why this term ‘Trial Balance’?”, “Why this term ‘Balance Sheet’?”, “What are the salient features of a Balance Sheet?”, “What are and the types of assets?”, “What are and the types of Liabilities?”, and “Are Balance Sheet’s liabilities an indication of ‘not good’ fi nancial position and/or poor fi nancial management?”.

Annual Blood Donation Drive The annual blood donation drive was jointly organised by the KL Bar Social, Arts and Recreation Committee and Kelab Sukan Kebajikan dan Rekreasi Mahkamah Kuala Lumpur (“KESMA”), with the assistance of the National Blood Bank, on 27 May 2015. The blood donation drive was held at Level 2 of the Kuala Lumpur Court Complex on Jalan Tuanku Abdul Halim (formerly known as Jalan Duta). This year’s event saw the support of 113 people.

3rd KL Bar Futsal Competition 2015 Organised by the KL Bar Sports Committee, the 3rd KL Bar Futsal Competition 2015 was held at Sports Arena@Sentosa, Taman Sri Sentosa on 30 May 2015. A total of 22 teams participated in the event and the winners are as follows:

Men’s Category Victorious Secret 2 (1st placing); Victorious Secret 1 (2nd placing); TRG Bar (3rd placing); Zaid Ibrahim & Co (4th placing)

Men's (Plate) Wakeel FC (1st placing); CPD (2nd placing)

Ladies’ CategoryThe Kickers (1st placing); Boomfi ca (2nd placing)

Best Firm TeamZaid Ibrahim & Co

Best Player Tay Zi Li (Zaid Ibrahim & Co)

Two-Day Practical Workshop on Conveyancing Practice Organised by the KL Bar Corporate and Conveyancing Practice Committee (“CCPC”), this workshop was presented by Dennis Teoh, Susan Joseph, Nahzatul Ain and Sarah Kambali on 28 and 29 May 2015 at the KL Bar Auditorium. The workshop covered these topics: “Are options really crucial and necessary? Why?”, “Why do some transactions end up in the trash?”, “What should you look out for when transacting for your clients?”, “How is it that despite the ‘standard’ terms and conditions in SPAs, conveyancers still can disagree on certain issues?”, “When does a confl ict of interest arise for you to worry about?”, and “How do you safeguard yourself against

Pupils Introduction Session Organised by the KL Bar Pupils Committee, the Pupils Introduction Session for June was held on 4 June 2015. The session, attended by 76 pupils, was led by Shashi Devan. Pupils were briefed on the structure of the Malaysian Bar and the Kuala Lumpur Bar, the election to both the Bar Council and the Kuala Lumpur Bar Committee (“KLBC”), and the highlights of the Malaysian Bar. It included a session for pupils to raise issues and problems faced by them during their pupillage period, and other members of KLBC were also present to provide input and possible solutions. The pupils were also shown a video montage of the history of the Malaysian Bar.

KL Bar Bowling Tournament Organised by the KL Bar Sports Committee, the KL Bar Bowling Tournament was held at Sunway Megalanes, Sunway Pyramid on 6

the relief available”, “Challenging adverse advance rulings and technical rulings by the Royal Malaysian Customs”, and “Appreciating the judicial developments in Malaysia in respect of interpreting taxing statutes”. The seminar was attended by 15 participants.

Saravana Kumar speaking at the seminar

For a good cause

Happy winners!

a complaint being lodged against you in a conveyance?”. The workshop was attended by 57 participants.

STATE BAR NEWS


Malacca Bar Committee

Social Get-Together Organised by the KL Bar Social, Arts and Recreation Committee, the fi rst social get-together for the 2015/16 term was held on 12 June 2015 at Rils, Bangsar. Approximately 30 Members of the Bar turned up for this event, and everyone had a great time.

Dock Brief Training On 8 May 2015, the Malacca Bar Legal Aid Sub-Committee organised a dock brief training for 22 pupils in chambers. The trainers

Courtesy Calls On 9 Apr 2015, Malacca Bar Committee members paid a courtesy call on YA Datuk Abdul Karim b Abdul Jalil, followed by a meeting with the Judges, Registrars and Magistrates at the Malacca Court Complex. The committee also paid a courtesy call on the newly-appointed Judicial Commissioner of the Malacca High Court, YA Dato’ Mohd Firuz b Jaff ril, on 22 Apr 2015.

Event at Asian Water Sports Village, Puchong Sixteen young lawyers took part in various water activities at the Asian Water Sports Village in Puchong on 13 and 14 June 2015. This event was organised by the KL Bar Young Lawyers Committee (“YLC”).

Pupils Workshop: Criminal Litigation The KL Bar Pupils Committee organised a Criminal Litigation Workshop specifi cally for pupils, on 29 June 2015. The workshop focused primarily on the practical aspects of handling a brief and covered the following areas: “Client Interview”, “Mitigation”, “Bail Application”, and “Trial Process”. The workshop was conducted by Lim Chi Chau and Farhan Read, and attended by 31 pupils.

PDC-AWL Series: Seminar on an Introduction to Children’s Rights in Malaysia Organised by the KL Bar Professional Development Committee (“PDC”) in collaboration with the Association of Women Lawyers (“AWL”), this seminar was presented by Sharmila Sekaran on 30 June 2015 at the KL Bar Auditorium. Attended by 51 participants, the seminar covered these topics: “Understanding Children’s Rights”, “Issues aff ecting Children”, and “Development and Protection of Children”.

Billing and Collections Workshop The Bar Council Professional Indemnity Insurance Committee conducted a workshop on “Billings & Collections” on 22 May 2015 at UTC Melaka. 2 CPD points were given to participants who attended the whole session of the workshop.

Malacca Bar Futsal Tournament 2015 The Malacca Bar Sports Sub-Committee successfully organised the Malacca Bar Futsal Tournament 2015 at SP Futsal Centre, Taman Teknologi Cheng on 23 May 2015. More than 30 members and pupils in chambers participated in the tournament.

Public Forum on “Prevention of Terrorism Act 2015 (Revival of ISA?); and Amendments to Sedition Act 1948” On 10 June 2015, this public forum was organised by the Malacca Bar Young Lawyers and Chambering Pupils Sub-

Volunteering at the Pertiwi Soup Kitchen Twenty-fi ve lawyers volunteered to help serve some 450 people on the streets of Jalan Tuanku Abdul Rahman and Jalan Tun Tan Cheng Lock in Kuala Lumpur, on 26 June 2015. The programme, organised by the KL Bar Young Lawyers Committee, ran from 9:00 pm to midnight.

Meeting between the Bench and the Bar

The bowlers in action

Having a blast of a time

June 2015. A total of 19 teams participated in the event and the winners are as follows:

TRG Bar A (1st placing); Icepick Willie (2nd placing); Rilek Je (3rd placing)

Best Male Player: Mohammad Afi q Ammar (Rilek Je)

Best Female Player: Ghasidah bt Jusoh (TRG Bar A).

Best Firm Team: Rilek Je from Khairul A & Co; Spare Rib from Chooi & Co (2nd placing); Alley Gator from Lee Hishammuddin Allen & Gledhill (3rd placing)

were Jason Kay, Ahmad Soleh Yusof, Fadil Mohd Yusof and Jessie Koh Mei Hui. Pupils were introduced to ethics and traditions of the Bar, the structure of legal aid in Malaysia, followed by training sessions on interviewing legal aid applicants, interviewing the accused and their family for bail and mitigation, and fi nally practising doing mitigation and bail application. These sessions will be repeated as and when new batches of pupils start their pupilage at the Malacca Bar.

STATE BAR NEWS


Courtesy Call on the Chief Police Officer On 23 June 2015, Malacca Bar Committee members paid a courtesy call on the Chief Police Offi cer of Malacca, Datuk Chua Ghee Lye, followed by a meeting with police offi cers from various departments.

Training for Watching Briefs

On 11 July 2015, the Malacca Bar Human Rights and Contemporary Issues Sub-Committee conducted a special training in Malacca for lawyers who are interested in holding watching briefs on behalf of the Bar Council for inquests involving deaths in police custody and police shootings. Ravi Nekoo was the trainer for the training session, which was held in Malacca Bar premises.

Malacca Bench and Bar Games 2015 The Malacca Bench and Bar Games for 2015 were held at SMK Seri Kota Melaka on 13 June 2015. The games played were table tennis, netball, badminton, futsal, football, volleyball and the 4x100 m relay. Malacca Bar emerged the champion this year.

Penang Bar CommitteeCourtesy Calls

To start off the newly-elected committee’s term, the Penang Bar Committee paid courtesy calls on the Penang High Court and Subordinate Courts between the months of March and April 2015. The issues raised by the Committee during these meetings were based on members’ feedback; many of which were amicably resolved with the cooperation and assistance of the Courts.

The Karpal Singh Forum 2015

Following the untimely passing of Karpal Singh s/o Ram Singh on 17 Apr 2014, the Penang Bar Committee had been in discussion with his family to organise a memorial lecture named after him.

After close to eight months of planning, the Karpal Singh Forum 2015 fi nally came to fruition and was held on 18 Apr 2015 at Dewan Sri Pinang to coincide with his fi rst death anniversary. The theme for the inaugural forum was “The Sedition Act and Human Rights in Malaysia”, a topic that was close to the late Karpal’s heart. Dewan Sri Pinang was chosen as the venue due to its location which is a stone’s throw away from Karpal Singh & Co, and

Farewell Dinner

A farewell dinner was organised on 9 Apr 2015 at the Penang Club in honour of YA Datuk Zamani A Rahim who had been elevated to the Court of Appeal in February

Committee at La Boss Hotel, Malacca. The speakers were Steven Thiru, President of the Malaysian Bar; Syahredzan Johan, Co-Chairperson of the Bar Council National Young Lawyers Committee, as well as Prof Dr Myint Zan from the Faculty of Law, Multimedia University, Malacca.

The panellists at the forum

Raya gifts for the childrenThe futsal team photograph

Courtesy call on Datuk Chua and the Malacca police force

Majlis Berbuka Puasa The Malacca Bar Social and Charity Sub-Committee organised a “Majlis Berbuka Puasa Bersama” at Kings Hotel Malacca on 1 July 2015. More than 70 members and pupils attended and broke fast together with 21 orphans from Malacca. The Chairman of the Malacca Bar presented Raya gifts to the orphans before breaking fast together.

this year. The Dinner was attended by Penang High Court Judges, members of the Bar and chambering pupils.

it also served as the venue for Karpal’s State-honoured funeral just a year earlier.

Co-organised by the Penang State Government and the Penang Institute, the forum saw some 460 attendees consisting of Members of the Bar and pupils, politicians, academics, representatives from non-governmental organisations (“NGOs”), members of the public, law students, as well as Karpal’s family members and friends. It was launched by the Chief Minister of Penang, Lim Guan Eng, while the keynote address was delivered by Mark Trowell QC who travelled to Penang especially for the event. The second part of the forum was a panel discussion moderated by immediate past President of the Malaysian Bar, Christopher Leong, who was accompanied by a panel comprising President of the Malaysian Bar, Steven

STATE BAR NEWS


Ethics and Professional Standards Course The Ethics and Professional Standards Course for chambering pupils was held on 12 and 13 June 2015 and attended by participants from the Penang Bar as well as Kedah, Perak and Terengganu.

Breaking of Fast Event On 6 July 2015, the Penang Bar Syariah and Islamic Finance Subcommittee organised a breaking of fast event at Masjid Melayu Lebuh Acheh. This event was attended by members, pupils, Court Offi cers from the Civil and Syariah Courts, and other invited guests. Donations collected in conjunction with the event were channeled to the less fortunate.

Other Programmes The following Continuing Professional Development (“CPD”) programmes were either organised, co-organised or participated in, by the Penang Bar Committee from April to July 2015:

• “Shades of Conveyancing Practice” and “An Introduction to the Companies Bill 2013” (14 May 2015);

• RTS 2015 | “Exclusive Preview on Associate Qualifi cations in Islamic Finance” (21 May 2015);

• Workshop on “Handling Inquests” (organised by Suara Rakyat Malaysia, “Suaram”) (23 May 2015);

• RTS 2015 | Seminar on “Unjust Enrichment Law” (28 May 2015);

• RTS 2015 | “Technology for Law Firms” (4 June 2015);

• Seminar on the “Law of Joint Ventures” (5 June 2015);

• Seminar on “Islamic Wills” (8 June 2015); and

• “The Good, the Bad and the Ugly of Criminal Practice” (9 July 2015).

Penang Legal Aid Centre Annual Review

The Penang Legal Aid Centre (“PLAC”) held its Annual Review on 24 Apr 2015 at the new Penang Bar Auditorium. Attended by members and pupils, the past year’s activities were presented and upcoming events and projects were proposed and discussed.

Connect @ The Bridge

An after-work social event themed “Connect @ The Bridge” was held on 28 Apr 2015 at the refurbished and revamped Loke Thye Kee, known as the oldest restaurant in Penang. The gathering was well attended by both senior and junior members, as well as pupils. The refreshments and snacks were sponsored by the proprietors of the venue.

“An Evening with the Doyens”

The Penang Bar Criminal Law Subcommittee organised a social event Some of the doyens, in photograph

The pupils at the course

The panellists at the forum

Chief Minister Lim Guan Eng signs the plaque. The widow of the late Karpal Singh, Gurmit Kaur, stands beside him

Thiru; Ambiga Sreenevasan; retired Judge of the Court of Appeal, Dato’ Mahadev Shanker; and Mark Trowell QC.

In concluding the event, a plaque signed by the Chief Minister to launch the forum was handed over to Karpal’s widow, Gurmit Kaur, by the Co-Chairperson of the forum’s Organising Committee, Abdul Fareed Abdul Gafoor, who is also Treasurer of the Malaysian Bar.

entitled “An Evening with the Doyens” on 22 May 2015, featuring CV Prabhakaran, Baldev Bhar, K Kumaraendran, V Sithambaram, and Ang Chun Pun. These senior members shared their experiences of practice at the Criminal Bar through a series of anecdotes and humorous narratives that spanned several decades, involving fellow Members, the Bench, clients and witnesses. It is hoped that their commitment and passion for the law and legal practice will serve as a source of inspiration and encouragement for young practitioners and pupils.

STATE BAR NEWS


Talk on “How to Protect Company Intellectual Property Assets” On 17 Apr 2015, the Perak Bar Committee organised a talk entitled “How to Protect Company Intellectual Property Assets”. The talk was presented by former Perak Bar Committee Honorary Secretary, Hemalatha Parasa Ramulu, and Noel J Akers, a Chartered Patent Attorney and European Patent Attorney. While both speakers covered the topic on protecting company intellectual property assets, Noel Akers thoroughly discussed the topic and highlighted the diff erences in Malaysia and other countries.

Perak Bar CommitteeTalk on Criminal Advocacy On 14 May 2015, the Perak Bar Young Lawyers and Chambering Students Committee held a talk on criminal advocacy by Ipoh Judicial Commissioner, YA Noorin bt Badaruddin. Although the target group of this talk was young lawyers and chambering pupils, senior members also came to listen to this inspiring talk. She shared her experiences not only when she served behind the Bench but also when she was in the Prosecution Department.

Talk on “Family Law: Grounds for Divorce and Basic Procedure” The Perak Bar Professional Development Committee held a talk on 4 June 2015 on “Family Law: Grounds for Divorce and Basic Procedure”. The speaker was Pushpa Ratnam. Her talk enlightened the participants, especially young lawyers, on the basic procedure for divorce.

Talk on “7 Tips for an Effective Negotiation” This talk was presented by Amir Bahari, the former Chairperson of the Kuala Lumpur Bar Committee 2014/2015’s Corporate and Conveyancing Committee, on 7 May 2015. His presentation was conducted creatively by inviting the participants to take part in the activities that he had prepared that day.

