praxis may jun2006
TRANSCRIPT
‘MOBILITY OF LABOUR IN THE LAWASIA REGION - THE LEGAL ANDSOCIAL PROBLEMS OF MIGRANT LABOUR’
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Keynote Address and Official Opening DYMM Paduka Seri Sultan Azlan Muhibbuddin Shah
Sultan of Perak Darul Ridzuan
Special AddressesThe Hon Datuk Seri Dr Fong Chan Onn, Minister of Human Resources, Malaysia
The Hon Mr Justice Michael Kirby AC CMG, High Court, Australia
The Hon Mr Justice Dato’ Gopal Sri Ram, Court of Appeal, Malaysia
Luncheon TalkAnil Divan, India, Former President, Lawasia
Topics1. Impact of Migrant Labour on Society2. Legal Migration3. Effect of Immigration Laws on Migrant
Labour4. Obligations of Labour Contractors and
Agents
5. Terms and Conditions of Employment /Unionism
6. Access to Local Industrial AdjudicationSystems
7. Working Conditions for Service Sectors /Households
10-12 August 2006Crowne Plaza Mutiara, KL
PRAXIS 1MAY / JUN_2006
Editorial
ChairmanChairmanChairmanChairmanChairman Yeo Yang PohVice ChairmanVice ChairmanVice ChairmanVice ChairmanVice Chairman Ambiga SreenevasanSecretarySecretarySecretarySecretarySecretary Ragunath KesavanTTTTTreasurerreasurerreasurerreasurerreasurer Vazeer Alam Mydin Meera
Praxis is the chronicle of the Malaysian Bar,published bi-monthly by the Bar Council ofMalaysia.
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Articles from individuals that are published herecontain the personal views of the writers concernedand are not necessarily the views of the BarCouncil.
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PRAXISCHRONICLE OF THE MALAYSIAN BAR
BAR COUNCIL BAR COUNCIL BAR COUNCIL BAR COUNCIL BAR COUNCIL 2006/20072006/20072006/20072006/20072006/2007
Editorial2 The Wind of Change
News4 Nazri launches the Red Book6 Tun Suffian Foundation Fund Raising Dinner -
A Note of Appreciation9 Federal Constitution Protection for All10 Speaker rejects MP’s emergency motion on
maltreatment of lawyers by police12 Inaugural Dinner Of The Barristers Of The Honourable
Society Of The Inner Temple, London15 Doyen of the Malaysian Bar, Datuk Wrigglesworth dies16 Bench & Bar Games - Malaysia Triumphs19 Raja Aziz Addruse elected Commissioner of ICJ20 Diary of Events21 Members of the Bar ‘march’ to Bukit Aman
Secretariat22 Contact List of Committee Chairpersons 2006/2007
Comment26 Move to Drop Written Arguments27 Bahasa Inggeris merupakan bahasa yang lebih sesuai di
Mahkamah29 Bahasa Melayu Mampu Menjadi Bahasa Perundangan
Negara31 Judges and Accountability34 The aftermath of the Federal Court judgment in Adorna
Properties Sdn Bhd vs Boonsom Boonyanit
Press Statements35 Movement towards a better police force
Articles36 An Appeal to International Lawyers and Law Professors
Hold the Bush Administration Accountable for FloutingInternational Law
37 “To Hell With All of You” The Power of Saying No39 Strengthening the Integrity and Professionalism of
Judges and Prosecutors with the Implementation of aCode of Ethics
Human Writes46 Economic, Social and Cultural Rights in International
Human Rights Law50 UN Committee Against Torture demands closure of
Guantanamo Bay prison52 Lord Goldsmith: Terrorism and Human Rights58 Implementation of Human Rights Treaties through the
United Nations mechanism
Lifestyle64 Meditation for a calm heart65 The Largest Natural Limestone Caves
Disciplinary Orders66 Orders of the Disciplinary Board
Library Update68 Legislative updates and Library Notice
Cover Photo
History was created by the M'sia & S'pore Bar cricketeers in the B&BGames, when a competitive international cricket match was played forthe first time in Langkawi.
PRAXIS 2 MAY / JUN_2006
EditorialThe Wind of ChangeHj Vazeer Alam Mydin MeeraEditor
In 1960, the then British Prime
Minister Harold Macmillan delivered
what is now known as his wind of change
speech at the South African Parliament.
It was a watershed moment in the struggle
for black nationalism in Africa and the
independence movement around the
globe. It also signalled a change in western
attitude towards the Apartheid regime of
South Africa. Macmillan infamously
declared that "The wind of change is
blowing through this [African] continent
and whether we like it or not this growth of
national consciousness is a political fact. We
must accept it as a fact and our national
policies must take account of it."
Then in 1990, about the time that the
old Soviet empire was crumbling; and
when glasnost and perestroika blew in the
wind of change to that part of the world,
the Scorpions, a very successful German
rock group had a hit ballad called The
Wind of Change. Not only did that song
have a mesmerising tune and enchanting
musical arrangement, the lyrics too had a
moving poetic flow, heralding in with
optimism the changing political
landscape. No matter how many times
one listens to that song, one never grows
tired of it. A part of the song goes thus:
The world closing in
Did you ever think
That we could be so close, like brothers
The future’s in the air
I can feel it everywhere
Blowing with the wind of change
Take me to the magic of the moment
On a glory night
Where the children of tomorrow dream away
In the wind of change
Walking down the street
Distant memories
Are buried in the past forever
Yes, it is the rare occasion on which modern
day song lyrics are written with such
poetic optimism. Yet, the mood and
buoyancy of those lyrics somehow seem
to reflect the present day hopefulness and
sanguinity of Malaysians. There is growth
in our collective national consciousness
which demands change to the old order.
The wind of change has changed tack. It
is now blowing through the Malay
Peninsula and the Borneo states. The
Abdullah administration has slowly but
surely started to catch the warm currents
of the wind of change under its wings.
There seems to be more openness and
willingness to be inclusive in their policy
making. Merit has been given due credit.
Racial quotas have given way to
meritocracy in tertiary education
admissions. The establishment of the
Royal Commission on the Police Force to
address peoples’ concerns about the rot
in the Force was long overdue but
welcome. The speed and openness with
which the ‘Nude Squat’ episode was
handled was again a boost to the
expectation of ordinary Malaysians.
For the last two decades or so, the Bar
Council was seen as a threat to the
government. We were perceived as the
‘opposition’. We went through many
trials and tribulation. The AGM quorum
amendments in the late seventies and
eighties were the result of the tussles with
the executive branch then. When once
the Bar was consulted by the government
of the day on bills that were intended to
be tabled in Parliament, we were totally
excluded. Even constructive criticism was
viewed as “oppositionists’ views”. We were
completely shut out from main stream
media. When we opposed ‘rule by law’
and fought relentlessly for ‘the rule of law’,
we were labeled as miscreants. The force
of law was brought on us. Charges of
unlawful assembly, sedition and
committal for contempt were the order
of the day. When we argued for judicial
independence and the adherence to the
constitutional principle of separation of
power, the judiciary was emasculated. In
spite of the onslaught by the government,
the Bar stood firm in its principles; never
wavering, never flinching, never
succumbing. The Malaysian Bar’s resolve
received international support.
The Bar’s steadfastness and unwavering
resolve to adhere to principles has become
our strength and hallmark. There now
seems to be a realisation by the powers
that be, that the Bar is a proper and
valuable partner in nation building.
Confrontation has given way to
consultation. Come July this year, we will
PRAXIS 3MAY / JUN_2006
Editorialhave the International Legal Aid
Conference, jointly organized by the Bar
Council and the Malaysian Government.
This will afford us the opportunity to
drive home the point that access to justice
for the impecunious and marginalized
members of the society is a state
responsibility, which for some twenty-five
years now has been shouldered by the
Bar as well. It is high time the government
introduced a comprehensive and wholly
government funded legal aid scheme. We
will continue to press for reform in this
area.
For years now, the Malaysian Bar has
been conducting law awareness
campaigns with scant support from the
government. That changed this year.
Following the ‘Nude Squat’ episode, a
number of concerned Bar members
formed a group called ‘TANGKAP’. They
seem to have been guided by the infamous
words of Edmund Burke that “The only
thing necessary for the triumph of evil is for
good men to do nothing.” They tirelessly
worked behind the scene, to produce an
entirely self-funded booklet entitled “Polis
Dan Hak-Hak Asas Anda” in four
languages, namely, Malay, English,
Mandarin and Tamil to be distributed to
the public free of charge.
The defacto Law Minister, Datuk Seri
Mohamed Nazri bin Tan Sri Abdul Aziz,
agreed to officiate the launch of this Red
Book. Nazri launched it at the Bar
Auditorium in the presence of some 60
lawyers, representatives of NGOs, as well
as US Embassy officials, who welcomed
this new working relationship between
the Bar and the Minister. It is worth
noting here that the Minister had soon
after his appointment as Minister of Law,
asked to meet the Bar for a dialogue. Again
this was a welcome change. Immediately
after the launch of the Red Book,
Minister Nazri accompanied by Yeo Yang
Poh, the Bar President and a good number
of lawyers went on a walk about to Central
Market where several thousand Red
Books were distributed to the public. The
act of the Minister in publicly distributing
a booklet on rights upon arrest is
something that was inconceivable two
years ago. More so when mooted by the
Bar. Again this is a welcome change. It is
heartening to note that the Red Book has
been distributed nation wide and all
10,000 copies were given away within a
short period of three weeks. TANGKAP
is now in the midst of doing a reprint.
The Bar salutes these selfless and
dedicated members who have worked
very hard indeed.
Datuk Seri Mohd Radzi Sheikh Ahmad
shortly after his appointment to the
Cabinet as the then Law Minister invited
the Bar to make representations to the
Parliamentary Select Committee looking
into amendments to the Penal Code and
Criminal Procedure Code, which in many
respects are archaic. Many of our
recommendations, including repealing
section 113 CPC, has been included in
the report of the Select Committee. We
have now been asked to make our
comments on the proposed Amendment
Bills.
The Bar is now given greater room in the
national print media to openly discuss
matters of importance to society. The
weekly column by the Bar President in
the NST has afforded the Bar the
opportunity to engage the rakyat in
public discourse.
The wind of change seems to have blown
into the AG Chambers as well. The
Honourable Attorney General has been
engaging the Bar Council on various
issues and we now have established a good
working relationship. The quorum
amendment proposals have been well
received. A series of meetings were held
with the AG as well as his officers and we
hope to see the amendments being tabled
in the current sitting of the Parliament.
The AG has also asked for our input and
comments on the intended reform and
amendments to the Law Reform (Marriage
and Divorce) Act. The Bar Council was
invited by the AG to take part in a
workshop to study the proposed
implementation of community service as
a form of sentencing in criminal cases.
Very importantly, following Murthy’s
case, the government set up a committee
headed by the AG to study and
recommend possible solutions to
problems posed by this case, in particular
matters relating to religious conversion
and its effect on matrimonial regime and
attendant problems of religion and
custody of minors. The Bar was invited
to be part of this committee. We have
played an active role in that committee
and are continuing to play a major role.
All these inclusiveness by the executive
branch, and the AG augers well for the
Bar. In fact I dare say that it augers well
for the nation. Finally, we are being
considered as partners in the quest for
change to build a more open and
transparent society. I can only hope that
this desire for change; the clamour for
openess; the willingness to be inclusive,
lasts to bear fruit and that my optimism is
not misplaced. I have one other wish for
change. That is in respect to the corporate
plunder of the nation's wealth. There
must be a reversal of the current trend of
"nationalising debt and privatising
profits". May be we should all fan the
blowing wind in that direction.
PRAXIS 4 MAY / JUNE_2006
News
M ore than 60 lawyers and
representatives from NGOs, the
US Embassy and the press gathered at the
Bar Council Auditorium this morning, all
for a very noble cause, to witness the birth
of a Red Book or Buku Merah known as
“Polis Dan Hak-Hak Asas Anda”.
Yeo Yang Poh, the President of the Bar
Council, started his speech by thanking
all those in attendance, in particular, Datuk
Seri Mohamed Nazri Bin Abdul Aziz, the
Minister in the Prime Minister’s
Department in charge of Law, for his
valuable time to launch the Red Book.
“I must congratulate a group of dedicated
lawyers known as TANGKAP, in working
tirelessly to produce the self-funded Red
Book,” said Yeo in his opening speech.
“The purpose of the Red Book is aimed at
disseminating valuable information so that
the public would know their basic rights
when faced with the Police.”
The Bar Council has also started an Online
Petition two weeks ago on “Movement
Towards a Better Police Force” in urging the
Government to set up an Independent
Police Complaints and Misconduct
Commission (IPCMC). Yeo hoped more
people will support the Petition by signing
the same.
In reply, Nazri said:
“The Police forces are government
organisations charged with the
responsibility of maintaining law
and order. The main function of
the police is to act as the effective
prevention and detection of crime
and all the powers they enjoy are
geared to that end, so that law and
order in the community may be
maintained and preserved.
“From time to time, we are
reminded that the custodians of
peace are the police who are
empowered to protect us from
criminals. But sometimes in their
fervour, a few of them do transgress
and overstep the boundaries
empowered to them. The Police
are our protectors, and should not
be the persecutor and perpetrator.
It is about time the police give us
a sign that says, “Kami Polis
Berhemah.”
Moving on, Nazri emphasised that while
the police force strives to improve itself,
the citizens of this country will also help
to move the process of reform along if they
are aware of their rights. It is unfortunate
that most people are completely ignorant
of their rights. They do not have the
slightest idea of what the police can or
cannot do.
“The greatest defence of civil liberties is a
citizenry that is conscious of its rights,”
said Nazri. He added that while
institutional change is extremely
important it is also important that we
empower our citizens to stand up for their
rights.
“An individual who is aware of his rights
and is prepared to exert them will in all
likelihood receive better treatment by a
detaining authority than an individual
who is ignorant and prepared to accept
any form of treatment meted out,” said
Nazri.
Remand Orders
On remand orders, Nazri said that
although the Criminal Procedure Code
allows remand orders to be granted not
exceeding 15 days if investigation cannot
be completed within 24 hours of the
Datuk Seri Nazri launches the Red Bookby Cindy Goh Joo Seong & Will Fung Jui Seng
Datuk Seri Nazri and Yeo Yang Poh at the launch
MAY / JUNE_2006 PRAXIS 5
Newsarrest, the Magistrates should not as a
matter of ‘due course’ grant a remand order
against the suspect without checking the
desirability of such an order. The
Magistrate must scrutinise the propriety
of the arrest, not merely exercising their
administrative role, for in many cases there
is no logical connection between the
length of remand period and the alleged
offence.
“Very often, the family members and
lawyers are made to run around
concerning the place of detention. A
telephone call is not regarded as a right
and is discretionary, the de facto Minister
of Law said.
He said all these concerns, added by the
ignorance on the part of citizenry, do not
seem to augur well for the state of human
rights in this country.
Nazri is glad to see the Bar Council living
up to its statutory purpose “to facilitate
the acquisition of legal knowledge by
members of the legal profession and others”
and to “protect and assist the public in all
matters touching, ancillary or incidental
to the law” [Legal Profession Act s.
42(2)(C)& (G)].
Before announcing the official launch of
the Red Book, he congratulated the group
behind the Bar Council which has made
this possible. This group has tirelessly spent
weeks in perfecting the book and this
informal group is known as the “Tindakan
ANti penyalahGunaan KuasA Polis” group
or TANGKAP.
“TANGKAP have initiated this effort of
creating awareness and to provide an easy
step by step guideline which would be
most beneficial in ensuring that everyone
has legal access and to ensure his/her rights
are protected. It is not a code against the
police, but more of informative codes to
ensure personal freedom and dignity,”
stressed Nazri. The Red Book contains four
major languages, in
Bahasa Malaysia,
English, Chinese
and Tamil.
Finally, Nazri said
he actually went
through the
contents of the Red
Book thoroughly,
and found the little
pocket sized Red
Book containing a
wealth of
information in the language of the layman,
and he was impressed to see that
TANGKAP has taken pains to ensure the
public are educated not only on their rights
when confronted by the police, but also
some practical advice to the public with
regard to their responsibilities to assist the
police, for e.g. in paragraphs 3.2 & 3.3 to
co-operate with police if possible even
when not under arrest.
The Minister, accompanied by Yeo and a
group of Tangkapers then went to Central
Market to distribute thousands of copies
of the Red Book to the public.
“An individual who isaware of his rights andis prepared to exertthem will in alllikelihood receive bettertreatment by adetaining authoritythan an individual whois ignorant andprepared to accept anyform of treatmentmeted out,”- Datuk Seri Nazri.
Several young ladies with the Red Book at Johor Bahru
The Red Book being distributed at Central Market, KL
PRAXIS 6 MAY / JUNE_2006
NewsTun Suffian Foundation Fund Raising Dinner- A Note of Appreciationby Dato' K C Vohrah
I would like, as Chairman of the Fund
Raising Dinner Organising
Committee, on behalf of the Tun Suffian
Foundation Incorporated, thank the many
who made the Inaugural Fund Raising
Dinner on Friday, 28 April 2006, a
resounding success. The late Tun Suffian
is obviously well loved and well revered
for his timeless judicial qualities.
Naysayers notwithstanding, the Tun
Suffian Foundation Inaugural Dinner
received a positive and wonderful response
with donations amounting to over
RM600,000.00. The Judiciary, the Bar,
the Attorney General’s Chambers and the
public responded magnificently to the
letter of appeal of YAB Tun Dzaiddin the
Chairman of the Foundation and to the
personal chivying of the members of the
Dinner Committee! When The Sunday
Star 16 April 2006 ran a delightful article
by Chelsea Ng on the reasons for holding
the dinner and on the need for the highly
esteemed qualities of the Tun Suffian to
be emulated especially by the young that
article and a later article by Giam in The
Sun struck a chord in many. Donations
started flowing in. Many outside the
Pantai Valley also responded and the
Dinner Committee had in fact to open a
few more tables on dinner day itself with
over RM50,000.00 in donations pledged
just before the dinner.
To those members of the Judiciary, the
Bar, the Attorney General’s Chambers and
to the public who had magnificently
responded with their donations the
sincere thanks of the Tun Suffian
Foundation.
That the response was so magnificent was
in no small measure due to the royal
presence of His Royal Highness Sultan
Raja Azlan Shah and Her Royal Highness
Tuanku Bainun. His Royal Highness, a
former Lord President, another worthy and
highly respected Lord President, helmed
the highly respected Judiciary after Tun
Suffian. The Foundation thanks His Royal
Highness and Her Royal Highness for
their gracious royal presence and for the
spontaneous donation by His Royal
Highness of RM50,000.00 during the
course of the dinner. It was so generous.
On the royal table as befitted the occasion
was Tun Dzaiddin a former Chief Justice
and his wife. Also there were former Lord
President Tun Salleh and Chief Judge of
Malaya Tan Sri Siti Norma and their
spouses together with the Chief Judge of
Sabah and Sarawak, Tan Sri Steve Shim.
We had Lord Millet a former Lord Justice
of the House of Lords and his wife with
the Vice Chairman of the Bar Council Ms.
Ambiga Sreenevasan as guests of honour
on the next table. We thank all our
HRH Sultan Azlan Shah and HRH Tuanku Bainun with the Trustees of Tun Suffian Foundation
MAY / JUNE_2006 PRAXIS 7
Newshonoured guests for their gracious
presence.
The planning for the dinner took many
months with endless meetings. The pace
become frenetic with
twice a week meetings in
the last month leading to
the dinner.
Dato’ Shaik Daud, Datin
Dr. Liew Yin Mei,
Professor Khaw Lake Tee
and myself (as Chairman),
trustees of the
Foundation, were
appointed as members of
the Fund-Raising Dinner
Committee, and we in
turn co-opted Dato’ Dr.
Yaacob Hussain Merican
and his wife Tunku Dato’
Sofiah Jewa, also trustees, into the
Committee.
We were fortunate when Tan Sri Siti
Norma Chief Judge of Malaya graciously
came on board early part of our planning
and spent many afternoons with us
contributing her experience and giving
insights into what could and what should
not be done. The good response from the
Judiciary and the retired Judges and the
Attorney General’s Chambers is entirely
her effort. We thank her for being an
indispensable mentor to our Committee.
We unreservedly thank the Bar Council
for their unstinting support and for
allowing us the use of their secretarial
services. Fortunately we had Ms Catherine
Eu to manage the incredible number of
details for such a dinner with her usual
depth of knowledge and experience and
her enormous patience.
One of the biggest headaches leading to
the dinner was the planning of who sits
on which table and with whom and which
table goes where. We had the vivacious
and cool Ms Lee Chooi Peng, among
others including the ushers helping out
the night of the dinner. The planning
helped even if there were last minute
changes and fortunately there were just a
few bruised sensibilities and some crushed
toes that night! Catherine Eu deserves our
thanks unreservedly and we also thank Ms
Lynette Tan and Ms Chandrika and Ms
Lee Chooi Peng and the ushers for ably
assisting her.
We are also grateful to Mr Roger Tan of
the Bar Council itself who gave willingly
of his time and at great expense his
expertise in photography and his writing
skills. He worked on and edited the
Souvenir Book for the dinner. It is about
Tun Suffian with poignant recollections
by many on Tun Suffian and his greatness
as a Judge and his innate humility. There
is a quiet but thoughtful article by Roger
Tan reproduced from The New Sunday
Times of 2 April 2006 which also bears
reading. Many have commended the book
and we should print more for distribution
especially for law students and graduates.
The Committee requested for young
lawyers to help out. We were more than
fortunate when
Mr Richard Wee
and Mr Will
Fung joined us.
We never knew
what hit us! These
young lawyers
had terrific
enthusiasm, great
ideas and were on
high octane drive.
They spent a lot
of their precious
time away from
their office and
cheerfully took on
the more onerous
duties from the older members of the
Committee. They were in the thick of
things. Grateful indeed are we to them.
They teamed up with Roger Tan (as
Chairman) on the Publicity, Souvenir
Book, Power Point Presentation and the
Caricature Sub-Committee and sifted
through countless photographs in the
possession of Tunku Dato’ Dr. Hjh Sofiah
and produced a simple but moving
presentation on Tun Suffian, Toh Puan
Bunny, his achievements and his last days.
There were many who quietly wiped away
their tears. We thank the young lawyers,
ably assisted by Ms Chan Wen Lee, for
their wise selection of photographs and
for the appropriate accompanying music.
This Sub-Committee complemented the
Banquet and Hotel Matters Sub-
Committee under the leadership of Dato’
Seri Visu Sinnadurai. That we had
excellent cuisine served us with impeccable
hotel service was in no more measure due
Dato Zaid Ibrahim the successful bidder for the caricature with TunDzaiddin the Chairman of the Foundation
PRAXIS 8 MAY / JUNE_2006
Newsto Dato’ Visu’s refined tastes and his great
rapport with the Hotel Management and
staff. We are greatly indebted to him and
his team.
Ms June Lee our Secretary deserves a very
special thank you. She was the one who
sent out the letters of appeal for donations,
toted up the donations, wrote
innumerable minutes and receipts and
who kept us reminded of what had been
stated in earlier meetings. She was really
efficient and nary a complaint from her
although her precious office time was
being eaten into.
The maestro for the evening was the
inimitable Norina Yahya of TV fame.
Beautiful diction. Calm voice. Directing
effortlessly the flow of the events that
evening as the dinner glided seamlessly
into the night till 11.30pm when it should
have ended at 11.00pm! To the busy and
gracious lawyer and TV personality our
heartfelt thanks for the flawless timing and
for taking off time almost every week for
our sometimes lackluster meetings!
Reggie Lee the well known cartoonist put
RM50,000.00 into our kitty when the
caricature of Tun Suffian which he
sketched was taken up by silent auction
that night. The man modestly said, “This
is my way of contributing back to society
and to keep the legacy of this great judge
alive.” Reggie Lee’s contribution will be
remembered for a long time and we hope
copies of the caricature will hang in our
law office. Thank you Reggie Lee.
The String Quartet, courtesy of Mr
Dennis Lau, provided the ambience of a
truly relaxing evening and our thanks also
go to Mr Lau and his Quartet for the
soothing and relaxed dinner that night.
Electrifying was the grand entrance of
dazzling Joanne Yeoh with her virtuoso
performance with the electric violin. Most
in the hall wanted to hear more but she, it
will be remembered, said “Time is of the
essence!”, no doubt mindful that other
events were waiting in the wings. Our
grateful thanks to Joanne (in spite of the
fact we did not have enough of her) for
donating her precious time.
To the Reluctant Performers, what a show!
As Lord Millet remarked. “They are
remarkably talented!” I was worried when
I approached Sheena, Karen and Sonia for
the Reluctant Performance to appear at
our dinner. Sheena consulted her team and
the team graciously agreed to give a show
in spite of their busy work life. They did it
gratis too. They even returned money
which we provided for their out of pocket
expenses! What a cerebral show and how
so devastatingly clever! Thank you so very,
very much! What a fitting end to the
nights with guffaws aplenty!
To Seh Lih and her team from
SUHAKAM and the Law Faculty the
unreluctant ushers thank you for your tact,
patience and of course the gracious
manners. So also our thank to Alisa of
Hotel Shangri-la and her team for the
extremely well managed dinner service,
hotel lights and sounds.
We would be remiss in our duty if we did
not thank Meor Azmi (YA Tan Sri Siti
Norma’s son) for helping to record the
events digitally. We must not forget Puteri
Fateh Arina, granddaughter of Dato’
Yaacob Merican and Dato’ Sofian who
presented a bouquet of flowers to Her
Royal Highness Tuanku Bainun on behalf
of the Foundation.
I may have missed mentioning some person
or other who helped us and I do apologise
for the omission.
With the generous dinner donations and
what the Foundation had earlier collected,
again through generous donations, the
Foundation will hopefully be able to
establish The Tun Suffian Research Centre
at the UM Law Faculty Library soon to
benefit all undergraduates and we can
certainly make a start to finance one
candidate to pursue a Master’s Programme
at Cambridge.
Thank you, thank you very much.
The remarkably talented Reluctant Performers
MAY / JUNE_2006 PRAXIS 9
NewsFederal Constitution Protection for Allby Wong Fook Meng
The Malacca Bar Committee, in
collaboration with the NGO, Article
11, organised a forum entitled “FederalConstitution Protection For All” at the
Legacy Hotel here recently.
R.R. Chelvarajah, the former Bar President
commenced the forum by stating that the
Malaysian Bar in its quest for justice, hadorganised the forum in the earnest desire
to protect and assist the public in all matters
touching, ancillary or incidental to the law.He also said freedom of religion had been
the focal point in a number of litigated
cases, and therefore justice and law asinvolved in these cases had to be explained
to the citizenry at a forum of this nature.
The first speaker for the night was Meera
Samanther, President of Women’s AidOrganization. Meera sought to give a
human face to individuals whose lives had
been turned upside down due to certaindecisions of the courts. She spoke
passionately about the impact of the
courts’ ruling in cases such as Shamala,Kamariah Ali, M Moorthy, Nyonya Tahir
and Lina Joy. Meera’s presentation was a
great start to the forum as the audiencewas vividly reminded that the issue of
freedom of religion is not an academic
discussion that provides a mere intellectualgourmet for the evening. It is a real and
pressing concern that affects the rights of
every Malaysian to profess and practise hisown chosen faith.