Selangor Bar CommitteeThe Committee organised the following talks during this quarter: • “Advocacy, Decorum in Court and

Ethics” by George Varughese (6 Mar 2015);

• “How to Conduct a Retrenchment Exercise and a Voluntary Separation Scheme” by Kavitha Guna Segaran (13 Mar 2015);

• “Human Rights — Protecting Children” by Sharmila Sekaran (27 Mar 2015);

• “Goods and Services Tax (‘GST’)”

A token of Appreciation from Kenny Lai, Chairman of the Perak Bar

Group photo with the speaker, Amir Bahari (middle)

Noel Akers explaining what is patent

by Saravana Kumar and Siti Fatimah Mohd Sharom (10 Apr 2015);

• “Lawyers As Change Agents: the Curious Case of Corporations” by Kiu Jia Yaw and Adrian Yaw (22 Apr 2015);

• “Goods and Services Tax (‘GST’)” by LexisNexis (24 Apr 2015);

• “Family Law-Contested Divorce Proceedings (1): From Interviewing to Filing the Petition” by Honey Tan Lay Ean (15 May 2015);

• “Domain name as Shield and Sword: Empire Strikes Back | Fundamentals of IP rights and Overview of Domain Name Strategy” by Eugene Roy Joseph (22 May 2015);

• Legal Training Workshop | “Child

and Youth Justice within the Malaysian Legal System” by Voice of the Children (23 and 24 May 2015);

• “Syariah Law: Islamic Wills” by Amir Bahari (5 June 2015);

• “Remand, Bail and Mitigation Proceedings” by KA Ramu (12 June 2015);

• “Winding Up Companies under Section 218(1)(e) of the Companies Act 1965” by Tieh Siaw Siong (19 June 2015);

• “PDPA Act 2010” by Jeremiah R Gurusamy (26 June 2015); and

• “Syariah Law: Anak Tak Sah Taraf dan Implikasi Hukum Syara” by Sa’adiah bt Din (3 July 2015).

STATE BAR NEWS


Meetings Attended by the Selangor Bar Conveyancing Practice Sub Committee The Chairperson of the Conveyancing Practice Sub Committee, Nurul Muhaniza, attended the following meetings to highlight the concerns and problems faced by conveyancers with the authorities:

• 16 Feb 2015: Meeting on Secured Land Management System (“SELAMAT”);

• 22 Apr 2015: Meeting with the Kuala Lumpur Federal Territory Department of Lands and Mines; and

• 29 Apr 2015: Meeting with the Selangor Lands and Mines Offi ce.

Selangor Law Shield 2015 The Selangor Bar hosted the inaugural “Selangor Bar Shield”, on 5 and 6 June 2015, at Persada PLUS, Subang.

The Selangor Law Shield pits the Selangor Bar against the Selangor Judiciary team in sporting events such as Bowling, Soccer, Futsal (men and women), Volleyball, Badminton, and Netball.

The Selangor Bar was declared the overall winner of the tournament. The games ended with a closing ceremony and lunch, also hosted by the Selangor Bar.

Breaking Fast with Underprivileged Children For the fi rst time, the Selangor Bar hosted a breaking-fast event with 100 underprivileged children from four orphanages, on 3 July 2015. The children are from Rumah Amal Limpahan Kasih (Puchong), Rumah Amal Kasih Bestari (Kg Melayu Subang), Rumah Amal Al-Firdaus (Denai Alam, Shah Alam), and Shelter Home (Petaling Jaya). This event was fully sponsored by Selangor Bar members.

Meeting with the Director of the Selangor Subordinate Courts and Sub-Court Judges/Magistrates The Selangor Bar Committee attended a meeting with the Director of the Selangor Subordinate Courts on 15 May 2015.

The meeting was chaired by YA Datuk Wira Mohtarudin b Baki, Managing Judge of the Sub-Courts in Selangor, and held with Datin Siti Mariam bt Haji Othman in her capacity as the Director of the Selangor Subordinate Courts. The meeting recorded good attendance from the Bench comprising approximately 50 Magistrates and Judges from almost all sub-courts in Selangor.

During the meeting, the Selangor Bar Committee highlighted issues and grievances faced by members, including the delay in extractions of e-fi ling documents, striking out cases, judicial temperament, and so forth. With regard to criminal practice, the Committee raised matters such as the refusal of judicial offi cers to meet lawyers and deputy public prosecutors in chambers, and trial proceedings without counsel.

Selangor Bar Member’s Night The Selangor Bar’s fi rst social event for 2015 was “Members Night”, which was held at Lake Club View, Subang Jaya on 16 May 2015. The Selangor Bar celebrated 60 years in style, and enjoyed a good turnout of almost 300 members.

The highlights of the evening were the performance by “Michael Jackson”, a Michael Jackson dance competition, and lucky draws.

Civil and Criminal Meet-Up On 11 June 2015, the Selangor Bar hosted a Civil and Criminal Meet-up at the cafeteria of the Shah Alam High Court. The purpose of this was to gather feedback and issues/complaints directly from Members of the Bar in relation to the courts in Selangor.

Chinese New Year Open House The Selangor Bar Committee ushered in Chinese New Year 2015 with an open house on 6 Mar 2015. The event was fully sponsored by members of Selangor Bar, and the Selangor Bar Secretariat building was transformed with Chinese New Year trimmings and decorations.

There was an abundance of food and the lion dance troupe made its way right up to the third fl oor of the secretariat building.

Ushering the New Year with lion dance

Really into the Michael Jackson vibe!

The badminton team

Happy victors!

Delighted children at the event

Members and children take a group photo

STATE BAR NEWS


Attorney General of Malaysia Tan Sri Dato’ Sri Haji Mohamed Apandi b Haji Ali

Tan Sri Dato’ Sri Haji Mohamed Apandi was born on 11 Feb 1950 in Kota Bharu, Kelantan. He received his LLB (Hons) degree from the University of London in 1972, is a barrister-at-law of the Inner Temple London, and pursued studies at the Institute of Advanced Legal Studies, London.

Tan Sri Dato’ Sri Haji Mohamed Apandi has vast experience in the legal fi eld. He served as a Magistrate at the Kuala Terengganu Magistrate’s Court from 1973 to 1975; and as a Director of the Legal Aid Bureau for the State of Kelantan from 1975 to 1977. From 1977 to 1980, he was appointed a Deputy Public Prosecutor for the State of Kelantan and Terengganu. In 1980, his career took him to serve in Kuala Lumpur, as Legal Adviser for the Ministry of Trade and Industry.

In 1982, Tan Sri Dato’ Sri Haji Mohamed Apandi returned to legal practice, establishing his fi rm, Apandi Ali & Co, and serving as an advocate and solicitor till 2003.

On 1 May 2003, he was appointed a Judicial Commissioner at the High Court of Malaya in Kuantan. He was next elevated as a High Court Judge of Malaya in Kuantan, serving in that capacity from 21 Dec 2004 to 14 February 2007.

He was next transferred to Kuala Lumpur, serving as High Court Judge of Malaya from 15 February 2007 till 13 Apr 2010. His fi nal appointment before his appointment as the ninth Attorney General of Malaysia was as Judge of the Court of Appeal, in Putrajaya, on 14 Apr 2010.

Tan Sri Dato’ Sri Haji Mohamed Apandi is married to Puan Sri Datin Sri Dato’ Faridah Begum bt KA Abdul Kader, and they are blessed with seven children.

NNNEEEWWW AAPPPPOOIINNTTMMEENNNTTTTSSSS


Mohamed Apandi Replaces Gani Patail as Attorney-General

Tan Sri Abdul Gani Patail’s tenure as Attorney-General has been terminated with immediate effect, due to health reasons. According to Chief Secretary to the Government, Tan Sri Dr Ali Hamsa in his statement, former Federal Court Judge, Tan Sri Mohamed Apandi Ali, has been appointed the new Attorney General, effective on 27 July 2015.

According to the statement, Tan Sri Abdul Gani would continue to serve as Judicial and Legal Service Offi cer until his mandatory retirement on 6 October this year.

The termination however comes in the midst of a high-profi le probe led by Tan Sri Abdul Gani on troubled state investor 1Malaysia Development Berhad (“1MDB”). This investigation has also put allegations against Prime Minister Dato’ Sri Najib Razak in the spotlight.

Tan Sri Abdul Gani, in his capacity as Attorney General, had led a Special Task Force which incorporates the police, the Malaysian Anti-Corruption Commission (“MACC”) and Bank Negara Malaysia.

This Task Force sprang into action, raiding offi ces and making arrests following a Wall Street Journal report on 3 July that alleged the deposit of US$700 million (RM2.6 billion) in 1MDB-linked funds into the Prime Minister’s personal accounts over the past two years, an allegation that the Prime Minister has denied. ~ Adapted from The Star/The Straits Times

Malaysian PM reshuffles cabinet, dumps deputy after 1MDB criticism

Prime Minister Dato’ Sri Najib Razak reshuffl ed the Cabinet on Tuesday (28 July 2015), dropping his Deputy and four other Ministers.

Deputy Prime Minister, Tan Sri Muhyiddin Yassin fell out of favour and was dropped days after publicly calling on the Prime Minister to satisfactorily explain the scandal enveloping 1Malaysia Development Bhd (“1MDB”). He is replaced by former Home Minister, Datuk Seri Dr Ahmad Zahid Hamidi.

Dato’ Sri Najib claimed that the unity of the ruling Barisan Nasional coalition would be strengthened, as it prepares for elections in 2018.

In a related development, the Kuala Lumpur Composite Index (“KLCI”) fell by 10.06 points at the end of trading, hours after Dato’ Seri Najib announced the Cabinet reshuffl e. ~ Adapted from Reuters/Malay Mail Online

Trowers & Hamlins is First to Receive “Qualified Foreign Law Firm” Licence in Malaysia

In April 2015, Trowers & Hamlin became the the fi rst foreign law fi rm to be granted a Qualifi ed Foreign Law Firm (“QFLF”) licence in Malaysia. Licences for QFLFs are valid for a three-year period and are renewable. Trowers & Hamlins announced on its website that the QFLF licence “will allow [the fi rm] to operate independently in Malaysia and advise on international legal issues, subject to certain restrictions”, and “follows numerous years of working with Malaysian clients on their activities outside Malaysia”. Prior to being awarded this licence, the fi rm had operated a non-trading representative regional offi ce in Kuala Lumpur since mid-2012. The fi rm’s regional managing partner, Nick White, and fi rm partner, Nick Edmondes, are registered to practise as foreign lawyers in their Kuala Lumpur offi ce.

The Edge files for Judicial Review over Ban

An application has been fi led by The Edge Media Group to seek a judicial review of the Home Ministry’s decision to ban two of its publications, at the Kuala Lumpur High Court.

The Home Ministry had suspended The Edge Weekly and The Edge Financial Daily, for three months, beginning 27 July. The Edge believes that the suspension of the permits is a result of its report on 1Malaysia Development Berhad (“1MDB”). ~ Adapted from The Star

IGP: Cops Back Death Sentence Review, But Total Scrapping a “Step Backward”

Inspector-General of Police (“IGP”) Tan Sri Khalid Abu Bakar said the police supports a review of the mandatory death sentence for drug-related offence, but stopped short at calling for its abolition.

In an interview with The Star, the IGP said that abolishing the death sentence would sent the wrong signal to drug dealers, and is equivalent to taking a step backward in the war against drugs. He also noted that the police preferred to keep the death sentence as an option in courts.

This statement was in contrast to the view of Former IGP, Tun Hanif Omar, who was quoted to back a complete review of the death penalty for drug offences, as the death sentence had failed to deter people from taking the risk.

Even Minister in the Prime Minister’s Department, Datuk Paul Low had called for the death sentence for drug offence to be reviewed. ~ Adapted from Malay Mail Online

NEWS


Malaysia News

India Executes Man Convicted in 1993 Bombings

India executed Yakub Memon, convicted in the 1993 Mumbai bombings, by hanging at the Nagpur Central Jail.

Yakub Memon was arrested by the Central Bureau of Investigation (“CBI”) in Kathmandu in 1994, and had been in prison since. In July 2007, Memon was sentenced to death for orchestrating the bombings that included a horrifi c attack on the Bombay Stock Exchange.

In March 2013, Memon’s death sentence was upheld by the Indian Supreme Court. In upholding his sentence, the Court stated that Memon’s actions were “carried out with utter disregard to human life and dignity” which justifi es the rare imposition of the death penalty. ~ Adapted from JURIST

US Human Trafficking Report under Fire as Cuba and Malaysia are Upgraded

The removal of Cuba and Malaysia from the US State Department’s list of countries categorically failing to respond to widespread human traffi cking, has led to criticism of the United States. Both countries have been upgraded from tier 3 in the 2015 Traffi cking in Persons (“TiP”) report.

Cuba’s sudden upgrade to tier 2, after 12 years on tier 3, came after the reopening of the US embassy in Havana and the re-establishment of diplomatic relations after 50 years of estrangement.

Malaysia, on the other hand, was upgraded to tier 2, after spending a year on tier 3. The upgrade removes a potential barrier to fi nalising the Trans-Pacifi c Partnership (“TPP”), a huge US-led free trade deal with Malaysia and the rest of the members of the Association of Southeast Asian Nations (“ASEAN”). This is because countries on tier 3 are theoretically barred from fast-tracked trade deals. Malaysia has, over the past year, been accused of widespread forced labour in its electronics industry, as well as traffi cking, in its palm oil industry.

International outcry followed Malaysia’s upgrade, with the discovery of 139 graves in jungle traffi cking camps near the border with Thailand. The camps were found to have held thousands of stateless Rohingya migrants to ransom. The US State Department responded by saying that the camps were only discovered after the cut-off for evidence-gathering for the TiP report. ~ Adapted from The Guardian

International Arbitration is on the Rise

As corporates look to keep costs down, arbitration is increasing globally, particularly in relation to government disputes.

In 2013, the London Court of International Arbitration dealt with 301 cases, a rise of more than 5% of the numbers handled in 2009 at the litigation peak of the fi nancial crisis. Meanwhile, the Singapore International Arbitration Centre (“SIAC”) handled 259 cases in 2013, as opposed to just 160 cases in 2009.

It was the reverse however, in Sweden, as the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”) saw cases fall — from 216 in 2009 to 203 last year.

According to Pinsent Masons, which put together the analysis, the rise of international arbitration could partly be due to multinationals preferring to settle disputes with governments rather than challenging them in the courts. ~ Adapted from Financial Times/The Global Legal Post

Boy Scouts Lifts Ban on Gay Leaders

Openly gay individuals are now allowed to serve as leaders and employees of the Boy Scouts of America (“BSA”), as the National Executive Board of BSA voted to amend its leadership policy. BSA pointed out that while adult leaders could still be chosen based on their religious beliefs, it is committed to prohibiting a policy that discriminates against gay adults. Seventy-nine percent of the executive board voted in favour of the resolution, which took effect immediately. ~ Adapted from JURIST

Burnout and Stress Hit 73% of Lawyers

A survey of 1,000 UK partners, associates and trainees found long hours as the main cause of burnout and stress (58% of respondents), followed by diffi cult clients (38%) and constant interruptions (35%).

The survey results published in The Lawyer also noted that diffi cult bosses and strained relationships with peers were among the common problems. Young lawyers in their 20s were found to be the most stressed, while the happiest were those in their 30s.

The survey also pointed out that having constant access to emails on laptops, mobile phones, as well as tablets, made it diffi cult for people to switch off from work. ~ Adapted from thelawyer.com

Regional NewsNEWS


Continuing Professional Development: The United Kingdom PerspectiveThe Bar Council Continuing Professional Development (“CPD”) Department Director, Santhi Latha, conducted an email interview with Julie Brannan, Committee Secretary and Solicitors Regulation Authority (“SRA”) Director of Education and Training regarding the development and progress of the CPD scheme for solicitors in the United Kingdom. The interview serves as part of the ongoing eff ort of the CPD Department to evaluate the value of CPD on the legal profession.

All solicitors and registered European lawyers (“RELs”) in legal practice or employment in England and Wales are required to comply with the SRA’s CPD requirements. According to the United Kingdom Law Society website, “CPD is the training requirement set by the SRA to ensure that all solicitors and RELs maintain competence”.

The CPD requirement may be met by a variety of means, including undertaking a course, lecture, seminar or other programme or method of study, whether requiring attendance or not, as long as it can be established that it is at an appropriate level and contributes to the general professional skill and knowledge of the solicitor.

The website further establishes that, “All solicitors and RELs in their fi rst CPD year and in each subsequent year must complete 16 hours of CPD per year, which runs from 1 November to 31 October each year”.

The scheme was introduced in the mid-1980s on terms that were agreed to by the Law Society Council at the time. “The focus was to ensure that solicitors should keep up to date with developments in the law,” explained Brannan.

When asked about whether there was resistance from members and how this was dealt with, Brannan highlighted, “In order to cater to the variety of practitioners, transitional arrangements were put in place so that the senior members would not be required to participate in the CPD scheme

straightaway.” This clearly allowed the scheme to be developed primarily focused on the junior solicitors and to put in place training and structures that would cater to their needs.

In the context of the current operation of the scheme, before the new structure was implemented, compliance includes:

• a requirement for compulsory participation in the Law Society Management Course Stage 1;

• diff ering levels of requirements for newly qualifi ed solicitors, part-time solicitors and RELs;

• suspensions and waivers that may be applicable; and

• completion of training records.

In explaining the enforcement of the scheme, Brannan said, “Members had to keep a training record and the Law Society monitored a proportion of them. Solicitors have to make an annual declaration as part of their practice certifi cate renewal that they had complied with the requirement. Under the old approach, solicitors had to do 16 hours CPD on an annual basis. Until 1 Nov 2014, 25% of this had to be training which we accredited. The requirement for accredited training has already been removed.”

Brannan highlighted that the requirements have since changed, “Under the new approach, solicitors must refl ect on their competence by reference to the proposed new Competence Statement for solicitors and address any learning needs which they identify. There is no separate CPD scheme. The new approach to continuing competence is tied to Principle 5 of the Code of Conduct, which requires solicitors to provide a proper standard of service. A note to Principle 5 will make clear that one requirement of rule 5 is that solicitors must comply with the provisions of the competence statement.”

When asked why the decision was made to make this shift to the new scheme, Brannan explained, “We wanted to focus our regulation on assuring

competence rather than specifying training requirements. Doing 16 hours CPD was no guarantee that solicitors were competent. There was no reason to think that 16 hours was the right amount of training for everyone — for some it might be too much, for others not enough. We wanted to encourage solicitors to connect the training they were doing to the needs of their job.”

As part of encouraging solicitors to identify their specifi c training and education requirements, the current scheme advises members to identify and analyse their individual training needs, and to discuss these with the fi rm they are working with. Members are then directed to take advantage of the wide range of activities the scheme off ers, in order that they may stay up to date with changes in the law and the profession, in accordance with their practice needs.

The scheme focuses on the fact that participation will enhance credibility, and will allow members’ practice to remain commercially competitive.

According to the Law Society website, the current structure requires that 25% of the CPD requirements are met by participation in courses (attendance at training events of one hour or more), and the remaining 75% may be attained by participation in other activities such as participation in non-accredited courses, working toward professional qualifi cations, listening to or watching audio/visual material provided by authorised providers, distance learning, writing on law and practice, development of specialist areas of law, preparing for and delivering training courses, and a host of other activities.

An interesting aspect of this includes an activity called “work shadowing” where CPD points may be claimed from the member shadowing or following someone in their work role for a period of time, for the purpose of enhancing their performance, on the basis that the work shadowing must be structured, have clear aims and objectives, and requires feedback and refl ection about the shadowing activity.

CONTINUING PROFESSIONAL DEVELOPMENT (“CPD”)


In discussing the resistance the scheme has faced in the past, Brannan explained, “There has been opposition to the implementation of the scheme. We consulted fully and took all views into account. But ultimately the SRA board felt the new approach was more eff ective at assuring competence.”

With reference to the new scheme, Brannan highlighted that, “The new approach was introduced on a voluntary basis from 1 Apr 2015 and will become mandatory from 1 Nov 2016. We recognise this is a culture shift, so we are supporting solicitors with an online toolkit of resources.”

When asked whether sanctions for non-compliance had been imposed in the past, Brannan pointed out that in practice, there are no sanctions.

Santhi Latha Bar Council

Data of Number of Events Organised by Bar Council/State Bar Committees

Bar C

ounc

il

Joho

re

Kedah

Kelant

an

Kuala

Lum

pur

Mala

cca

Neger

i Sem

bilan

Pahan

g

Penan

gPer

akPer

lis

Selang

or

Tere

ngga

nu

PSDC Advo

cacy

Train

ing

CPD Reg

ional

Traini

ng S

eries

iCPD

Online

Train

ing

YBGK Train

ingcil re ah an ur ca an ng ng ak lis or nu ng es PD ng ng

88

20

54

45

8 74

16

8

3

33

0

4

13

2

19

29

Organiser Cycle 2

Bar Council 88

Johore 20

Kedah 5

Kelantan 4

Kuala Lumpur 45

Malacca 8

Negeri Sembilan 7

Pahang 4

Penang 16

Perak 8

Perlis 3

Selangor 33

Terengganu 0

PSDC Advocacy Training

4

CPD Regional Training Series

13

iCPD 2

Online Training 19

YBGK Training 29

Total 308

Report on CPD Cycle 2: 1 July 2014 – 30 June 2016Data presented is based on information provided by organisers, that was processed and recorded as at 30 June 2015 by the CPD Department. This data may be subject to adjustment/modifi cation from time to time, based on updates provided by the diff erent providers. A total of 449 attendance records out of 584 events have been received to date until 30 June 2015. A total of 135 events are pending receipt of the attendance data from organisers and has not been included.

Data presented is based on recorded data for 16,373 Members as at 30 June 2015.



Data of Number of Participants at Events Organised by Bar Council/State Bar Committees

Organiser Cycle 2

Bar Council 3,287

Johore 1,208

Kedah 156

Kelantan 0

Kuala Lumpur 2,121

Malacca 433

Negeri Sembilan 65

Pahang 0

Penang 428

Perak 461

Perlis 0

Selangor 1,528

Terengganu 0

PSDC Advocacy Training 81

CPD Regional Training Series 805

iCPD 105

Online Training 380

YBGK Training 909

Total 11,967

Bar Council 3,287

1,208

156

0

2,121

433

65

0

428

461

0

1,528

0

81

805

105

380

909

JohoreKedah

Kelantan

Kuala LumpurMalacca

Negeri SembilanPahangPenang

PerakPerlis

Selangor

TerengganuPSDC Advocacy Training

CPD Regional Training SeriesiCPD

Online TrainingYBGK Training

Data of Number of Events Organised by Provider Categories

Accredited Courses Cycle 2

Commercial course providers

80

International organisations

0

Government organisations

22

Academic institutions 10

Non-governmental organisations

5

Professional bodies 19

In-house legal training 140

Legal Aid Centre 29


13

Bar Council, State Bars including Advocacy Training and Online Training

266

Total 584

266

80

2210

5

19

140

29

13

0

Commercial course providersInternational organisationsGovernment organisationsAcademic institutionsNon-governmental organisations

Professional bodiesIn-house legal trainingLegal Aid CentreCPD Regional Training SeriesBar Council, State Bars includingAdvocacy Training and Online Training



Data of Number of Participants at Events Organised by Provider Categories

Accredited Courses

Cycle 2

Commercial course providers

2,473

International organisations

0

Government organisations

13

Academic institutions

38

Non-governmental organisations

47

Professional bodies

263

In-house legal training

1,353

Legal Aid Centre

909


805

Bar Council, State Bars including Advocacy Training and Online Training

10,253

Total 16,154

Commercial course providersInternational organisationsGovernment organisationsAcademic institutionsNon-governmental organisations

Professional bodiesIn-house legal trainingLegal Aid CentreCPD Regional Training SeriesBar Council, State Bars includingAdvocacy Training and Online Training

10,253

2,473

13047

263

1,353

909

805



If you would like to know more about the activities carried out by the CPD Department, please visit their website:

http://www.malaysianbar.org.my/cpd/

115

167222

180

128

133

128

132

129

165

123

98

144115

91

353

487

275

132

168

114

167222

180

133 132165

123144

353

487

275

168

115 128

133

128

132

129

123

98

115

91

132114

Data of Member Participation Based on Attainment of CPD points

No of CPD Points

No of Members

only

1 115

2 167

3 222

4 180

5 128

6 133

7 128

8 132

9 129

10 165

11 123

12 98

13 144

14 114

15 115

16 91

17 (17-20) 353

18 (21-30) 487

19 (31-40) 275

20 (41-50) 132

22 (more than 50 points)

168

Zero CPD points

12,774

Total 16,373

Total Members who have attained one CPD point or more: 3,599 which amounts to 21.98% of total Member participationTotal number of Members who have attained 16 or more CPD points on Cycle 2 based on recorded data: 1,415

(Note that Zero CPD point attainment is not refl ected in the graph above)



New Admissions to the Malaysian Bar(As at time of publication)

NO NAME FIRM NAME DATE CALLED

TO THE BAR

1 Chiam Sheng Lwuan Abdullah & Teoh 26-Feb-15

2 Adil Safwan Bin Ahmad Shaffi e Azman & Affendy 30-Jan-15

3 Aina Nadirah Bt Mohd Yusof Kumari Palany & Co 27-Aug-14

4 Aisyah Bte SamsudinAzlina Abdul Aziz &

Associates17-Apr-15

5 Amyra Nadia Binti Zolkifl e Tay Ibrahim & Partners 15-May-15

6 Anne Sangeetha A/p Sebastian Satha & Co 29-May-15

7 Arina Ong Xin Yi Tan Law Practice 15-May-15

8 Chai Yang Yu Halim Hong & Quek 15-May-15

9 Daljit Singh a/l Harjit Singh Jasdev Chambers 5-Dec-14

10 Dzulqarnain Bin Ab Fatar Illiayas 15-May-15

11 Elizabeth Goh Huay Ling 6-Mar-15

12 Eugene Teo Chang Haryaty 20-Mar-15

13 Farah Izzati Binti Suhaini Sharina Husin & Co 9-Apr-15

14Fathin Nadia Binti Muhammad

FauziHisham Sobri & Kadir 3-Apr-15

15 Jeremy Lim Kim Jin Yeow & Salleh 29-May-15

16 Lai Wan Chen HK Ang & Partners 9-Jan-15

17 Lisa-Premee Davis Anad & Noraini 15-May-15

18 Michelle Oh Xue QiSoon Gan Dion &

Partners15-May-15

19Mohamad Syazwan Shah Bin

Mohamad AliJenny Yap & Associates 3-Apr-15

20Mohammad Nor Zikry Bin

Mohamad

Azim, Tunku Farik &

Wong29-May-15

21Mohd Amirul Faliq Bin Mohd

Faizal

Athi Seelan Mahathir

And Partners17-Apr-15

22 Mohd Azrul Hafi zie Bin Zakaria Lin Coln & Co 15-May-15

23 Mohd Nuradzwan Bin Rodzi Yusran Zain & Co 26-Jun-14

24 Muhamad Firdaus Bin Mokhtrar Benjamin Dawson 15-May-15

25 Muhammad Ashran Bin RoslanThe Law Chambers of

Hedzril18-Jul-14

26Muhammad Ezwar Rusydan Bin

Mohd BasirHisham Sobri & Kadir 17-Apr-15

27 Muhammad Firdaus Bin Adnan Rosli Kamaruddin & Co 25-Jan-15

28 Noor Nabilah Binti NorzamThe Chambers of

Waran27-Feb-14

29 Norfaruqi Bin NorazmanAzwani Rahman &

Norfaruqi23-Apr-15

30 Nur Aidil Maria Binti Nazir Kington Tan Dzul 29-May-15

31 Nur Hannaani Binti Zainal Bahrin Hafi za & Co 23-Aug-13

32 Nur Hidayah Binti AnuarYau Lap Ho & Nicole

Yong27-Feb-15

33 Nuradhilla Binti Mazlan Adnan Sundra & Low 17-Apr-15

34 Nurshafi qa Balqish Binti JaffriHafarizam Wan & Aisha

Mubarak15-May-15

35 Nursyahida Binti Zulkifl iKhairul Azman &

Partners15-May-15

36 Nurul Liyana Binti AzminS Rasadurai &

Associates17-Apr-15

37 Nurulhidayu Binti Jamari Abdul Haris & Co 23-Apr-15

38 Ommunajah Binti RamliChambers of Wijdan &

Nor Hatina10-Apr-15

39 Ong Siew Ming S Y Lai & Associates 21-Nov-14

40 Rachelle Tan Shook Lin & Bok 19-Sep-14

41 Salina Binti Hamzah Hari Abu Bakar & Jagjit 20-Mar-15

42 Shaarenya A/p Gurasekeran Raja Darryl & Loh 29-May-15

43Shabina Begum Binti Shabir

Ahmad

The Chambers of

Waran27-Feb-15

44 Shahemie Faizul Bin Mohd Fuad Che Mokhtar & Ling 29-May-15

45 Shamella Naidu A/p ArumugamAzman Wan Helmi &

Associates30-Apr-14

46Sharifah Fatiha Binti Sy

MohamadKumari Palany & Co 18-Sep-14

47 Sherilyn Ooi Su Ying Zul Rafi que & Partners 15-May-15

48 Siti Hajar Binti Zainuddin Sahril, Niza & Co 15-Aug-14

49 Siti Norshila Binti Jamil Zeffree Azmi 6-Mar-15

50 Syazni Nadzirah Binti Ya'cob Raha Yasin & Co 6-Mar-15

51 Tasnim Binti Omar Arif & Hakim 9-May-14

52 Tay Hao JieS.L.Leong, Kartina &

Partners24-Oct-14

53 Tham Giap Chi Teh & Lee 17-Apr-15

54 Toh Chen Hsiang Joseph Ting & Co 29-May-15

55 Umaira Binti Ramlee Zailan & Associates 29-May-15

56Wan Nurul Eliana Binti Haslee

SharilSuhaimi Yahya & Co 17-Apr-15

57 Winnie Ho Sook Fun Khong & Son 15-May-15

58 Yang Boon HangJ S Pillay & Mohd

Haaziq17-Apr-15

59 Yeoh Keat MingLee Hishammuddin

Allen & Gledhill12-Dec-14

60 Yong Wei Sang Foong & Partners 17-Apr-15

61 Yuki Foo Hwan Sin Tay & Helen Wong 15-May-15

62Zulaikha Aini Binti Mohamed

Khair JohariY H Teh & Quek 29-May-15

BAR UPDATES/NOTICES


List of Departed Members(As at time of publication)

SĲ IL

ANNUAL

NO

DEPARTED MEMBERS DATE OF DEATH

A/94 Abdullah Bin Ngah 1-Mar-15

M1230 Mohd Azmil Bin Md Zain 5-May-15

A/256 Ajit Kumar Hastir 26-May-15

S/581 Selayamany A/L Muniandy 13-Jul-15

S/932 Santharan Ganapathi 4-Aug-15

N/61 Nadarajan Rengasamy Pillay 8-Aug-15

A/523 Ahmad Bin Kemin 21 Aug 2015

R/576 Rosni Haida Binti Mat Rifi n 9 Sept 2015

J/217 Juriyah @ Juraiyah Bt Jamaludin 10 Sept 2015

S/1377 Satgurunathan Nagalingam 12 Sept 2015

K/113 Khoo Phaik See 26 Sept 2015

W/147 Wan Nik Bin Wan Ismail 6 Oct 2015

A/964 Alias Bin Abdullah 9 Oct 2015

M/251 Mohamad Sabri Bin Pin 10 Oct 2015

B/160 Balakisnan A/L Appalanaido 19 Oct 2015

S/76 K Sothinathan A/L Kanagasingam 24 Oct 2015

R/421 Ravi A/L Muniandy 27 Oct 2015

Notice Regarding Bar Council Circulars and E-BlastsThe Bar Council Secretariat issues approximately 30 circulars and e-blasts each month. Because of the high cost involved, the practice of issuing hard-copy circulars came to an end in 2008. Today, we issue less than fi ve hard-copy circulars a year; the rest are sent by email alone.

Based on our records, there is still a large number of Members who are not on our e-mail mailing list, and hence not receiving the Bar Council circulars and e-blasts. This is an issue of concern since circulars are the

primary means by which we communicate with Members, to keep you informed of important developments aff ecting the legal profession, as well as information on events and benefi ts for Members.

Similarly, the Malaysian Bar website contains a wealth of information for Members. Certain areas of the website are only accessible if you have a login ID and password.

In order to be added to our e-mail mailing list and to register for full access to the website, please

send an email to us at [email protected] or contact us by telephone at 03-2050 2021.

Summary of Circulars(April to September 2015)Circular No 067/2015 | Jurisk! June & December 2014: Communicate, Cooperate, Collaborate!Access this circular for more details.