The second speaker was Prof. Shad SaleemFaruqi, an academician and constitutional
law expert. He referred to the Federal
Constitution as Malaysia’s document ofdestiny and examined the issues of Islamic
State, hudud laws, deviationism in religion
and human rights against the backdrop
of the Federal Constitution. He alsoreferred to Article 121 (1A) of the Federal
Constitution and stated that the said
Article did not provide for the problem ofconflict of jurisdiction between the civil
court and the Syariah court. He was of the
view that the determination of issuespertaining to fundamental rights was
within the province of the civil courts and
he proposed for a special court to beestablished or for the High Court to have
a Syariah Division.
Next up was Dato’ Dr. Cyrus Das, an
experienced constitutional lawyer. He
spoke about the culture ofconstitutionalism that places the
Constitution at the centre of theadministration of our country. He
reminded the audience that there could
be an erosion of the rights as enshrined inthe Constitution without us even noticing
it. A cultural redefining and a redrawing
of cultural boundaries can take placeslowly, silently and imperceptibly. He also
spoke against the drive towards conformity
that breeds intolerance and leaves no roomfor dissenting opinions. He concluded
with a note on access to justice and in
likening it to oxygen, he said we neverrealised how important it is until it is taken
away from us.
The fourth speaker for the night was
Malik Imtiaz, another well known
constitutional lawyer and DeputyChairman of the National Human Rights
Committee of the Bar Council. Malik, in
his usual eloquence and wit, spoke aboutthe Islamisation process in Malaysia and
how it had crept forward at a greater pace
in recent times. He said there is confusion
between the aspirations of some people to
make Malaysia an Islamic state and thereality that we are a secular state as
provided under the Constitution. He
believed that we are at a significantcrossroad in the history of our nation and
we have to engage in a culture of dialogue
and deal with the issues of Islamisationwhether in the administration, politics or
the judiciary.
The last speaker for the night was Datuk
Zaid Ibrahim, the Kota Baru MP and
founder of the Malaysian Civil LibertiesSociety. He jolted the audience with his
opening statement, “I think we live in a
sick country!” He then entertained theaudience with his witty and humorous
remarks about race relations in the country,and in particular how the Malays should
co-exist with other races in a harmonious
spirit. He said Islam should not and willnot be threatened by issues of fundamental
liberties. He also stressed that intolerance,
religious bigotry and excessive nationalismshould not be tolerated in a multi racial
and multi religious country like ours.
The forum ended with a question and
answer session and there was some lively
dialogue between the panel of speakersand the audience.
The forum attracted approximately 600people, which is a respectable figure for a
forum held in Malacca. This demonstrates
the fact that the issue of freedom of religionis a very pressing concern in our society as
it touches on the fundamental facet of
being a human, that is, having the rightto choose and practise a faith according to
the dictates of one’s own conscience.
PRAXIS 10 MAY / JUNE_2006
NewsSpeaker rejects MP’s emergency motion onmaltreatment of lawyers by policeby Charles Hector
On 10th May 2006, about 25
lawyers turned up in Parliament
in support of an emergency motion put
in by member of the Bar and Member of
Parliament for Ipoh Barat, M. Kulasegaran
over the harassment, arrest and detention
of lawyer S. Balasubramaniam. The
motion also referred to incidents involving
other lawyers like P. Uthayakumar,
Leonard Teoh, Zainur Zakaria and Cheah
Kah Peng.
Kula’s motion also highlighted the plight
of Kuala Lumpur lawyer Rajasingam, who
was arrested on March 1, for allegedly
using his handphone whilst driving.
Rajasingam said that he was handcuffed
and then beaten by police. He was then
charged under the Road Transport Act for
refusing to give in to their unreasonable
demand that he produce a urine sample.
After being charged in court and released
on bail, he was immediately re-arrested
allegedly for intimidating the police.
Despite the seriousness of the issue, the
Speaker rejected Kula’s emergency motion
without calling the matter up for debate.
Later, Kula called for a press conference
which was attended by several Members
of Parliament including Karpal Singh,
Teresa Kok and Wan Azizah. Ambiga
Sreenevasan, the Vice President of the
Malaysian Bar, also spoke. Thereafter,
Rajasingam, S. Balasubramaniam and P.
Uthayakumar narrated their shocking
treatment by the police.
Among the lawyers present at the press
conference were Ragunath Kesavan (Bar
Council Secretary) George Varughese
(Selangor Bar Chair), Lim Chee Wee
(Kuala Lumpur Bar Chair), Chew Swee
Yoke, M. Puravalen, Sivarasa Rasiah, N.
Surendran, Annou Xavier, Rashid,
Latheefah Koya, Richard Wee, Rajpal
Singh, Ravindra Kumar, Colin Pereira,
Edmund Bon, and Charles Hector.
This was yet another great day for the
Malaysian Bar when once again lawyers
turned up in numbers during a work day
at very short notice to show support for
the plight of fellow lawyers who had been
harassed, beaten, arrested and/or detained
by the police.
Kula's motion was a result of a series of
incidents involving the police and lawyers
culminating in the harrasment and arrest
of S Balasubramaniam on 18 April 2006.
Balasubramaniam's complaint is that he
was at PJ Police Headquarters on that day
to render legal assistance to his clients who
had been detained by the police. Despite
repeated requests, the police refused to give
him basic information on the reason for
the arrests and the status of his clients.
Balasubramaniam said that he was
physically pushed and then unlawfully
arrested by a plainclothes policeman. He
was not given any reason for the arrest
and was released after about 3 hours. On
19th April, he lodged a police report
regarding the earlier incident.
Subsequently, at about 12.00pm on the
27th April 2006, about 40 lawyers
gathered at the PJ Police Headquarters to
hand over to the OCPD a memorandum
of protest which was supported by 112
lawyers .
George Varughese flanked by Charles Hector and Surendran handlingover the memorandum
MAY / JUNE_2006 PRAXIS 11
NewsHowever, the OCPD Mohd Hazam Abd
Halim, refused to come down from his
office and receive the protest
memorandum. George Varughese, the
Selangor Bar Chairman and member of
the Bar Council, handed over the
memorandum of protest on behalf of the
lawyers to a representative of the OCPD.
The members of the press were stopped
at the gate and prevented from entering
the compound of the PJ Police
Headquarters. The lawyers protested this
denial of access to a police station, which
must and should always be open and
accessible to any person but the police
refused to budge and the media were
forced to cover the event from outside the
main gate.
The presence of a team of riot-police,
armed with their shields, protective
helmets and batons was needless to say a
disproportionate show of force to handle
a small group of lawyers; who are officers
of the court, and who were there to
peacefully hand over a protest
memorandum.
On May 2 2006, the Selangor Bar and
Kuala Lumpur Bar representatives met
with the Chief Police Officer of Selangor
on the same matter.
The Malaysian Bar President, Yeo Yang
Poh has written a letter to the Inspector
General of Police seeking an urgent
meeting to discuss this matter. The IGP
has after a reminder agreed to meet the
Bar Council delegation on 7 June 2006.
The issues raised by Balasubramaniam's
case concerns the rights of lawyers to carry
out their duties to the lay client without
fear or favour; and without police
interference and intimidation. We must
not tolerate or accept a violation of this
right which is fundamental to the proper
workings of the criminal justice system.
Learn from Mistakes
Thomas Edison tried two thousand differentmaterials in search of a filament for the light bulb.When none worked satisfactorily, his assistantcomplained, “All our work is in vain. We havelearned nothing.” Edison replied veryconfidently, “Oh, we have come a long way andwe have learned a lot. We now know that thereare two thousand elements which we cannot useto make a good light bulb.”
A section of the lawyers at the peaceful protest
PRAXIS 12 MAY / JUNE_2006
NewsInaugural Dinner Of The Barristers Of The HonourableSociety Of The Inner Temple, Londonby S Radhakrishnan
T hirty seven Barristers of the
Honourable Society of the Inner
Temple residing in Malaysia in response
to an invitation issued by Mr S
Radhakrishnan, a Barrister of Inner
Temple attended the inaugural dinner.
They were YAA Tan Sri Dato’ Haji Abdul
Malek bin Haji Ahmad (Honorary
Bencher of the Inner Temple and President
of the Court of Appeal Malaysia), YAA
Tan Sri Datuk Amar Steve Shim Lip Kiong
(Chief Judge, Sarawak and Sabah), YA
Dato’ Bentara Istana Dato’ Nik Hashim
bin Nik Ab. Rahman (Judge Federal
Court , Malaysia), YA Dato’ James Foong
(Judge Court of Appeal, Malaysia), YA Mr
KP Gengadharan Nair (Judge High Court
Johor Bahru), Dato’ Mahadev Shankar,
Dato’ Thomas Lee, Mr
Thiruchelvasegaram, Mr Lee Leng Guan,
Mr Cheah Kam Chiew, Dato’ Adnan
Shuib, Ms Rasamani Kandiah, Dato’
Param Cumaraswamy, Mr Ponniah
Norendra, Datuk N Chandran, Dato’
Iskandar Michael Abdullah, Dato’ RR
Sethu, Mr Unni Kumaran Menon, Mr
M Balachandran Mahesan, Encik Khalid
bin Mohamad, Encik Mohammad Yacob
bin Karim, Encik HM Nadzir, Puan
Noriati Nadzir, Encik Amir Ismail, Encik
Mohamed bin Dato’ Mahbob, Mr S
Radhakrishnan, Mr CKV Devan, Mr
Wong Tuck Jeong, Mr Devan
Mahalingam, Mr Murelidaran
Navaratnam, Mr Woon Yeow Thong, Ms
Elizabeth Verghis, Mr Nad Segaram, Ms
Jacqueline Chang Li Ch’ ing, Mr
Mugunthan Vadiveloo, Mr Edwin Ng
Aik Win and Dato’ V Sivaparanjothi.
The inaugural dinner was held on 14th
April, 2006 at the Orchid Room, Royal
Lake Club, Kuala Lumpur, Malaysia.
The Honorary Bencher of the
Honourable Society of the Inner Temple,
YAA Tan Sri Dato’ Haji Abdul Malek bin
Haji Ahmad in his welcome speech said
that after consulting some Barristers of the
Inner Temple it was decided to form a body
known as Malaysia Inner Temple Alumni.
He said one of the objectives of forming
the Alumni is to foster fellowship and
fraternity among Barristers of the Inner
Temple residing in Malaysia and to
enhance better understanding by our
Barristers with the Benchers and Treasurer/
Sub-Treasurer of the Inner Temple in
London.
YAA Tan Sri Dato’ Haji Abdul Malek bin
Haji Ahmad announced that a Protem
Group photograph taken of the Malaysian Barrister of the Honourable Society of the Inner Temple at the Inauguraldinner held on 14 April 2006. Seated sixth from the left is Justice Tan Sri Dato' Hj Abdul Malek bin Hj Ahmad (ProtemPresident of the Malaysia Inner Temple Alumni)
MAY / JUNE_2006 PRAXIS 13
NewsCommittee has been formed consisting of
the following members - YAA Tan Sri
Dato’ Haji Abdul Malek bin Haji Ahmad
(President), YA Dato’ James Foong Cheng
Yuen (Vice President), Mr S
Radhakrishnan (Honorary Secretary),
Datuk N Chandran (Honorary Treasurer)
and Committee Members - Dato’
Mahadev Shankar, Dato’ Thomas Lee and
Dato’ Param Cumaraswamy.
He said the application for registration and
other related papers have been submitted
to the Registrar of Societies and Datuk N
Chandran is following up to expedite the
approval of this body. He said the date for
the official launch and dinner in a leading
hotel in Kuala Lumpur has been
tentatively scheduled for Saturday, 16th
September, 2006 subject to obtaining
formal approval of registration from the
Registrar of Societies. He said the Treasurer
or the Sub-Treasurer and some Benchers
of the Honourable Society of the Inner
Temple, London are expected to attend
the official launch of the Alumni.
YAA Tan Sri Dato’ Haji Abdul Malek bin
Haji Ahmad concluded his speech by
thanking the Barristers who attended the
dinner despite the short notice. He said it
was the first time that such a gathering of
Barristers of the Inner Temple has been
held and he was very encouraged by the
response. He appealed to all the diners
present to make a special effort to attend
the official launch.
The guest speaker for the dinner was Dato’
Mahadev Shankar who was the most
senior member at the dinner having been
called to the English Bar at the Inner
Temple in 1955.
Dato’ Thomas Lee in his introductory
remarks of the speaker stated that Dato’
Appeal for particulars of Barristers of the Inner Temple
At the request of the Protem Committee of Malaysia Inner Temple Alumni
the Bar Council provided a list of 165 Barristers of the Inner Temple who
are in the records of the Bar Council. This list does not include the
members of the judiciary, judicial and legal officers, in-house counsel,
law teachers and persons who have retired.
The Protem Committee is in the process of updating the list. It would
be appreciated if Barristers of the Inner Temple could provide the following
details either by letter, fax or email to:
Mr. S. Radhakrishnan
Honorary Secretary
Protem Committee
Malaysia Inner Temple Alumni Association
c/o Shearn Delamore & Co.,
7th Floor, Wi sma Hamzah-Kwong Hing,
No.1, Leboh Ampang,
50100 Kuala Lumpur
Malaysia.
Tel: 603-2076 2856
Fax: 603-2070 6201
Email: [email protected]
All the Barristers concerned are requested to provide the following
particulars - full name, address, telephone number, fax number, email
address and the date he or she was called to the English Bar at the
Inner Temple. Your assistance will be greatly appreciated.
Justice Tan Sri Dato’ Hj Abdul Malek bin Hj Ahmad delivering his welcomespeech. Seated left to right are Dato’ M. Shankar, Dato’ Thomas Lee and Mr.Lee Leng Guan.
PRAXIS 14 MAY / JUNE_2006
NewsMahadev Shankar was called to the
English Bar in 1955 and the Malaysian
Bar in 1956. Dato’ Thomas Lee said that
the speaker has the reputation of being a
very outstanding court lawyer both in civil
and criminal law. After a distinguished
career at the Bar he was elevated to the
Bench of the High Court in 1983 and
subsequently was elevated to the Court of
Appeal in 1994. His elevation to the
Bench was a great loss to the Bar. He retired
from the Bench in 1997 and now practises
as an arbitrator.
The following paragraphs contain a
summary of the speech of Dato’ Mahadev
Shankar.
Dato’ Mahadev Shankar in his speech
stated that he was greatly honoured to be
invited to speak at this historic inaugural
dinner. He said all those present from the
Inner Temple should take great pride in
belonging to the Alumnus. He said that
ours is a noble institution of ancient vintage
with a distinguished track record which is
poised to perform for eternity. Dato’
Mahadev Shankar stated that the number
of notable people who were called to the
Bar of the Inner Temple could easily fill an
encyclopaedia. Among the notable persons
include the Duli Yang Maha Mulia Seri
Paduka Baginda Yang diPertuan Agong,
Tuanku Abdul Rahman, the first sovereign
Ruler of the Federation of Malaya was
called to the Bar of the Inner Temple in
1928. The first Prime Minister of
Malaysia, YTM Tunku Abdul Rahman
Putra Al Haj was also called to the Bar of
the Inner Temple. He said going beyond
our shores world class statesmen and
M embers of the Bar are reminded thatsubscriptions to the following Funds for the year
2006 are now due and payable:
1 Bar Council Subscription RM3502 Bar Council Building Fund RM1003 Bar Council Legal Aid Centre RM1004. Bar Council Sports Fund RM105. Bar Council Lawcare Fund RM100
You are kindly requested to remit the abovesaid paymentsin ONE single cheque for RM660 made payable to ‘BARCOUNCIL’ without having to indicate the respectiveFunds by AR Registered Post as soon as possible. Pleaseadd the necessary Bank Commission for outstationcheque. Kindly also ensure that your name and Sijil Annualnumbers are clearly written on the reverse side of thecheque. The receipt for the sum of RM660 willacknowledge same as ‘Bar Council Subscriptions’ tofacilitate tax exemptions.
Your attention is drawn to Section 46(5) and (6) of theLegal Profession Act 1976, which reads as follows:
(5) Liability to pay any annual subscription to theMalaysian Bar shall arise when the subscriptionhas been fixed by the Bar Council. All annualsubscription to the Malaysian Bar shall be paidby the 30TH DAY OF JUNE OF EACH YEAR.
(6) An advocate and solicitor shall, if he pays hisannual subscription after the date mentioned insubsection (5), pay to the Bar Council, in additionto the subscription date, AN AMOUNTEQUIVALENT to the subscription so due.
Please note that the deadline for payment of annualsubscription on June 30 will be strictly applied and noapplication for waiver of penalty will be entertained.
Bar Council Subscriptions 2006
politicians such as Mohandas
Karamchand Gandhi, Jawarlal Nehru,
Mohamed Ali Jinnah and Clement Atlee
were also called to the Bar of the Inner
Temple.
He said each Barrister present at the dinner
to be able to claim kinship with such very
distinguished persons was a unique
privilege.
At the end of the dinner everyone present
endorsed the decision to form the Alumni.
They also pledged to attend the official
launch.
Justice Mr. K.P. Gengadharan Nair in serious discussion with Justice Tan SriDatuk Amar Steve Shim Lip Kiong. The others in the picture from the leftare Mr. Ponniah Norendra and Dato’ Iskandar Micheal Abdullah
MAY / JUNE_2006 PRAXIS 15
NewsDoyen of the Malaysian Bar, Datuk Wrigglesworth dies
Datuk HL Wrigglesworth, the most
senior member of the Malaysian
Bar, passed away early morning on 12
May 2006. He was 88.
According to his close friend, lawyer
Benedict Cheang, a week before his
death,Wrigglesworth was attacked and
robbed in his home. During the robbery,
the old but energetic lawyer was pushed.
He fell and was injured. He was then
admitted to Hospital Pakar Perdana where
he died a week later.
A Malaysian citizen, Wrigglesworth was
called to the Malaysian Bar on 7 October
1948 after being admitted to the
Honourable Society of Gray’s Inn,
London.
On March 2, the Kelantan Bar celebrated
his 88th birthday after the conclusion of
its annual general meeting. He had always
lived in Kelantan and had even authored
a book detailing the Japanese Occupation
in Kelantan in 1941.
“The Kelantan Bar is saddened by the
demise of our most senior and well-known
member,” said Indran Rajalingam, the
Kelanatan State Bar Representative.
Wrigglesworth was Chairman of the
Kelantan Bar for many years. He was also
a member of the Bar Council for 30 years,
and had always taken a strong interest in
the affairs of the Bar and administration
of justice in this country.
In 2002, incensed by the Federal Court’s
dismissal of the former deputy prime
minister Anwar Ibrahim’s appeal against
his conviction and six-year sentence for
corrupt practices, Wrigglesworth called on
the Bar Council to immediately convene
an extraordinary general meeting to
consider what could be done about the
unsatisfactory state of the judiciary which
he described to be “worse than in 1988
when the judges did nothing to help the
judiciary which consequently fell into
worldwide disrepute”. He was quoted to
have said:
“There should be another EGM as I
cannot believe that the majority of the
Malaysian Bar are prepared to accept this
appalling situation and am confident that
they would insist upon some radical
changes.
“It is important for the Bar Council to do
something about the present situation.
“(In 1988) the Malaysian Bar rose to the
occasion magnificently when it passed
important resolutions by 1,002 votes to
nil.
“This established the high international
reputation that the Malaysian Bar has
enjoyed for the past 14 years, but unless
we take immediate action, our reputation
will sink to the depths of that of the
judiciary.”
Such was the passion of the man to uphold
justice and the rule of law. The Malaysian
Bar will forever value his support and
contribution to the legal fraternity
spanning some 58 long years.
Haji Sulaiman Abdullah a past President
of the Malaysian Bar said that he was
"grievously saddened by the cause of
Dato’s distressing end. He was a gem of a
man and lawyer and an invaluable
member of the Bar Council for so many
years. When I was Secretary of the
Malaysian Bar I often sought guidance
both from him and his close friend and
another gem of the Bar, Dato Dr Peter
Mooney. Both of them spoke eloquently
during the deliberations of the Council
and the Bar and Malaysia were
immeasurably strengthened by their love
for, and contributions to, the profession
and country. Wrigglesworth never sought
to bask in the glory of being the oldest
member of the Bar. Yet, he was very
serious about what he considered as his
duty to the Bar and to the Administration
of Justice."
May his soul rest in peace.
Kelantan Bar celebratedWrigglesworth’s 88th birthday afterits AGM on March 2.
PRAXIS 16 MAY / JUNE_2006
NewsBench & Bar Games 2006 – Malaysia Triumphsby Edmund Bon and Editorial Team
With no clear winner over the
Bridge, the battle continued with
lawyers from both countries fighting it out
at the 2006 Malaysia/Singapore Bench &
Bar Games held north of Malaysia in
Langkawi from 28th to 30th April. In the
process history was unwittingly created.
The games started off with the Welcome
Dinner hosted by the Kedah/Perlis Bar
Committee at the Boardwalk facing the
sea at the Awana Porto Malai. The dinner
was well attended with Chief Justice of
Malaysia Tun Ahmad Fairuz and Chief
Justice of Singapore Chan Sek Keong
leading their respective contingents. There
were also an unusually large number of
members judges from both countries
present. This was a welcome change.
Darts was played at the Boardwalk while
the Welcome Dinner was in progress. This
allowed the diners to cheer on their
respective teams. The atmosphere was
wonderful and it was a perfect start to the
weekend of activities. Singapore won darts.
The following morning, the beach and
cross country run was held. The run started
at Pantai Tengah, the runners then jogged
along Pantai Cenang and then onto the
bunds on the paddy fields at the Laman
Padi and then run back to Pantai Tengah
for the finish. Malaysia won this event.
Most of the other games for the day were
played at the well equipped and modern
LADA Sports Complex in Kuah. Our
netball girls did us proud. Malaysia won
netball 49-19. Tennis this year was a close
call. Though, Singapore won tennis 4-3.
Our team put up a spirited fight. Well
done Ranjit and gang. Keep up the good
work and we will over run them soon.
As expected, Malaysia trounced Singapore
5-0 in badminton. Did I hear someone
say Thomas Cup? Malaysia and Singapore
drew squash 1-1 after our boys’ rackets
were mishandled by Air Asia crew on the
way here. Hockey was a walkover, with
Malaysia handed a 2-0 score-line after
Singapore decided not to send a team on
analyzing past results.
Malaysia continued its winning form. We
won table tennis 3-0. Malaysia easily won
bowling 10-3 but Singapore succeeded
in ladies’ soccer with a rather gratuitous
goal.
Veteran soccer, an aged-affair, saw the
Malaysian keeper save a penalty before our
Lee Tee Keat (incidentally, who also gave
away the penalty) scoring from outside of
the box with an unstoppable shot. Premier
soccer ended the day, but was a yawn with
Malaysia going up 3-0 before halftime,
and supporters leaving the stadium early
for dinner and drinks. Malaysia ran out
winners after downing Singapore 5-1.
In the battle of the minds, Chess was
drawn at 2½ each. It was all Malaysia in
swimming and tug-of-war. What with our
Chief Justice and other judges cheering
on the team. At the close of the 1st day,
the overall result was 7 wins for Malaysia,
1 draw and 2 wins for Singapore in respect
of the competitive games. With respect to
the non-competitive games which were
played in the usual amicable spirit, the
result was 3 wins for Malaysia, 1 draw
and 1 win for Singapore.
Sunday was another early day but with
Malaysia way ahead, the Games was
perhaps a foregone conclusion and
Singapore could well have played for pride
only. The final day of the Games saw 5
events, 3 of which were non-competitive.
Malaysia prevailed in both competitive
games: golf by 720-533 and cricket by 7
wickets. This was a historic occassion as it
was the first time that an international
cricket match had been played
competitively on the shores of Langkawi.
We are indeed proud to have brought the
game to Langkawi. Though done at great
expense and effort, it was worth it.
Justice Tan Sri Steve Shim lifting theJudges Trophy
MAY / JUNE_2006 PRAXIS 17
NewsAt the beach, Singapore won beach soccer
5-4 and Malaysia beach volleyball 3-2.
Singapore ran out clear winners of the boat
race when our usually excellent and reliable
Carolyn Oh choked in the midst of the
first down.
Malaysia triumphed 9½ - 2½ at the end
of the Games which was played in a very
competitive yet fair spirit.
The Final Night Dinner at the Grand
Ballroom of Awana Porto Malai where the
Malaysian contingent stayed was fun-
filled and energy-packed. The usual
speeches and formal pleasantries were
exchanged by the respective Presidents of
the Malaysian Bar and Singapore Law
Society, and souvenirs changed hands.
Wonder at the storage space for annual
events such as this.
There were performances by a band and
then a singer who entertained the diners,
and whilst the food could have been better,
one cannot usually harbour high
expectations of hotel fare.
The Mentri Besar of Kedah closed the
Games. The diners by then had already
commenced celebrations at the back of the
Ballroom and outside. Friendly heckling
and ribbing between the Malaysian and
Singaporean contingents were heard
throughout the night particularly when
the results of each game were announced.
As the night wore on, it was evident that
everyone had a good time and many
continued the party at various nightspots
in Langkawi, including a Reggae Bar by
the Cenang Beach.
There will be another Games the next year,
and it is expected to be better!
Dato’ VP Nathan has been a strong
supporter of the Bench/Bar
Games since its inception in 1969 when
he was still a bachelor. Since then, he
and his family have been a permanent
feature in every series of the Games to
give moral and sometimes financial
support. Players come and go, but one
thing we can be sure of at the Games
each year is Dato’s quiet but steadfast
support for the Malaysian team, with
Datin at his side. At the final night
dinner of the 2006 Bench and Bar
Games in Langkawi, the President of the
Bar presented a token of appreciation to
Dato’ for his unfailing support. We look
forward to having Dato’ and Datin at
the Games for many more years to come.
SPECIAL APPRECIATION TODATO' V P NATHAN
The President presenting the token of appreciation to Dato’ VP Nathan
Dato’ & Datin V P Nathan with Ravichandran the Sports Com Chairman
PRAXIS 18 MAY / JUNE_2006
NewsSnapshots of the Bench & Bar Games 2006
MAY / JUNE_2006 PRAXIS 19
NewsRaja Aziz Addruse elected Commissioner of ICJby Web Reporter & Gurmeet Kaur
The International Commission of
Jurists (ICJ) today announced the
election of Raja Aziz Addruse as a new ICJ
Commissioner.
Two other leading jurists from Asia-Pacific
elected as new ICJ Commissioners were
Imrana Jalal (Fiji) and Professor Vitit
Muntabhorn (Thailand), increasing from
nine to twelve the number of members of
the ICJ from Asia-Pacific.
The ICJ is an international non-
governmental organisation comprising
sixty of the world’s most eminent jurists
and has a worldwide network of national
sections and affiliated organisations. It
consists of 60 leading jurists from all
regions of the world, who are elected by
existing Commissioners to join the ICJ.
The ICJ also announced that Justice
Arthur Chaskalson, former Chief Justice
of South Africa, was re-elected ICJ
President for a further two-year term.
Justice Chaskalson also chairs the ICJ
Eminent Jurists Panel on Terrorism,
Counter-Terrorism and Human Rights. In
this round of elections two new Vice-
Presidents were elected: Professor Leila
Zerrougui, (Algeria), who has most
recently served as chairperson of the United
Nations Working Group on arbitrary
detention and Professor Jochen Frowein,
Director of the Heidelberg-based Max
Planck Institute for Comparative Public
Law and International Law who is also a
former Vice- President of the European
Commission of Human Rights.
According to a press release from the ICJ,
Raja Aziz Addruse is a leading practising
lawyer from Malaysia and former President
of the Malaysian Bar. He is recognised as
have contributed greatly to human rights
protection and promotion, including as
an advocate in landmark cases (including
those relating to Tun Salleh Abas, Lord
President of the Supreme Court in 1988;
Dato’ Seri Anwar Ibrahim, former Deputy
Prime Minister of Malaysia and Dato’
Param Cumaraswamy, secretary of the Bar
Council in 1985).