Circular No 073/2015 | Arahan Amalan Bil 2 Tahun 2015 | Pembekalan Fakta Kes bersama Waran Memenjarakan kepada Pihak Penjara bagi Kes-kes yang Layak DiparolAccess this circular for more details.

Circular No 076/2015 | Arahan Penempatan Pesuruhjaya Kehakiman Mahkamah Tinggi Bil 1/2015Access this circular for more details.

Circular No 084/2015 | Arahan Amalan Hakim Besar Malaya Bilangan 1 Tahun 2015 | Pengendalian Kes-Kes Jenayah Jalanan Secara “Fast Track” di Mahkamah Rendah MalayaAccess this circular for more details.

Circular No 087/2015 | 2015 Hotel Corporate Rates As a Member of the Bar, you are entitled to enjoy preferential hotel corporate rates secured by Bar Council. We are pleased to provide you with an updated list of 2015 corporate rates for a wide selection of 100 hotels nationwide, to suit your accommodation needs. Access this circular for more details.

Circular No 091/2015 | Arahan Pentadbiran Berkenaan Pengendalian Kes-Kes Jenayah Jalanan Secara “Fast-Track” Di Mahkamah Rendah MalayaAccess this circular for more details.

Circular No 095/2015 | Professional Indemnity Insurance: Amendments to the 2015 Certifi cate of InsuranceAccess this circular for more details.

Circular No 104/2015 | Implementation of Goods and Services Tax (“GST”) for Foreclosure Proceedings and Public Auctions for Immovable Properties at the High Court of MalayaAccess this circular for more details.

Circular No 114/2015 | Requirement of Work Permit for Members Who Appear in High Court of Sabah for Labuan MattersAccess this circular for more details.

Circular No 115/2015 | Request for Feedback on Islamic Financial Services Act 2013 Access this circular for more details.

Circular No 120/2015 | Accountant’s Report 2014Pursuant to section 79 of the Legal Profession Act 1976, sole proprietors or partners are required to submit the Accountant’s Report 2014 in respect of the client accounts maintained during the year 2014 for the issuance of Sijil Annual 2016, unless exempted pursuant to rule 6 of the Accountant’s Report Rules 1990. Access this circular for more details.

Circular No 122/2015 | Public Statement by Financial Action Task Force on Money Laundering on 27 Feb 2015Access this circular for more details.

Circular No 124/2015 | Request for Feedback on Issues Relating to Goods and Services TaxAccess this circular for more details.

Circular No 125/2015 | Placement of Clients’ Monies in Repo TransactionsAccess this circular for more details.

Circular No 128/2015 | Requirement by Banks for Letter of Undertaking from Law FirmsAccess this circular for more details.

Circular No 135/2015 | Renewal of Group Term Life Insurance Policy with AIA Bhd for the 2015/2016 TermBar Council renewed the Group Term Life Insurance Policy with AIA Bhd with eff ect from 1 July 2015, with the annual insurance premium maintained at RM50 per Member of the Bar. Access this circular for more details.

BAR UPDATES/NOTICES


General Information on Matters Discussed at Bar Council Meetings(April to September 2015)Issuance of Licence for a Qualifi ed Foreign Law FirmPursuant to the amendments to the Legal Profession Act 1976, and the Legal Profession (Licensing of International Partnerships and Qualifi ed Foreign Law Firms and Registration of Foreign Lawyers) Rules 2014, which came into force on 3 June 2014, foreign law fi rms and foreign lawyers are now permitted to practise in Peninsular Malaysia in the manner set out in the legislation and the Rules.

Licences may thus be issued to foreign law fi rms to operate either an International Partnership with a Malaysian law fi rm, or as a Qualifi ed Foreign Law Firm (“QFLF”). Alternatively, a Malaysian law fi rm may choose to employ a foreign lawyer.

The Bar Council has approved the application by Trowers & Hamlins LLP for a licence — valid for a three-year period — to operate as a QFLF and to practise in the permitted practice areas.

The Bar Council has also granted certifi cates of registration — valid for one year — to two partners of Trowers & Hamlins LLP to practise in the permitted practice areas in the Malaysian offi ce of the QFLF.

Please visit the Malaysian Bar website at www.malaysianbar.org.my, and refer to the “Foreign Lawyers” section under the Resources tab, for more information regarding the liberalisation of legal services.

Special Committee of the Bar Council 2015/2016As a result of the substantial expansion in the work of the Bar Council over the years, a Special Committee of the Bar Council has been set up to assist the Bar Council in its deliberations, pursuant to section 58 of the Legal Profession Act 1976.

The Bar Council has appointed M Ramachelvam (Pahang Bar), Khaizan Sharizad Ab Razak (Kuala Lumpur Bar) and Raphael Tay Choon Tien (Kuala Lumpur Bar) to serve on this Special Committee for the 2015/2016 term.

Members of the Special Committee are entitled to contribute to discussions of the Bar Council but are not entitled to vote in respect of Bar Council matters where a vote may be required.

Broker for the Malaysian Bar's Professional Indemnity Insurance Scheme 2016/2017Bar Council conducted an open tender exercise in April 2015 to appoint a broker for the Malaysian Bar's Professional Indemnity Insurance Scheme 2016/2017. After reviewing proposals submitted by two brokers, Jardine Lloyd Thompson Sdn Bhd was reappointed as the broker. Bar Council will commence negotiations on policy terms and conditions soon.

Accreditation of Foreign Mediators by the Malaysian Mediation CentreBar Council has decided that foreign mediators may be accredited as mediators on the panel of mediators for the Malaysian Mediation Centre. The defi nition of “professional person” in the guidelines for accreditation will be amended accordingly to include foreign persons.

Injunction Sought by Muhammad Shafee Abdullah Against the Malaysian BarOn 23 June 2015, the High Court dismissed the Malaysian Bar’s application to set aside the ex parte injunction granted to Muhammad Shafee Abdullah, which prohibited the Bar from discussing a motion relating to his conduct that had been tabled for the Bar’s Annual General Meeting on 14 Mar 2015. The High Court had simultaneously allowed the inter partes injunction sought by Muhammad Shafee Abdullah. There was no order as to costs. The Bar Council has instructed its solicitors to fi le an appeal to the Court of Appeal.Case management for the suit, which is premised on defamation as a cause of action, has been fi xed for 28 July 2015.

Reference Proceedings in Memory of Karpal Singh s/o Ram Singh (4 Sept 2015)Reference proceedings in memory of the late Karpal Singh s/o Ram Singh will be held on 4 Sept 2015 (Friday) at 10:00 am, at the Penang Court Complex, Penang.

2016 Professional Indemnity Insurance Scheme ApprovedBar Council has approved the terms and conditions for the 2016 Professional Indemnity Insurance (“PII”) Scheme. The premium for 2016 has been maintained at RM1,140 per Member, which is the same premium rate since 2013.For more details, please refer to Circular No 164/2015 dated 14 Aug 2015, entitled “2016 Professional Indemnity Insurance Renewal | Premium, Terms and Conditions”.On 17 June 2015, Jardine Lloyd Thompson Sdn Bhd, the broker for the PII Scheme, sent an email to all law fi rms requesting the fi rms to nominate an authorised person to submit the 2016 PII online proposal form. This is a prerequisite to access the online renewal system. To renew your PII online, go to www.PRAKTIS.com.my.

Extraordinary General Meeting of the Malaysian Bar (12 Sept 2015)At its Special Meeting on 21 Aug 2015, the Bar Council decided to convene an Extraordinary General Meeting (“EGM”) of the Malaysian Bar on 12 Sept 2015 (Saturday).

The matters for discussion at the EGM will include the reports of interference with the ongoing investigation into the fl ow of funds from SRC international Sdn Bhd (a former subsidiary of 1MDB), and the transfer of RM2.6 billion into the Prime Minister's private bank accounts, as well as the steps that the Malaysian Bar should take to affi rm and uphold the rule of law, and to prevent the administration of justice from being perverted.

The list above highlights some items featured in Bar Council’s “General Statements”, which were sent out to Members of the Bar from January to December 2015. Access the Malaysian Bar website at www.malaysianbar.org.my to view these in full. Please note that “General Statements” are only accessible if you are a registered user of the Malaysian Bar website.

Circular No 148/2015 | Role and Scope of the Bar Council Conveyancing Practice CommitteeAccess this circular for more details.

Circular No 151/2015 | Request for Feedback on Issues Relating to Conveyancing PracticeAccess this circular for more details.

Circular No 156/2015 | Jurisk! June 2015: Establish! Enhance! Improve! Or Risk Falling Through Access this circular for more details.

Circular No 157/2015 | Invitation to Participate as Mentee in the Mentor-Mentee ProgrammeAccess this circular for more details.

Circular No 148/2015 | Role and Scope of the Bar Council Conveyancing Practice CommitteeAccess this circular for more details.

Circular No 164/2015 | 2016 Professional Indemnity Insurance Renewal | Premium, Terms and ConditionsAccess this circular for more details.

Circular No 181/2015 | #getAsli Fundraising Dinner 2015 (8 Dec 2015)Organised by the Bar Council Committee on Orang Asli Rights, this event will be held at 6:30 pm to 11:00 pm, at Grand Ballroom, Sunway Resort Hotel & Spa, Persiaran Lagoon, 46150 Petaling Jaya, Selangor, on 8 Dec 2015 (Tuesday). Tickets are priced at RM250 per ticket or RM2,500 per table (inclusive of 6% GST). Access this circular for more details.

Circular No 194/2015 | Applications for Refund of Filing Fees for Cases Filed Through the Court E-Filing SystemAccess this circular for more details.

Circular No 197/2015 | Sijil Annual 2016Pursuant to part III of the Legal Profession Act 1976, Practising Certifi cate and Sijil Annual shall be renewed annually by every advocate and solicitor. Access this circular for more details.

Circular No 202/2015 | Resolution Adopted at the Extraordinary General Meeting of the Malaysian Bar on 12 Sept 2015Access this circular to view the resolution adopted at the Extraordinary General Meeting of the Malaysian Bar on 12 Sept 2015.

Circular No 203/2015 | Launch of E-Compound Verifi cation Service on Companies Commission of Malaysia's WebsiteAccess this circular to view the adopted resolutions.

Circular No 205/2015 | Arahan Pertukaran Yang Arif Hakim / Pesuruhjaya Kehakiman Mahkamah Tinggi Bil 2/2015Access this circular for more details.

Circular No 208/2015 | Invitation to Apply as Chairman of Industrial Court of MalaysiaAccess this circular for more details.

Circular No 209/2015 | New Version of E-Filing ComponentAccess this circular for more details.

The list above highlights some of Bar Council’s circulars that were sent out to Members of the Bar from October 2014 to March 2015. Access the Malaysian Bar website at www.malaysianbar.org.my to view these, and other circulars, in full. Please note that some circulars are only accessible if you are a registered user of the Malaysian Bar website.

BAR UPDATES/NOTICES


BILLS 2014

TITLE PUBLICATION DATE

Animal Welfare Act 2015 [DR.19/2015] 13 April 2015

Allied Health Professions Act 2015 [DR.24/2015] 18 June 2015

Anti-Traffi cking in Persons and Anti-Smuggling of Migrants (Amendment) Act 2015 [DR.18/2015]

9 April 2015

Armed Forces (Amendment) Act 2015 [DR.23/2015] 18 June 2015

Capital Markets and Services (Amendment) Act 2015 [DR.16/2015] 9 April 2015

Chemists (Amendment) Act 2015 [DR.1/2015] 30 March 2015

Civil Aviation (Amendment) Act 2015 [DR.26/2015] 18 June 2015

Consumer Protection (Amendment) Act 2015 [DR.25/2015] 18 June 2015

Criminal Procedure Code (Amendment) Act 2015 [DR.9/2015] 2 April 2015

Development Financial Institutions (Amendment) Act 2015 [DR.20/2015] 21 May 2015

Electricity Supply (Amendment) Act 2015 [DR.11/2015] 18 June 2015

Evidence (Amendment) Act 2015 [DR.12/2015] 3 April 2015

Judges’ Remuneration (Amendment) Act 2015 [DR.21/2015] 18 June 2015

Malaysian Aviation Commission Act 2015 [DR.13/2015] 9 April 2015

Penal Code (Amendment) Act 2015 [DR.4/2015] 2 April 2015

Police (Amendment) Act 2015 [DR.22/2015] 18 June 2015

Prevention of Crime (Amendment) Act 2015 [DR.8/2015] 2 April 2015

Prevention of Terrorism Act 2015 [DR.10/2015] 2 April 2015

Prison (Amendment) (No. 2) Act 2015 [DR.5/2015] 2 April 2015

Public Sector Home Financing Board Act 2015 [DR.2/2015] 30 March 2015

Securities Commission (Amendment) Act 2015 [DR.14/2015] 9 April 2015

Security Off ences (Special Measures) (Amendment) Act 2015 [DR.7/2015]

2 April 2015

Sedition (Amendment) Act 2015 [DR.17/2015] 9 April 2015

Special Measures Against Terrorism in Foreign Countries Act 2015 [DR.6/2015]

2 April 2015

Supplementary Supply (2014) Act 2015 [DR.3/2015] 26 March 2015

PRINCIPAL ACTS 2013

ACT NO: TITLE

ACT 757 STRATA MANAGEMENT ACT 2013An Act to provide for the proper maintenance and management of buildings and common property, and for related matters.Notes:- Repeals Building and Common Property (Maintenance and Management) Act 2007 [Act 663]w.e.f.:- 1.6.2015 – [P.U.(B) 231/2015] – In the States of Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Terengganu, Perak, Perlis and Selangor.w.e.f.: - 1.6.2015 – [P.U.(B) 237/2015] – In the Federal Territory of Kuala Lumpur, the Federal Territory of Labuan and the Federal Territory of Putrajaya.w.e.f.: - 12.6.2015 – [P.U.(B) 248/2015] – In the States of Penang

PRINCIPAL ACTS 2014

ACT NO: TITLE

ACT A1469

SUPPLY ACT 2015An Act to apply a sum from the Consolidated Fund for the service of the year 2015 and to appropriate that sum for the service of that year.w.e.f.: - 31.12.2014

PRINCIPAL ACTS 2015

ACT NO: TITLE

ACT 767 PUBLIC SECTOR HOME FINANCING BOARD ACT 2015An Act to establish and incorporate the Public Sector Home Financing Board, to provide for its functions and powers, and for matters connected therewith.w.e.f.: - N.Y.F

ACT 768 TECHNOLOGISTS AND TECHNICIANS ACT 2015An Act to provide for the establishment of the Malaysia Board of Technologists and for the registration and recognition of Professional Technologists and Certifi ed Technicians in providing technology services and technical services and for related matters.w.e.f.: - N.Y.F

ACT 769 PREVENTION OF TERRORISM ACT 2015An Act to provide for the prevention of the commission or support of terrorist acts involving listed terrorist organisations in a foreign country or any part of a foreign country and for the control of persons engaged in such acts and for related matters.w.e.f.: - N.Y.F

ACT 770 SPECIAL MEASURES AGAINST TERRORISM IN FOREIGN COUNTRIES ACT 2015An Act to provide for special measures to deal with persons who engage in the commission or support of terrorist acts involving listed terrorist organisations in a foreign country or any part of a foreign country and for related matters.w.e.f.: - 15.6.2015 – [P.U.(B) 250/2015]

ACT A1482

SUPPLEMENTARY SUPPLY (2014) ACT 2015An Act to apply a sum from the Consolidated Fund for additional expenditure for the service of the year 2014 and to appropriate that sum for certain purposes for that year.w.e.f.: 5.6.2015

AMENDING ACTS 2011

ACT NO: TITLE

ACT A1407 LEMBAGA PEMBANGUNAN INDUSTRI PEMBINAAN MALAYSIA (AMENDMENT) ACT 2011Notes: - Amends ss.2,3,4,11,15,20,21,22,23,24, heading of Part.VI, ss.25,26,27,29,30,31, Part VII (ss.32-33B), s.34, Part IX (ss.35-35W), ss.37, 38, 40, Sch.3.- Inserts new ss.25A, Part VIIA (ss.33C-33F), s.34A, Part VIIIA (ss.34B-34E), ss.38A, 38B, 38C, 39A and Sch.4w.e.f.: 1.6.2015 – [P.U.(B) 232/2015]

AMENDING ACTS 2012

ACT NO: TITLE

ACT A1415 HOUSING DEVELOPMENT (CONTROL AND LICENSING) (AMENDMENT) ACT 2012 Notes: - Amends ss.3,6,7B,8A,16N,16Q,16AD and 24- Inserts new s.18Aw.e.f.: 1.6.2015 – [P.U.(B) 234/2015]

AMENDING ACTS 2013

ACT NO: TITLE

ACT A1450 STRATA TITLES (AMENDMENT) ACT 2013Notes: - Amends preamble by substituting for the words “and the Federal Territory of Putrajaya” the words “the Federal Territory of Putrajaya and the Federal Territory of Labuan”. - Amends ss.2,4,7,8,9,10,11,12,13,15,16,17,(heading of Part IV),ss.20,21,22,25,26,27,28,31,36,37,38,57, 81,Sch.5.- Inserts new ss.4B,8A,9A,9B,17A,19A,20A,20B,Sch.6 - Deletes ss.10A,10B,14A,22A,22B,Part VII (s.39-s.55A), Part IXA (s.67A-s.67X),ss.76,77,78,Schs.2,3 w.e.f.: 1.6.2015 – [P.U.(B) 238/2015] – All sections except s.22 – In the States of Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Terengganuw.e.f.: 1.6.2015 – [P.U.(B) 239/2015] – All sections except s.22 - In the Federal Territory of Kuala Lumpur, the Federal Territory of Putrajaya and the Federal Territory of Labuan

AMENDING ACTS 2015

ACT NO: TITLE

ACT A1483 PENAL CODE (AMENDMENT) ACT 2015Notes: - Amends s.130J- Inserts new ss.130FA,130FB,130JA,130JB,130JC,130JD,130TAw.e.f.: 15.6.2015 – [P.U.(B) 252/2015]

ACT A1484 PREVENTION OF CRIME (AMENDMENT) ACT 2015Notes: - Amends long title by inserting after the words “secret societies” the words “, terrorists”, ss.2,3,4,7B,9,15,15A,19A,19C,19E,19F,21,23- Inserts new s.19Gw.e.f.: N.Y.F

Library Update(1 Apr 2015 to 30 June 2015)

BAR UPDATES/NOTICES


ACT A1485 SEDITION (AMENDMENT) ACT 2015Notes: - Amends ss.2,3,4,6,10- Inserts new ss.5A,6A,10Aw.e.f.: N.Y.F

ACT A1486 PRISON (AMENDMENT) (NO.2) ACT 2015Notes: - Amends s.7w.e.f.: N.Y.F

ACT A1487 SECURITY OFFENCES (SPECIAL MEASURES) (AMENDMENT) ACT 2015Notes: - Amends ss.5,6,13,14,20,22,24,Sch.1- Inserts new ss.18A,18Bw.e.f.: 15.6.2015 – [P.U.(B)251/2015]

ACT A1488 INDUSTRIAL RELATIONS (AMENDMENT) ACT 2015Notes: - Amends ss.2A,23A,56w.e.f.: N.Y.F

ACT A1489 SECURITIES COMMISSION (AMENDMENT) ACT 2015Notes: - General amendment: Amends by inserting after the words “Securities Commission” wherever appearing the word “Malaysia” including in the long title, short title, Parts and shoulder notes of the principal Act.- All references to the Securities Commission Act 1993 in any written law or document shall, when this Act comes into operation, be construed as references to the Securities Commission Malaysia Act 1993- The Securities Commission established under section 3 of the principal Act shall, when this Act comes into operation, be known as the “Securities Commission Malaysia”- Amends ss.2,2A,2G,4,5,6,7,8,9,10,11,13,14,15,17,18,20,21,22,22A,23,24,26,29,30,31A,31B,31C,31D,31E,31EA,31L,heading of Division 4 of Part IIIA, ss.31N,31O,31P,31Q,31R,31V,31W,31Y,31Z, 31ZD,126,135,148,150,150A,151A,152A,160,Sch.1- Inserts new ss.4A,4B,18A, Part IIIB (ss.31ZE,31ZF,31ZG,31ZH),Part IIIC (ss.31ZI,31ZJ,31ZK,31ZL,31ZM, 31ZN,31ZO,31ZP),ss.148A,148B,160A- Deletes ss.31S,151w.e.f.: N.Y.F

LATEST INDEX TO P.U.(A) SERIES 2015[P.U.(A) 54/2015 – P.U.(A) 127/2015]

As at 30 June 2015

TITLE P.U.(A) NO

ACCOUNTANTS ACT 1967 [ACT 94]ACCOUNTANTS (AMENDMENT OF FIRST SCHEDULE) ORDER 2015Issued under s.14(7), Accountants Act 1967Notes:- Amends Sch.1., Accountants Act 1967w.e.f.:- 10.6.2015

113/2015

CAPITAL MARKETS AND SERVICES ACT 2007 [ACT 671]CAPITAL MARKETS AND SERVICES (AMENDMENT OF SCHEDULES 5,6,7 AND 8) ORDER 2015Issued under s.380, Capital Markets And Services Act 2007Notes:- Amends Schs.5,6,7,8, Capital Markets and Services Act 2007w.e.f.:- 15.6.2015

119/2015

CAPITAL MARKETS AND SERVICES ACT 2007 [ACT 671]CAPITAL MARKETS AND SERVICES (FEES) (AMENDMENT) REGULATIONS 2015Issued under para.378(2)(b), Capital Markets And Services Act 2007Notes:- Amends reg.10,Schs.1,5,6,7,9,10,11 and inserts new reg.11A,Sch.12, Capital Markets and Services (Fees) Regulations 2012, [P.U.(A) 483/2012]w.e.f.:- 15.6.2015

118/2015

CAPITAL MARKETS AND SERVICES ACT 2007 [ACT 671]CAPITAL MARKETS AND SERVICES (NON-APPLICATION OF DIVISION 5 OF PART VI) (WHOLESALE FUND) (AMENDMENT) ORDER 2015Issued under s.315, Capital Markets And Services Act 2007Notes:- Amends para.2, Capital Markets and Services (Non-Application of Division 5 of Part VI) (Wholesale Fund) Order 2012, [P.U.(A) 477/2012]w.e.f.:- 15.6.2015

120/2015

CAPITAL MARKETS AND SERVICES ACT 2007 [ACT 671]CAPITAL MARKETS AND SERVICES (PRIVATE RETIREMENT SCHEME INDUSTRY) (FEES) (AMENDMENT) REGULATIONS 2015Issued under ss.139ZI and 139ZJ, Capital Markets And Services Act 2007Notes:- Amends Sch., Capital Markets And Services (Private Retirement Scheme Industry) (Fees) Regulations 2012, [P.U.(A) 211/2012]w.e.f.:- 15.6.2015

121/2015

CONTROL OF SUPPLIES ACT 1961 [ACT 122]CONTROL OF SUPPLIES (CONTROLLED ARTICLES) (NO.2) ORDER 2015Issued under s.5, Control of Supplies Act 1961w.e.f.:- 22.5.2015-2.6.2015

89/2015

CUSTOMS ACT 1967 [ACT 235]CUSTOMS (AMENDMENTS) (NO.2) REGULATIONS 2015Issued under s.142, Customs Act 1967Notes:- Amends Sch.1, Customs Regulations 1977, [P.U.(A) 162/1977]w.e.f.:- 6.5.2015

83/2015

CUSTOMS ACT 1967 [ACT 235]CUSTOMS DUTIES (AMENDMENT) (NO.2) ORDER 2015Issued under s.11(1), Customs Act 1967Notes:- Amends Sch.1., Customs Duties Order 2012, [P.U.(A) 275/2012] w.e.f.:- 11.6.2015

111/2015

CUSTOMS ACT 1967 [ACT 235]CUSTOMS DUTIES (EXEMPTION) (AMENDMENT) ORDER 2015Issued under s.14(1), Customs Act 1967Notes:- Amends Sch., Customs Duties (Exemption) Order 2013, [P.U.(A) 371/2013] w.e.f.:- 29.5.2015

98/2015

CUSTOMS ACT 1967 [ACT 235]CUSTOMS DUTIES (EXEMPTION) (AMENDMENT) (NO.2) ORDER 2015Issued under s.14(1), Customs Act 1967Notes:- Amends Sch., Customs Duties (Exemption) Order 2013, [P.U.(A) 371/2013] w.e.f.:- 11.6.2015

110/2015

CUSTOMS ACT 1967 [ACT 235]CUSTOMS DUTIES (GOODS OF ASEAN COUNTRIES ORIGIN) (ASEAN HARMONISED TARIFF NOMENCLATURE AND ASEAN TRADE IN GOODS AGREEMENT) (AMENDMENT) (NO.2) ORDER 2015Issued under s.11(1), Customs Act 1967Notes:- Amends Sch.2, Customs Duties (Goods of ASEAN Countries Origin) (ASEAN Harmonised Tariff Nomenclature And ASEAN Trade In Goods Agreement) Order 2012, [P.U.(A) 277/2012] w.e.f.:- 11.6.2015

112/2015

DENTAL ACT 1971 [ACT 51]DENTAL (REDUCTION OF PUBLIC SERVICE PERIOD) ORDER 2015Issued under para.49(1)(c), Dental Act 1971Notes:- The Minister grants a reduction from the public service period required under section 48 of the Act from three (3) years to one (1) year to any dental practitioners registered on and after 1 July 2015w.e.f.:- 19.6.2015

126/2015

EDUCATIONAL INSTITUTIONS (DISCIPLINE) ACT 1976 [ACT 174]EDUCATIONAL INSTITUTIONS (DISCIPLINE) (AMENDMENT OF FIRST SCHEDULE) ORDER 2015Issued under s.22(2), Educational Institutions (Discipline) Act 1976Notes:- Amends Sch.1, Educational Institutions (Discipline) Act 1976w.e.f.:- 16.6.2015

124/2015

EMPLOYEES’ SOCIAL SECURITY ACT 1969 [ACT 4]EMPLOYEES’ SOCIAL SECURITY (GENERAL) (AMENDMENT) REGULATIONS 2015Issued under s.105, Employees’ Social Security Act 1969Notes:- Amends reg.32., Employees’ Social Security (General) Regulations 1971, [P.U.(A) 99/1971] w.e.f.:- 15.6.2015

108/2015

FARMERS’ ORGANIZATION ACT 1973 [ACT 109]FARMERS’ ORGANIZATION (AMENDMENT) REGULATIONS 2015Issued under s.35, Farmers’ Organization Act 1973Notes:- General amendment:- substitutes for the words “Minister of Agriculture and Community Development of Sarawak” wherever appearing the words “Minister of Modernisation of Agriculture of Sarawak” - Amends reg.35, Farmers’ Organization Regulations 1983, [P.U.(A) 303/1983] w.e.f.:- 25.5.2015

96/2015

FEDERAL CONSTITUTION [FGN(NS)885/1957]CONSTITUTION OF THE HIGH COURTS (JUDICIAL COMMISSIONERS) (NO.2) ORDER 2015Issued under art.122AB(1), Federal ConstitutionNotes:- Tuan Dr. Haji Alwi bin Haji Abdul Wahab, Tuan Ahmad bin Bache, YBhg. Dato’ Mohd Firuz bin Jaff ril, Tuan Mohd Nazlan bin Mohd Ghazali and Tuan Gabriel Gumis Humen are appointed to be Judicial Commissioners w.e.f.:- For a period of two years from 10.4.2015

117/2015

FEDERAL ROADS (PRIVATE MANAGEMENT) ACT 1984 [ACT 306]FEDERAL ROADS (PRIVATE MANAGEMENT) (COLLECTION OF TOLLS) (BUTTERWORTH OUTER RING ROAD) (AMENDMENT) ORDER 2015Issued under s.2, Federal Roads (Private Management) Act 1984Notes:- Amends para.2 and Sch.1, Federal Roads (Private Management) (Collection Of Tolls) (Butterworth Outer Ring Road) Order 2007, [P.U.(A) 12/2007]w.e.f.:- 1.1.2014

64/2015

FEDERAL ROADS (PRIVATE MANAGEMENT) ACT 1984 [ACT 306]FEDERAL ROADS (PRIVATE MANAGEMENT) (COLLECTION OF TOLLS) (EAST COAST EXPRESSWAY – PHASE 1) (AMENDMENT) ORDER 2015Issued under s.2, Federal Roads (Private Management) Act 1984Notes:- Amends paras.2,3,4,Schs.1,2,3, deletes Schs.4,5,6 and 7, Federal Roads (Private Management) (Collection Of Tolls) (East Coast Expressway – Phase 1) Order 2007, [P.U.(A) 250/2007]w.e.f.:- 6.12.2011

63/2015

FEDERAL ROADS (PRIVATE MANAGEMENT) ACT 1984 [ACT 306]FEDERAL ROADS (PRIVATE MANAGEMENT) (COLLECTION OF TOLLS) (KUALA LUMPUR-KARAK HIGHWAY) (AMENDMENT) ORDER 2015Issued under s.2, Federal Roads (Private Management) Act 1984Notes:- Amends paras.2,3,Schs.1 and 2, Federal Roads (Private Management) (Collection of Tolls) (Kuala Lumpur-Karak Highway) Order 1994, [P.U.(A) 369/1994]w.e.f.:- 6.12.2011

65/2015

FEES ACT 1951 [ACT 209]FEES (MEDICAL) (FULL PAYING PATIENT) (AMENDMENT) ORDER 2015Issued under s.3, Fees Act 1951Notes:- Amends Sch.1, Fees (Medical) (Full Paying Patient) Order 2007, [P.U.(A) 252/2007] w.e.f.:- 20.5.2015

87/2015

GOODS AND SERVICES TAX ACT 2014 [ACT 762]GOODS AND SERVICES TAX (AMENDMENT) REGULATIONS 2015Issued under s.177, Goods and Services Tax Act 2014Notes:- Amends regs.19,34,40,45,47,80,94,113,Schs.1,3, and 4, Goods and Services Tax Regulations 2014, [P.U.(A) 190/2014]w.e.f.:- 30.3.2015 – regs.2,7,8,9,10,11,12 1.4.2015 – regs.3,4,5,6

56/2015

GOODS AND SERVICES TAX ACT 2014 [ACT 762]GOODS AND SERVICES TAX (EXEMPT SUPPLY) (AMENDMENT) ORDER 2015Issued under s.18(2), Goods and Services Tax Act 2014Notes:- Amends Sch.2, Goods and Services Tax (Exempt Supply) Order 2014, [P.U.(A) 271/2014]w.e.f.:- 30.3.2015

57/2015

BAR UPDATES/NOTICES


GOODS AND SERVICES TAX ACT 2014 [ACT 762]GOODS AND SERVICES TAX (RELIEF) (AMENDMENT) ORDER 2015Issued under s.56, Goods and Services Tax Act 2014Notes:- Amends paras.3,5, and Sch.1, Goods and Services Tax (Relief) Order 2014, [P.U.(A) 273/2014]w.e.f.:- 30.3.2015

59/2015

GOODS AND SERVICES TAX ACT 2014 [ACT 762]GOODS AND SERVICES TAX (ZERO-RATED SUPPLY) (AMENDMENT) ORDER 2015Issued under s.17, Goods and Services Tax Act 2014Notes:- Amends Schs.1 and 2, Goods and Services Tax (Zero-Rated Supply) Order 2014, [P.U.(A) 272/2014]w.e.f.:- 30.3.2015

58/2015

HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966 [ACT 118]HOUSING DEVELOPMENT (CONTROL AND LICENSING) (AMENDMENT) REGULATIONS 2015Issued under s.24, Housing Development (Control and Licensing) Act 1966Notes:- Amends regs.2,4,5,8,11,13, Schs. G,H,I and J, and deletes reg.11A, Housing Development (Control and Licensing) Regulations 1989, [P.U.(A) 58/1989] w.e.f.:- 1.7.2015

106/2015

HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966 [ACT 118]HOUSING DEVELOPMENT (HOUSING DEVELOPMENT ACCOUNT) (AMENDMENT) REGULATIONS 2015Issued under s.24, Housing Development (Control and Licensing) Act 1966Notes:- General amendment: Amends in the national language text by substituting for the word “fee” wherever appearing the word “fi ”.- Amends regs.1A,3A,4A,7,8,9,11,11A,12A,12B,and 12C, Housing Development (Housing Development Account) Regulations 1991, [P.U.(A) 231/1991] w.e.f.:- 2.6.2015