He graduated with an LLB (Hons) from
the University of Bristol, England in 1958
and was called to the English Bar at
Lincoln’s Inn in 1959.
He served in the Judicial and Legal Service
in Malaysia first as Assistant Parliamentary
Draftsman from 1960-1963 and then as
Deputy Parliamentary Draftsman from
1963-1965.
He was called to the Malaysian Bar in
January 1966 and commenced practice
then.
He has been a member of the Malaysian
Bar Council first from 1968-1983 and
subsequently from 1988-1989, 1992-
1994 and finally from 1999-2001.
He has also been Chairman of the
Malaysian Bar Council four times
including from 1975-1976, 1976-1977,
1988-1989 and again in 1992-1993.
He has also been a member of the
Executive Committee of the National
Society for Human Rights (HAKAM) since
1991. He participated in the ICJ Mission
to Hong Kong in 1991. He served as
President of HAKAM twice; first from
1992-1997 and again in 2000-2001.
ICJ’s immediate past vice-president Datuk
Param Cumaraswamy in his statement
issued here Thursday said Raja Aziz’s
election, is a recognition of his untiring
contribution to the cause of human rights
and judicial independence which are
prerequisites for a just rule of law.
“This is also a distinct honour for Malaysia
and the legal profession,” he said.
Raja Aziz is the third Malaysian to be
elected as Commissioner of this prestigious
international organisation of distinguished
jurists.
Previous Commissioners were Tun Mohd
Suffian and Param, who completed his
term of 15 years as Commissioner and the
last year as Vice-President.
ICJ was founded in 1953 and over the
years earned international recognition as
the Global Advocate of the rule of law.
PRAXIS 20 MAY / JUNE_2006
NewsBAR COUNCILDiary of upcoming CLE Events 2006
MEDIATION SKILLS TRAINING COURSE AT
PENANG
14-18 June 2006Officer in Charge: Ms. Marianna
CLINICAL LEGAL EDUCATION / LAWYER
SUPERVISOR TRAINING WORKSHOP
14 June 2006Officer in Charge: Ms Lynette Tan
INTELLECTUAL PROPERTY BASIC
LICENSING COURSE
16-17 June 2006 (to be conf )Officer in Charge: Ms Lynette Tan
MEDIATION SKILLS TRAINING COURSE AT
IPOH
21-25 June 2006Officer in Charge: Ms Marianna
ETHICS LECTURE PROGRAMME
21 & 22 June 2006Officer in Charge: Ms. Lilian
MARITIME LAW PRE-CONFERENCE
EVENT
23 June 2006Officer in Charge: Ms Gurmeet Kaur
INDUSTRIAL COURT PRACTICE
WORKSHOP “THE LAW ON SECTION 20REPRESENTATIONS”24 June 2006Officer in Charge: Mr Dominic Chan
TALK ON REAL ESTATE INVESTMENT
TRUST
27 June 2006Officer in Charge: Ms Lynette Tan
TALK (MONASH UNIVERSITY M’SIA -STUDY ABROAD PROGRAMME)29 June 2006 (11-1pm)Officer in Charge: Ms Elizabeth
BAR COUNCIL STAFF IN HOUSE TRAINING
1 July 2006 (9am-12.30noon)Officer in Charge: Ms Rebecca
INDUSTRIAL COURT PRACTICE WORKSHOP
“DRAFTING OF PLEADINGS (SECTION 20DISMISSAL ACTION)”15 July 2006Officer in Charge: Mr Dominic Chan
PUBLIC FORUM “INDEPENDENT POLICE
COMMISSION (IPCMC): YES OR NO?”.20 July 2006Officer in Charge: Mr. Rajan
WORKSHOP ON NEW ARBITRATION ACT
21 July 2006Officer in Charge: Ms Marianna
INTERNATIONAL LEGAL AID CONFERENCE
21-23 July 2006Officer in Charge: Ms Chandrika
ETHICS LECTURE PROGRAMME
26 & 27 July 2006Officer in Charge: Ms Lilian
LAWASIA LABOUR LAW CONFERENCE
10-12 August 2006Officer in Charge: Ms Lynette Tan
INDUSTRIAL COURT PRACTICE WORKSHOP
“DRAFTING OF PLEADINGS (SECTION 20DISMISSAL ACTION)”19 August 2006Officer in Charge: Mr Dominic Chan
ETHICS LECTURE PROGRAMME
23 & 24 August 2006Officer in Charge: Ms. Lilian
FAMILY LAW - MEN’S RIGHTS FORUM
9 September 2006Officer in Charge: Mr Dominic Chan
INDUSTRIAL COURT PRACTICE
WORKSHOP “ADDUCING EVIDENCE INTHE INDUSTRIAL COURT (PREPARATION
OF BUNDLE OF DOCUMENTS AND
DRAFTING WITNESS STATEMENTS-SECTION 20 DISMISSAL ACTION)”16 September 2006Officer in Charge: Mr Dominic Chan
ETHICS LECTURE PROGRAMME
20 & 21 September 2006Officer in Charge: Ms. Lilian
INDUSTRIAL COURT PRACTICE
WORKSHOP “ADDUCING EVIDENCE INTHE INDUSTRIAL COURT (PREPARATION
OF BUNDLE OF DOCUMENTS AND
DRAFTING WITNESS STATEMENTS-SECTION 20 DISMISSAL ACTION)”14 OCTOBER 2006Officer in Charge: Mr Dominic Chan
ETHICS LECTURE PROGRAMME
8 & 9 November 2006Officer in Charge: Ms. Lilian
INDUSTRIAL COURT PRACTICE
WORKSHOP “CONDUCTING INDUSTRIAL
COURT TRIALS (SECTION 20 DISMISSAL
ACTION)”18 NOVEMBER 2006Officer in Charge: Mr Dominic Chan
INDUSTRIAL COURT PRACTICE
WORKSHOP”CONDUCTING INDUSTRIAL
COURT TRIALS (SECTION 20 DISMISSAL
ACTION)”9 DECEMBER 2006Officer in Charge: Mr Dominic Chan
* For updates/changes, please visit our website atwww.malaysianbar.org.my
MAY / JUNE_2006 PRAXIS 21
NewsMembers of the Bar ‘march’ to Bukit Amanby Dinesh Nair a/l Krishnan Kvuavn
Some 30 members of the Malaysian
Bar ‘marched’ all the way from the
High Courts at Jalan Raja to the Royal
Malaysian Police Headquarters at Bukit
Aman Kuala Lumpur to show support for
our representatives who were meeting the
Inspector General of Police (“IGP”) this
morning.
We were however stopped by the police
sentries at the entrance of the police
headquarters and were denied entry. We
continued to remain outside the entrance,
waiting resolutely for the conclusion of
the meeting.
The said meeting was called to address
among others, the Bar’s concern in respect
of alleged police misconduct against
lawyers S. Balasubramaniam and V. Raja
Singam.
The Bar was in the meeting led by its
President, Yeo Yang Poh. Others who were
present were Ragunath Kesavan
(Secretary), Vazeer Alam (Treasurer),
Council members Sulaiman Abdullah,
Hendon Mohamed and Lim Chee Wee
as well as Catherine Eu, Kenneth Goh
and Rajen Devaraj from the Bar Council
secretariat.
We waited at the entrance till about
11.30am. When questioned on the
outcome of the meeting, the President
replied that there was now a better
understanding by both parties as to each
other’s positions on various matters,
particularly as follows:
• The Inspector General
said that investigations of
police misconduct against
S. Balasubramaniam had
been completed and the
result of the police
findings had been sent to
the Attorney General for
instructions. He could not
disclose the findings of the
investigation as the
Attorney General is now looking into
the matter.
• As for V. Raja Singam’s case, the police
had completed their investigations
which had been sent to the Attorney
General. V. Raja Singam has refused
to give a statement as he wants to file a
civil suit.
• There was an agreement to draw up a
protocol document to regulate the
relationship between lawyers and the
police with regards to situations when
lawyers wish to see their clients in
remand. Both parties are to work out
the details.
• The IGP initiated a new ‘mechanism’
to prevent a further recurrence of
similar problems, and to expedite
matters involving lawyer-police affairs.
This new ‘mechanism’ is the
appointment of a senior police liaison
officer to work exclusively with the
Bar in an effort to foster better
relationship and understanding
between both parties.
• The Bar and the IGP agreed to
disagree on the establishment of the
IPCMC. The IGP spoke about the
effect of lowering the morale of the
force and the problem of insufficient
remuneration such as non-payment of
overtime. He also said there was a need
to revise the salary structure of the force
and further to re-vamp the Public
Service Department. The Bar’s
position is that the public’s
expectations is to have an independent
body to provide a check and balance
mechanism for police abuses and
corruption, and these expectations
should be met to create better trust in
the force and improve the same.
• There will be further follow-up
meetings between the Bar and the IGP
to maintain the culture of dialogue
and improve relations.
On the whole, the impression we received
was that the meeting was fruitful in
bridging the gap between the Bar and the
police force, but there is still a long way to
go in implementing better practices and
good governance of the force in this
country. We then adjourned for lunch in
the hope that our efforts and the meeting
would bring about a better Malaysia.
PRAXIS 22 MAY / JUNE_2006
SecretariatContact List of Committee Chairpersons 2006/2007Contributed by Web Reporter
ANTI MONEY LAUNDERING
Chairperson: KRISHNA DALLUMAH
Tel: 06- 7622 051/ 7616 159 Fax: 06- 7622 306
Email: [email protected]
Officer in Charge: GURMEET KAUR
Tel: 03- 2031 3003 ext 143
DL: 03- 2032 4498
Email: [email protected]
ARBITRATION & ADR
Chairperson: HJ KUTHUBUL ZAMAN BUKHARI
Tel: 07- 2229 788/ 9 Fax: 07- 2238073
Email: [email protected]
Officer in Charge: MARIANNA LAUREEN TAN
Tel: 03- 2031 3003
Email: [email protected]
BAHASA MELAYU
Chairperson: HJ HAMID SULTAN ABU BACKER
Tel: 2693 5677 Fax: 2282 5797
Email: [email protected]
Officer in Charge: HAFSYAM OTHMAN
Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071
Email: [email protected]
CONVEYANCING PRACTICE
Chairperson: ROGER TAN
Tel: 07- 2211 888 Fax: 07- 2211 889
Email: [email protected]
Officer in Charge: ROHANI ADNAN
Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184
Email: [email protected]
SOLICITORS’ REMUNERATION ENFORCEMENT
Chairperson: ROGER TAN
Tel: 07- 2211 888 Fax: 07- 2211 889
Email: [email protected]
Officer in Charge: EMILY LEE
Tel: 03- 2031 3003 ext 189 DL: 03- 2031 5769
Email: [email protected]
CORPORATE & COMMERCIAL LAW
Chairperson: JERALD GOMEZ
Tel: 2031 4151 Fax: 2031 4131
Email: [email protected]
Officer in Charge: EMILY LEE
Tel: 03- 2031 3003 ext 189 DL: 03- 2031 5769
Email: [email protected]
CRIMINAL LAW
Chairperson: V. SITHAMBARAM
Tel: 04- 2299 905 Fax: 04- 2299 978
Email: [email protected]
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: [email protected]
FAMILY LAW
Chairperson: LALITHA MENON
Tel: 04- 2632 719 Fax: 04- 2632 720
Email: [email protected]
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: [email protected]
FINANCE
Chairperson: VAZEER ALAM MYDIN MEERA
Tel: 04- 7317 933 Fax: 04-7315 633
Email: [email protected]
Officer in Charge: LILY AW
Tel: 03- 2031 3003 ext 118 DL: 03- 2026 9818
Email: [email protected]
GATS
Chairperson: MAH WENG KWAI
Tel: 2698 2588 Fax: 2691 3017
Email: [email protected]
Officer in Charge: KENNETH GOH
Tel: 03- 2031 3003 ext 139 DL: 03 –2031 2825
Email: [email protected]
MAY / JUNE_2006 PRAXIS 23
SecretariatGENDER ISSUES & EQUAL OPPORTUNITIES
Chairperson: YASMEEN SHARIFF
Tel: 2693 3276/ 7 Fax: 2693 1280
Email: [email protected]
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: [email protected]
HUMAN RIGHTS
Chairperson: CECIL RAJENDRA
Tel: 04- 2626 018 Fax: 04- 2622 228
Email: -
Officer in Charge: RAJEN DEVARAJ
Tel: 03- 2031 3003 ext 194 DL: 03- 2032 1715
Email: [email protected]
INDUSTRIAL COURT PRACTICE
Chairperson: STEVEN THIRU
Tel: 2031 1788 Fax: 2031 1775/ 8/ 9
Email: [email protected]
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: [email protected]
INTELLECTUAL PROPERTY
Chairperson: NGAN SIONG HING
Tel: 05- 2551 333 Fax: 05- 2558 799
Email: [email protected]
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: [email protected]
INFORMATION TECHNOLOGY AND CYBERLAW
Chairperson: LIM CHEE WEE
Tel: 2094 8111 Fax:2094 3211
Email: [email protected]
Officer in Charge: SOON PER LANG
Tel: 03- 2031 3003 ext 135 DL: 03- 2031 8561
Email: [email protected]
LAW REFORM & SPECIAL AREAS
Chairperson: DATO’ RAMACHELVAM
Tel: 09- 2961 262/ 473 Fax: 09- 2962 073
Email: [email protected]
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: [email protected]
LAWCARE, CHARITY & WELFARE
Chairperson: INDRAN RAJALINGAM
Tel: 09- 7482 742/ 7448 705/ 7444 600 Fax: 09- 7487966
Email: [email protected]
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: [email protected]
LEGAL PROFESSION
Chairperson: TONY WOON
Tel: 06- 7651 711/ 2 Fax: 06- 7651 713
Email: [email protected]
Officer in Charge: KENNETH GOH
Tel: 03- 2031 3003 ext 139 DL: 03 –2031 2825
Email: [email protected]
LIBRARY
Chairperson: HJ SULAIMAN ABDULLAH
Tel: 03- 7960 9235 Fax: 03- 7960 9235
Email: [email protected]
Officer in Charge: DR PATHMAVATHY
Tel: 03- 2031 3003 ext 156 DL: 03- 2031 5082
Email: [email protected]
NATIONAL LEGAL AID
Chairperson: FREDRICK INDRAN NICHOLAS
Tel: 05- 5482 324 Fax: 05- 5482 341
Email: [email protected]
Officer in Charge: HAFSYAM OTHMAN
Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071
Email: [email protected]
NATIONAL YOUNG LAWYERS
Chairperson: EDMUND BON
Tel: 03- 2055 3888/ 3909 Fax: 03- 2055 3880/1
Email: [email protected]
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: [email protected]
PROFESSIONAL DEVELOPMENT
Chairperson: KRISHNA DALLUMAH
Tel: 06- 7622 051/ 7616 159 Fax: 06- 7622 306
Email: [email protected]
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: [email protected]
PRAXIS 24 MAY / JUNE_2006
SecretariatPROFESSIONAL INDEMNITY INSURANCE
Chairperson: RAGUNATH KESAVAN
Tel: 03- 2095 2299 Fax: 03- 2093 7670
Email: [email protected]
Officer in Charge: VINODHINI SAMUEL
Tel: 03- 20313003 ext 141 DL: 03- 2032 1870
Email: [email protected]
PUBLICATIONS
Chairperson: VAZEER ALAM MYDIN MEERA
Tel: 04- 7317 933 Fax: 04-7315 633
Email: [email protected]
Officer in Charge: GURMEET KAUR
Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498
Email: [email protected]
RULES AND REGULATIONS
Chairperson: JERALD GOMEZ
Tel: 03- 2031 4151 Fax: 03- 2031 4131
Email: [email protected]
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: [email protected]
SHIPPING & ADMIRALTY LAW
Chairperson: HJ HAMID SULTAN ABU BACKER
Tel: 03- 2693 5677 Fax: 03- 2282 5797
Email: [email protected]
Officer in Charge: GURMEET KAUR
Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498
Email: [email protected]
SPORTS
Chairperson: GEORGE VARUGHESE
Tel: 03- 7954 9095 Fax: 03- 7955 2789
Email: [email protected]
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: [email protected]
STUDY LOAN
Chairperson: R R CHELVARAJAH
Tel: 06- 2823 911 Fax: 06- 2846 244
Email: [email protected]
Officer in Charge: LILY AW
Tel: 03- 2031 3003 ext 118 DL: 03- 2026 9818
Email: [email protected]
SYARIAH LAWS
Chairperson: MOHAMED SAZALI ABD AZIZ
Tel: 09- 2965 715 Fax: 09- 0965 707
Email: [email protected]
Officer in Charge: HAFSYAM OTHMAN
Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071
Email: [email protected]
STANDING COMMITTEE FOR THE PROMOTION OF
BEST PRACTICES BY DETAINING AUTHORITIES
Chairperson: AMBIGA SREENEVASAN
Tel: 03- 2095 2122 Fax: 03- 2095 1322
Email: [email protected]
Officer in Charge: RAJEN DEVARAJ
Tel: 03- 2031 3003 ext 194 DL: 03- 2032 1715
Email: [email protected]
STANDING COMMITTEE ON COURT RULES
Chairperson: DATO’ CECIL ABRAHAM
Tel: 03- 2070 0644 Fax: 2078 5625/ 2034 2763/ 20706201
Email: [email protected]
Officer in Charge: ROHANI ADNAN
Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184
Email: [email protected]
STANDING COMMITTEE ON ELIMINATION
DISCRIMINATION
Chairperson: CHARLES HECTOR
Tel: 03- 7958 1844 Fax: 03- 7954 4018
Email: [email protected]
Officer in Charge: GURMEET KAUR
Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498
Email: [email protected]
STANDING COMMITTEE TO REVIEW LPA 1976
Chairperson: DATO’ DR PETER MOONEY
Tel: 03- 2094 8111 Fax: 03- 2094 3211
Email: [email protected]
Officer in Charge: ROHANI ADNAN
Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184
Email: [email protected]
14TH MALAYSIAN LAW CONFERENCE ORGANISING
COMMITTEE
Chairperson: GEORGE VARUGHESE
Tel: 03- 7954 9095 Fax: 03- 7955 2789
Email: [email protected]
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: [email protected]
MAY / JUNE_2006 PRAXIS 25
CommitteeIT & Cyberlaws Committee 2006/2007by Lim Chee WeeChairmanIT & Cyberlaws Committee
Dear Members,
The IT & Cyberlaws Committee 2006/2007 was recently
ratified by the Council and recently convened their first
meeting.
We would like to begin the 2006/2007 term by encouraging all
members of the Bar, especially those who are not subscribed to
our emailing list to do so in order to facilitate effective and
efficient dissemination of information. With a membership base
of 12,000, the Bar Council currently only has approximately
7,100 email addresses on our emailing list. Of these, only
approximately 6,400 are valid email addresses.
Therefore, we would appreciate it if all members of the Bar
would send in your email addresses in order for us to update the
email list by writing in to the IT Department. If you are already
on the list but have changed your email address, please also
include your old address. For verification purposes, please fax or
mail us the above information on your firm’s letterhead.
Earlier this year, the IT & Cyberlaws Committee undertook an
IT Usage Survey. The purpose of this Survey is to assess the level
of IT usage amongst law firms in order for the Bar Council’s IT
related efforts (whether in the form of training, workshops or
special vendor offerings) to be geared towards the actual as
opposed to the perceived needs of the members of the Bar. The
survey form was initially emailed to members of the Bar. However,
it is still accessible online at http://www.malaysianbar.org.my/
content/view/2525/226. We duly encourage all members to
actively participate for the benefit of the Bar in the long run.
We would appreciate if only one member of each firm completes
this survey. Should you prefer to remain anonymous, you may
do so. In answering the survey, if you are unsure of the response
to a question posed, please do not answer the particular question.
If you have further enquiries, please contact Mr. Soon Per Lang
at 03-20318561.
We welcome any feedback and comments you may have to
improve the Bar Council’s delivery of IT related services.
Thank you.
The Secretariat's New Addition
Press & PublicationExecutive Officer: Gurmeet KaurTel: 03 - 2031 3003 ext 143 / DL: 03 - 2032 [email protected]
The Bar Council wishes to announce
the appointment of our new ExecutiveOfficer; Gurmeet Kaur.
Gurmeet is legally qualified from the University ofLancaster, England and the University of Technology
Sydney, Australia. She is also an Advocate and Solicitor
of New South Wales, having practiced in the areas ofcivil and criminal litigation before joining the Bar
Council.
Her primary responsibilities will be to assist in the following
committees: Publications, Shipping and Admiralty Law,Anti-Money Laundering and the Standing Committee on
Eliminating Discrimination.
Gurmeet is looking forward to working with members to
enhance the role played by each of these committees.
PRAXIS 26 MAY / JUNE_2006
CommentMove to Drop Written Argumentsby Wong Fook Meng
I refer to the article in New Straits Times
dated 01.02.2006 where Chief Justice
Tun Ahmad Fairuz Sheikh Abdul Halim
was reported to say that lawyers can drop
the use of written arguments in favour of
oral submissions in simple court hearings.
Indeed, this is a welcome move to the legal
profession and to the consumers of legal
services.
I am of the view that there are certain
inherent disadvantages of cases being
decided on written submissions alone,
especially in simple applications that come
before the court.
When cases are decided purely on written
submission, there is no face to face
interaction between the counsel and the
judge. In most cases, written submissions
are filed and then a date is fixed for
decision. There is no opportunity for
counsel to make any oral submission. As
such, if the court has certain doubts on a
counsel’s argument, there is no
opportunity for the court to pose further
enquiries to the counsel. During an oral
argument, the Judge may interject the
counsel with questions and the counsel
could respond to the questions
accordingly. However, such an interaction
will be absent when cases are decided on
written submissions alone.
Judges are also deprived from having an
audio visual advantage of an oral
argument. Any communication is
enhanced when there is an oral
presentation. Non verbal communication
is also a dimension of advocacy. A strategic
pause, a raised eyebrow and even hand
gestures can speak volumes. Thus, essential
arguments can be enhanced when counsel
runs an attractive oral argument before the
court. In an oral argument, counsel can
amplify or explain certain major points of
a submission. Counsel can breath life into
black print on white paper.
Further, written submissions are time
consuming. Instead of completing an oral
submission in court on the appointed
hearing day, counsel has to return to their
chambers and churn out written
submissions. This is a lengthy and laborious
process which consumes the professional
time of a lawyer and increases the cost for
consumers of legal services.
Due to the sheer volume of cases filed in
court and the limited judicial time to hear
oral arguments, lawyers have to accept the
fact that the practice of the courts ordering
written submissions will be a necessary
facet of our judicial system. However, it is
hoped that for simple applications that
can be easily disposed off by way of oral
submission, both judicial officers and
lawyers will consider a determination of
the matter by way of oral submissions.
Sir Gerard Brennan, former Chief Justice
of Australia, in his address entitled, “Key
Issues in Judicial Administration”1, has this
to say about oral and written submission:
“Written [argument] and oral
argument are not alternative
means of advocacy. They are
complementary, and both call for
an application of the advocate’s art
and skill. Written arguments can
provide the intellectual building
blocks for the conclusion
advanced. But written argument
does not exhaust the advocate’s
function. In oral argument, the
advocate is to display the issue for
determination in an attractive way,
to respond thoughtfully to
judicial questioning, to rebut
firmly adverse judicial pre-
conceptions, to captivate the
judicial mind by reasoned
argument concisely and
courteously expressed and to lead
it on the true path of judgement.
The use of written and oral
argument to complement each
other can shorten the time of
hearing and enhance the impact
of essential points.”
Dangerous consequenceswill follow when politiciansand rulers forget moralprinciples. Whether webelieve in God or karma,ethics is the foundation ofevery religion.
- Tenzin Gyatso, the 14thDalai Lama quotes, b.1935
PRAXIS 27MAY / JUNE_2006
CommentBahasa Inggeris merupakan bahasa yanglebih sesuai di Mahkamahby Shaikh Abdul Saleem
Saya ingin mengambil isu ke atas
dakwaan saudara Yusmadi yang
kegagalan di dalam perlaksanaan
kegunaan bahasa Malaysia di Mahkamah
adalah terbit dari, “sikap malas pengamal
undang-undang...”. Adalah menyedihkan
bahawa walaupun saudara Yusmadi
sendiri merupakan seorang pengamal
undang-undang, saudara gagal untuk
melihat kepincangan di dalam polisi
menggunakan bahasa Malaysia sebagai
bahasa undang-undang. Saya akan cuba
perjelaskan satu persatu faktor-faktor yang
menyokong pengataan saya di atas.
1. Politik Semasa
Seksyen 8 Akta Bahasa Kebangsaan.
Pindaan kepada Akta ini untuk
menukarkan “shall be in the national lan-
guage or the english language” kepada “na-
tional language” sahaja telah dibuat sekitar
tahun 1989/90 yang mana pindaan ini
telah berkuatkuasa pada 30.3.1990.
Sebelum itu, melalui Nota Amalan No. 2
1988, Mahkamah telah memulakan proses
penyelarasana penggunaan bahasa Malay-
sia.
Sepertimana yang saudara sedia maklum,
pada sekitar tempoh tersebut juga, 1988-
1990, UMNO telah mengalami krisis
yang terbesar dalam sejarahnya. Berikutan
dari itu, krisis perundangan negara kita
juga bermula. Polisi bahasa malaysia ini
telah mendapat penekanan yang luar biasa
daripada kerajaan pada ketika itu untuk
menunjukkan kepada penyokong akar
umbi umno pada masa itu bahawa umno
ketika itu adalah lebih kemelayuannya,
lebih membela bangsa melayu daripada
‘umno’ yang terlebih dahulu. Tambahan
lagi, kemerosotan perhubungan antara
badan kehakiman dan kerajaan pada masa
itu juga telah menjadi pemangkin
terhadap penegasan bahasa malaysia ke atas
Mahkamah tanpa penelitian secara
terperinci di buat. Pada ketika ini, dapat
dilihat bahawa terdapat penukaran polisi
pula oleh kerajaan. Setelah menyedari
bahawa daya saingan negara telah merosot
akibat dari penegasan bahasa malaysia yang
terlampau yang telah menjejaskan
penguasaan bahasa Inggeris, sekarang ini
terdapat pula pusingan ‘U’ di dalam polisi
bahasa malaysia dalam mana bahasa
inggeris menjadi bahasa pengantar di
dalam 2 subjek di sekolah.
2. Common Law
Sekiranya saudara Yusmadi menyedari,
proses perundangan di Malaysia adalah
berdasarkan proses ‘common law’. Saya rasa
tidak perlu saya menerangkan proses ini
kepada saudara memandangkan saudara
pasti telah memperlajarinya (samada di
universiti dalam negeri ataupun luar).
Asas-asas prinsip perundangan seperti
kontrak, tort dan sebagainya adalah masih
dari prinsip-prinsip dari English Law.
Penguasaan bahasa Inggeris adalah amat
perlu untuk mengamati kes-kes yang telah
diputuskan dari bindangkuasa lain yang
mengamal common law, seperti kes-kes
England, Singapura dan dari India. Dalam
inilah pengamatan bahasa amat penting
yang mana sekiranya kes-kes ini perlu di
terjemahkan ke dalam bahasa Malaysia,
bukan hanya mungkin akan
menyebabkan hilangnya maksud sebenar,
malah yang lebih penting lagi akan
mengakibatkan pembaziran masa!
Tidakkah pernah saudara Yusmadi
membuat hujahan di Mahkamah yang
mana kes yang dirujuk adalah kes House
of Lords. Tidakkah kesukaran dihadapi
apabila membaca petikkan di dalam bahasa
inggeris dan kemudiannya cuba
menterjemahkan kepada Mahkamah
dalam bahasa Malaysia?
3. Kedaulatan Bahasa Malaysia tidak
tergugat
Saya merujuk kepada India sebagai contoh.
Itu merupakan suatu negara yang begitu
kuat semangat nationalistiknya.
PRAXIS 28 MAY / JUNE_2006
CommentKedaulatan ‘Mother India” adalah segala-
galanya. Tetapi, sekiranya dilihat, bahasa
pengantaraan di Mahkamah adalah bahasa
Inggeris. Buku-buku ilmiah perundangan
ditulis di dalam bahasa inggeris (bukan
terjemahan!) dan dijual di luar negeri,
termasuk di sini. Cuba saudara fikirkan,
sekiranya ianya di tulis di dalam bahasa
Hindi, adakah ia akan menjadi bahan
rujukan untuk pengamal undang-undang
diluar India?
4. Indonesia bukanlah contoh baik
Seandainya saudara tidak mengetahuinya,
Indonesia mengikuti tradisi undang-
undang sivil berdasarkan perundangan
Belanda. Tidak ada konsep ‘precedent’
wujud. Oleh itu tidak perlu menuruti kes-
kes terdahulu ataupun luar negara. Sistem
perundangannya wujud di dalam vakum
yang hanya melibatkan Indonesia sahaja.
Dengan demikian, ianya boleh hidup
dengan bahasa Indonesia sahaja.
Berkenaan dengan kekaguman saudara
melihatkan penguasaan bahasa oleh
peguam luar negara di Indonesia, saya
berpendapat bahawa tidak perlu saudara
kagum dengannya, firma antarabangsa
seperti itu mempunyai matlamat untuk
keuntugan, sekiranya ia perlu berbahasa
jawa sekalipun, sekiranya ia akan
mendatangkan keuntungan saya pasti
beliau akan dapat menguasai bahasa jawa.
5. Ada sebab mengapa seksyen 8
mempunyai pengecualian
Kembali kepada seksyen 8 Akta Bahasa
Kebangsaan. Sepertimana yang saudara
sendiri telah menyatakan, terdapat
pengecualian penggunaan bahasa malaysia
iaitu, “sekiranya mahkamah berpendapat
bahawa keadilan akan terjejas melalui
penggunaan bahasa kebangsaan tersebut”.
Persoalan kepada saudara ialah, sekiranya
perbicaraan tersebut merupakan
perbicaraan dalam kamar yang dihadiri
oleh peguamcara dan hakim yang
mendengar. Sekiranya autoriti-autoriti dan
dokumentasi yang dirujuk adalah di dalam
bahasa inggeris dan penghujahan dalam
bahasa malaysia akan melambatkan
prosiding, bukankah itu akan menjejaskan
keadilan?
6. Dokumentasi, perjanjian semua di
dalam bahasa inggeris
Sepertimana yang saudara sendiri sedia
maklum, hampir semua dokumentasi
institusi kewangan dan swasta adalah
dalam bahasa inggeris. Sekiranya dilihat
perjanjian konsesi kerajaan pun, ianya
dalam bahasa inggeris. Dalam keadaan ini,
setakat manakah keadilan dapat dicapai
dengan penggunaan bahasa malaysia?
7. Laporan kes-kes dan buku
perundangan
Sekiranya bahasa inggeris dikekalkan di
Mahkamah, laporan kes-kes akan dibuat
didalam bahasa inggeris. Ini bermakna,
penghakiman hakim-hakim di Malaysia
boleh dirujuk di bidangkuasa luar com-
mon law lain seperti di Singapura dan In-
dia. Tidakkah itu lebih baik? Lupakan
saudara bahawa sehingga hari ini, terdapat
lagi penghakiman oleh Y.M. Raja Azlan
Shah yang masih di rujuk di England?
Tidakkah ini lebih membanggakan
saudara yang kita boleh mengembalikan
zaman kegemilangan badan kehakiman
negara ini? Atau saudara lebih selesa seperti
katak di bawah tempurung?
8. Kepincangan Diri Sendiri?
Daripada nada artikel saudara, saya dapati
begitu banyak penekanan di buat
berkenaan dengan graduan luar negara
ataupun dalam negara. Saya adalah
seorang graduan luar negara dan saya tidak
mempunyai masalah di dalam bahasa
malaysia mahupun Inggeris. Saya
mengenali ramai pengamal undang-
undang seperti saya, tidak kira samada
graduan luar negara mahupun dalam
negara. Itu pada saya bukan kayu
pengukur dalam isu bahasa ini. Sekiranya
seorang peguam itu tidak dapat menguasai
bahasa inggeris dengan baik, maka itu
adalah suatu keadaan yang agak serius
memandangkan undang-undang yang
dipelajarinya di universiti adalah
berdasarkan common law yang mana kes-
kes yang menjadi asas ijazahnya adalah di
dalam bahasa inggeris! Oleh yang
demikian, bagi peguam sendiri, isu bahasa
ini tidak menjadi penghalang kerana
dengan sendirinya dan dengan ‘natural’,
apabila seorang itu menjadi peguam,
beliau adalah dianggap berkebolehan
dalam bahasa inggeris dan juga bahasa
malaysia.
Sebagai rumusan, saya berpendapat
bahawa isu bahasa ini adalah suatu isu
politik yang dipolitikkan apabila tiada isu
lain yang boleh dipolitikkan. Dari segi
praktikal, bahasa inggeris merupakan
bahasa yang lebih sesuai di Mahkamah
kecuali sekiranya terdapat saksi-saksi atau
litigan yang hanya boleh berbahasa
malaysia. Dalam keadaan itu, maka
menjadi tanggungjawab sebagai pengamal
undang-undang untuk memastikan
prosiding difahami oleh litigan tersebut
dan ini dapat dicapai dengan
menggunakan bahasa perantaraan, bahasa
malaysia.
"You do not do evil to
those who do evil to you,
but you deal with them
with forgiveness and
kindness."
- Prophet Muhammad
PRAXIS 29MAY / JUNE_2006
CommentBahasa Melayu Mampu Menjadi BahasaPerundangan Negaraby Dara Waheda Mohd Rufin
Bahasa Melayu merupakan bahasa
keempat dalam turutan bahasa yang
paling banyak penuturnya selepas bahasa
Mandarin, bahasa Inggeris dan bahasa
Hindi dengan anggaran lebih 300 juta
penuturnya. Sejak kewujudan bahasa
Melayu bukan hanya static pada sebutan
dan nahunya sahaja malah mengalami
perkembangan yang begitu pesat dan
dikatakan bahasa yang lebih mudah
dipengaruhi dan menyerap bahasa-bahasa
lain di dunia seperti bahasa Jawa, Arab,
Inggeris, Sanskrit dan sebagainya.
Walau bagaimanapun, sekitar tahun
1970-an, bahasa Melayu di Malaysia telah
dikenali sebagai bahasa Malaysia atas sebab
sosiopolitik negara ini. Kerajaan
berkeinginan mewujudkan satu bangsa
Malaysia yang dapat disatukan dengan
satu bahasa. Sehubungan itu, Bahasa
Melayu telah dijadikan bahasa rasmi
negara dengan kelonggaran diberikan
kepada amalan bahasa ibunda yang lain.
Hasrat kerajaan tersebut amat jelas, slogan
“Bahasa Jiwa Bangsa” telah diperkenalkan.
Semua papan tanda berbahasa Inggeris
diturunkan dan digantikan dengan Bahasa
Malaysia. Di mahkamah-mahkamah
khususnya di Mahkamah Rendah, slogan
“Gunakan Bahasa Kebangsaan” juga telah
dipamerkan. Malangnya sambutannya
amat dingin.
Pelbagai alasan diberikan untuk
memperlekehkan usaha ini. Sukar untuk
kita mendapatkan satu impak yang
berkesan jika tiada implementasi
berterusan dilakukan. Sebagai seorang
peguam lulusan universiti tempatan, saya
melihat kegagalan ini berpunca dari sikap
tidak ambil peduli masyarakat
terutamanya di kalangan peguam.
1. Alasan Common Law
Memang tidak dapat dinafikan bahawa
keadilan itu perlu ditegakkan tanpa
mengambil kira apa bahasa pun yang
dipakai dan tinggalkan isu peguam selesa
berbahasa Inggeris di kamar Mahkamah,
tetapi sampai bila alasan undang-undang
kita diwarisi dari undang-undang
Common Law Inggeris menghalang
perkembangan bahasa Malaysia dalam
konteks perundangan? Buku-buku seperti
Sistem Torrens Di Malaysia oleh Prof. Salleh
Buang, Jurisprudens dan Teori Undang-
undang dalam konteks Malaysia oleh Prof.
Badariah Sahamid, Panduan Amalan
Litigasi di Malaysia oleh N Nahendran dan
Gopal Sreenivasan terbitan Sweet &
Maxwell dan banyak lagi buku-buku
bahasa Inggeris yang telah diterjemahkan
ke dalam bahasa Malaysia menunjukkan
tiada perkara yang mustahil melainkan kita
sendiri yang tidak mahu melakukannya.
Soal penggunaan bahasa Inggeris dalam
penulisan ilmiah undang-undang adalah
soal untuk mendapatkan tempat di atas
meja peguam antarabangsa tetapi jika kita
masih di bumi Malaysia, sukar rasanya saya
menerima hakikat peguam tidak dapat
berbahasa Malaysia dengan baik malah
lebih melucukan bila mereka lebih fasih
berbahasa Inggeris dan sangat janggal
berbahasa Malaysia terutamanya mereka
yang bersekolah di Malaysia dan
mengambil kertas dan lisan Bahasa
Melayu/Malaysia sebagai kertas wajib
peperiksaan utama.
2. Kemajuan di peringkat
antarabangsa
Ada rungutan mengenai kegagalan
berbahasa Inggeris dengan baik telah
menyebabkan kesukaran untuk rakyat kita
bersaing di luar negara. Mengambil kira
kedudukan bahasa Inggeris yang sangat
penting dan sentiasa dijadikan alasan
untuk maju. Kerajaan telah memaksa
penggunaan bahasa Inggeris dalam 2
subjek penting di sekolah. Tetapi adakah
usaha ini akan berjaya? Lihat sahaja kertas
Bahasa Melayu yang telah dijadikan kertas
wajib sejak berdekad-dekad yang lalu pun
belum mampu menggalakkan
penggunaannya dikalangan mereka yang
tidak mahu menggunakannya. Jika tidak
mahu, tidak jadi juga.
Orang Amerika/Barat boleh maju kerana
kebanyakan buku2 ilmiah mereka adalah
dalam bahasa mereka atau diterjemahkan
ke dalam bahasa mereka. Jadi mengapa
kita sebagai bangsa Malaysia tidak boleh
melakukan perkara yang serupa
memperbanyakkan lagi buku-buku
rujukan dalam bahasa Malaysia atau
menterjemahkannya ke dalam bahasa
Malaysia. Itu lebih baik daripada
memberikan serupa alasan mengapa bahasa
Malaysia tidak sesuai digunakan dalam
Mahkamah. Saya ingin menyatakan usaha
PRAXIS 30 MAY / JUNE_2006
Commentini bukan sahaja dapat menarik minat
peguam malah masyarakat biasa juga
terutama yang bermediumkan bahasa
kebangsaan dapat mengetahui serba-
sedikit tentang undang-undang. Barulah
pendekatan “ignorance of law is not an
excuse” boleh sesuai digunakan kepada
semua tertuduh di Mahkamah.
3. Kagum penggunaan Bahasa
Malaysia di kalangan bangsa asing
Semasa di sekolah rendah, saya mendapat
gred yang teruk dalam Bahasa Melayu
berbanding bahasa Inggeris. Ini
berlangsung ke sekolah menengah
sehingga saya bertemu seorang rakan
warganegara Jepun melalui rancangan
pertukaran pelajar. Beliau fasih berbahasa
Melayu, makan dengan tangan dan tahu
adat resam orang Malaysia. Patutkah saya
berasa malu pada rakan itu. Sudah
semestinya. Beliau hadir ke sini lengkap
dengan bahasa kita sedangkan pada masa
yang sama kita sendiri tidak mahu
memperbaiki penguasaan bahasa kita
sendiri. Saya juga difahamkan kita juga
perlu mendalami bahasa Jepun jika mahu
belajar atau bekerja di sana.
4. Dokumentasi, perjanjian semua di
dalam bahasa Inggeris
Sudah hampir 50 tahun kita merdeka
namun usaha untuk merangka
dokumentasi dan perjanjian dalam bahasa
Malaysia sangat kurang. Adakah mereka-
mereka yang menjadi penasihat undang-
undang di institusi kewangan adalah
warga asing? Jika mereka warga Malaysia
mengapa tidak mahu cuba rangka sesuatu
ke dalam bahasa Malaysia. Jawapannya
hanya satu “MALAS” kerana merangka
sesuatu perjanjian dalam bahasa Malaysia
boleh disamakan dengan merangka
sesuatu yang baru sedangkan mereka lebih
gemar menceduk perjanjian-perjanjian
lama yang telah di susun sejak zaman
penjajah lagi. Jika penterjemahan
dilakukan mengambil masa yang panjang
dan kerana itu mereka MALAS.
5. Laporan kes-kes dan buku
perundangan
Ada juga pihak yang menyamakan hasrat
untuk melihat bidang kehakiman
menggunakan bahasa Melayu ibarat katak
dibawah tempurung dan saya sangat malu
jika ada warganegara Malaysia yang masih
beranggapan sedemikian dan merendah-
rendahkan usaha ini. Sejarah telah
menunjukkan banyak teks berbahasa
Melayu diterjemahkan ke dalam bahasa
Inggeris dan pihak penjajah mengenali kita
melalui terjemahan teks-teks berkenaan.
Jika ada pihak yang melihat ramai rakyat
negara ini masih berada di bawah
tempurung jangan cuba risaukan mereka
dan lakukan sesuatu sebelum keluar
menjadi hero di peringkat antarabangsa.
Undang-undang negara ini hendaklah
terpakai mengikut keadaan semasa negara
ini dan bukan untuk mengikut acuan
negara lain.
6. Graduan Tempatan
Saya adalah graduan tempatan yang
meluluskan diri di peringkat Sarjana Muda
dan Sarjana dengan penulisan bahasa
Malaysia. Kebolehan berbahasa Inggeris
bukanlah kayu pengukur kejayaan
seseorang pelajar tetapi “di mana ada
kemahuan di situ ada jalan”. Saya pernah
menterjemah senaskah buku
Administration Law oleh Prof MP Jain
dan lain-lain buku berbahasa Inggeris
berpandukan kamus Bahasa Inggeris-
Malaysia untuk lulus dalam subjek-subjek
di universiti.
Isu bahasa bukanlah isu politik tetapi satu
isu sosiopolitik yang perlu diambil
perhatian. Bukanlah mahu menjadikan
rakyat Malaysia lebih Malaysia tetapi cuma
mahu memupuk semangat cintakan
bahasa dan budaya Malaysia. Kita
sepatutnya kagum pada usaha-usaha
peguam yang cuba mendaulatkan bahasa
kita sendiri.
Saya ingin berkongsi satu pengalaman
ketika di Mahkamah berhadapan dengan
seorang peguam senior yang
memperlekehkan saya kerana berbahasa
Malaysia di Mahkamah dan mendakwa
saya tidak akan maju hanya dengan bahasa
Malaysia. Dan saya membuktikan
dakwaannya salah kerana saya masih boleh
maju dalam bidang saya walaupun dengan
firma yang mengamalkan hampir 100%
bahasa Malaysia.
“SARKAR. WHERE ARE YOU?”
It happened in a Magistrate ‘s Court in Penang sometime ago. Counselin a Civil Case were hammering away hammer & tongs on law andfacts. When both counsel quietened down, the Learned Magistrateasked the Court Interpreter, who always appeared to be bored andasleepy, to get SARKAR. Immediately the Interpreter stand up andcalled “SARKAR” to come forward. The Learned Magistrate flushedwith anger asked the Interpreter if he understood what he requested.He replied “Yes Your Honour”. I have called 3 times and there is nosign of him. I ask for a warrant of arrest to be issued. That brought theCourt ceiling down. The Learned Magistrate quickly left the Bench.The Interpreter swore that he heard the Learned Magistrate laughingaway in his Chambers.
- N T Vello
PRAXIS 31MAY / JUNE_2006
CommentJudges and Accountabilityby Datuk Param CumaraswamyFormer UN Special Rapporteur on the Independence of Judges and Lawyers.
THE statement by Chief Justice Tun
Ahmad Fairuz Sheikh Abdul Halim
in the Federal Court on March 7 that the
immunity of a judge is not absolute, that
a judge is not above the law, and that if
mala fide (bad faith) can be proved then a
judge can be got at, raises interesting
questions regarding judicial independence
and judicial accountability. It is necessary
first to state why judges are insulated with
certain guarantees.
The principle of separation of powers in
Government is the bedrock of a democratic
state based on the rule of law. Judicial
power is one of the three powers of such a
Government.
It is pursuant to this power that justice is
dispensed in disputes not only between
citizens but also between citizens and the
Government and its agencies.
Hence the need to vest this judicial power
independently of the legislative and
executive powers of the Government,
with adequate guarantees to insulate it
from political and other influence in order
to secure its impartiality.
The guarantees include the judges’
security of tenure — they cannot be
removed except for conduct deemed by
law as unfit for office, and even then it
must be by a special mechanism provided
by law.
An age of retirement is provided for and
their salaries cannot be reduced. Under
the common law system, they are vested
with the power of contempt of court; they
enjoy immunity from legal process for
anything said or done in the discharge of
their duties as judges.
All these guarantees are entrenched to
protect the independence and impartiality
of judges and the independence and
integrity of the courts. It is founded on
public policy.
With regard to immunity, Lord Denning
in a 1975 case said: “The reason is not
because the judge has any privilege to make
mistakes or to do wrong. It is so that he be
able to do his duty with complete
independence and free from fear.”
Subject to these guarantees to enable them
to discharge their judicial duties, judges
are subject to the law just like any other
citizen.
Accountability and transparency are the
very essence of democracy. In a democracy
not one single public institution or, for
that matter, even a private institution
dealing with the public is exempt from
accountability.
Hence the judicial arm of the
Government, too, is accountable.
However, judicial accountability is not the
same as the accountability of the executive
or the legislature or any other public
institution. This is because of the
independence and impartiality expected
of the judicial organ.
Judges are accountable to the extent of
deciding the cases before them
expeditiously in public (unless for special
reasons) and delivering their judgments
promptly and giving reasons for their
decisions.
Their judgments are subject to scrutiny
by the appellate courts. No doubt legal
scholars and even the public, including
the media, may comment on the
judgment.
If judges misbehave then they are subject
to discipline by the mechanism provided
under the law. Beyond these parameters,
they should not be accountable for their
judgments to others.
The judicial function is unique. In a
judgment, the Supreme Court of Canada
in 2002 had this to say: “Our society
assigns important powers and
responsibilities to the members of its
judiciary. Apart from the traditional role
of an arbiter who settles disputes and
adjudicates between the rights of the
parties, judges are also responsible for
preserving the balance of constitutional
powers between the two levels of
Government in our federal state.
“Public confidence in and respect for the
judiciary are essential to an effective
PRAXIS 32 MAY / JUNE_2006
Commentjudicial system and, ultimately, to
democracy founded on the rule of law.
Many factors, including unfair or
uninformed criticism, or simple
misunderstanding of the judicial role, can
adversely influence public confidence in
and respect for the judiciary.
“Another factor which is capable of
undermining public respect and
confidence is any conduct of judges, in
and out of court, demonstrating a lack of
integrity. Judges should, therefore, strive
to conduct themselves in a way that will
sustain and contribute to public respect
and confidence in their integrity,
impartiality, and good judgment.
“The public will, therefore, demand
virtually irreproachable conduct from
anyone performing a judicial function. It
will at least demand that they give the
appearance of that kind of conduct. They
must be and must give the appearance of
being an example of impartiality,
independence and integrity. What is
demanded of them is something far above
what is demanded of their fellow citizens.”
Judges, too, have freedom of expression.
The United Nations Basic Principles on
the Independence of the Judiciary require
judges to exercise their freedom of
expression “in such a manner as to preserve
the dignity of their office and the
impartiality and independence of the
judiciary”.
Similarly, the Beijing Statement of
Principles of the Independence of the
Judiciary in the LAWASIA region (the Law
Association for Asia and the Pacific) states
that judges are entitled to freedom of
expression “to the extent consistent with
their duties as members of the judiciary”.
It follows that judges do not have carte
blanche to say all and sundry, either in the
adjudicating process or even in their extra-
judicial capacities.
Particularly in the adjudicating process,
they must be circumspect with their words
to maintain their objectivity and
impartiality. Otherwise, they will lose their
judicial decorum and eventually their
insulation from the guarantees for judicial
independence.
A case in point took place in South Africa.
In October 1999, in sentencing a 54-year-
old man to seven years’ imprisonment in
the Cape Town court for raping his 16-
year-old daughter, the judge said that
while raping his daughter was “morally
reprehensible” the act was “confined” to
his daughter and that, therefore, the man
did not pose a threat to society. He further
said that the girl had a good chance of
recovery.
In a country where it was said that there
was a rape committed every 36 seconds
and where the law provides a minimum
sentence of life imprisonment unless there
are mitigating circumstances, these
pronouncements unleashed a wave of
anger among women’s rights groups. The
prosecutor instantly filed a notice of appeal.
In the aftermath, newspapers reported a
parliamentary committee had summoned
the judge to appear and explain himself
over the sentence.
This led to a counter- protest from judicial
circles as such action by Parliament would
amount to encroachment into judicial
independence. The tension between
judicial independence and judicial
accountability came alive in the
controversy.
Surely it was wrong for Parliament to
summon the judge. The proper procedure
was for the prosecutor to appeal to correct
the error, if there was one. That is what
appellate courts are for. In this case the
prosecutor had appealed.
As for the remarks of the judge, the proper
procedure was for a complaint to be
referred to the disciplinary body of the
judiciary. The wisdom of the Minister of
Justice in a public statement quelled the
situation. He said, inter alia:”In terms of
our Constitution, the judiciary is
independent from both the legislative and
the executive. The principle of separation
of powers and the independence is
strongly entrenched in our Constitution.
“The judiciary, as an organ of state, had to
be accountable in its actions, but this did
not mean that judges should appear before
a parliamentary committee to explain their
judgments.”
Mala fide is a state of mind relating to
some ulterior motive for an action or
statement, including observations in
judgments. It is often difficult to prove
the state of a judicial mind in the
adjudicative process.The UN’s Basic
Principles on the Independence of the
Judiciary does not expressly provide that
only statements made in good faith are
protected with immunity.
However, an analogy can be drawn from
the UN’s Basic Principles on the Role of
Lawyers, which provide expressly that
lawyers “shall enjoy civil and penal
immunity for relevant statements made
in good faith in written or oral pleadings
or in their professional appearances before
the court”.
Even if mala fide can be proved against a
PRAXIS 33MAY / JUNE_2006
Commentjudge for statements made in the
adjudicative process, at most the judge
concerned may only be subjected to
discipline through the competent
disciplinary mechanism.
He may not be subjected to civil suits for
monetary damages. This is expressly
provided for in the UN’s Basic Principles
on the Independence of the Judiciary.
Paragraph 16 states: “Without prejudice
to any disciplinary procedure or to any
right of appeal or to compensation from
the state, in accordance with national law,
judges should enjoy personal immunity
from civil suits for monetary damages for
improper acts or omissions in the exercise
of their judicial functions.”
In a judicial system modelled on the
common law, mala fide could rear its ugly
head in other aspects. It could show up in
situations like the selection and
recommendation for judicial
appointments and promotions.
The UN’s Basic Principles on the
Independence of the Judiciary expressly
provides that such appointments and
promotions be based on merit and the
system should safeguard against
appointments and promotions made for
“improper motives”.
Hence, in the case of judicial promotions
when a junior judge is seen promoted over
a more senior and competent judge, such
promotion will be perceived as being made
for improper motives and therefore made
mala fide.
It is to avoid such public perceptions that
more countries today have constitutionally
entrenched mechanisms for selecting and
recommending judicial appointments and
promotions. Even the United Kingdom
has opted for such a mechanism.
Malaysia, too, should move in that
direction. As stated earlier, judicial
independence is founded on public
confidence in the system and therefore
public perceptions cannot be ignored.
This is to notify members that there
have been complaints raised to the
Bar Council that some Pupil Masters are
not properly attired at pupil's long calls.
Members are referred to Circular No.
34/2004 that was issued by the Bar
Council in respect to this matter.
Pupil Masters are reminded that when
you robe your pupils during call
proceedings, you should be dressed in
Court attire (although not necessarily
robed).
The Guidelines adopted by the Bar
Council stipulates the following Dress
Code:
i) Gentlemen:
Shirt: White (long/short sleeves) with
white wing collar and bands
Slacks: Black / Dark Trousers
Jacket: Black. No brass buttons
Robe: Black
Shoes: Black / Dark Shoes
Head-dress: Black/navy blue/dark grey/
white
ii) Ladies:
Blouse: White (long/short sleeves) with
white wing collar and bands
Skirt (below the knees): Black / Dark
Traditional Dress: Subtle floral patterned
prints in black / dark colours
Jacket: Black. No brass buttons
Nylons (optional): Skin-tones only
Shoes: Black / Dark. Court shoes, no
sandals
Robe: Black
Head-dress: Black/navy blue/dark grey/
white. Subtle floral patterned prints also
permitted.
It will be appreciated if all members could
strictly observe the dress code when
appearing to robe your pupils during
call proceedings in order to preserve the
dignity of the profession.
Dress Code for Pupil Masters on call days
PRAXIS 34 MAY / JUNE_2006
CommentThe aftermath of the Federal Court judgment inAdorna Properties Sdn Bhd vs Boonsom Boonyanitby Kong Kim Leng
Many articles have been written byboth legal practitioners and
academicians expressing their grave
concern on the decision of the FederalCourt in respect of the above controversial
landmark case.
In a nutshell, the Federal Court held that
a bona fide purchaser who purchased a
property from the fraudulent act of a thirdparty who forged the registered owner’s
signature on the transfer form becomes
the rightful and lawful owner and theinnocent registered owner has no recourse
to recover the property.
A year after the Federal Court’s decision,
my firm in 2002 handled a fraudulent
land transaction similar to the BoonsomBoonyanit case. Our client then aged 72
is the sole registered owner since 1954 of
a piece of valuable land over 20 acres.
Initially we acted for him to apply for a
new issue document of title to replace hisold torn and tattered title deed.
Subsequently in 2002 when he decided
to sell his land, a search of the land title atShah Alam Land Office showed that his
land was transferred to a third party and
charged to a bank by a private limitedcompany notwithstanding that he did not
sell or charge the land and the new original
document of title is in his possession. Tohis surprise when he went to pay the quit
rent, he discovered the quit rent had
already been paid by someone else.
When questioned, the Land Administrator
at the Shah Alam Land Office told us therewas no instrument of transfer involved
and that this was a cheating case. Without
further ado, our client lodged a policereport, entered a private caveat and applied
to enter a registrar’s caveat on his own land.
A summon was then issued by my firm
on our client’s behalf against the third party
and the chargee Bank. The Solicitors forthe third party denied that their client was
involved in the fraudulent transfer and
alleged that someone made use of theirclient’s name. The Solicitors for the chargee
Bank did not deny the charge to the Bank.