104/2015

IMMIGRATION ACT 1959/63 [ACT 155]IMMIGRATION AND PASSPORTS (WANG KELIAN FREE FLOW ZONE) (EXEMPTION) (REVOCATION) 2015Issued under s.55, Immigration Act 1959/63 and s.4, Passports Act 1966Notes:- Revokes Immigration and Passport (Wang Kelian Free Flow Zone) (Exemption) Order 2009, [P.U.(A) 243/2009]w.e.f.:- 1.4.2015

66/2015

INCOME TAX ACT 1967 [ACT 53]INCOME TAX (EXEMPTION) (NO.3) ORDER 2015Issued under para.127(3)(b), Income Tax Act 1967Notes:- Exempts any person from the payment of income tax in the basis period for a year of assessment in relation to gains or profi ts derived, in lieu of interest, from the sukuk wakala in accordance with the principle of Wakala Bil Istithmar.- Section 109 of the Act shall not apply to the income exempted under this Order.w.e.f.:- y/a 2015

61/2015

INDUSTRIAL RELATIONS ACT 1967 [ACT 177]INDUSTRIAL COURT (DIGITAL RECORDING OF PROCEEDINGS) RULES 2015Issued under s.28, Industrial Relations Act 1967w.e.f.:- 15.5.2015

85/2015

LAND PUBLIC TRANSPORT ACT 2010 [ACT 715]LAND PUBLIC TRANSPORT [COMMERCIAL VEHICLES LICENSING BOARD (RATES OF FARE) (AMENDMENT) (NO.2) RULES 2015] REGULATIONS 2015Issued under s.252(1)(t), Land Public Transport Act 2010Notes:- Amends Sch.1, Commercial Vehicles Licensing Board (Rates of Fare) Rules 2000, [P.U.(A) 242/2000] w.e.f.:- 23.5.2015

95/2015

LAND PUBLIC TRANSPORT ACT 2010 [ACT 715]LAND PUBLIC TRANSPORT (FEES FOR REMOVAL AND DETENTION OF RELEVANT VEHICLE) REGULATIONS 2015Issued under s.81(3) and para.252(1)(s), Land Public Transport Act 2010w.e.f.:- 13.6.2015

122/2015

LEMBAGA PEMBANGUNAN INDUSTRI PEMBINAAN MALAYSIA ACT 1994 [ACT 520]LEMBAGA INDUSTRI PEMBINAAN MALAYSIA (COMPOUNDING OF OFFENCES) REGULATIONS 2015Issued under para.37(2)(i) and s.38C, Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994w.e.f.:- 1.6.2015

101/2015

LEMBAGA PEMBANGUNAN INDUSTRI PEMBINAAN MALAYSIA ACT 1994 [ACT 520]LEMBAGA PEMBANGUNAN INDUSTRI PEMBINAAN MALAYSIA (SERVICE OF NOTICE) REGULATIONS 2015Issued under para.37(2)(c), Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994Notes:- Revokes Construction Industry (Prescribed Notice) Regulations 1997, [P.U.(A) 116/1997] w.e.f.:- 1.6.2015

102/2015

LOANS GUARANTEE (BODIES CORPORATE) ACT 1965 [ACT 96]LOANS GUARANTEE (BODIES CORPORATE) (REMISSION OF TAX AND STAMP DUTY) (NO.2) ORDER 2015Issued under s.10(1), Loans Guarantee (Bodies Corporate) Act 1965Notes:- Any tax payable under the Income Tax Act 1967 [Act 53] shall be remitted in full by any of the individual or entity in respect of any money payable under any agreement, note, instrument and document in relation to the product, facility, programme and guarantee referred to in paragraph 4.- Any stamp duty payable under the Stamp Act 1949 [Act 378] in respect of any agreement, note, instrument and document in relation to the product, facility, programme and guarantee referred to in paragraph 4 shall be remitted in full.w.e.f.:- 15.5.2015

86/2015

LOANS GUARANTEE (BODIES CORPORATE) ACT 1965 [ACT 96]LOANS GUARANTEE (BODIES CORPORATE) (REMISSION OF TAX AND STAMP DUTY) (NO.3) ORDER 2015Issued under s.10(1), Loans Guarantee (Bodies Corporate) Act 1965Notes:- Any tax payable under the Income Tax Act 1967 [Act 53] and any stamp duty payable under the Stamp Act 1949 [Act 378] in relation to the Commodity Murabahah Term Financing-i Facility Agreement of up to one thousand fi ve hundred million ringgit (RM1,500,000,000.00) or the guarantee provided or to be provided by the Government of Malaysia on the Facility Agreement shall be remitted in full – a) by the Affi n Hwang Investment Bank Berhad (formerly known as HwangDBS

Investment Bank Berhad), the Affi n Islamic Bank Berhad and the Perbadanan Tabung Pendidikan Tinggi Nasional, to which the Act applies by virtue of the Loans Guarantee (Declaration of Bodies Corporate) (Perbadanan Tabung Pendidikan Tinggi Nasional) 2004 [P.U.(A) 408/2004], as the parties to the Facility Agreement; and

b) by any party to whom the Facility Agreement is transferred or assigned.w.e.f.:- 9.6.2015

114/2015

MEDICAL ACT 1971 [ACT 50]MEDICAL (SETTING OF EXAMINATION FOR PROVISIONAL REGISTRATION) REGULATIONS 2015Issued under para.12(1)(aa) and s.36, Medical Act 1971Notes:- Revokes Medical (Setting of Examination for Provisional Registration) Regulations 2012, [P.U.(A) 251/2012]- These Regulations shall apply to any person who holds a qualifi cation referred to in subparagraph 12 (1)(a)(ii) of the Actw.e.f.:- 26.3.2015

54/2015

MINISTERIAL FUNCTIONS ACT 1969 [ACT 2]MINISTERS OF THE FEDERAL GOVERNMENT (NO.2) (AMENDMENT) ORDER 2015Issued under s.2, Ministerial Functions Act 1969Notes:- Amends Sch., Ministers of The Federal Government Order (No.2) 2013, [P.U.(A) 184/2013]w.e.f.:- 16.5.2013 – para.2(a)(iii) 27.6.2014 – All paras except para.2(a)(iii)

60/2015

NATIONAL ARCHIVES ACT 2003 [ACT 629]NATIONAL ARCHIVES (FEES) REGULATIONS 2015Issued under s.45, National Archives Act 2003Notes:- Revokes Malaysian National Archives (Fees) Regulations 2005, [P.U.(A) 292/2005] w.e.f.:- 11.5.2015

84/2015

NATIONAL LAND CODE [ACT 56/1965]NATIONAL LAND CODE (SURVEY FEES) (AMENDMENT) ORDER 2015 Issued under s.10, National Land CodeNotes:- Amends Sch., National Land Code (Survey Fees) Order 1965, [L.N. 486/1965] w.e.f.:- 1.6.2015

99/2015

NETTING OF FINANCIAL AGREEMENTS ACT 2015 [ACT 766]NETTING OF FINANCIAL AGREEMENTS (PERIOD OF STAY) ORDER 2015Issued under s.7(1), Netting of Financial Agreements Act 2015w.e.f.:- 30.3.2015

55/2015

PASSPORTS ACT 1966 [ACT 150]IMMIGRATION AND PASSPORTS (WANG KELIAN FREE FLOW ZONE) (EXEMPTION) (REVOCATION) 2015Issued under s.4, Passports Act 1966 and s.55, Immigration Act 1959/63Notes:- Revokes Immigration and Passport (Wang Kelian Free Flow Zone) (Exemption) Order 2009, [P.U.(A) 243/2009]w.e.f.:- 1.4.2015

66/2015

PORT AUTHORITIES ACT 1963 [ACT 488]PORT KELANG AUTHORITY (SCALE OF RATES, DUES AND CHARGES) (AMENDMENT) BY-LAWS 2015Issued under ss.16 and 29, Port Authorities Act 1963Notes:- Amends Sch.3 and inserts new by-law 37A, Port Kelang Authority (Scale of Rates, Dues and Charges) By-Laws 2012, [P.U.(A) 125/2012] w.e.f.:- 1.9.2015

123/2015

POSTAL SERVICES ACT 2012 [ACT 741]POSTAL SERVICES (LICENSING) REGULATIONS 2015Issued under paras.100(a) and (h), Postal Services Act 2012w.e.f.:- 15.4.2015

78/2015

POSTAL SERVICES ACT 2012 [ACT 741]POSTAL SERVICES (UNIVERSAL SERVICE) REGULATIONS 2015Issued under s.5(2), paras.100(d) and (f), Postal Services Act 2012w.e.f.:- 15.4.2015

77/2015

PRICE CONTROL AND ANTI-PROFITEERING ACT 2011 [ACT 723]PRICE CONTROL AND ANTI-PROFITEERING (DETERMINATION OF MAXIMUM PRICE) (NO.2) ORDER 2015Issued under s.4, Price Control And Anti-Profi teering Act 2011w.e.f.:- 22.5.2015 – 31.5.2015

90/2015

PRICE CONTROL AND ANTI-PROFITEERING ACT 2011 [ACT 723]PRICE CONTROL AND ANTI-PROFITEERING (DETERMINATION OF MAXIMUM PRICE) (NO.3) ORDER 2015Issued under s.4, Price Control And Anti-Profi teering Act 2011w.e.f.:- 24.5.2015 – 2.6.2015

92/2015

PRICE CONTROL AND ANTI-PROFITEERING ACT 2011 [ACT 723]PRICE CONTROL AND ANTI-PROFITEERING (DETERMINATION OF MAXIMUM PRICE) (NO.4) ORDER 2015Issued under s.4, Price Control And Anti-Profi teering Act 2011w.e.f.:- 1.7.2015

125/2015

PRICE CONTROL AND ANTI-PROFITEERING ACT 2011 [ACT 723]PRICE CONTROL AND ANTI-PROFITEERING (MARKING OF SERVICE CHARGE FOR HOTEL AND RESTAURANT) ORDER 2015Issued under s.10, Price Control And Anti-Profi teering Act 2011w.e.f.:- 1.5.2015

79/2015

BAR UPDATES/NOTICES


PRICE CONTROL AND ANTI-PROFITEERING ACT 2011 [ACT 723]PRICE CONTROL AND ANTI-PROFITEERING (PRICE MARKING OF PRICE-CONTROLLED GOODS) (NO.2) ORDER 2015Issued under s.10, Price Control And Anti-Profi teering Act 2011w.e.f.:- 22.5.2015 – 31.5.2015

91/2015

PRICE CONTROL AND ANTI-PROFITEERING ACT 2011 [ACT 723]PRICE CONTROL AND ANTI-PROFITEERING (PRICE MARKING OF PRICE-CONTROLLED GOODS) (NO.3) ORDER 2015Issued under s.10, Price Control And Anti-Profi teering Act 2011w.e.f.:- 24.5.2015 – 2.6.2015

93/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.2) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “Sebongkah Batu Di Kuala Berang”, “Karbala”, “Tiga Kali Seminggu” and “Ingin Jadi Nasrallah” by Faisal Tehrani are absolutely prohibited throughout Malaysia. w.e.f.:- 2.4.2015

67/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.3) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “KOMPLOT PENJARAKAN ANWAR: Najib jatuh hukum, hakim ikut skrip” by Zunar is absolutely prohibited throughout Malaysia. w.e.f:- 7.4.2015

68/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.4) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “THE CONSPIRACY TO IMPRISON ANWAR: Najib convicts, judges follow the script” by Zunar is absolutely prohibited throughout Malaysia. w.e.f.:- 7.4.2015

69/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.5) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “Pirates of the Carry-BN” by Zunar is absolutely prohibited throughout Malaysia. w.e.f.:- 7.4.2015

70/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.6) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “Islam: Politik dan Spiritual” by Hafi dz Abdurrahman is absolutely prohibited throughout Malaysia. w.e.f.:- 11.4.2015

71/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.7) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “In The Path Of God Islam And Political Power” by Daniel Pipes is absolutely prohibited throughout Malaysia. w.e.f.:- 11.4.2015

72/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.8) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “English Translation of the Meanings of the Holy Quran” by The Message International – USA, Saheeh International – UK, Dar Al Mountada – Saudi Arabia, Al Qummah – Eqypt is absolutely prohibited throughout Malaysia. w.e.f.:- 11.4.2015

73/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.9) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “Rahsia & Khasiat Huruf-Huruf Hijaiyyah (Siri Perubatan Islam)” by Abu Al-Baqir Ad-Dusuqi (Ustaz Mohd Fadil bin Ariffi n) is absolutely prohibited throughout Malaysia. w.e.f.:- 11.4.2015

74/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.10) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “Pagar Hikmah Himpunan Amalan Tok Janggut” by Haji Abdul Razak bin Kasman (Tok Janggut), “Dunia Hikmat” by Ali Zulfakar and “Amalan Hikmat & Rahsia Dari Al-Quran” by Ustaz Kurdi Ismail Hj. Za are absolutely prohibited throughout Malaysia. w.e.f.:- 11.4.2015

75/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.11) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “Sakit Apakah Ubatnya? Penelitian Daripada Al-Quran Dan Hadis” by Wan Md Jamal Bin Hj. Wan Md Saman, “55 Dongeng Teladan Untuk Anak Muslim” by MB. Rahimsyah.AR, “Misteri Aneh dan Ganjil Bukti Keagungan Allah” by Abu Talhah Iqamuddin and “Misteri Aneh dan Ganjil 2: Membongkar Kewujudan Makhluk Halus” by Abu Talhah Iqamuddin are absolutely prohibited throughout Malaysia. w.e.f.:- 10.6.2015

115/2015

PRINTING PRESSES AND PUBLICATIONS ACT 1984 [ACT 301]PRINTING PRESSES AND PUBLICATIONS (CONTROL OF UNDESIRABLE PUBLICATIONS) (NO.12) ORDER 2015Issued under s.7(1), Printing Presses and Publications Act 1984Notes:- The printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of “Muhammad: A Story of God’s Messenger and the Revelation that Changed the World” by Deepak Chopra, and “The Golden Laws: History through the Eyes of the Eternal Buddha” by Ryuho Okawa are absolutely prohibited throughout Malaysia. w.e.f.:- 10.6.2015

116/2015

RENEWABLE ENERGY ACT 2011 [ACT 725]RENEWABLE ENERGY (AMENDMENT OF SCHEDULE) ORDER 2015Issued under s.63, Renewable Energy Act 2011Notes:- Amends Sch., Renewable Energy Act 2011 w.e.f.:- 6.5.2015

82/2015

RENEWABLE ENERGY ACT 2011 [ACT 725]RENEWABLE ENERGY (AMENDMENT OF SCHEDULE) ORDER 2015 CORRIGENDUMNotes:- Corrigendum to [P.U.(A) 82/2015]

88/2015

ROAD TRANSPORT ACT 1987 [ACT 333]ROAD TRANSPORT (PROHIBITION OF USE OF ROAD) (CITY OF KUALA LUMPUR) ORDER 2015Issued under ss.70(1) and (2), Road Transport Act 1987w.e.f.:- 1.6.2015

100/2015

SAFEGUARDS ACT 2006 [ACT 657]SAFEGUARDS (SAFEGUARD MEASURE) (AGREEMENT ON TRADE IN GOODS UNDER THE FRAMEWORK AGREEMENT ON COMPREHENSIVE ECONOMIC CO-OPERATION BETWEEN THE ASSOCIATION OF SOUTHEAST ASIAN NATIONS AND THE REPUBLIC OF INDIA) REGULATIONS 2015Issued under s.40A(2), Safeguards Act 2006w.e.f.:- 1.4.2015

62/2015

STAMP ACT 1949 [ACT 378]STAMP DUTY (ADHESIVE STAMP) RULES 2015Issued under para.82(a), Stamp Act 1949w.e.f.:- 1.2.2009

97/2015

STRATA MANAGEMENT ACT 2013 [ACT 757]STRATA MANAGEMENT (MAINTENANCE AND MANAGEMENT) REGULATIONS 2015Issued under s.150, Strata Management Act 2013Notes:- Revokes any regulations made under the Building and Common Property (Maintenance and Management) Act 2007, [Act 663]w.e.f.:- 2.6.2015

107/2015

STRATA MANAGEMENT ACT 2013 [ACT 757]STRATA MANAGEMENT (STRATA MANAGEMENT TRIBUNAL) REGULATIONS 2015Issued under s.124, Strata Management Act 2013w.e.f.:- 1.7.2015