After taking the above actions and before
our client’s case was heard in the High
Court another search was conducted onthe land title. To our surprise and relief
the search disclosed the land title is free
from encumbrances and registered backin our client’s name.
Our client’s case was highlighted in TheStar newspaper under the heading “Tapper
shocked to find land no longer his”
showing his photograph holding theoriginal land title. It is sad to note that the
police report lodged by our client served
no purpose. Notwithstanding the fact thatthere were many scandals highlighted in
the newspapers, until now there was no
reply from the police authority about theirinvestigation to our client’s report.
Our client may be lucky to recoverownership of his land, but the question is
what will happen to other landowners
who may lose their property throughfraud or forgery ? Applying the Boonsom
Boonyanit case, they have no legal
protection. They are still in fear and indanger of losing their property through
fraud and forgery. They will only realise
their loss when they decide to transfer theirproperty to their loved ones or to dispose
of their property.
Perhaps and hopefully in the near future
another Boonsom Boonyanit case is
brought before a new panel of the FederalCourt who would view the case differently
and decided in favour of the innocent
registered landowner against the bona fidepurchaser who bought property arising
from a fraudulent transaction of a third
party or the land law is amended to protectthe registered landowners’ indefeasible title
and ownership of their property through
the fraudulent dealings of a third party.
Fellow practitioners of the law, if you
encounter a case of this nature, do not bediscouraged to take it up to the highest
Court, notwithstanding the decision in
Boonsom Boonyanit. The late Tun Suffianonce said at the opening of the Bar
conference-
"In our judicial system, which ismodelled along the English
system:
If a magistrate makes an error of
judgment, the High Court would
correct it;
If the High Court makes an error
of judgment, the Federal Courtwould correct it;
If the Federal Court makes sucherrors, the errors then become the
laws of the land."
Unless the lawyers would correct the errors!
PRAXIS 35MAY / JUN _2006
Press StatementsAll statements were issued by Yeo Yang Poh, Chairman, Bar Council 2006/2007 unless stated otherwise
T he Prime Minister and the
Government have, in the past two
years, taken the commendable first step
towards reform, by setting up two
Commissions of Inquiry to look into the
conduct and practices of the police.
The first Commission conducted
thorough and intensive studies over a
period of 15 months, and produced a
comprehensive report detailing 125
recommendations, which are sound and
balanced. They cover not only issues of
police conduct, but also their terms of
service and welfare. Among these
recommendations is one regarding the
formation of an Independent Police
Complaints and Misconduct Commission
(IPCMC).
The second Commission dealt with a
specific area of police conduct, i.e. in
relation to body searches. Among the
observations made is that the particular
conduct complained of would not have
occurred if the recommendations of the
first Commission had been timeously
adopted and implemented. The second
Commission also re-iterated the
importance of the IPCMC.
Our nation must do justice to the good
work performed by the 2 Commissions,
by implementing all their major
recommendations. The fact that both
Commissions have repeated the need for
an IPCMC speaks volumes of its
importance in a process of reform.
Reform is what we need, and what we
must have, if our nation does not wish to
see the situation further deteriorate.
Reform cannot be achieved by insisting
on the old ways that have obviously failed
to prevent the problems that we are
currently having.
An IPCMC is an essential part of the
much-needed reform. The old way of
relying on the police’s internal mechanism
to check abuse has proven, here and
elsewhere, to be both unreliable and
ineffective, not to mention non-
transparent and ill-accountable. The
Malaysian public knows that things, as
they are, are not fine. Hence, the public
will not accept that things will be fine if
we continue with the same old ways.
Initial reception by the police to the
Commissions’ recommendations had been
positive. The IGP on 18 February 2006
in fact said that failure to put into action
the Commissions’ proposals would be
disrespectful to the Government.
Movement towards a better police force7 April 2006
Unfortunately, reluctance to change and
opposition to the IPCMC has developed
within the police force, who have not only
openly opposed the proposal, but also
lobbied many parliamentarians to oppose
the same.
Such opposition to the IPCMC, in the
Bar Council’s view, grew from
misinformation and misunderstanding of
the true nature and purpose of the
IPCMC. The Bar Council will organise a
public debate and forum on this subject,
and will invite participation from the
police and members of parliament, among
others.
The Bar Council will also, starting today,
initiate a movement towards a better police
force, and invite organisations and
individuals from all levels of society (the
very persons whom the police is there to
serve) to join in our effort to support and
encourage positive changes and reform of
the police force.
Reform is what we need, and what we must have, if our nationdoes not wish to see the situation further deteriorate. Reform cannotbe achieved by insisting on the old ways that have obviously failedto prevent the problems that we are currently having.
An IPCMC is an essential part of the much-needed reform. Theold way of relying on the police’s internal mechanism to check abusehas proven, here and elsewhere, to be both unreliable and ineffective,not to mention non-transparent and ill-accountable. The Malaysianpublic knows that things, as they are, are not fine. Hence, the publicwill not accept that things will be fine if we continue with the sameold ways.
- Yeo Yang Poh
PRAXIS 36 MAY / JUNE_2006
ArticlesAn Appeal to International Lawyers and Law ProfessorsHold the Bush Administration Accountable for FloutingInternational Lawby Curtis F J Doebbler*
I just wanted to take this timely
opportunity to encourage those of you
who are courageous enough, to think
about what you can do to encourage the
United States to respect international law
through outside pressure on the United
States.
While I laud the efforts of those within
the United States — such as the recent
effort of Ben Davis and those who
supported it — and hope that such efforts
will continue, at the same time I am every
day more and more convinced that change
cannot come from within the United
States, or that if it does, it will only be after
countless people have died or suffered
because of the failure of the US to respect
international law.
This belief is based on dozens of meetings
every year with senior American officials,
with senior diplomats, and with senior
foreign government officials. And it is
based on meeting and representing some
of the most downtrodden people in the
world and advising some of those who are
among the most persecuted by the United
States, often even called terrorists by our
government.
Many, many other governments—even
friends of the United States — at their
highest levels believe that the United States
is very harmful for international law and
must be forced to change through outside
pressure. Some believe this pressure must
be radical, others believe that this pressure
must be slow and careful. But that there is
a significant international consensus that
recognizes the harm the United States is
doing and recognizes the need for it to
change, is something that I hope will
encourage you.
If you are an honest international lawyer—
one who at least believes in the supremacy
of international over domestic law and
who believes that domestic law can never
be used as an excuse for violating
international law and who believes that
international law is formed and interpreted
through the consensus of all states and
not unilaterally—than speak to the
diplomats in the United States or to other
foreign government officials. Speak to
them cautiously and seeking to learn from
them and to understand them and I will
bet that every one of them will indicate
serious problems with the United States
government’s understanding of
international law. And if you get close to
them they might also share with you what
they are doing to correct these problems
or if you study international affairs enough
you will undoubtedly see the often weak,
but constant, efforts.
More strikingly, if you can, travel to
countries like Sudan, Ethiopia, Eritrea,
Ghana, Senegal, Malawi, Mozambique, or
South Africa, Singapore, Malaysia,
Indonesia, Palestine, Iran, or Jordan. Don’t
stay in the four or five star hotels everyday,
but spend a couple of nights in mosques,
sleeping on the floor with other travelers
and those who have no other shelter.
Speak to them—you can usually find an
English speaker—ask them why their
country is poor, ask them if they think the
United States was right to bomb Iraq and
Afghanistan, ask them if they respect
George W. Bush, and most importantly,
ask them if they think the United States
respects international law. Then tell us their
answers to this last question.
If you are a professor teach abroad in Asia,
Africa, or the Middle East or a semester or
even a few weeks in the summer and learn
from your guests. Speak to the government
officials in the country you are in and to
the opposition figures. Ask them the same
questions. Or spend a few years at a
university in Libya or even Saudi Arabia
and get to know your students better then
in the mere formalities of the classroom.
Volunteer to speak with their student
groups, meet civil society, the lawyers’
unions, the teachers unions, the religious
leaders. Even volunteer to advise the
governments. Ask them the same
questions. Spend one weekend every
month seeking out the refugees and the
displaced and ask them the same questions.
And even contemplate why you feel scared
as your plane must nose dives 10,000 feet
*Dr. Curtis F.J. Doebbler is an international human rights lawyer. He can be reached at: [email protected]
PRAXIS 37MAY / JUNE_2006
Articlesto avoid being shot down; or why you get
guns pointed at you by American soldiers;
or why you cannot go home for a few
hours because your neighbour is being
raided and innocent men and women and
children rounded up some to be
disappeared; or why an Ethiopian living
on US$2 per day pays more for fresh water
produced in the USA, than you do; or
why many people look at you with hatred
when they learn you are an American. And
after you think about this, think about
what you can do.
I am asking you to please consider making
an effort to strengthen the ability to those
outside the United States to be able to
pressure the United States to respect the
law. There are many, many ways that you
can do this. As international lawyers it is
probably one of our most urgent
responsibilities.
Unless international law starts to respond
to the concerns of the people who are
affected by it most, it will lose relevance.
Unless you as Americans or with an interest
in America and in international law start
to understand the problem and start to
understand that the solution is not from
within but from without, the problem
may continue for a long, long time,
causing misery for generations of people,
and the deaths of many people.
Please think about the truth and gravity
of the fact that the United States has
violated more peoples’ human rights in
more serious ways with more impunity
than any other country in the world. What
does this say about international law to
the person living on 5 dollars a week in
some far off country, when he or she is
offered the chance to hurt American
interests and to perhaps violate
international law?
“To Hell With All of You”The Power of Saying Noby Jeff Halper*
As the new Hamas government is
sworn into power in the Palestinian
Authority, we might ask: What would
bring a people, the most secular of Arab
populations with little history of religious
fundamentalism, to vote Hamas? Mere
protest at Fatah ineffectualness in
negotiations and internal corruption
doesn’t go far enough. While warning
Hamas that their vote did not constitute a
mandate for imposing an Iran-like
theocracy on Palestine, the Palestinians
took the only option left to a powerless
people when all other avenues of redress
have been closed to them: non-
cooperation.
Gandhi put it best: “How can one be
compelled to accept slavery? I simply refuse
to do the master’s bidding. He may torture
me, break my bones to atoms and even
kill me. He will then have my dead body,
not my obedience. Ultimately, therefore,
it is I who am the victor and not he, for he
has failed in getting me to do what he
wanted done. Non-cooperation is directed
not against the Governors, but against the
system they administer. The roots of non-
cooperation lie not in hatred but in
justice.”
Non-cooperation, perhaps the most
powerful means of non-violent resistance,
arises in situations when the oppressed
have no other avenues to achieve their
freedom and their rights. Since it is the
international community, the US, Israel
and, yes, Fatah, who have closed all
avenues of redress to the Palestinians, they
carry the “blame” for the rise of Hamas. It
is to them that the message of the
Palestinian electorate is aimed: “To hell
with all of you!”
To hell with the international community
that closed off Palestinians’ appeal to
international law and human rights
conventions. Had only the Fourth Geneva
Convention been applied, Israel could
never have constructed its Occupation in
the first place. International law defines
an occupation as a temporary military
situation that can only be resolved
through negotiations. Therefore an
Occupying Power such as Israel is
prohibited from taking any unilateral
action that makes its control permanent.
Besides its military bases, every single
element of Israel’s Occupation is patently
illegal: settlements and the construction
of a massive system of Israel-only highways
that link the West Bank settlements to
Israel proper; the extension of Israel’s legal
and planning system into occupied
Palestinian areas; the plunder of Palestinian
water and other resources for Israeli use;
house demolitions and the expropriation
of Palestinian lands; the intentional
impoverishment of the local population;
military attacks on civilian populations —
*Jeff Halper is the Coordinator of the Israeli Committee Against House Demolitions(ICAHD). He can be reached at [email protected].
PRAXIS 38 MAY / JUNE_2006
Articlesto name but a few. Even when Israel’s
construction of the “Separation Barrier”
was ruled illegal by the International Court
of Justice in the Hague and its ruling
ratified by the General Assembly, nothing
was done to stop it.
To hell with the United States that closed
off negotiations as an avenue for redressing
Palestinian rights and for enabling Israel
to make its Occupation permanent. At the
very start of the Oslo “peace process,” at
Israel’s urging, the US reclassified the
Palestinian areas from “occupied” to
“disputed,” thus removing international
law as the basis of negotiations and pulling
the rug out from under the Palestinians.
Had international law been respected, the
Occupation would have ended under the
weight of its own illegality. But once power
became the only basis of negotiations, Israel
easily overwhelmed the Palestinians. Until
today Palestinians have nothing to look
for in negotiations. With the Americans
supporting Israeli unilateralism, with the
US veto neutralizing the UN as an effective
avenue of redress, and with European
passivity, they have been cut adrift.
To hell with Israel that has closed off even
the possibility of a viable Palestinian state
by expanding into Palestinian areas. The
world ignored the Palestinians’ “generous
offer” to Israel: recognition within the
1967 borders in return for a Palestinian
state in the Occupied Territories. Or in
other words, an Israel on 78% of historic
Palestine with the Palestinians—today a
majority in the country—accepting a state
only on 22%. Israel is now posed, with
American support and international
complicity, to make its Occupation
permanent and reduce the Palestinians to
a prison-state truncated into five “cantons”
all controlled by Israel. No borders, no
freedom of movement, no water, no viable
economy, no Jerusalem, no possibility of
offering a hopeful future to the
traumatized, brutalized, undereducated,
unskilled, impoverished Palestinian youth.
And to hell with Fatah that, in addition to
enabling corruption, did not effectively
pursue the Palestinians’ national agenda
of self-determination. The Palestinian
Authority ran its affairs removed from the
people, failing to provide material and
moral support to victims of Israeli attacks
and policies of house demolitions. Most
Palestinians did not vote Hamas (only
44% did), so the door was not closed on
Fatah which, most Palestinians seem to
hope, will learn its lesson from this setback.
Indeed, the vote for Hamas was not a
closing of the door at all, but a rational,
intentional and powerful statement of
non-cooperation in a political process that
is only leading to Palestinian
imprisonment. Hamas, if anything, stands
for steadfastness, sumud, the refusal to
submit. This conflict is too destabilizing
to the entire global system to let fester, the
Palestinians are saying. You can all impose
upon us an apartheid system, blame us
for the violence while ignoring Israeli State
Terror, pursue your programs of American
Empire or your notions of a “clash of
civilizations,” we the Palestinians will not
submit. We will not cooperate. We will
not play your rigged game. In the end, for
all your power, you will come to us to sue
for peace. And then we will be ready for a
just peace that respects the rights of all the
peoples of the region, including the Israelis.
But you will not beat us.
As an Israeli Jew who sees how the
Occupation has eroded the moral
foundations of my society and, indeed,
my entire people, and as a resident of Israel-
Palestine who knows that my fate is
intricately intertwined with that of the
Palestinians, I pray that such an end will
come sooner rather than later.
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PRAXIS 39MAY / JUNE_2006
ArticlesStrengthening the Integrity and Professionalism ofJudge and Prosecutors with the Implementation of aCode of Ethicsby Dato' Syed Ahmad Idid1
Introduction
I wish to thank Mr. Rajan Shah (Access
to Justice Advisor), Mr Mah Weng
Kwai and Ms.Janet Neville (Secretary-
General of LAWASIA) for suggesting my
name and Mr. Adrian Hewryk (President
E.W.M.I Inc) for the formal invitation.
I am delighted to present this brief paper
and to discuss on impartiality apart from
giving all in attendance some regional
experiences.
I hope to discuss on issues as to:
What obstacles arise in the
implementation and the
enforcement of a Code of Ethics
for judges and how to overcome
these obstacles?
What steps are necessary to be
taken so that the implementation
of Code of Ethics can run
effectively?
What are the principles needed to
be included in a Code of Ethics?
And which principles need
elaboration so that such a code can
be enforceable?
The other aspects (a) Independence of the
Judiciary (b) Honesty, (c) Dignity and (d)
Diligence are being covered by other
speakers. I think there should be added
(e) integrity.2
On impartiality, we must answer the
question:
Are the guidelines stated within the
draft Code of Ethics with respect to
impartiality of the judiciary
appropriate within the context of
the requirement of Cambodia?
Provide recommendations to
improve the draft Code of Ethics.
When I received the Background Note
from the East-West Management
Institute,3 I was informed that the Scope
of the workshop will be to focus upon a
review of the substance of the Code of
Ethics and to discuss on
Do the guidelines of behavior as
regulated in the draft Code of
Ethics meet the needs of the
supervisory bodies and the public-
at-large?
Do the guidelines of behavior4 as
regulated in the draft Code of
Ethics meet the international
guidelines?
Do the dispositions regulated in
the draft need to be further
specified including the manner by
which they are to be interpreted
on a case-by-case basis, or is it
sufficient to just present them in
a general light?
Are the dispositions regulated in
the Code of Ethics appropriate
within the context of the
requirements of Cambodia and,
therefore, executable?
What are the constraints, if any,
in the implementation of the Code
of Ethics?
How will these constraints be
addressed, specifically with
reference to regional experiences
in implementing similar codes of
conduct?5
Is it necessary to stipulate a special
legislation regarding sanctions in
the draft Code of Ethics? If
1 Director of KLRCA = Kuala Lumpur Regional Centre for Arbitration under the auspices of AALCO= Asian African Legal ConsultativeOrganization. Former Judge of High Courts of Borneo & Malaya. The writer is thankful to the KLRCA Legal Counsel, Dato’Noorashikin Binti Tan Sri Abdul Rahim and Miss Yeo Yee Ling, for assisting in the research.2 Ms Lynn Brewer [author of “Confessions of an Enron Executive” and founding Chairman/Person The Integrity Institute, Inc.] was inKuala Lumpur in September. We now have an Integrity Institute of Malaysia.3 With its partner: The American Bar Association in association with the US Agency for International Development are supporting theGovernment of the Kingdom of Cambodia.4 Konrad-Adenauer-Stiftung in Malaysia prepared a Paper “Building Ethical Values and Accountability” in which it asked: What kindof Ethical Standards and Moral Values are we going to promote?5 See the Declaration Toward a Global Ethic signed by the Parliament of the World’s Religions on 4 September 1993.
PRAXIS 40 MAY / JUNE_2006
Articlesrequired, should those sanctions
be elaborated or expressed in
general terms, leaving
interpretation thereof to the party
authorized to enforce the Code of
Ethics?
At the point of time when I prepared this
Paper, the other Speakers invited to handle
the respective areas are:
1. His Excellency Dith Munty, President
of the Supreme Court of Cambodia
(Opening Speech at Dinner
Reception)
2. Jonathan Addleton, Mission Director,
USAID (Opening Remarks)
3. Honorable J. Clifford Wallace, United
States Court of Appeal, Senior Circuit
Judge, Chief Judge Meritus
4. Justice Maruarar Siahaan,
Constitutional Court of the Republic
of Indonesia
5. His Excellency Ang Vongvathana,
Minister of Justice (Closing Remarks)
I am happy to refer here to your CODE
OF ETHICS FOR JUDGES AND
PROSECUTORS and after the Chapter
III on “Impartial Principle”, I now include
the part of Bangalore Principles of
Judicial Conduct6 2002 Value 2 on
IMPARTIALITY.
I have done this so that all of us can gain
from the discussion tomorrow where I shall
be your Resource Person. We can discuss
further on IMPARTIALITY. From both,
we can see together see the similarity and
difference (if any) that exist and we can
then decide whether to omit, change or
add.
The following is an extract from the
relevant part of the proposed Code of
Ethics for Judges and Prosecutors in the
Kingdom of Cambodia
Chapter III
Impartial Principle
Article 7- Principle
Judge and prosecutor shall maintain their
behavior in and outside the court to
ensure protection, maintaining, and
promotion of trust from public, legal
professionals, and disputed party in a
manner of impartiality of judge and
prosecutor.
Judge and prosecutor shall not participate
in public discussion related to issues inside
the court because it may affect the trust
on impartiality of judges and prosecutors.
Judge and prosecutor shall not have
partiality in making decision by having
prejudice against race, color, sex, religion,
disability, age, family situation, and
economic and social situation.
Article 8 - Behavior and hearing
Judge and prosecutor shall:
· Demonstrate firm punctuality,
patience, politeness, and compassion
while performing judicial and
prosecutorial work.
· Not comment on something
unnecessary and unreasonable in the
court of law.
· Always maintain just manner and
avoid any confrontation or act that
may cause suspicious of impartiality.
Article 9 - Investigation or
examination of case and
communication with party of the case
According to the principle judge and
prosecutor shall not communicate with
any party during the case proceeding with
the absence of another party except for
that it is allowed by the law or with consent
of another party. Judge and prosecutor
shall not conduct investigation or
examination of fact of the case alone and
personally in and outside the court.
Article 10 - Relationship between
profession, society, and family
While performing the work, judge and
prosecutor may meet and discuss with
legal professional. Judge and prosecutor
may also participate in social work with
members from other sector providing legal
service such as lawyers....etc
Judge and prosecutor shall not hear any
case in which lawyers have close personal
relationship with them.
Article 11 - Commercial activities
Judge and prosecutor shall not perform
any other work and business in order to
acquire profit or benefit except for salary
and remuneration in the court because
those activities may cause disruption to
appropriate performance and efficiency of
the work or cause perception that judges
and prosecutor use their position to make
business and relationship with other
commercial individual which may have
cases at the court.
Article 12 - Social and humanitarian
activities:
Judge and prosecutor are encouraged to
participate in related social humanitarian
and educational activities as private citizens
but they shall avoid any activity that
reflects their bias or affects their judicial
and prosecutorial work fulfillment, and
shall not use judicial position prestige to
get benefits for any organization or
particular group.
6 Adopted by the Judicial Group on Strengthening Judicial Integrity as revised at the Round Table Meeting of Chief Justices held at thePeace Palace. The Hague, November 25-26,2002
PRAXIS 41MAY / JUNE_2006
ArticlesArticle 13: Legal work.
Judge and prosecutor shall not provide
legal service. If necessary, they may be able
to provide it but they shall not get paid
from the legal work they have done.
Judge and prosecutor may fulfill their
personal legal work such as writing books
and other works to be sold.
Article 14: Financial benefits
Judge and prosecutor shall not have
financial benefits or any other benefits
directly or indirectly from the cases they
handle.
Judge and prosecutor shall be aware of
their own financial and their family
members’ financial benefit information in
order that it is easy to identify the cases
that they have to withdraw themselves
from the trial.
Article 15: Speaking in public place by
judge and prosecutor as individual
The speech of judge and prosecutor on
legal issues may have tremendous value to
encourage the public awareness on judicial
system and legal development But, judge
and prosecutor shall be cautious where
their individual public speech may reflect
the whole judicial vision and their judicial
position. Therefore, judge and prosecutor
shall be careful7 when they make the
public statement individually. Especially,
judge and prosecutor shall absolutely
avoid making statement that:
1. relates to political provocation
2. relates to political party
3. leads to conflict or censure of judicial
staff who have opposite vision
4. reflects the perception that causes bias
or prejudice of the cases they handle
or will handle.
5. relates to their decision or judgment
Article 16: legal education
Based on legal knowledge and experiences
in judicial and prosecutorial affairs, judge
and prosecutor may contribute in legal
education provision to both public and
legal professionals.
This means judge and prosecutor may:
1. participate in providing legal trainings
such as writing, remarks making, or
legal education.
2. participate as members of legal and
judicial reform commission.
Article 17: Withdrawal by Judges and
prosecutors
If judge and prosecutor have reasonable
grounds that they could not decide
impartially, they shall withdraw
themselves from the hearing based on
procedure code.
Here we have the Bangalore-Principles of
Judicial Conduct.8 I shall only discuss on
the same topic of impartiality. So let me
quote.
The following is an extract from the
relevant part of the Bangalore Principles
of Judicial Conduct 2002
Value 2
IMPARTIALITY
Principle:
Impartiality is essential to the proper
discharge of the judicial office. It applies
not only to the decision itself but also to
the process by which the decision is made.
Application:
2.1 A judge shall perform his or her
judicial duties without favour, bias or
prejudice.
2.2 A judge shall ensure that his or her
conduct, both in and out of court,
maintains and enhances the confidence
of the public, the legal profession and
litigants in the impartiality of the judge
and of the judiciary.
2.3 A judge shall, so far as is reasonable,
so conduct himself or herself as to minimise
the occasions on which it will be necessary
for the judge to be disqualified from
hearing or deciding cases.
2.4 A judge shall not knowingly, while a
proceeding is before, or could come before,
the judge, make any comment that might
reasonably be expected to affect the
outcome of such proceeding or impair the
manifest fairness of the process. Nor shall
the judge make any comment in public or
otherwise that might affect the fair trial of
any person or issue.
2.5 A judge shall disqualify himself or
herself from participating in any
proceedings in which the judge is unable
to decide the matter impartially or in
which it may appear to a reasonable
observer that the judge is unable to decide
the matter impartially. Such proceedings
include, but are not limited to, instances
where
2.5.1 the judge has actual bias or
prejudice concerning a party or
personal knowledge of disputed
evidentiary facts concerning the
proceedings;
7 The Supreme Court of Canada has accepted that “...impartiality does not require that the judge have no sympathies or opinions, itrequires that the judge nevertheless be free to entertain and act upon different points of view with an open mind”. R.D.S.v The Queen(1997) 3.SCR 484 at 504.8 See also the “BEIJING STATEMENT’ (For Asia and the Pacific): 19 August 1995 as amended in Manila and 20 August 1997 whereit declares that “the Judiciary is an institution of the highest value in every society”.
PRAXIS 42 MAY / JUNE_2006
Articles2.5.2 the judge previously served as
a lawyer or was a material witness in
the matter in controversy; or.
2.5.3 the judge, or a member of the
judge’s family, has an economic
interest in the outcome of the matter
in controversy:
2.6 Provided that disqualification of a
judge shall not be required if no other
tribunal can be constituted to deal with
the case or, because of urgent
circumstances, failure to act could lead to
a serious miscarriage of justice.
Much as I try not to mention the
Malaysian Judges’ Code of Ethics of 1994
- because it is too short!- I have to as some
areas can be of assistance to the Judges in
the Kingdom of Cambodia. It is such an
important Code because it is prescribed
under the powers conferred by Clause
(3A) of Article 125 of the Federal’
Constitution. It applies to a judge9
throughout the period of his service and a
breach of any provision may constitute a
ground for the removal10 of a judge from
office [see paragraph 2(2)].
Parliament in Kuala Lumpur was asked as
to how complaints against the Chief
Justice for Violations of the Code could
be pursued. In his reply, the then Minister
in the Prime Minister’s Department,
Datuk Seri Utama Dr. Rais Yatim, said that
violations of the Judges’ Code of Ethics
are divided into two categories, serious and
less serious. If serious, the Prime Minister
or the Chief Justice after consulting the
Prime Minister can make representation
to the Yang di Pertuan Agong11 to appoint
a tribunal to investigate the violation of
the Judges’ Code of Ethics. On the other
hand, if the violation belongs to the “not
serious” category, oral reprimand would
be adequate. He said that complaints of
violations of the Judges’ Code of Ethics
are made to the Chief Justice of the Federal
Court, President of the Court of Appeal
or the two Chief Judges of Malaya and
Borneo,12 while complaints against the
Chief Justice are made to the Prime
Minister.
In our discussion during the Session Three
on “Regional Experiences”, we can hold a
Q & A and bring in your thoughts and
concerns.
But for now, let us get back to
IMPARTIALITY “The Cold neutrality of
an impartial judge”13. Burke also observed
that “it is not what a lawyer tells me I may
do; but what humanity, reason and justice
tells me I ought to do”. On that a judge
can achieve impartiality!
My questions to you, dear Honourable
Judges and Prosecutors is, when a person
is impartial, does that not mean that he is
independent, honest, that he treats all
before him/her equally? But on the other
hand, when a Judge is independent, can
he/she be said also to be (a) honest (b)
impartial, (c) to treat all before him/her
equally or (d) that he/she is competent
and diligent?
So, Honorable Judges & Mr. Prosecutors,
we can see the difference and so we must
guard ourselves in urging our society to
make our Judiciary not merely
independent! That is not enough. We
merely turn some humans into dragons -
to consume us up! Are not tyrants and
dictators independent? And they wreak
havoc....so be careful over this matter of
independence. May I therefore
respectfully recommend that judges be
made accountable! And to gain
transparency, judges must write out the
grounds for all their decisions.
More importantly we must ensure our
Judges & Prosecutors are people with
integrity and good values, humanity, love
for life, love for other people, who see
fairness as an important ingredient in their
decisions and, by these, they are also people
of propriety.
Indeed IMP ARTIALITY14 seems to be
the core quality of a decent Judge. There
is the belief that only 30% of judges can
enter heaven! For you, I wish all 100%
can make that entrance - not now but
when the time comes. Judging is not easy.
Lives can be lost because judges make
PARTIAL decisions. So too innocent
people lose their employment, property,
children when PARTIAL15 decisions are
9 Are the guidelines stated within the draft Code of Ethics with respect to the impartiality of the judiciary within the context of therequirement of Cambodia? Provide recommendations to improve the draft Code of Ethics.10 What if a judge has a law firm with his name and continues to hold up his name in that law firm? Can this lead to his removal for breach.What if he is a Court of Appeal Judge? The Code was amended by P.U. (B) 182/200: Judges Code of Ethics (Amendment) 2000.11 H.M. The King.12 Now called the High Court of Sabah and Sarawak.13 J.P Brissot To His Constituent 1994 by Burke.14 “It is society’s confidence in the impartiality of individual decisions that forms the core strength of the judiciary as an institution. Todecide impartially therefore, without bias and pre-judgment, is the highest obligation of every judge”. The Honorable John D Richard,Chief Justice, Federal Court of Canada at the 5th Worldwide Common Law Judiciary Conference.15 The Beijing Statement clearly spells out that the objective of the Judiciary is “to administer the law impartially among persons andbetween persons and the State”.
PRAXIS 43MAY / JUNE_2006
Articlesthrown against them.
Ministéra de la Justice states that “Judicial
Independence16 is a cornerstone of the
Canadian judicial system”. Having said
that, the Canadian Judicial Council invites
people to submit complaints against
judges.’ While Canada has no written
Code of Conduct for federally appointed
judges, there are many documents
published. One recent booklet “Ethical
Principles for Judges” is 50 - page long.
Please bear in mind the huge difference
between a judges’ decision and a judges’
conduct when you question either!
I am tempted to input here the Canon 3
“A Judge should perform the duties of the
office impartially and diligently” of the
Code of Conduct for United States
Judges17. I am sure Justice J. Clifford
Wallace has covered this in the session one.
Lest we be tempted elsewhere, let us agree
here that while the Code is important,
what is more important is the PEOPLE18
we select as our Prosecutors and Judges. If
these people possess the characteristics and
qualities which are essential for such
positions of responsibility, then that is the
best start.
Please allow me to draw your attention to
the UK. Department for Constitutional
Affairs Judicial Appointments Annual
Report 2003-2004 issued in October
2004 where at Annex B, Generic
Competencies Framework offer us a
glimpse of what qualities are essential in a
judge: (and these are required in
Prosecutors as well so that we do not have
“bad” cases being “persecuted!”19
Extract of C.A.J.A. Annual Report 2003
- 2004
JUDGEMENT
Investigating and Analysing
Logically analyses arguments and explores
the information available (verbal /
written).
1. Accurately analyses and assimilates
information and arguments.
2. Focuses on salient pieces of
information e.g. filets, points of
contention..
3. Identifies the real issues; is not lost in
detail.
4. Recalls and refers back to important
filets.
5. Ensures information is complete;
follows up inaccuracies and
contradictions.
Resolving and Deciding
Applies judgement to reach solutions and
make incisive, fair and legally sound
decisions.
1. Takes an objective20 and impartial
view.
2. Is confident to take a decision when
the solution is unclear or may be
unpopular.
3. Makes informed decisions
expeditiously; e.g. knowing when to
reserve judgments or adjourn.
4. Recognizes the impact of the case and
actions taken on those involved e.g.
victims, families, parties, corporations,
case law/law reform
5. Takes a pragmatic approach (within
the legal framework)
PROFESSIONALISM
Demonstrating Technical Knowledge &
Expertise
Has acquired in-depth legal or related
relevant knowledge of the jurisdiction
applied for (see appropriate job
specification) or the potential to acquire
it.
1. Has comprehensive legal knowledge
and experience, or other relevant
knowledge and experience as
appropriate to the particular post.
2. Demonstrates up-to-date knowledge.
3. Has attained a high level of
achievement in his/her chosen
professional arena or in field of
expertise/area of law.
4. Broadens and extends knowledge e.g.
learns new areas of law, clarifies
uncertainty.
Demonstrating Integrity and
Independence
Shows commitment by applying
themselves to provide a highly professional
16 See the BURGH HOUSE Principles on the Independence of the International Judiciary (The work of the Group is supported by theProject on International Courts and Tribunals) (Refer to Ruth Mackenzie at [email protected]). There is, however, acceptance that“judges shall decide cases impartially, on the basis of the filets of the case and the applicable law”.17 Copies may be obtainable from Chairman, Committee of Codes of Conduct, c/o General Counsel, Administrative Office of the UnitedStates Courts, One Columbus Circle, N.E, Washington D.C. 20544, USA. See also the Code of Judicial Ethics (State of CaliforniaCommission of Judicial Performance) amended by the Supreme Court effective June 1,2005.18 The Beijing Statement states that “to enable the judiciary to achieve its objectives and perform its functions, it is essential that judgesbe chosen on the basis of proven competence, integrity and independence”.19 Prosecution vs Persecution!20 Is this nearest to a sense of justice? We discuss on ways to get facts and the truth but rarely do we demand that judges must possesthe true sense of justice.
PRAXIS 44 MAY / JUNE_2006
Articlesservice.
1. Is conscientious;21 invests effort to
maintain high standards and quality
of output proportionate to the nature
of the work.
2. Remains detached; manages own
reactions and emotions to ensure
consistent application of the law.
3. Operates effectively in a situation
which demands autonomy and self
sufficiency.
4. Actively maintains judicial
independence and is not influenced
by external forces.
Showing Authority
Keeps effective control of proceedings
showing self assurance when influencing
others and handling difficult situations.
1. Identifies and manages hostility by
exerting control at appropriate times.
2. Steers an appropriate line between
informality and maintaining control.
3. Takes charge without intimidating
others.
4. Is firm when challenged, and asserts
authority when necessary.
5. Maintains patience to remain
concentrate on relevant points and
take a logical path through the fact
and key issues.
Developing Knowledge
Is open to developing an awareness of social
issues, enhancing their legal knowledge
and understanding of the court service.
1. Seeks to be up-to-date in relevant legal
areas.
2. Learns about other cultures and
diversity issues.
3. Recognises how business pressures on
the court service can affect court
administration and judges’ work
without affecting judicial
independence or quality of the process.
4. Ask for others’ help and advice when
nessary.
5. Broadens and extends knowledge e.g.
learns new areas of law22, clarifies
uncertainty.
6. Uses past experiences to learn and
improve.
Managing Workload
Works effectively and efficiently, preparing
and planning to make the best use of time.
1. Makes appropriate investigations into
time needs and can challenge others’
estimates.
2. Maintains pace to work within time
limits (where appropriate).
3. Prepare for cases in advance e.g. reads
files, checks lists.
4. Works quickly with significant
amounts of information.
5. Is flexible; juggles workload and copes
with the quantity and variety of work.
6. Clearly documents and records
information e.g. orders, file notes etc.
PEOPLE SKILLS
Communicating
Takes steps to ensure people understand
the proceedings, orders and decisions.
1. Clearly explains an order or decision,
the reasons for it, and implications of
actions taken.
2. Ensures others understand their
options and / or the future progress of
the case.
3. Summarises and confirms information
to ensure own and others’
understanding.
4. Keeps others (colleagues, staff, litigants
etc.) informed, sharing knowledge and
information as appropriate.
5. Varies style of communication to
converse clearly with a variety of
people from all backgrounds and
cultures.
Building Positive Relationships
Shows sensitivity to the diversity and needs
of litigants, witnesses, advocates, staff and
colleagues.
1. Openly treats people with respect and
in a fair and equal manner.
2. Listens attentively and shows interest.
3. Gives others an opportunity to air their
views, comments and concerns.
4. Shows an appreciation of other cultures
and the needs of individuals from
diverse backgrounds.
5. Understands people’s situations and
aspects of everyday life e.g. general
household expenditure, public
transport.
6. Is aware of people’s concerns and
anxieties; recognizes other’s
perspectives and priorities.
7. Works co-operatively and
constructively in partnership with
colleagues and staff.
Let me say here: “Among a people
generally corrupt, liberty cannot long
exist.”23 AFP reported that “The low level
of corruption and victims’ ability to seek legal
redress through the local legal system when
they do encounter graft are major attributes.”
And it adds that “the legal system in that
21 In the BURGH HOUSE Principle, it is clearly stated that “In accordance with the governing instruments, judges shall be chosen fromamong persons of high moral character, integrity and conscientiousness who posses the appropriate professional qualifications,competence and experience and required for the court concerned”.22 Let us face it not every judge is qualified or trained or educated in all fields. But where a judge has to hear and decide on a matter, he/she must learn and gather information on the facets/aspects so that a proper decision can be arrived at in good time.23 Edmund Burke: Letter to the Sheriffs of Bristol (1999).
PRAXIS 45MAY / JUNE_2006
Articlescountry remains suspect…And graft is seen
as a major drawback for foreign investors.”24
If at the end of our Workshop there is
some lingering doubts as to whether we
need a Code or if we want the rationale
and objectives of Code of Ethics, you can
refer to Honourable Justice Adrian
Sounders of the Eastern Caribbean
Supreme Court. The OECS =
Organisation of Easter Caribbean States
normally organise Orientation Program for
new Judges.
While I am of the opinion that judges, as
are all other humans, be subject to
punishment(s), we can see that
Macedonian Judges’ Association (in their
Code of Judicial Ethics) provides for judges
who violate the code be only “morally
liable”.
CONCLUDING - AND HOPE FOR
FUTURE
It is essential that we get the most suitable
people as our Judges and Prosecutors (and
investigators too)25 and I like to quote here
as regards lawyers:
Lord Hailsham summarised these
qualities thus.26
“...Success at the bar depends in
the end upon the respect in which
one is held by one’s fellow
practitioners ... and perhaps
particularly, the Bench, and not
upon one’s success in any
individual case or run of cases. If
you once deceive the Court ...
they will never forget it.
... The Bar is one of the most
competitive professions in the
world but, like many other
activities in life, it is a field where
generosity, courtesy, chivalry and,
above all, unshakeable integrity
pay material dividends.”
In the same vein Chief Justice Warren
Burger of the United States Supreme
Court once cautioned that “lawyers who
know how to think but have not learned
how to behave are a menace and a liability,
not an asset to the administration of
justice.”27
The Code of Ethics is some guidance but
with it must come the willingness to
comply. Sadly, Legal Ethics has become
and remains “an unloved orphan of legal
education.”28
One Asian member has stated quite clearly
thus:
In the past decade, international
institutions and foreign aid
programs have focused on the need
to insulate institutions from
corruption, and an important part
of that effort has focused on cleansing
the legal profession and the courts.
As the Philippines takes part in that
global effort, I invite you to re-
examine the tried-and-tested
strategies for promoting ethics in the
legal profession, and to ask whether
much of this work is wasted in what
Filipinos call “sermonizing”, i.e.,
the tendency to preach from the
pulpit oblivious to whether the faith
is lived out in the streets and outside
the temples.29
There is the belief that law students are
adult by the time they get to law college
and so would have little or no propensity
to improve themselves. The assumption
exists that adults lack the capacity or the
desire for ethical development or
improving their standard of ethics.30 In
my opinion, the best years to nurture
ethical standards are those between three
and twenty-three. But persons in
adulthood can still learn and benefit.
And, finally, as a note of caution, I say
what Lord Bolinbroke said: “…the
profession of the law, in its nature the noblest
and most beneficial to mankind, is in its
abuse and abasement the most sordid and
pernicious.”31
Kingdom of Cambodia
I wish all Judges and Prosecutors at this
Workshop a happy and bright future and
may your Code of Ethics be put in place
as beacon to guide all to a successful tenure
of service.
24 When the people and country can promote accountability, transparency and integrity, then all can fight corruption and reduce theincidence of financial mismanagement. The Star of 6th December 05 reported that “Corruption is the major obstacle to investment andbusiness growth in Asia’s developing economies with Indonesia suffering the most, a poll of foreign executives showed yesterday”25 Even during the initial stages of investigation or at the raids, persons can place exhibits or plant evidence which can lead to injustice.26 Passage from Lord Hailsham’s Memoris entitled “A Sparrow’s Flight.”27 Warren Burger, The Necessity of Civility 52 FRD 211 (1971).28 Roger C Cranton & Susan P.Koniak: Rule, Story and Commitment in the Teaching of Legal Ethics, 38 Wm. & Mary L.Rev 145,146(1996).29 By Professor Raul C.Pangalangan, University of the Philippines30 See Prof Russel G Pearce: Teaching Ethics Seriously: Legal Ethics as the Most Important Subject in Law School. 29 Loy U chi L.J.719 (Summer 1998)31 Quoted in Sharswood G: Legal Ethics: An essay on Professional Ethics. 5th Edition (Philadelphia: T & JW Johnson & Co. 1984)p.171
PRAXIS 46 MAY / JUNE_2006
Human WritesEconomic, Social and Cultural Rights inInternational Human Rights Lawby Edmund Bon
1 See http://www.usconstitution.com/franklinrooseveltfourfreedomsspeech.htm. He defined “freedom from want” as economicunderstandings which will secure to every nation a healthy peacetime life for its inhabitants and “freedom from fear” as a world-widereduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physicalaggression against any neighbor.2 Article 28 UDHR.3 The drafting process reflected the ideological debate of the Cold War between the competing claims of the Western capitalist model(focused on individualism, enterprise and property rights) with those of the Soviet communist model (with its emphasis on grouprights, individual duties, collective ownership of property): see Carol Devine, Carol Rae Hansen and Ralph Wilde, Human Rights: TheEssential Reference, 1999 at p. 63.4 For a summary, see Henry J. Steiner and Philip Alston, International Human Rights in Context, 2000 at p. 242-245 and 261-264.5 For the arguments, see Annotations on the Text of the Draft International Covenants on Human Rights, UN Doc. A/2929 (1955).6 As an example: if an individual is arbitrarily detained, the State in question is called to release him immediately. In this sense, CPR arecategorized as “negative” rights where the State is under a duty not to interfere with the liberty of an individual without good reason.
Historical and legal foundation
In his State of the Union address to
Congress on 6 January 1941, US
President Roosevelt proclaimed four
freedoms which were sought to be secured
in the world: freedom of speech and
expression, freedom of every person to
worship God in his own way, freedom
from want and freedom from fear1. In
1945, these freedoms became part of the
Preamble to the Universal Declaration of
Human Rights (“UDHR”) as “the highest
aspiration of the common people”. Thus,
a creation and management of a “social
and international order” was necessary in
which the rights and freedoms set forth in
the UDHR can be fully realized2. In
jurisprudential terms, rights in the UDHR
have today, through various mechanisms,
formed the corpus of international human
rights law.
An analysis of the nature of rights
established under the UDHR reveals two
broad categories: (i) civil and political rights
(“CPR”) and (ii) economic, social and
cultural rights (“ESCR”)3. CPR are found
in articles 3-21 whilst ESCR are found in
articles 22-27. “Freedom from want” in
the Preamble to the UDHR is now
commonly translated to economic and
social rights which fall under the ESCR
package. The historical foundation for
ESCR emanates from a mixture of
philosophical and religious traditions4-
Kant’s universal principle of mutual love,
teachings in the Bible and Quran of
charitable giving, benevolence and
compassion for the poor, and assistance of
subsistence to the needy - strengthened
by the workers’ movement led by the
International Labour Organization to
abolish injustice and hardship through the
establishment of conventions dealing with
freedom of association, minimum working
conditions and freedom from
discrimination in employment.
The UDHR was drafted in a form of a
declaration with the intention that
implementation and the specific content
of the rights stated therein would evolve
through subsequent binding treaty
instruments. The result were two key
documents which were opened for
ratification by States – the International
Covenant on Civil and Political Rights
(“ICCPR”) and the International
Covenant on Economic, Social and
Cultural Rights (“ICESCR”).
The UN General Assembly in 1951
decided in favour of the argument that
ESCR were to be enforced differently from
CPR, hence, necessitating two separate
covenants5. Those who wished to have a
single covenant rested on the premise that
there is no “hierarchy of values” - that either
CPR are more important than ESCR and
required immediate realization before the
latter or vice versa. Those who argued for
two covenants did not appear to dispute
this claim but categorized that CPR are
“legal” and “absolute” rights which are to
be enforced or applied immediately by
individuals against States6. CPR are
justiciable “by the creation of a good offices
committee”. On the other hand, ESCR
are not or might not be of absolute
character, and are to progressively
PRAXIS 47MAY / JUNE_2006
Human Writesimplemented as “programme” rights7. A
“system of periodic reports” is
recommended8. The progeny of this
debate which led to the evolution of two
covenants continue to haunt efforts in the
promotion of ESCR and enforcement of
ICESCR today.
The problem with the implementation
of ESCR
An account of the necessity to differentiate
CPR and ESCR through the formulation
of different strategies for implementation
in the ICCPR and ICESCR does not
appear to sit comfortably with the
integrated nature of these rights under the
UDHR. The justiciability trigger for CPR
and ESCR had originally been envisaged
in Article 8 UDHR as augmented by the
“right to an effective remedy by
competent national tribunals” which are
not necessarily limited to the judicial arm
of States, and includes other quasi-legal or
administrative bodies. This now appears
to be diluted by the language adopted in
the ICESCR. Further, the initial cynicism
regarding the justiciability of ESCR claims
is proving to be unfounded as there is
evidence that ESCR-type actions are being
enforced by regional bodies in Europe,
the UN Human Rights Committee, local
disputes tribunals and the Judiciary of
countries such as India, South Africa and
the US9.
Nevertheless, it must be noted that in
contemporary human rights theory, the
content of CPR and ESCR are
interdependent, indivisible and
inextricably linked10. Amartya Sen argues
that civil and political rights such as the
right to free speech are imperative in
conceptualizing economic needs in the
public sphere, and sustaining political
pressure and responses to the same11. The
Vienna Declaration and Programme of
Action12 reaffirms this and calls on States
to promote and protect all human rights
and fundamental freedoms, irrespective of
their political, economic and cultural
systems. The assumed differences in
enforcement or implementation of CPR
and ESCR do not detract from this
position.
Article 22 UDHR introduces ESCR
within the UDHR as being indispensable
for an individual’s dignity and free
development of his personality. It is to be
realized through “national effort and
international co-operation and in
accordance with the organization and
resources of each State”. ESCR include the
right to work, right to equal pay for equal
work, right to social security, right to join
trade unions, right to rest and leisure, right
to a standard of living adequate for the
health of the individual, right to education
and right to cultural life, arts and scientific
advancement. It would appear that article
22 circumscribes the implementation of
ESCR according to the economic capacity
of individual States, and delegates a wide
margin of discretion to States for the
progressive realization of ESCR. Such
language is not apparent in the UDHR
with regard to CPR. Unlike the ICCPR,
the provisions of the ICESCR are also
couched in terms of “non-imperatives”-
each State party undertakes to take steps,
to the maximum of its available resources,
with a view to achieving progressively the
full realization of rights recognized in the
ICESCR13.
ESCR are seen as part of a form of
distributive justice with the aim of
equalizing global and social inequality
through structural changes. It seeks to
adjust the system of governance of a
country by imposing obligations on the
State to provide certain necessities to its
citizens, much like a welfare state14. It has
however been argued that the provisions
of the ICESCR are not rights per se as we
know it, but merely aspirations or ideals
to be achieved15. The implementation of
ESCR are also dependent on aid from
other more developed countries where the
7 As an example: the right of everyone to an adequate standard of living for himself and for his family is nebulous as to the objectiveindicator of standard which needs to be achieved to satisfy this right. In this sense, ESCR are categorized as “positive” rights where theState is under a duty to take affirmative action to realize these rights.8 This is now evident from the procedure under the ICCPR where the Human Rights Committee has been established which may receiveindividual complaints of ICCPR violations: Article 28 and Optional Protocol. There is no equivalent adjudicatory body under theICESCR - the Economic and Social Council (which created the Committee on Economic, Social and Cultural Rights in 1985) establishedunder Article 16 is tasked with receiving and considering reports submitted by State parties.9 See Background paper – Selection of case law on Economic, Social and Cultural Rights, UN Doc. E/CN.4/2004/WG.23/CRP.1 (2003).India’s concept of “directive principles of state policy” has provided enforceable avenues through public interest or social actionlitigation for the distribution of resources to the poor and needy: see Steiner and Alston, supra n. 4 at p. 283-291.10 See, for example, articles 1(1) of both ICCPR and ICESCR, and the Preamble to the ICESCR.11 Freedoms and Needs, The New Republic 31, 1994 cited in Steiner and Alston, supra n. 4 at p. 269.12 UN Doc. A/CONF.157/24 (Part I) (1993), resolved in the World Conference on Human Rights.13 Article 2(1).14 See David Kelley, A Life of One’s Own: Individual Rights and the Welfare State, 1998 cited in Steiner and Alston, supra n. 4 at p. 257.15 For a response to this argument, see David Beetham, What Future for Economic and Social Rights?, 43 Political Studies 41, 1995 citedin Steiner and Alston, supra n. 4 at p. 255.
PRAXIS 48 MAY / JUNE_2006
Human Writessubject country is unable, due to its
economic resources, to fulfill its obligations
under the ICESCR. If there are no jobs in
the country, its citizens obviously cannot
exercise their rights to work. Yet, there is
no legal compulsion or mechanism at
present to have rich countries distribute
aid to poor ones based solely on the latter’s
inability to observe the standards set by
the ICESCR.
The difficulty with the “progressive
realization” decree in the ICESCR is the
use of State sovereignty as a shield to
hamper international initiatives of
promoting ESCR standards within the
country. By what measure does one assess
governmental efforts to feed its hardcore
poor and raise their standards of living?16
If the government fails, what can be done?
Reporting by State parties are inadequate.
There may now be a need for ESCR
claims to be heard by an adjudicatory body
which may determine cases and make
directions as to budget allocation.
Robertson has suggested the creation of “a
quasi-legal system for (1) ensuring that a
reasonable amount of resources actually
available to the State are spent on
providing for basic rights of health and
education and social security, as distinct
from being spent (for example) on
armaments and monuments and the
servicing of debts rather than people, and
(2) identifying those states where available
resources, although reasonably allocated,
are simply insufficient to satisfy basic
rights, a situation which attracts the duty
which falls on other states to provide aid
and assistance”17.
Peoples’ rights
Closely linked with the concept of ESCR
is the “right to development”. It is
debatable whether this right is “a distinct
human right or a summary of several other
human rights”18, or whether it results in
the contradiction of other rights19. Article
1(1) of the UN Declaration on the Right
to Development20 states that the right to
development is an inalienable human right
by virtue of which every human person
and all peoples are entitled to participate
in, contribute to and enjoy economic,
social, cultural and political development,
in which all human rights and
fundamental freedoms can be fully
realized. This appears tautologous, but
article 1(2) posits this right as an extension
of the right of peoples to self-
determination, giving them an inalienable
right to full sovereignty over all their
natural wealth and resources. The right of
self-determination forms the basis for and
allows the free realization of CPR and
ESCR21. It is a one of “cross-cutting” rights
found in both covenants and the UN
Charter22, and vested in all “peoples”. The
right of self-determination in articles 1(1)
of both ICCPR and ICESCR is defined
as a means for all peoples to freely determine
their political status and enhance their
economic, social and cultural
development. It is an emphasis on the
method rather than the result23.
The definition of “peoples” is not
altogether clear in international human
rights law24, but it may be outlined by the
nature of the right to self-determination
as both are linked. It has been argued that
the main feature of the right is for those
under alien subjugation or domination to
have power and control over their own
development and how that development
should be pursued25. In this limited way,
it would appear that the notion of peoples’
rights to self-determination applies in a
situation where the collective group seeks
to end the subjugation and domination
of one group over another. The African
Charter on Human and Peoples Rights
(“ACHPR”) is probably the most
progressive instrument thus far which
elaborates on the concept of peoples’ rights.
Whilst seeking to enshrine the
interdependence of CPR and ESCR,
Article 19 further acknowledges that all
peoples shall be equal, and nothing shall
justify the domination of a people by
another. Article 21 gives the right to all
peoples to freely dispose of their wealth
and natural resources, and in no case shall
a people be deprived of it. Seen in Africa’s
colonized past, the importance of group
16 In General Comment No. 3 (1990), the Committee on Economic, Social and Cultural Rights has set a low threshold – “a minimum coreobligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights”: see UN Doc. E/1991/23 (AnnexIII).17 Geoffrey Robertson QC, Crimes Against Humanity, 2002 at p. 171.18 Michael Freeman, Human Rights, 2002 at p. 152.19 Robertson, supra n. 17 at p. 17320 Adopted by UN General Assembly resolution 41/128 in 1986.21 Articles 1 of both ICCPR and ICESCR.22 Article 1(2).23 See Cliona J. M. Kimber, Equality or Self-determination, in Conor Gearty and Adam Tomkins (eds), Understanding Human Rights,1996 at p. 266.24 See Philip Alston, Peoples’ Rights: Their Rise and Fall, in Philip Alston (ed), Peoples’ Rights, 2001 at p. 259.25 See Patrick Thornberry, Self-determination, Minorities, Human Rights: A Review of International Instruments, (1989) 38 Internationaland Comparative Law Quarterly 867.
PRAXIS 49MAY / JUNE_2006
Human Writes
rights in African society and motivated by
the desire to empower the people of Africa
as a collective unit to develop, the venture
of self-determination in articles 19-21 seeks
to promote and protect Africans from
economic and environmental exploitation,
as well as discriminatory practices of
authoritarian regimes26.
The enforcement of the ACHPR still
leaves much to be desired27 but the
language and aspirations of the same show
how ESCR may be advanced within a
framework of group rights as an
aggregation of human rights given to each
26 See Rachel Murray and Steven Wheatley, Groups and the African Charter on Human and Peoples’ Rights, (2003) 25 Human RightsQuarterly 213.27 See Chidi Anselm Odinkalu, Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural RightsUnder the African Charter on Human and Peoples’ Rights, (2001) 23 Human Rights Quarterly 327.
individual under the ACHPR. It attempts
to place individual rights consistently by
the side of collective rights. The
development of a rights protection regime
under the ACHPR may further the notion
of “third generation” rights of “citizens of
the world” such as the right to peace,
development, clean air and the
environment – all of which fall under the
ESCR package. How far this will take the
rights movement remains to be seen.