103/2015

STRATA TITLES ACT 1985 [ACT 318]STRATA TITLES (AMENDMENT OF FORMS) ORDER 2015Issued under ss.4A(4) and 84, Strata Titles Act 1985Notes:- Amends forms, Strata Titles Act 1985 w.e.f.:- 1.6.2015

105/2015

STRATA TITLES ACT 1985 [ACT 318]STRATA TITLES (FEDERAL TERRITORY OF KUALA LUMPUR) RULES 2015Issued under s.81, Strata Titles Act 1985Notes:- Revokes Strata Titles (Federal Territory of Kuala Lumpur) Rules 1988, [P.U.(A) 164/1988] w.e.f.:- 18.6.2015

127/2015

STATUTORY BODIES (DISCIPLINE AND SURCHARGE) ACT 2000 [ACT 605]STATUTORY BODIES (DISCIPLINE AND SURCHARGE) (AMENDMENT OF FIRST SCHEDULE) ORDER 2015Issued under s.23(3), Statutory Bodies (Discipline And Surcharge) Act 2000Notes:- Amends Sch.1, Statutory Bodies (Discipline And Surcharge) Act 2000w.e.f.:- 23.5.2015

94/2015

WATER SERVICES INDUSTRY ACT 2006 [ACT 655]WATER SERVICES INDUSTRY (RATES FOR WATER SUPPLY SERVICES) (STATE OF MALACCA) (AMENDMENT) REGULATIONS 2015Issued under paras.84(2)(a) and 179(i), Water Services Industry Act 2006Notes:- Amends Sch., Water Services Industry (Rates for Water Supply Services) (State of Malacca) Regulations 2010, [P.U.(A) 372/2010]w.e.f.:- 1.5.2015

80/2015

WATER SERVICES INDUSTRY ACT 2006 [ACT 655]WATER SERVICES INDUSTRY (RATES FOR WATER SUPPLY SERVICES) (STATE OF NEGERI SEMBILAN) REGULATIONS 2015Issued under paras.84(2)(a) and 179(i), Water Services Industry Act 2006w.e.f.:- 1.5.2015

81/2015

BAR UPDATES/NOTICES


WATER SERVICES INDUSTRY ACT 2006 [ACT 655]WATER SERVICES INDUSTRY (WATER RETICULATION AND PLUMBING) (AMENDMENT) RULES 2015Issued under s.180, Water Services Industry Act 2006Notes:- Amends Sch.1, Water Services Industry (Water Reticulation and Plumbing) Rules 2014, [P.U.(A) 36/2014]w.e.f.:- 15.4.2015 – All rules except paras. 2(a)(ii) and 2(b)(i)(B)14.4.2017 – Paras.2(a)(ii) and 2(b)(i)(B)

76/2015

WORKMEN’S COMPENSATION ACT 1952 [ACT 273]WORKMEN’S COMPENSATION (FOREIGN WORKERS’ COMPENSATION SCHEME) (INSURANCE) (AMENDMENT) ORDER 2015 Issued under s.26(2), Workmen’s Compensation Act 1952Notes:- Amends Sch., Workmen’s Compensation (Foreign Workers’ Compensation Scheme) (Insurance) Order 2005, [P.U.(A) 45/2005] w.e.f.:- 10.6.2015

109/2015

LATEST INDEX TO SELECTED P.U.(B) SERIES 2015As at 30 June 2015

TITLE P.U.(B) NO

CHILD ACT 2001 [ACT 611]APPOINTMENT OF HENRY GURNEY SCHOOLNotes:- The Minister appoints the area and all buildings surrounded by chain-link fences situated on Lot 862, Block 4, Land District of Sentah Segu, Kuching, Sarawak and designated as “Henry Gurney School, Puncak Borneo, Kuching, Sarawak” with eff ect from 1 June 2015w.e.f.:- 1.6.2015

236/2015

CONSTITUTION OF THE STATE OF PENANG [FGS(NS)886/1957]APPOINTMENT OF HIS EXCELLENCY THE YANG DI-PERTUA NEGERI OF THE STATE OF PENANGw.e.f.:- For a term of two years with eff ect from 1 May 2015

223/2015

COUNTERVAILING AND ANTI-DUMPING DUTIES ACT 1993 [ACT 504] NOTICE OF INITIATION OF AN ANTI-DUMPING DUTY INVESTIGATION WITH REGARD TO THE IMPORTS OF COLD ROLLED STAINLESS STEEL IN COILS, SHEETS OR ANY OTHER FORM ORIGINATING OR EXPORTED FROM CHINESE TAIPEI, FINLAND , FRANCE, HONG KONG, JAPAN, PEOPLE’S REPUBLIC OF CHINA, REPUBLIC OF INDONESIA, REPUBLIC OF KOREA AND SOCIALIST REPUBLIC OF VIET NAM (AD 01/15)w.e.f.:- 29.4.2015

208/2015

COUNTERVAILING AND ANTI-DUMPING DUTIES ACT 1993 [ACT 504] NOTICE OF INITIATION OF AN ANTI-DUMPING DUTY INVESTIGATION WITH REGARD TO THE IMPORTS OF PREPAINTED, PAINTED OR COLOUR COATED STEEL COILS ORIGINATING OR EXPORTED FROM THE PEOPLE’S REPUBLIC OF CHINA AND SOCIALIST REPUBLIC OF VIET NAM (AD 02/15)w.e.f.:- 29.4.2015

207/2015

HOUSING DEVELOPMENT (CONTROL AND LICENSING) (AMENDMENT) ACT 2012 [ACT A1415]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 1 June 2015 appointed as the date of coming into operation of the Housing Development (Control And Licensing) (Amendment) Act 2012 w.e.f.:- 1.6.2015

234/2015

LEGAL PROFESSION ACT 1976 [ACT 166]NOTIFICATION UNDER SUBSECTION 76(1)Notes:- a) The persons named in the Schedule have been appointed as members of the Bar Council and members of the State Bar Committees for the year 2015/2016; andb) Puan Cheah Yee Lynn, Karen has been elected as the Secretary of the Malaysian Bar.w.e.f.:- 12.6.2015

247/2015

LEMBAGA PEMBANGUNAN INDUSTRI PEMBINAAN MALAYSIA (AMENDMENT) ACT 2011 [ACT A1407]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 1 June 2015 appointed as the date of coming into operation of the Lembaga Pembangunan Industri Pembinaan Malaysia (Amendment) Act 2011 w.e.f.:- 1.6.2015

232/2015

NATIONAL LANGUAGE ACTS 1963/67 [ACT 32]PRESCRIPTION UNDER SECTION 6Notes:- The Prime Minister prescribes that the authoritative text of the Special Measures Against Terrorism in Foreign Countries Bill 2015 to be introduced in the First Meeting of the Third Session of the Thirteenth Parliament is the text in the English language.w.e.f.:- 31.3.2015

132/2015

PENAL CODE (AMENDMENT) ACT 2015 [ACT A1483]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 15 June 2015 appointed as the date of coming into operation of the Penal Code (Amendment) Act 2015 w.e.f.:- 15.6.2015

252/2015

PRISON ACT 1995 [ACT 537]APPOINTMENT OF LOCK-UP TO BE A PLACE OF CONFINEMENTNotes:- The lock-up at the Kuala Terengganu Syariah Court, Terengganu to be a place for the confi nement of persons, remanded or sentenced to such terms of imprisonment, not exceeding one month.w.e.f.:- 25.4.2015

188/2015

SECURITY OFFENCES (SPECIAL MEASURES) (AMENDMENT) ACT 2015 [ACT A1487]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 15 June 2015 appointed as the date of coming into operation of the Security Off ences (Special Measures) (Amendment) Act 2015 w.e.f.:- 15.6.2015

251/2015

SPECIAL MEASURES AGAINST TERRORISM IN FOREIGN COUNTRIES ACT 2015 [ACT 770]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 15 June 2015 appointed as the date of coming into operation of the Special Measures Against Terrorism In Foreign Countries Act 2015w.e.f.:- 15.6.2015

250/2015

STRATA MANAGEMENT ACT 2013 [ACT 757]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 1 June 2015 appointed as the date of coming into operation of the Strata Management Act 2013 in the States of Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Terengganu, Perak, Perlis and Selangor. w.e.f.:- 1.6.2015

231/2015

STRATA MANAGEMENT ACT 2013 [ACT 757]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 1 June 2015 appointed as the date of coming into operation of the Strata Management Act 2013 in the Federal Territory of Kuala Lumpur, the Federal Territory of Labuan and the Federal Territory of Putrajaya.w.e.f.:- 1.6.2015

237/2015

STRATA MANAGEMENT ACT 2013 [ACT 757]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 12 June 2015 appointed as the date of coming into operation of the Strata Management Act 2013 in the State of Penang.w.e.f.:- 12.6.2015

248/2015

STRATA TITLES (AMENDMENT) ACT 2013 [ACT A1450]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 1 June 2015 appointed as the date of coming into operation of the Strata Titles (Amendment) Act 2013 in the States of Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Terengganu except section 22.w.e.f.:- 1.6.2015

238/2015

STRATA TITLES (AMENDMENT) ACT 2013 [ACT A1450]APPOINTMENT OF DATE OF COMING INTO OPERATIONNotes:- 1 June 2015 appointed as the date of coming into operation of the Strata Titles (Amendment) Act 2013 in the Federal Territory of Kuala Lumpur, the Federal Territory of Putrajaya and the Federal Territory of Labuan except section 22.w.e.f.:- 1.6.2015

239/2015

NEW BOOKS

Abu Bakar Munir. Data protection law in Asia. Hong Kong: Thomson Reuters Hong Kong Limited, 2014.

Chew, Leslie. Introduction to the law and practice of arbitration in Singapore. Singapore: LexisNexis, 2010.

Chow, Kok Fong, Lim Chong Fong & Oon Chee Kheng. Adjudication of construction payment disputes in Malaysia: navigating the Construction Industry Payment and Adjudication Act. Petaling Jaya: LexisNexis, 2014.

Chua, Annie. Malaysian GST legislation plus 2015: featuring key sectional commentary and cross-references. Subang Jaya: Sweet & Maxwell, 2015.

Core values of an eff ective judiciary. Singapore: Academy Publishing, 2015.

Das, Cyrus [Ed]. Employment and industrial relations law in Malaysia. Ampang: Malaysian Current Law Journal: Malaysian Society for Labour and Social Security Law, 2013.

Farid Sufi an Shuaib, Tajul Aris Ahmad Bustami & Mohd Hisham Mohd Kamal. Administration of Islamic law in Malaysia: text and material. Petaling Jaya: LexisNexis, 2010.

GST 360: a comprehensive compendium. Petaling Jaya: LexisNexis, 2015.

Intellectual property law guide 2013/14 from LexisNexis : the 1st annual guide to IP law in Asia. Petaling Jaya: LexisNexis, 2014.

Nik Norzrul Thani, Mohamed Ridza Abdullah & Megat Hizaini Hassan. Law and practice of Islamic banking and fi nance. Subang Jaya: Sweet & Maxwell, 2015.

R.C.I’ Anson Banks [Ed]. Lindley & Banks on partnership. 19th ed. London: Sweet & Maxwell, 2010.

R.C.I’ Anson Banks [Ed]. Lindley & Banks on partnership: second supplement to the nineteenth edition. London: Sweet & Maxwell, 2013.

Sause, Jeanette Soderlund & Malin Edmar. Domain names: strategies and legal aspects. London: Sweet & Maxwell, 2015.

Tang, Hang Wu, Micheal Hor & Koh Swee Yen. The practice of law. Singapore: LexisNexis, 2011.

Teo, Say Eng. Hak anda dan undang-undang. Petaling Jaya: LexisNexis, 2007.

The Malaysian judiciary yearbook 2014. Putrajaya: Chief Registrar’s Offi ce, Federal Court of Malaysia, 2015.

Verma, J.K. B.R. Ghaiye’s Misconduct in employment: with specimen charge-sheet. 3rd ed. Lucknow: Eastern Book Company, 2015.

BAR UPDATES/NOTICES


Notice Regarding Documents in Bar Council’s Custody: Legal Firms in which Bar Council has Intervened(As at 28 Oct 2015)When Bar Council intervenes in a legal fi rm pursuant to powers conferred by the Legal Profession Act 1976, it can take custody of documents that are within the control or possession of the fi rm. Subsequently, Bar Council takes steps to notify clients and/or interested parties to collect their documents within the stipulated time period. However, many documents are uncollected and remain in Bar Council’s custody, such as those taken from the legal fi rms listed below.

Clients or interested parties who wish to claim documents that relate to cases that were handled by these legal fi rms are advised to contact the Bar Council’s Intervention Department at 03-2050 2159.

Kuala Lumpur

Messrs Herlina & Co

Messrs Rina Noor & Co

Messrs Kushairi & Co

Messrs Loh & Co

Messrs Yusof Abdullah & Partners

Messrs R K Nandy & Associates

Messrs Badri Kuhan Yeoh & Ghandi

Messrs K E Ooi & Partners

Messrs Anuar S J Ong & Co

Messrs Adi Azhar

Messrs B C Low

Messrs Sooriyar & Co

Messrs Y H Chan & Co

Messrs Shaik Anwar Raja

Messrs P L Low & Co

Messrs Wan Nizar Rais

Messrs Par Govind & Co

Messrs Hadi & Co

Messrs Michael Lim & Assoc.

Messrs Yusuf Abdul Rahman & Co

Messrs Mohd Zawawi Amelda & Partners

Messrs C K Kow & Co

Messrs Nazli Ghazali & Cheong

Messrs Zaim Al-Amin & Assoc

Messrs Su How & Co

Messrs M W Lian & Assoc.

Messrs Zihin Shariff & Partners

Messrs Khalid Chung & Shankar

Messrs Nordin Hamid & Co

Messrs Raja Rohana & Co

Messrs Abdullah-Haniff & Assoc

Selangor

Messrs Donald Lai & Associates

Messrs Irzuan

Messrs Sajali & Co

Messrs J M Zain & Associates

Messrs Loh & Co

Messrs Bagia Sri Devi & Co

Messrs Noi

Messrs Zubaidah Mukhtar Ahmad

Messrs S. Letchumanan & H. Nizam

Messrs Bhaarathee & Associates

Messrs Zainal Rashid & Partners

Messrs Jaharberdeen & Ngo

Messrs Jauhari & Assoc

Messrs H K Teh & Assoc

Messrs Sabri Nazli Lana & Azizan

Messrs Penney Khoo Soh Ping & Co

Messrs Umar Baki & Co

Messrs Cheong & Chong

Messrs Hassan Kuldeep & Co

Messrs Khalil Samsuni & Co

Malacca

Messrs Ang Kwee Thian & Associates

Messrs Tuah Hilmy & Hazudin

Messrs Parthan & Associates

Messrs YC Pok & Zurina

Messrs Ganesan Mariapan & Co

Pahang

Messrs Yum Ng & Stanley

Messrs Zul & Co

Messrs Zachery & Co

Johore

Messrs Razak & Fakrul

Messrs Baharuddin & Partners

Messrs Rosli Rahman & Co

Messrs J L Lim & Co

Messrs Mariam & Co

Messrs K Y Teo & Associates

Messrs Wu & Co

Negeri Sembilan

Messrs M. Kuppusamy & Co

Messrs Sasi Kumar & Assoc

Messrs S F Leow

Messrs Azizi Nizam & Anwar

Perak

Messrs J S Olikh & Co

Messrs Ravi Nair Maideen & Assoc.