Conclusion
The language of the International Bill of
Rights was not meant to create any
theoretical distinction of rights between
CPR and ESCR. The prominence given
to CPR advocacy by NGOs and civil
society was not intentional as practical
lobbying strategies in relation to ESCR
do not appear to be as straightforward.
The criticism that human rights is only
about CPR is misplaced. From the
inception of the ICESCR, there have been
difficulties grappling with ESCR in terms
of implementation, and the challenge
today is to continue uncovering means to
overcome these problems.
PRAXIS 50 MAY / JUNE_2006
Human WritesUN Committee Against Torture demands closure ofGuantanamo Bay prisonby Hj Vazeer Alam Mydin Meera
The AFP carried a news wire on June
24, 2005, to the efffect that the
Americans have admitted mistreatment of
prisoners at Guantanamo Bay to the UN
Committee Against Torture. The relevant
passage from that report reads:
“Washington has for the first time
acknowledged to the United Nations that
prisoners have been tortured at US detention
centres in Guantanamo Bay, as well as
Afghanistan and Iraq”, a UN source said.
The acknowledgement was made in a report
submitted to the UN Committee against
Torture, said a member of the ten-person
panel, speaking on condition of anonymity.
“They are no longer trying to duck this, and
have respected their obligation to inform the
UN,” the Committee member told AFP.
“They will have to explain themselves (to the
Committee). Nothing should be kept in the
dark.”
UN sources said it was the first time the world
body has received such a frank statement on
torture from US authorities.”
That news report caused quite a stir
almost a year ago. On May 18, 2006 in its
latest report the UN Committee against
Torture’s called for the closure of
Guantanamo Bay. This call shows that
international voices are increasingly being
raised against the institutions set up by
the United States in its “war on terror”,
and not just against the treatment of
prisoners in them.
The definitions and legal limits of the
structures and the practices the US has
followed are all being tested - and in many
cases found wanting - as it tries to conduct
what it regards as a war vital to its well-
being. There have been attempts to
legitimise the use of torture. Accepts norms
of international law and conventions have
been thrown to the wind.
This latest criticism coming from the UN
body charged with overseeing compliance
with the UN Convention Against Torture
and other inhuman treatment, of which
the United States is a state party, adds to a
growing chorus of calls — including from
Lord Goldsmith, the British Attorney-
General — for Washington to close the
camp.
The UN Committee Against Torture quite
categorically called on the US to close
Guantanamo and any secret prisons it
operates abroad. It declared the indefinite
detention of suspects without charge to
be a violation of the UN Convention
Against Torture.
“The State party should cease to detain
any person at Guantanamo Bay and close
this detention facility, permit access by the
detainees to judicial process or release them
as soon as possible,” the committee said.
The ten-member UN body called on the
US to “ensure that no one is detained in
any secret detention facility under its de
facto effective control”.
Inmates at Guantanamo
PRAXIS 51MAY / JUNE_2006
Human WritesIt also urged the Bush Administration to
“rescind any interrogation technique” that
constituted torture or cruel, inhuman or
degrading treatment, citing sexual
humiliation, the use of dogs, “short
shackling” suspects to hooks in the floor,
and a form of mock drowning known as
“water-boarding”.
The committee is made up of 10
independent, international human rights
experts, one of them an American, Felice
Gaer, who has a long record of human
rights work. The committee periodically
summons member states to justify their
policies. The panel has no legal power to
enforce its demands. The report is based
on conclusions from hearings this month
in Geneva, which were attended by a U.S.
delegation.
The criticism has put the US on the
defensive over its human rights record.
This month Washington did not seek a
seat on the new UN human rights council,
which activists attributed to fear that it
would not have been elected.
The U.S. Defense Department argues that
prisoners at the Guantanamo naval base
are “enemy combatants” not subject to the
UN’s human rights mandate, and are being
held to prevent further terrorist attacks.
However, British Prime Minister Tony
Blair, an ally of the Bush administration
in Afghanistan and Iraq, has said the camp
is “an anomaly” that has to end, while Lord
Goldsmith said recently that the existence
of Guantanamo is “unacceptable”.
The UN panel, which monitors
compliance with the Convention Against
Torture, said it “regrets” the U.S. decision
that the convention doesn’t apply to its
campaigns in Afghanistan and Iraq and
that secret U.S. detention facilities aren’t
accessible to the International Committee
of the Red Cross.
BBC News quotes Jennifer Daskal, U.S.
advocacy director based in Washington for
Human Rights Watch, as saying, “The
U.S. should be embarrassed that it’s being
held publicly accountable for forced
disappearances and detentions that it has
long condemned when carried out by
others. This is a very thorough critique of
the panoply of U.S. practices.” This is
another glaring example of American
double standards.
The UN panel said it does recognize that
the U.S. “war on terror,” which followed
the attacks of Sept. 11, 2001, is aimed at
“protecting its security and the security
and freedom of its citizens in a complex
legal and political context.”
The U.S. “should recognize and ensure
that the convention applies at all times,
whether in peace, war or armed conflict,
in any territory under its jurisdiction,” the
committee said.
There are now almost 500 detainees at
Guantanamo, some of whom were
captured when the U.S. ousted
Afghanistan’s Taliban regime following the
2001 attacks. The Cuban government
opposes the U.S. presence at Guantanamo
Bay, a part of the island used under a lease
that began in 1903.
UN Secretary General Kofi Annan, in
February 2006, after a preliminary report
into the Guantanamo detentions
recommended the closing of the prison,
that while he didn’t agree with everything
in the study, the authors’ basic conclusion
was sound. “Sooner or later there will be a
need to close Guantanamo,” he said.
“Hopefully, as soon as possible” he added.
Is the United States of America, the lone
superpower ready to listen to the rest of
the world?
I wouldn't hold my breath.
“The U.S. should be
embarrassed that it’s being heldpublicly accountable for forced
disappearances and detentions
that it has long condemned whencarried out by others. This is a
very thorough critique of the
panoply of U.S. practices.”
The UN CaT says that this is torture.
PRAXIS 52 MAY / JUNE_2006
Human WritesLord Goldsmith: Terrorism and Human RightsThe full text of attorney general Lord Goldsmith’s speech on terrorism and human rights,delivered to a Royal United Services Institute conference.
Terrorism is an international problem
and it is therefore critical that the
international community works together
to find a solution. The breadth of
experience and expertise from across the
world represented at this important
conference is very impressive and I am
honoured to have been asked to give the
closing address.
The title of my speech this evening is “UK
Terrorism Legislation in an International
Context”. You have asked me particularly
to talk about the UK legislative response
to the threat of terrorism and that is what
I shall focus on.
It hardly needs me to say that terrorism is
a huge international challenge. But
terrorism is a particular challenge for
democracies who must strive to protect
individual liberties whilst at the same time
ensuring collective security. The need to
reconcile these competing demands is the
theme of my speech this evening and I
hope to explain how the UK has sought
to achieve the right balance in enacting its
domestic legislation on terrorism.
The lesson of the last few years is surely
that no country is immune from terrorism.
September 11th provided evidence of the
ability of the terrorists to strike at the heart
of the western world to devastating effect.
Since then in Europe we have had the
Madrid train bombings, and then last
summer the attacks on the London
underground in which four British born
suicide bombers killed 52 innocent
commuters. Elsewhere the terrorists have
struck in Russia, Israel, Jordan, Indonesia,
Iraq to name but a few. And we know
that the terrorists keep trying to perpetrate
more of their deadly outrages.
Of course terrorism is not a new
phenomenon. In recent years thousands
of lives have been lost to terrorism in
Europe, whether as a result of campaigns
by indigenous groups such as the IRA or
ETA or at the hands of international
terrorists, for example, Black September’s
attack on the Munich Olympics in 1972
or Abu Nidal’s attacks on Vienna and
Rome airports in 1985. Nor is the
bombing of transport systems a novelty –
we remember the horror of the bombing
of the Paris metro in 1995.
But while terrorism is not new September
11th changed the landscape of terrorism
forever. These new outrages are, I believe,
of a different nature from older forms of
terrorism and therefore more difficult to
tackle: it is not just the scale – over 3000
people of many different nationalities were
killed in the Twin Towers – but the
aspirations of the terrorists – they would
have killed 10 times as many if they could
have; the use of suicide bombers – it is
very hard to guard against attacks by
people who not only do not care if their
lives are lost but positively want it; the use
of modern technology – to attack:
commercial planes and dirty bombs if they
could get them; and to communicate: no
more do terrorists need to conspire in a
darkened cellar where they might be
overheard but through encrypted emails
and scrambled telephone messages which
are much more difficult to intercept.
And they are international in nature:
modern day terrorism is carried out
through a network of cells and different
organisations able to call on help from
people in different countries. This diffuse
and globalised structure presents
enormous challenges to national law
enforcement agencies.
It is against that background that we must
consider the most appropriate steps to
protect our citizens from the threats posed
by terrorism. The primary responsibility
for this in any modern democratic state
falls on the government. It is, in the first
instance, for governments to assess the
need for action.
It is their responsibility to protect the
security of the people. A government’s
response to the threat of terrorism will need
to be on a number of different levels –
new legislation perhaps, a subject to which
I want to return later, increased
international co-operation, new methods
of infiltrating terrorist cells, new ideas as
to how to combat the root causes of
terrorism.
When he addressed the Institute on 13th
February 2006, Gordon Brown outlined
a number of the key steps that have to be
PRAXIS 53MAY / JUNE_2006
Human Writestaken to meet the imperatives of the deeply
threatening situation in which we find
ourselves: major investment in our
domestic frontline forces, building on the
world-class capacity of the Metropolitan
police, other police forces and the security
and intelligence agencies; cutting off the
sources of terrorist finance; improving
border controls.
It is essential also that we have a robust
and well resourced capability of dealing
with terrorism both to detect and disrupt
and to prosecute. Prosecutors in the
Crown Prosecution Service for which I am
responsible work closely with the police
and intelligence agencies to produce that
robust response. We have reorganised the
prosecutors into a special counter terrorism
division to assist that process. I am
determined too that they have all the
available tools which is why it is right that
we continue to examine making
intercepted communications admissible in
evidence in court as other countries do.
And I will encourage prosecutors to press
for tough sentences for terrorists and those
who commit criminal offences whilst
supporting or encouraging terrorists.
But in all of these initiatives, I believe that
it is essential to preserve our democratic
way of life, our right to freedom of
thought and expression and our
commitment to the rule of law; the liberties
which have been hard won over the
centuries and which we hold dear.
These are the very liberties and values
which the terrorists seek to destroy, not
only through mass murder and destruction
of property but also through the climate
of fear that their actions create, and are
intended to create, and which threaten
those values and our way of life.
The bedrock of protection for
fundamental rights in Europe is the
European Convention of Human Rights.
The Convention may be over half a
century old and may be criticised as
outdated in some respects – for example,
in its protection of socio-economic rights
– but stripped to its essentials, the
Convention remains a statement of all that
democracy stands for.
This government passed the Human
Rights Act 1998 which incorporates into
our national and domestic law the
provisions of the European Convention
on Human Rights. In this way our own
courts can apply the Convention rights
directly, having regard to our own legal,
social, economic and political conditions
rather than leave aggrieved persons – as
was the case before – with the long road
to the European Court of Human Rights
in Strasbourg.
I believe that this Act has been one of the
great achievements of recent years and
indeed of this Labour government. It
enshrines in our law the principles that all
human beings should be treated with
respect, equality and fairness; that they
should all be accorded basic fundamental
rights.
One of the key themes of the Convention,
and one of the reasons I would suggest
that it has stood the test of time in the way
that it has, is that it is built around the
concept of balance. As Lord Bingham,
the UK’s most senior Law Lord, stated in
a judgment of the Privy Council “The
[European] Court has … recognised the
need for a fair balance between the general
interest of the community and the
personal rights of the individual, the search
for which balance has been described as
inherent in the whole of the Convention.”
The Convention took its lead in this
respect from the Universal Declaration of
Human Rights, Article 29 of which
expressly recognises the duties of everyone
to the community and the limitation on
rights in order to secure and protect respect
for the rights of others.
Thus many of the rights under the
Convention, like the UN International
Covenant on Civil and Political Rights,
are qualified and require a balance to be
struck against the rights of others or the
rights of society as a whole. So the right to
freedom of expression is balanced against
the right of others not to be defamed or to
be the subject of racial hatred. The right
to privacy is balanced against the right for
the State to intervene in private affairs to
prevent or detect crime, or to safeguard
the interests of children.
While the terrorist does not forfeit his
fundamental rights, the Convention
recognises that those rights can be restricted
in particular circumstances. Rights are not
only one-way. And it is not only the rights
of suspected persons which are important.
The rights and liberties of other citizens
are important too. Let us not forget that
terrorism, by its methods and aims, has
the potential to negate all the individual
rights which we all hold so dear.
I would suggest that the greatest challenge
which free and democratic states face today
is how to balance the need to protect
individual rights with the imperative of
protecting the lives of the rest of the
community. The UK government is
constantly being criticised for striking the
wrong balance. Sometimes the criticism
comes from the right, from those who see
the Human Rights Act as a charter for
criminals and terrorists which impedes the
executive’s freedom of manoeuvre at every
turn. Sometimes the criticism comes from
the left, from those who see in every
government initiative a threat to civil
PRAXIS 54 MAY / JUNE_2006
Human Writesliberties. Such criticism is inevitable.
Furthermore, we must expect that there
will be a wide divergence of views on such
difficult issues at every level of society
including within the judiciary – there are
no obvious right answers. As regards an
example of a divergence of views within
the judiciary, I would take the case
concerning the legislation on detention
without trial of foreign nationals passed
by this government after 9/11, a case to
which I will return later.
The Court of Appeal of three judges
including the Lord Chief Justice, the most
senior judge, found that the legislation was
compatible with our obligations.
Although the House of Lords found that
there was a public emergency threatening
the life of the nation, with the exception
of one judge, it did not consider that
detention without trial was strictly
necessary to deal with the emergency. This
was a clear set-back but it arose because
we were striving conscientiously to deal
with the greatest challenge facing our
generation.
But although I think it is essential in some
cases to be flexible and to be prepared to
countenance some limitation of rights in
order to ensure collective security, if
properly justified and proportionate, there
are certain principles on which there can
be no compromise. Fair trial is one of those
– which is the reason we in the UK were
unable to accept that the US military
tribunals proposed for those detained at
Guantanamo Bay offered sufficient
guarantees of a fair trial in accordance with
international standards.
As you may know having spent time
negotiating with counterparts in the
United States I was unable to accept that
the procedures proposed for the military
tribunals were adequate to ensure a fair
trial. I am pleased to note that, following
this decision, all the British detainees were
returned to the UK.
But the existence of Guantanamo Bay
remains unacceptable. It is time, in my
view, that it should close. Not only would
it, in my personal opinion, be right to close
Guantanamo as a matter of principle, I
believe it would also help to remove what
has become a symbol to many – right or
wrong- of injustice. The historic tradition
of the United States as a beacon of
freedom, liberty and of justice deserves the
removal of this symbol.
I want to turn now to look at how the UK
has attempted to deal with the challenges
posed by international terrorism, focusing
on the government’s response in terms of
legislation, as you have asked me to do.
We had a head-start in terms of legislation
due sadly to the situation in Northern
Ireland and long experience of terrorism
and therefore of terrorist legislation.
Indeed when the 9/11 terrorists struck,
the government had recently completed
an overhaul of all domestic terrorism
legislation resulting in the Terrorism Act
2000. The challenge after 9/11 was to
see whether there were remaining gaps to
be filled.
One particular concern related to certain
foreign nationals in the UK who had no
immigration right to remain and who were
believed to pose a threat to national
security. The problem was as follows.
Although there was a right to deport these
people under immigration laws, because
of international obligations, notably under
the European Convention of Human
Rights, now as I have said part of our
domestic law, we could not deport them
to a country where there was a risk that
they would face death, torture or inhuman
and degrading treatment.
So we were faced with a choice: either to
leave them to roam free in the country or
to detain them unless and until they
voluntarily left the country. Parliament
considered the first course gave rise to an
unacceptable risk, given the heightened
threats since 9/11 and so legislated to
provide for detention. Mindful of the
need to strike the correct balance between
collective security and individual liberties,
the legislation included significant
safeguards including a right of appeal to
an independent judicial body presided
over by a senior judge and the right for
detainees to have their cases reviewed by
that body every three months.
Nonetheless, the legislation was very
controversial, not least because it involved
the UK derogating to a limited extent from
its obligations under the European
Convention.
As I have already mentioned the House of
Lords found that the derogation was not
justified under the European Convention
and declared the legislation incompatible.
But the problem of how to deal with
foreigners who were judged to pose a
national security risk but who could not
be deported because of the risk that they
would be subject to ill-treatment on their
return still remained and still does remain.
The government’s response has been
threefold.
First, in the Prevention of Terrorism Act
2005 the government took new powers
to impose control orders. As with so much
of the UK’s legislation on terrorism, the
2005 Act was very controversial – it was
only passed after all night sittings of
Parliament in which the House of
Commons and the House of Lords passed
the legislation back and forth with
PRAXIS 55MAY / JUNE_2006
Human Writesamendment and counterproposal before
finally hitting on a compromise.
Control orders are available wherever there
is a reasonable suspicion that an individual
is involved in terrorism and it is considered
necessary to impose the order to protect
the public from the risk of terrorism. A
whole range of obligations may be imposed
by means of a control order, for example, a
restriction that an individual stay in his
home for a certain number of hours per
day and a prohibition on use of the
telephone and internet. However, very
importantly, unless the government makes
a new derogation from the European
Convention, - which it has not sought to
do - a control order cannot be used to
impose house arrest or any other
obligations that together amount to a
deprivation of liberty. In short without
further action by the government and
Parliament this Act does not authorise
house arrest.
Just before Easter, a Judge of the High
Court declared the control order legislation
to be incompatible with the European
Convention on the basis that there was a
breach of the right to a fair trial before an
independent and impartial tribunal. The
judge’s main concern was that the court
only had power to review the decision of
the Home Secretary to make the order
rather than being able to take its own
decision and furthermore in reviewing the
Home Secretary’s decision, it was limited
to considering only the material that was
before the Home Secretary at the time of
the original decision.
According to one UK human rights
organisation, Liberty, the effect of the
judgment is that the policy on control
order “is in tatters” and constitutes another
indictment by the courts of the
government’s anti-terror policies. I
disagree. First, this is only a first instance
decision which will be appealed. Second,
and more fundamentally, the legislation
has been declared incompatible on a
procedural point, namely the level of
scrutiny which the courts must apply
when considering the decision of the
Home Secretary. The heart of the policy
on control orders - namely the protection
of the public from the risk of terrorism by
means of civil orders and the use of secret
intelligence to make out the case – is
untouched.
Turning away from control orders, the
government’s second response to the
House of Lords decision I referred to earlier
has been to negotiate memoranda of
understanding with the various Middle
Eastern and North African countries to
which we would like to be able to deport
the foreigners who pose a risk to the UK’s
national security. As I explained, we
cannot deport these individuals if there
are substantial grounds for believing that
there is real risk that they will face ill-
treatment on their return.
The idea behind the memoranda is that
the countries concerned should give
certain non-legally binding guarantees
about treatment on return, thus
minimising the risk of ill-treatment. So
far, memoranda of understanding have
been concluded with Jordan, Libya and
Lebanon, and negotiations continue with
other countries. A number of people are
detained pending deportation on the back
of these memoranda of understanding,
and the extent to which we can rely on
the memoranda vis-à-vis risk of ill-
treatment is in the process of being tested
by the courts. Four of the Algerian
detainees have recently indicated a wish
to return to Algeria without waiting for
the outcome of the proceedings.
Some argue that by negotiating
Memoranda of Understanding the
government is seeking to undermine the
absolute prohibition on torture contained
in the European Convention on Human
Rights and indeed other human rights
instruments. I think that is unfair. It is
an example of the government striving to
achieve the right balance between
collective security and fundamental
liberties, in this case it has sought to
negotiate Memoranda of Understanding
with the countries concerned to guard
against risks such as torture. As to the
argument that such memoranda would
not be worthwhile, I cannot do better than
quote the UK’s independent reviewer of
terrorism legislation, Lord Carlile of
Berriew QC, who said in a recent report:
“It really is a counsel of despair to suggest
that no verifiable or satisfactory agreement
can ever be reached with apparently
recalcitrant countries .”
The government’s third response to losing
the derogation case in the House of Lords
relates to the European Court of Human
Rights in Strasbourg. The problems that
I have been describing stem from a case
called Chahal v UK. The case concerned
a Sikh extremist who claimed that he
would face torture if deported from the
UK to India. The ECtHR held that the
only relevant question was whether there
were substantial grounds for believing that
there was a real risk of ill-treatment on
return. The deporting state was not
permitted to take into account the national
security risk posed to its own nationals.
The UK government has intervened in a
Dutch case pending before the ECtHR
which raises the same issue as Chahal. The
government (alongside a number of other
intervening governments) argues that the
effect of Chahal is to require a state to
ignore national security considerations,
PRAXIS 56 MAY / JUNE_2006
Human Writesthus ignoring the human rights including
the right to life of its own citizens. The
government’s position will be that instead
a balance should be struck with all relevant
issues taken into account, including of
course the right of the deportee not to be
subjected to ill-treatment on his return.
So it wants to ask the European Court to
reconsider its jurisprudence.
I should make clear that intervening in
this case does not mean rejecting the
proposition that the rule against torture is
absolute. The basic principle – that a state
must not in any circumstances subject
those within its control to torture or
inhuman or degrading punishment – is
surely right. It is not an optional part of
the Convention – it is at its core and no
derogations are permitted and there is no
balancing test.
But should the prohibition on torture
apply in the same way when assessing the
extent of a risk that ill-treatment might
take place at the hands of another state?
Was it really intended by those who
drafted the Convention that
considerations of the safety of other citizens
could not be taken into account in such
circumstances when the issue is whether a
foreigner should be admitted here or
allowed to remain? It is salutary to note
that those who engage in acts of terrorism
are explicitly excluded from the protection
of the Refugee Convention, drafted at
around the same time as the ECHR. It
seems a surprising outcome that under the
ECHR participation in acts of terrorism
has effectively become a trump card.
Let me be clear. The UK government is
not proposing that the prohibition on
torture should not apply to those who face
deportation, nor that the extent of the risk
to them should be ignored but rather that
the national security risk posed by such
people should be taken into account along
with all other factors. To do otherwise
affords no weight whatever to the rights
of those whose lives might be significantly
protected by the deportation of someone
believed to pose a terrorist threat.
From what I have said so far, you might
come to the conclusion that (1) the main
threat to the UK’s national security comes
from foreign nationals and (2) the best
way of dealing with the threat is by
deportation. As regards the nationality of
terrorists, we know only too well following
the London attacks that we have plenty
of home grown extremists. They cannot
be deported.
But in any event, I firmly believe that
individuals who are involved in terrorism
should be dealt with by means of the
criminal law wherever possible even where
deportation is an option. Of course, in
the some circumstances – and those of you
who follow UK domestic politics will
understand the reference – the use of the
criminal law followed by deportation is
the right course of action.
Turning now to the specifics of the
Terrorism Act 2006, among the many
measures which Act contains is one to deal
with those who publicly celebrate the acts
of terrorism whilst claiming to reject
violence themselves and refraining from
directly inciting others to commit acts of
terrorism. Such people seek to avoid
falling foul of the criminal law, although
it is often a close run thing, while making
statements that the vast majority of right-
thinking people find truly abhorrent.
More importantly, they contribute to a
climate in which those who are vulnerable
to radicalisation are told that terrorist acts
are to be glorified and, by implication,
emulated.
A growing consensus was emerging before
the appalling attacks on London of 7th
July that action against such people
needed to be taken, although those attacks
undoubtedly provided an additional
catalyst. The action took two forms.
Firstly, a changed approach to the existing
powers to deport and exclude non-British
citizens whose presence was considered to
be non-conducive to the public good.
The government published an indicative
list of unacceptable behaviours including
the type of behaviour exhibited by those
who glorify terrorism. Such behaviour
would, in principle, be regarded as capable
of meeting the non-conducive test and
leading to deportation/exclusion.
Secondly, the government proposed a new
criminal offence of indirectly encouraging
acts of terrorism including by means of
glorifying them. This was conceived in
part in order to give effect to the UK’s
international obligations under the
Council of Europe Convention on the
Prevention of Terrorism, although
international consensus did not save this
new offence from being subjected to very
intense scrutiny right up until the bitter
end of the Bill’s passage through
Parliament.
But the fiercest debate in the UK was
reserved for the government’s proposals
on pre-charge detention. Under previous
terrorism legislation, a person arrested on
suspicion of terrorism could be held for
up to 14 days pending a police
investigation as to whether there was
sufficient evidence to charge him with an
offence. But as the European Court of
Human Rights said in the case of Brogan
v UK : “the investigation of terrorist
offences undoubtedly presents the
authorities with special problems”.
And it was proposed that the period of
PRAXIS 57MAY / JUNE_2006
Human Writespre-charge detention should be increased
to three months in order to deal with the
complexity of modern terrorism
investigations: the international spread of
the investigations and the consequent
need for liaison with foreign agencies; the
problems of computer decryption; foreign
language documents; very large networks
etc. I believe a convincing case was made
that the period of 14 days could be
inadequate and that an extension was
justified subject to robust judicial control.
In the event the House of Commons
accepted the need for some extension to
the period but rejected the full three
months, opting instead for 28 days.
Many of the measures in the Terrorism
Act 2006 involve the creation of new
criminal offences: the offence of
encouragement of terrorism to which I
have already referred, the offence of
disseminating terrorist publications, the
offence of attending terrorist training
camps to name but a few. The question is
asked: why is it necessary to create new
specifically terrorist-related offences to deal
with terrorism? Why will the ordinary
criminal law not suffice?
To some extent, the ordinary criminal law
will suffice. For example, Abu Hamza, an
extremist cleric, was recently sentenced to
seven years’ imprisonment for incitement
to murder and racial hatred.
But, as I have explained, there are some
features of al Qaeda type terrorism which
distinguish it from other forms of crime.
The law needs to adapt to take account of
this. So, for example, where a suicide
bombing is a possibility, the police have
to intervene at an early stage. This was not
necessarily the case with Irish Republican
terrorism where any loss of life was likely
to be more limited and some form of
warning could be anticipated.
Where early intervention occurs, it may
be possible to prove that the conspirators
were planning some sort of terrorist
outrage but little may have emerged of
the detail. It is difficult to fit this within
the existing English law of conspiracy
which requires that a specific offence is
planned rather than general wrong-doing.
To deal with this, the Terrorism Act creates
a new offence of preparation of terrorist
acts. Critically, the Act provides that it is
irrelevant whether particular acts of
terrorist or acts of terrorism generally are
being prepared.
It goes without saying that international
co-operation and action is essential if we
are to defeat international terrorism.
During the UK’s Presidency of the EU in
the last six months of 2005 terrorism was
high on the agenda. I pay tribute to the
former Home Secretary, Charles Clarke,
whose energetic leadership secured a
significant initiative concerning retention
of telecommunications data - not the
content of telephone calls but numbers
called, duration of telephone calls, location
of mobile equipment and allocation of
Internet address etc. Communications
traffic and location data is a vital tool in
investigating and detecting terrorism and
crime. It provides evidence of associations
between individuals and events in time
and place. It also proves evidence of
innocence.
Without this data, many individuals
convicted of the most serious offences
might have escaped detection and
prosecution. But accessing this data can
depend upon which communications
service provider a suspect, a victim or a
witness has used. It can depend upon
which country a service is used in.