Messrs Mohd Azhar & Co

Kedah/Perlis

Messrs Jamaludin Amin & Co

Penang

Messrs A J Hamzah & Co

Messrs Khoo Chye Beng & AssocAs at 28 Oct 2015

List Of Struck Off Members Wherein Appeal/Reinstatement AllowedReinstatement

NO MEMBER DATE OF ORDER REMARKS Practice Status

1. Mohamad b Ibrahim 27 Jan 1996 30 Mar 2015 — Application for reinstatement allowed by the High Court

Note: In possession of SA/PC 2015

Disciplinary Orders(April to August 2015)FINED

NAME ORDER DATED FINED (RM)

Ashokvijay J Sanghrajka (A/843) 17 Apr 2015 2,000

Dennis Lim Kian Ser (L/179) 17 Apr 2015 1,000

Kong Kai Jye (K/967) 17 Apr 2015 1,000

Ling Yoke Hooi (L/779) 17 Apr 2015 3,000

Ritish Kumar Nandy A/L Milon

Nandy (R/426)

17 Apr 2015 50,000

Voo Petter (V/36) 17 Apr 2015 3,000

Firdaus Bin Mohd Yusoff (F/391) 18 Apr 2015 3,000

Josephine A/P Puspanathan

(J/332)

18 Apr 2015 5,000

Yong Chee Kheong (Y/286) 18 Apr 2015 3,000

Abdul Razak Bin Jamaludin

(A/787)

14 May 2015 5,000

Bavani A/P M. Sooriamoorthy

(B/112)

14 May 2015 10,000

Chin Choi Choo (C/358) 14 May 2015 30,000

K Bagia Sri Devi A/P

Krishnamoorthi (K/778)

14 May 2015 10,000

Kamarudin B Md Yusof (K/298) 14 May 2015 10,000

BAR UPDATES/NOTICES


Mohd Husni B Osman (M/481) 14 May 2015 5,000

Mohd Rafi q Bin Zakaria (M/1851) 14 May 2015 1,000

Mohd Taufi k Bin Md Tahir

(M/1306)

14 May 2015 5,000

Nasrul ‘Amili Bin Abdullah

(N/1366)

14 May 2015 10,000

Raymond Chu Hon Fai (C/915) 14 May 2015 500

Shahril B Lamin (S/233) 14 May 2015 5,000

Sritharan A/L K Govindan (S/895) 14 May 2015 5,000

Wan Faridah Hanim Binti Wan

Abdul Kadir (W/167)

14 May 2015 1,500

William Edwin S/O Edwin John

(W/348)

14 May 2015 15,000

Pathmanathan A/L Ramasamy

(P/157)

16 May 2015 5,000

Paul Krishnaraja A/L Selladurai

(P/137)

15 May 2015 1,000

Salvaraju A/L Kanniah (S/1365) 15 May 2015 3,000

Smita S Lakhiani (S/1885) 15 May 2015 2,500

Uma Parvathy A/P R Thothathri

(U/32)

15 May 2015 2,000

Harjit Singh Sandhu (H/486) 19 June 2015 10,000

Hong Kim Piow (H/108) 19 June 2015 5,000

Justin Hong Shiung Leong (J/495) 19 June 2015 1,000

Mohd Faizal Bin Hassan (M/1193) 19 June 2015 1,000

Roslie Bin Sulle (R/775) 19 June 2015 20,000

Silvaraju A/L Ramu (S/331) 19 June 2015 30,000

Sumathi Shanmugam (S/527) 19 June 2015 6,000

Tang Jay Son (T/774) 19 June 2015 4,000

Wong Yoke Cheng (W/450) 19 June 2015 1,000

Yap Ooi Lye (Y/535) 19 June 2015 8,000

Md. Zahar Bin Ngah (M/797) 20 June 2015 20,000. Further ordered

to make restitution to the

complainant the sum of

RM32,000 within one

month from date of Order

and in default thereof the

respondent shall pay a

further fi ne of RM10,000

being the increased

penalty pursuant to section

103D(5) of the LPA.

Daud Bin Asmoni (D/106) 24 July 2015 3,000

Lai Tak Soon (L/687) 24 July 2015 5,000

Mohd Sahal Bin Baharom (M/693) 24 July 2015 50,000. Further ordered

to make restitution to the

complainant the sum of

RM212,200 within one

month from date of Order

and in default thereof the

respondent shall pay a

further fi ne of RM25,000

being the increased

penalty pursuant to section

103D(5) of the LPA.

Nor Arfaiza Binti Abd Halim

(N/1436)

24 July 2015 10,000

Lee Yin Shaiur (L/955) 25 July 2015 5,000

Mohd Allaudin Bin Mat Nor

(M/1109)

25 July 2015 2,000

Prathiba A/P Samikanno (P/292) 25 July 2015 3,000

Tini Suhaila Binti Othman (T/1146) 25 July 2015 2,000

Abdul Nasir Bin Abdul Aziz

(A/941)

14 Aug 2015 3,500

Adibah Azila Binti Suhaimi

(A/1996)

14 Aug 2015 3,000

Afi ana Binti Husin (A/1572) 14 Aug 2015 3,000

Ahmad Farouq Bin Kamaruddin

(A/1928)

14 Aug 2015 1,000

Aldamier Bin Hadjikain (A/1199) 14 Aug 2015 3,000

Anuar Bin Che Ahmad (A/799) 14 Aug 2015 1,000

Arif Lokman Bin Ubaidah (A/1033) 14 Aug 2015 3,000

Armiy Rais Bin Ahmad

Sharifuddin (A/813)

14 Aug 2015 4,000

Augustin Nicholson (A/224) 14 Aug 2015 3,000

Cara Yasmin Binti Kamaruddin

(C/1459)

14 Aug 2015 3,000

Choong Fui-Yu (C/1307) 14 Aug 2015 3,000

Engku Saifuddin Bin Ku Ajid

(E/78)

14 Aug 2015 2,500

Hidayatul Manna Binti Mohd Noor

(H/864)

14 Aug 2015 3,000

Jeffri Cheong Siu-Kong (J/487) 14 Aug 2015 3,000

Khalilah Binti Abdul Rasip (K/730) 14 Aug 2015 3,000

Kua Ying-Xin (K/1112) 14 Aug 2015 3,000

Lee Beal Seng (L/710) 14 Aug 2015 4,000

Lily Farizon Binti Karim (L/1640) 14 Aug 2015 5,000

Lim Sze Chan (L/1944) 14 Aug 2015 3,000

Mohammad Faizal Bin Marzuki

(M/1582)

14 Aug 2015 3,000

Mohammad Imran Bin Adam

(M/1293)

14 Aug 2015 2,500

Mohd Hanif B Abdul Rahman

(M/378)

14 Aug 2015 4,000

Mohd Nasrul Bin Md Nor

(M/1941)

14 Aug 2015 3,000

Mohd Syahril Bin Daud (M/1849) 14 Aug 2015 3,000

Muhamad Anwar Bin Zamree

(M/1854)

14 Aug 2015 3,000

Muhammad Afi q Bin Mohamad

Noor (M/1994)

14 Aug 2015 3,000

Muhammad Nazir Bin Mohd Nazri

(M/2331)

14 Aug 2015 3,000

Narziah Binti Naziri (N/1863) 14 Aug 2015 1,000

Norliza Binti Rosley (N/1983) 14 Aug 2015 3,000

Normala Binti Ismail (N/2426) 14 Aug 2015 3,000

Norsyamimi Binti Bukhari

(N/2626)

14 Aug 2015 3,000

Nur Hidayatul Khzarina Binti

Mohd Khalid (N/2143)

14 Aug 2015 3,000

Nur Safi rah Binti Sobri (N/1885) 14 Aug 2015 3,000

Nurul Nadia Akmar Binti

Baharudin (N/2480)

14 Aug 2015 500

Razairul Haffi z Bin Md Razib

(R/904)

14 Aug 2015 3,000

Roger Bin Stimin (R/952) 14 Aug 2015 3,000

Siti Hidayah Binti Abdullah

(S/2776)

14 Aug 2015 3,000

Suhaimi B Baharudin (S/415) 14 Aug 2015 3,000

Tiew Way Keng (T/1149) 14 Aug 2015 2,500

Toh Poh Leng (T/1096) 14 Aug 2015 2,000

Yong Seluwati Binti Alias (Y/492) 14 Aug 2015 2,000

Zaida Binti Che Bali (Z/467) 14 Aug 2015 500

Zamaludin Bin Abdullah (Z/431) 14 Aug 2015 3,000

BAR UPDATES/NOTICES


Abdul Roni B Abd Rahman

(A/407)

15 Aug 2015 4,000

Ahmad Fahmi Yahya Bin Osman

(A/1177)

15 Aug 2015 3,000

Azlan Bin Nimat (A/1017) 15 Aug 2015 3,500

Balkis Farhana Binti Othman

(B/270)

15 Aug 2015 1,000

Hazlinda Binti Abdul Hamid

(H/583)

15 Aug 2015 3,000

Khairulazwan Bin Alias (K/870) 15 Aug 2015 1,000

Mohd Fadzil Bin Mohd Yussof

(M/1369)

15 Aug 2015 500

Mohd Khairul Zaman Bin Ahmad

Tajuddin (M/2042)

15 Aug 2015 1,000

Nithiya A/P Thiahhan(N/1955) 15 Aug 2015 3,000

Noor Asyikin Binti Md Rodhi

(N/2734)

15 Aug 2015 3,000

Noor Sheila Afeeza Binti Ramli

(N/2147)

15 Aug 2015 1,000

Noorazlina Binti Noordin (N/1080) 15 Aug 2015 3,000

Nurhayati Binti Zakaria (N/1629) 15 Aug 2015 3,000

Pamela Marie A/P Jerome

Anthony (P/495)

15 Aug 2015 3,000

Shaiful Omar B Ahmad (S/266) 15 Aug 2015 3,000

Wong Chim Yiam (W/384) 15 Aug 2015 1,000

Yeo Lay Hoon (Y/627) 15 Aug 2015 10,000

Yuzain Bin Md Razak @ Mohd

Yusof (Y/359)

15 Aug 2015 3,500

REPRIMANDED

NAME ORDER DATED

Leena A/P V Singam (L/961) 17 Apr 2015

Rosalind Josephine Lim Poh Choo (L/1329) 14 May 2015

Jeeva Kumar A/L Marimuthu (J/269) 14 May 2015

Mohd Fikri Bin Abd Rahman (M/1287) 14 May 2015

Nooraizan Binti Idris (N/1264) 15 May 2015

Suzaini Bt A Aziz (S/429) 15 May 2015

Vivekanandan A/L AMS Periasamy (V/51) 14 May 2015

Jarir Jafni Bin Haron (J/527) 19 June 2015

Azmer B. Md Saad (A/914) 20 June 2015

Foo Hiap Siong (F/388) 20 June 2015

Mohd Ya’acob B (M/311) 20 June 2015

Tuinthanathan A/L Jagarasah (T/939) 20 June 2015

You Lou Yuh (Y/328) 20 June 2015

Zulkepli Bin Omar (Z/152) 20 June 2015

Abd. Rahim Bin Mohamed (A/529) 24 July 2015

Mohd Norazam Bin Majid (M/1159) 24 July 2015

Nurul Liyana Binti Mohammad Nasir (N/2360) 24 July 2015

Chew Kit Keong (C/268) 14 Aug 2015

Maznah Bt Kamaruddin (M/325) 14 Aug 2015

STRUCK OFF

NAME ORDER DATED

Abdul Halim Bin Yahya (A/1127) 14 May 2015

Hazlan Bin Abd Hamid (H/403) 14 May 2015

Mohd Busyairy Bin Che Muda (M/1317) 14 May 2015. Further ordered to make

restitution to the complainant the sum

of RM5,000 within one month from date

of Order.

Rokhsah Bt Abd Aziz (R/451) 14 May 2015. Further ordered to make


of RM28,604.50 within one month from

date of Order.

Wan Ilias Bin Wan Ahmad (W/350) 14 May 2015. Further ordered to make

restitution to the complainant the sum of

RM189,719.50 within one month from

date of Order.

Aida Zulaiza Binti Yem Ahmad (A/989) 19 June 2015. Further ordered to make


of RM8,000 within one month from date

of Order.

K. Anandaraj A/L Krishnasamy (A/357) 19 June 2015

Murali Achan A/L P. E. Achan (M/299) 19 June 2015

Nazariah Bt Abbas (N/136) 25 July 2015. Further ordered to make

restitution to the complaint the sum of

RM390,331.30 within one one month

from date of Order.

SUSPENDED

NAME ORDER DATED

Bavanee A/P Subramaniam (B/247) 16 May 2015. Suspended for fi ve years

with effect from 21 days from date of

Order and to expire on 5 June 2020.

S. Bhaskar A/L Subramaniam (S/2366) 14 August 2015. Suspended for fi ve

years with effect from 21 days from date

of Order and to expire on 3 Sept 2020.

Outcome of Appeals against Disciplinary Orders

1) Lian Meng Wah (L/679)Struck off by Order dated 19 May 2011. High Court dismissed Lian Meng Wah’s appeal on 4 Oct 2011. Court of Appeal also dismissed his appeal on 19 Jan 2015.

2) Mohd Fadli b Shuib (M/1304)Struck off by Order dated 23 June 2011. High Court allowed Mohd Fadli’s appeal on 26 Aug 2012. Bar Council fi led an appeal at the Court of Appeal and the appeal was allowed on 22 July 2014. Mohd Fadli fi led an appeal at the Federal Court and on 31 Mar 2015, the Federal Court overturned the struck off order to three years’ suspension to take eff ect from the date of the Court of Appeal’s Order dated 22 July 2014, and will expire on 21 July 2017.

3) Gopalakrishnan @ Muniandy s/o Supramaniam Wah (M/346)Struck off by Order dated 9 Sept 2011. High Court dismissed Gopalakrishnan’s appeal on 29 Feb 2012 and varied the Order of the Disciplinary Board, and replaced it with an order of suspension for three years to take eff ect from 9 Sept 2011. Bar Council fi led an appeal at the Court of Appeal and the appeal was dismissed on 16 Feb 2015.

BAR UPDATES/NOTICES


4) Venkatachalam a/l Arunachalam (V/221)Fined RM15,000 by Order dated 17 Mar 2012. High Court dismissed Venkatachalam’s appeal on 27 Feb 2013.

5) Gurmit Singh Pangu a/l Gurcharan Singh (G/172)Fined RM1,000 by Order dated 3 Nov 2012. High Court allowed Gurmit Singh’s appeal on 30 May 2013. Bar Council fi led an appeal at the Court of Appeal and the appeal was allowed on 21 Oct 2014.

6) Jagmohan Singh a/l Bhupinder Singh (J/293)Struck off by Order dated 10 May 2013. High Court dismissed Jagmohan’s appeal on 4 Nov 2013. Court of Appeal dismissed Jagmohan’s appeal on 2 Apr 2015.

7) Ahmad Rizal Eff ande b Zainol (A/1452)Struck off by Order dated 19 July 2013. High Court dismissed Ahmad Rizal’s appeal on 20 Feb 2014. Court of Appeal dismissed Ahmad Rizal’s appeal on 24 July 2015. Federal Court dismissed Ahmad Rizal’s appeal on 28 Jan 2015.

8) Salma @ Salmah bt K Ghani Adiyodi (S/1258)Struck off by Order dated 17 May 2014. High Court dismissed Salma’s appeal on 10 Apr 2015.

8) Chou Ka Ping (C/541)Suspended for three years by Order dated 5 Feb 2010. High Court allowed Chou Ka Ping’s appeal on 23 Sept 2013. Court of Appeal dismissed Bar Council’s appeal on 1 Oct 2014. Federal Court dismissed Bar Council’s appeal on 24 Aug 2015.

9) Mahendran a/l Gnasamoothy (G/1246)Fined RM5,000 by Order dated 9 Dec 2011. High Court dismissed Mahendran’s appeal on 29 Nov 2012. Court of Appeal dismissed Mahendran’s appeal on 26 Aug 2014.

10) Lee Chiang Yueh (L/774)Fined RM5,000 by Order dated 22 Feb 2014. High Court allowed Lee Chiang Yueh’s appeal on 12 Nov 2014.

11) Vasandi a/p Kandasamy (V/145)Struck off by Order dated 28 Mar 2014. High Court dismissed Vasandi’s appeal on 23 Dec 2014. Court of Appeal dismissed Vasandi’s application for extension of time to fi le Record of Appeal and allowed Bar Council’s application to set aside Vasandi’s appeal.

5) Ganesalingam a/l Vijayaratnam (G/154)Fined RM15,000 by Order dated 19 July 2014. Ganesalingam withdrew appeal at the High Court on 9 Apr 2015.

6) Liaw Chee Huey (L/1093)Fined RM2,000 by Order dated 13 Sept 2014. High Court allowed Liaw Chee Huey’s appeal on 15 Feb 2015. Court of Appeal dismissed Bar Council’s motion for extension of time to serve the Notice of Appeal and allowed Liaw Chee Huey’s motion to strike out Bar Council’s appeal.

BAR UPDATES/NOTICES