So I am delighted that the European
Parliament and Council of Ministers
agreed to harmonise the rules so that
service providers are obliged to retain traffic
and location data for a year, thus making
it accessible for law enforcement purposes.
In conclusion let me summarise:
In meeting the difficult task of finding
the right balance my personal opinion is
that three principles are key. First we
should not throw away our respect for the
law; on the contrary we should ensure that
all our actions are justified and supported
by the law. If we were to abandon our
commitment to the rule of law we would
be giving the terrorists a victory. Second,
we should strive to maintain our
adherence to fundamental values and
liberties; some fundamental rights and
liberties are absolute and there can be no
compromise on them; for others they may
have to give way to other competing
interests as the international human rights
instruments recognise; but – and this is
the third point – where we depart from
traditional ways of guaranteeing civil
liberties we should be clear that our actions
are proportionate to the threat and needed
to meet it.
Fundamental rights must be protected if
we are to preserve our democracies. But
given the current threat to our national
security we have to be flexible about how
we achieve this. The fact that the balance
between security and fundamental rights
has traditionally been struck in one way
does not mean that there are no equally
valid approaches.
We need to keep searching for those
approaches, liaising with and drawing on
the experience of other democracies facing
the same challenge from across the world.
Finding this balance is a difficult task.
But giving up is not an option.
PRAXIS 58 MAY / JUNE_2006
Human WritesImplementation of Human Rights Treatiesthrough the United Nations mechanismby Edmund Bon
The human rights movement which
started in 1945 aimed to create
awareness of rights values, change the
attitudes of States towards embracing the
same and address rights violations. 61 years
may seem a long time but for a matter
which was rather ambiguous in its
inception, the movement has achieved
much in terms of creating, sustaining and
profiling human rights throughout the
world. A great deal of its success is owed to
the international world order of the
United Nations (“UN”) which envisaged
the promotion of “universal respect for,
and observance of, human rights and
fundamental freedoms for all without
distinction as to race, sex, language or
religion”1.
Human rights within the UN apparatus
is monitored and implemented by
Charter-based organs which are created
directly by the Charter of the UN such as
the General Assembly, the Economic and
Social Council and the Commission on
Human Rights or which have been
authorized by one of those bodies, such as
the Sub-Commission on the Promotion
and Protection of Human Rights, and by
treaty-based organs which have been
created by human rights treaties intended
to monitor compliance by State parties of
their obligations under those treaties such
as the Human Rights Committee
established under the International
Covenant on Civil and Political Rights,
1976 (“ICCPR”)2.
Through the lens of the Human Rights
Committee (“HRC”), this essay explores
the mandate parameters of treaty-based
organs, and evaluates their current viability
and usefulness.
I. International institutions in the
implementation of human rights
States, through its various agents such as
the government and police, are the prime
violators of human rights. Human rights
treaties therefore impose various duties on
State parties to acknowledge, respect,
protect and promote those rights
articulated in the said treaties. This is
designed to stop violations and to enhance
good governance. Due to various political
and legal factors, State parties cannot be
trusted to carry out all their obligations
they have signed up to. The irony of
having the same violator-State facilitate the
implementation of rights norms on itself
is conspicuous. The driving idea
propelling rights treaties is that the values
propounded therein are universal and
applies to everyone without distinction.
Practically, the importance of international
pressure, political maneuvering and
diplomatic ties between member States in
the arena of international human rights
law cannot be understated3. Hence, the
consensus to have an international
monitoring and adjudication system as an
added layer to ensure State parties comply
with their accords of ratification4.
The work of the HRC is an example. The
required reporting by State parties of their
human rights situation has led to a gradual
institutionalization of human rights
1 Article 55 Charter of the UN, 1945.2 Henry J. Steiner and Philip Alston, International Human Rights In Context, (2000) at p. 597 and 771. At present, there are 7 treaty-based bodies: Human Rights Committee, Committee on Economic, Social and Cultural Rights established to monitor the InternationalCovenant on Economic, Social and Cultural Rights, 1976, Committee on the Elimination of Racial Discrimination established under theInternational Convention on the Elimination of All Forms of Racial Discrimination, 1969, Committee on the Elimination of Discriminationagainst Women established under the Convention on the Elimination of All Forms of Discrimination against Women, 1981, Committeeagainst Torture established under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,1987, Committee on the Rights of the Child established under the Convention on the Rights of the Child, 1990 and Committee on theProtection of the Rights of All Migrant Workers and Members of their Families established under the International Convention on theProtection of the Rights of All Migrant Workers and Members of their Families, 2003. Charter-based organs are usually more “political”bodies whereas treaty-based organs, “legal”. For an account of the differences, see Steiner and Alston supra n. 2 p. 601.3 See Louis Henkin, International Law: Politics, Values and Functions, (1989) cited in Steiner and Alston supra n. 2 p. 594.4 See Henry Steiner, Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee? (2000) cited inSteiner and Alston supra n. 2 p. 572.
PRAXIS 59MAY / JUNE_2006
Human Writesnorms in global politics. The
corresponding comments or observations
by the HRC of States’ rights record
advocate change or reaffirm rights
practices, and develops jurisprudence
regarding the provisions of the ICCPR.
This primary role of standard-setting and
interpreting the ICCPR is augmented by
recommendations of the HRC to State
parties in respect of complaints5 made by
individuals under the Optional Protocol
to the ICCPR, 19766. Although the views
of the HRC are not binding on State
parties, the HRC require parties to
subsequently report on measures taken to
comply with the said views. In general,
the method utilized by treaty-organs is one
of dialogue and engagement towards
constructive or remedial action by State
parties. This spirit categorizes the extent
of “implementation” under rights treaties,
which to a large extent is “indirect” and
comprises of written recommendations or
communications to the violator-State.
The rights of citizens in sovereign States
have become of international concern
through the work of treaty-organs. It has
transformed accessibility and enlarged
boundaries through their roles as third-
party bodies. At all times however, State
sovereignty is recognized though
challenged7. The extent of such challenge
is a delicate issue because it should persuade
a change in policies and governance by
the violator-State itself, and not causing it
to construct a defensive shell for the
avoidance of its obligations. The State is
both the offender/violator of rights and
then the facilitator/catalyst in the “direct”
implementation of rights.
II. Problems associated with HRC’s
work
The mainstay of the HRC’s work is in its
examination of State parties’ reports.
However, the persistent setbacks
hampering the efforts of the HRC have
been the repeatedly late or non-reporting
by State parties8. Without reports before
it, the HRC cannot undertake its review.
Without powers of effective sanction, this
has led to the strange situation of placing
State parties who do not report in a better
position than those who do. Reporting
State parties are subjected to scrutiny and
questioning, and the HRC may proceed
to make recommendations whereas non-
reporting State parties do not face any
penalties for not submitting their reports.
This backlog has added to the problem of
slow response/turnaround time by the
HRC. The average time from submission
to consideration of a State party’s report
by the HRC is 12 months9. Needless to
say, efficiency and rapid response is
necessary in cases of rights violations which
are widespread and systemic. In this light,
it appears that the HRC would only be
relevant in making recommendations to
State parties on major long-term policy
shifts.
Duplication of reporting obligations is a
related problem. Some States have become
parties to no less than 6 treaties and are
therefore bound to draft 6 different
reports and submit the same to 6 treaty-
organs. A great deal of repetition occurs,
and matters which for example, fall under
the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment, 1987 naturally also fall
under the ICCPR. There is little co-
ordination between treaty-organs on
reporting schedules and there is no single
standard reporting guideline applicable to
all 7 treaty-organs. The views which
emanate from one organ have often
overlapped with another, and this may lead
to inconsistent jurisprudence. This is a
waste of resources and opportunities. The
profiling of the HRC’s work is also low
and without a collaborated publishing
strategy to the world through the media.
Its views are usually known only by
lawyers, governments and academicians.
Steiner argues that the HRC should use
the individual communications procedure
to substantively build a corpus of case law
elucidating the ICCPR10. A reading of
HRC’s comments and observations
evidence the HRC merely “stating” their
opinions without “arguing towards
conclusions”, a process which is done in
secret. This does not assist or sufficiently
educate. Further, there is a considerable
5 Termed “communications” under the Protocol.6 Under article 41 ICCPR, State parties may also lodge complaints against other State parties but there have been no such complaintsto-date.7 The issue of national sovereignty is no longer a strong or substantial reason to resist human rights demands within the UN: see Steinerand Alston supra n. 2 p. 588. Even China has taken the position that “to effect international protection of human rights, the internationalcommunity should interfere with and stop acts that endanger world peace and security”: see Information Office of the State CouncilBeijing, Human Rights in China (1991) cited in Steiner and Alston supra n. 2 p. 547.8 As at 16 February 2006, 187 reports are overdue: see United Nations Secretariat (HRI/MC/2006/CRP.1), Concept Paper on the HighCommissioner’s Proposal for a Unified Standing Treaty Body, p.19.9 See United Nations Secretariat supra n. 8 p. 27.10 See Steiner supra n. 4 cited in Steiner and Alston supra n. 2 p. 767.
PRAXIS 60 MAY / JUNE_2006
Human Writesnumber of communications (which is
increasing each year) submitted to the
HRC, and which have presented
opportunities to develop the breadth of
the ICCPR but were not taken by the
HRC.
III. Proposals for reform
The thrust of the UN Secretariat’s Concept
Paper11 is to introduce a “unified standing
treaty-body” to merge all the 7 treaty-
bodies together. This body will be
permanent and comprised of full-time
professionals. The idea is to streamline the
reporting obligations of State parties to one
organ and to allow greater focus on issues.
A unified body, according to the Concept
Paper, will “provide a framework for a
comprehensive, cross-cutting and holistic
approach to implementation of the
treaties”12 in accordance with the universal
values of human rights. It will avoid
duplication, inconsistent jurisprudence
and manage the expectations of State
parties better.
It is submitted that whilst it may look
“neater” on paper, the real question is
whether such a body can better the current
system of separate treaty-bodies under
different treaties in the provision of redress
and representation for rights violations. I
am of the view that it would not, for the
following reasons:
1. A unified treaty-body still begs the
question of late or non-reporting by
State parties. This may be dealt with
by publicizing the names of States
that have persistently failed to
report for a certain number of years.
In the event the respective States
still fail to report after being given
due notice, the HRC may proceed
with its review in the absence of a
report. Further, advanced technical
or advisory assistance on the
preparation of reports should be
given to States which request for the
same13.
2. If the problem is the non-existence
of standard reporting guidelines or
overlapping jurisdiction, the answer
lies in creating such guidelines and
criteria of admissibility for hearing
before each treaty-body. For
example, it may be made clear by
the criteria that issues relating to
complaints of torture fall under the
purview of the Committee against
Torture and not under the HRC.
3. The current system of treaty-bodies
draws on the expertise and
particular specialization of various
members with a certain degree of
specificity. The advent in the
requirement of more precise
particularization or articulation of
rights norms together with an
increased number of human rights
cases in the near future will justify
the present treaty-body set-up. The
proposed permanence and full-time
deployment of the members of the
proposed unified body may surely
be applied to the current treaty-
bodies.
4. Flowing from above, a unified body
may have inadequate time and
resources (including from the
outset ensuring that a substantial
number of expert members across
the board be appointed) to review
certain specific areas. This may lead
to a marginalization of particular
issues, and will not benefit the rights
movement in jurisprudential and
practical outcome terms in the long-
run14.
5. The backlog of reports not
considered can only be solved by
increasing the members and
resources of the HRC. Having a
unified body will not automatically
solve the backlog as a global report
by State parties will necessarily be
longer because it seeks to merge all
issues in relation to the respective
treaties ratified into one report. It
would not be useful to limit the
number of pages or issues each State
party may wish submit in their
reports - the emphasis must always
be on more information rather than
less.
6. It is said that a unified body will be
more visible than the existing organs
and enhances visibility which in
turn will generate media interest.
Whilst this cannot be denied, there
is again no reason why the present
treaty-based organs are prevented
from formalizing a clear media
strategy with the aim of heightening
the impact of HRC’s work. HRC
should, as far as possible, make its
deliberations more transparent and
open, and to disseminate its
comments or observations widely
and swiftly.
11 supra n. 8.12 supra n. 8 para. 11.13 See Philip Alston (A/CONF. 157/PC/62/Add. 11/Rev.1), Interim Report on Study on Enhancing the Long-term Effectiveness of theUnited Nations Human Rights Treaty Regime, (1993) para. 109-122.14 See UN Document A/58/123, Report of a meeting on Reform of the Human Rights Treaty Body System, (2003) para. 20-28.
PRAXIS 61MAY / JUNE_2006
Human WritesThe idea of creating a unified body is
administratively coherent; but certainly
not content driven. The same problems
will persist and may deteriorate further.
The same solutions being applied in
respect of many features of the unified
body may similarly be applied in the
current treaty-bodies set-up save for the
unification of all the treaty-bodies.
Be that as it may, the base initiative for the
human rights movement must not be
forgotten: the universal ratification of core
UN rights treaties. Countries that refuse
to ratify should continually be engaged
and their concerns addressed in detail.
Inter-governmental conferences should
continually be planned and held to have
non-State parties commit themselves to
certain thematic pledges. Political will is
the key mover in this aspect. Alston
suggests that time-frames for universal
ratification be set as a measure to encourage
ratification and to have international
agencies assist States as social partners in
realizing the importance of ratification as
was done by the United Nations
Children’s Fund in respect of the
Convention on the Rights of the Child,
199015.
The concept of implementation through
the UN mechanism has taken a deep-
rooted stand in the rights agenda and has
produced success. It is still an imperative.
The notion that there are moves to reform
the system is encouraging purely from the
perspective that, despite the politicking,
the UN has human rights high on its
agenda. It is now time to debate the
proposals towards making the machinery
of implementation a stronger one. There
is no turning back.
Philip Allott wrote16:
“The idea of human rights should
intimidate governments or it is
worth nothing. If the idea of
human rights assures governments
it is worse than nothing. … But,
once again, there is room for
optimism, on two grounds. (1)
The idea of human rights having
been thought, it cannot be
unthought. It will not be replaced,
unless by some idea which
contains and surpasses it. (2) There
are tenacious individuals and
non-statal societies whose activity
on behalf of the idea of human
rights is not part of international
relations but is part of a new
process of international reality-
forming”.
It is with this in mind that rights activists
continue to supplant any perceived failures
or disappointments with renewed hope
and energy in their work of making human
rights implementation a natural process
in the administration of justice in each
country.
15 See Philip Alston, (E/CN.4/1997/74), Final Report on Enhancing the Long-termEffectiveness of the United Nations Human Rights Treaty System, (1997) para. 14-36.16 Eunomia: New Order for a New World (1990) cited in Steiner and Alston supra n. 2 p.703.
Lessons from an Oyster
There once was an oysterWhose story I tell,Who found that some sandHad got into his shell.
It was only a grain,but it gave him great pain.For oysters have feelingsAlthough they’re so plain. Now, did he berate the harshworkings of fateThat had brought himTo such a deplorable state? Did he curse at thegovernment,Cry for election,And claim that the sea shouldHave given him protection? ’No,’ he said to himselfAs he lay on a shell,Since I cannot remove it,I shall try to improve it. Now the years have rolledaround,As the years always do,And he came to his ultimateDestiny stew. And the small grain of sandThat had bothered him soWas a beautiful pearlAll richly aglow. Now the tale has a moral,for isn’t it grandWhat an oyster can doWith a morsel of sand? What couldn’t we doIf we’d only beginWith some of the thingsThat get under our skin.
PRAXIS 62 MAY / JUNE_2006
Lifestyle
PRAXIS 62 MAY / JUNE_2006
LifestyleADVERTORIAL
MAY / JUNE_2006 PRAXIS 63
Lifestyle
MAY / JUNE_2006 PRAXIS 63
PRAXIS 64 MAY / JUNE_2006
LifestyleMeditation for a Calm Heartby Yogi Bhajan, September 1981
Sit in an Easy Pose
EYES: Either close the eyes or look straight
ahead with the eyes 1/10th open.
MUDRA: Place the left hand on the
center of the chest at the Heart Center.
The palm is flat against the chest, and the
fingers are parallel to the ground, pointing
to the right. Make Gyan Mudra with the
right hand (touch the tip of the index
(Jupiter) finger with the tip of the
thumb). Raise the right hand up to the
right side as if giving a pledge. The palm
faces forward, the three fingers not in Gyan
Mudra point up. The elbow is relaxed near
the side with the forearm perpendicular
to the ground.
BREATH PATTERN &
VISUALIZATION: Concentrate on the
flow of the breath. Regulate each bit of
the breath consciously. Inhale slowly and
deeply through both nostrils. Then
suspend the breath in and raise the chest.
Retain it as long as possible. Then exhale
smoothly, gradually, and completely.
When the breath is totally out, lock the
breath out for as long as possible.
TIME: Continue this pattern of long,
deep breathing for 3-31 minutes.
TO END: Inhale and exhale strongly 3
times. Relax.
COMMENTS
The proper home of the subtle force,
prana, is in the lungs and heart. The left
palm is placed at the natural home of prana,
creating a deep stillness at that point. The
right hand that throws you into action
and analysis is placed in a receptive, relaxed
mudra and put in the position of peace.
The entire posture induces the feeling of
calmness. It technically creates a still point
for the prana at the Heart Center.
Emotionally, this meditation adds clear
perception to your relationships with
yourself and others. If you are upset at
work or in a personal relationship, sit in
this meditation for 3 to 15 minutes before
deciding how to act. Then act with your
full heart. Physically, this meditation
strengthens the lungs and heart. This
meditation is perfect for beginners. It
opens awareness of the breath, and it
conditions the lungs. When you hold the
breath in or out for “as long as possible,”
you should not gasp or be under strain
when you let the breath move again.
- In a class try it for 3 minutes.
- If you have more time, try it for three
periods of 3 minutes each, with one
minute rest between them, for a total
of 11 minutes.
- For an advanced practice of
concentration and rejuvenation, build
the meditation up to 31 minutes.
Yogis,
r i s h i s
and sagesunderstood how to
withstand stress and
maintain energy. Thismeditation when
practiced for
three minutes will relieve your mental andphysical challenges, and leave you refreshed
and relaxed. This meditation is also
beneficial in stretching the chest area,which can help you avoid breast cancer.
Sit straight in a cross-legged position withyour eyes closed. Raise both arms to the
sides at a 60-degree angle with the palms
facing forward and the elbows straight.Tighten the upper arms, stretch the chest
out and tense the whole body so that youphysically shake from the base of the spine
to the neck. Try your best! Continue for 3
minutes. Relax.
Meditation forStress Relief
Keep your body moving effortlessly
in a chilly season with this healing
elixir that nourishes and lubricates jointsand spine.
• 1/8 tsp. turmeric powder
• 1/2 cup water• 1 cup milk
• 2 T almond oil
• honey
Boil water and
turmeric in a smallsaucepan, over medium-high heat for 8
minutes. In another saucepan, bring
almond oil and milk to boil and removefrom heat. Combine the two mixtures,
adding honey to taste.
Golden Milk
MAY / JUNE_2006 PRAXIS 65
Lifestyle
Concealed within this limestone
massif is an intricate system of caves
honeycombed inside the limestone hills.
These caves are actually a breath taking
gallery of stalagmites and stalactites and
other amazing rock formations which are
superb geological wonders found only in
this part of the world.
Believed to have existed since 8000 B.C.,
Gua Tempurong is probably the largest
natural limestone cave in Malaysia.
Situated about 24 kilometres from Ipoh,
the cave stretches for 1.3 kilometres and is
made up of five huge domes whose ceilings
resemble coconut shells. Each dome has
different formations of stalagmites and
stalactites as well as differing temperatures,
water levels, content of limestone and
marble.
Entering this cave in the rain forest, it
would take 5 and a half hours to go
through the entire cave. Many times one
has to crawl on hands and knees to fit
through the labyrinth of stalagmites and
stalactites. Much of the time you would
also be knee deep in water.
Bats can be heard squealing in the high
caverns throughout the cave lending a very
surreal atmosphere to the entire experience.
The ancient smells tell stories of their own.
It is humid and pitch black except for your
flashlights.
In the middle of this cave there is a
stalagmite over 2 million years old. It stands
so tall that it feels like an enormous Earth
Guardian.
The “Giant”, as the stalagmite is called,
points high into the cave, and even the
ceiling of the cave is so majestic, and so
enormously magnificent that you
would become totally awe
struck. The feeling is one of being
in the presence of a wise sentient
being; an Earth
Guardian. Standing silent you try
to listen to what this
ancient stalagmite had to say.
Shining your flashlight into a
running underground river brings
brilliant reflections like so many
stars in the night sky from small
chips of marble in the riverbed.
These small stones have never seen
the light of day. Become
transfixed as if transported to some
other place in the universe.
When you finally reach the exit of
The Largest Natural Limestone Caves
“Thinking on where to go next? Don’t know how to get rid of the restlessnes that’s irking you? Want to spend
some quality time with your loved ones? How about checking out this rather unknown destination?”
the cave, enjoy the sunlight filtering
down through the lush jungle greenery,
with monkeys and birds frolicking all
about.
Getting There
Gua Tempurung, is located in Gopeng,
Perak, and can be reached from the North-
South Highway by exiting through the
Gopeng Interchange. You then take
Federal Route 1 and proceed south about
2 km until Kampung Gunung Mesah.
Turn left and drive on the kampung road
for about 4 km. This kampung road can
support heavy vehicles including buses.
As you drive through this kampung area
you begin to see the limestone hills in the
distance. Approaching the caves is a very
mystical experience with the mist hovering
above the hills.
* Extract taken from
http://www.abcmalaysia.com/tour_
malaysia/gua_tempurung.htm
PRAXIS 66 MAY / JUNE_2006
Disciplinary OrdersSuspendedOrder under s 94(4)(c) Legal Profession Act 19761. Nik Abdul Rahman bin Nik Mat, M/s
Rahman & Co (immediate effect from 22April 2006, until further notice)
2. Marzaini binti Zainuddin, M/s Zainuddin &Co (immediate effect from 22 April 2006,until further notice)
3. Nizam bin Yahya, M/s Azizi Nizam & Anwar(immediate effect from 22 April 2006, untilfurther notice)
4. Wan Mohd Nazri bin Wan Hassan, M/s Wan& Saif (immediate effect from 20 May 2006,until further notice)
Order under s 103D Legal Profession Act 19761. Jegathesan a/l Karupiah, M/s Karupiah & Co
(two(2) years with effect 21 days from 25March 2006)
2. Ajit Singh s/o Jagat Singh, M/s J Ajit Singh &Co (two(2) years with effect 21 days from 25March 2006)
3. Muhamad Sabri bin Mohd Saman, M/s SabriNazli Lana & Azizan (three(3) months witheffect 21 days from 25 March 2006)
PenaltyOrder under s 102 Legal Profession Act 19761. Komalam Vijayan, M/s Komalam & Co - 21
April 2006 (RM1,000)2. Law Teck Shiong, M/s Desmond Chan & Co
- 21 April 2006 (RM500)3. Marina binti Abdul Muttalib, M/s MA
Muttalib & Associates - 21 April 2006(RM500)
4. Amareson a/l K Velu, M/s Amareson & Meera- 21 April 2006 (RM500)
5. Nur Akmar binti Adnan, M/s Shariff & Som- 22 April 2006 (RM1,000)
6. Termizi bin Abdul Wahab, M/s Wan Termizi& Co - 22 April 2006 (RM1,000)
7. Ong Siew Lyn Lynette, M/s N K Tan & Rahim- 22 April 2006 (RM1,000)
8. Akmaroslina binti Kamarudin, M/s AzraSalleh & Co - 22 April 2006 (RM300)
9. Abdul Majeed bin Mohamed Hussain, N MTiong & Co - 22 April 2006 (RM1,000)
10. Ruzaini Ayuni binti Ahmad, M/s RashidAsari & Co - 22 April 2006 (RM500)
11. Mohd Lotfan Nadzmi bin Ismail, M/s LotfanIsmail & Associates - 22 April 2006(RM1,000)
12. Izharudin bin Jalaludin, M/s Izharudin &Associates - 22 April 2006 (RM1,000)
13. Sukhdev Singh a/l Arjan Singh, M/s PritamSingh Doal & Co - 22 April 2006(RM1,000)
14. Shaik Azrul bin Shaik Daud, M/s Shaik Azrin& Co - 22 April 2006 (RM1,000)
15. Premah a/p Kaliaperumal, M/s Ravi NairMaideen & Associates - 22 April 2006(RM1,000)
16. Rajehgopal a/l Velu, M/s Rajehgopal Velu& Associates - 22 April 2006 (RM1,000)
17. Rohaizat bin Othman, M/s Saif Ariff &Rohaizat - 22 April 2006 (RM1,000)
18. Haspa binti Saprani, M/s Malek & Associates- 22 April 2006 (RM500)
19. Lee Fong Ling, M/s Lee, Kitty & Partners -22 April 2006 (RM1,000)
20. Mohd Zaki bin Abdul Wahab, M/sBadrulhisam Zaki & Co - 22 April 2006(RM1,000)
21. Abdul Roni bin Abd Rahman, M/s AbdulRoni & Co - 22 April 2006 (RM500)
22. Lee Mun Ying Felicia, M/s Abu TalibShahrom - 22 April 2006 (RM500)
23. Fakihah binti Azahari, M/s Nik HishamFakihah & Co - 22 April 2006 (RM1,000)
24. Mohd Nashir bin Hussin, M/s Nashir Johal& Co - 22 April 2006 (RM1,000)
25. Balwant Singh s/o Ajmer Singh, M/s BalwantSingh Ajmer & Co - 22 April 2006(RM1,000)
26. Yuen Kwong Wai, M/s Yuen & Co - 22 April2006 (RM1,000)
27. Murugayah a/l Balasubramaniam, M/s BMurugayah & Co - 22 April 2006 (RM500)
MAY / JUNE_2006 PRAXIS 67
Disciplinary Orders
NOTICE
It has been brought to the attention of the BarCouncil that an individual by the name ofGurpreet Singh Sidhu has been circulatingpamphlets offering legal services and passinghimself off as an advocate and solicitor practicingunder the name and style of M/s G S Sidhu(handphone: 016-2813571) in Ipoh,particularly; Taman Kledang Emas, CanningGarden, Ipoh Garden South and Ipoh GardenEast.
Kindly take notice that the Bar Council has norecord of any member of the Bar practicing underthe name and style of M/s G S Sidhu.
28. Shri @ Indran Ram a/l Ramasamy, M/sAzman Ahmad & Company - 22 April 2006(RM500)
29. Ebenezer Ramesh Jaya Raj a/l Jayaraja, M/sEbenezer & Co - 22 April 2006 (RM1,000)
30. Venai a/l Lalji Gangdas Patel, M/s BMurugayah & Co - 22 April 2006 (RM500)
31. Azman bin Ahmad, M/s Abu Talib Shahrom- 22 April 2006 (RM500)
32. Mohamad Hafidz bin Abd Bakar, M/sMohamad Hafidz & Co - 22 April 2006(RM500)
33. Zaidah binti Ibrahim, M/s Amin Hamdi &Partners - 22 April 2006 (RM500)
34. Wirawati binti Kamarulzaman, M/s RaziffRazlan - 22 April 2006 (RM1,000)
35. Asmahan binti Hj Sulaiman, M/s AsmahanSulaiman & Associates - 22 April 2006(RM1,000)
36. Robiha binti Mohamed, M/s Robiha & Co -22 April 2006 (RM500)
37. Mohd Zawahid bin Ya, M/s Mohd Zawahid& Co - 22 April 2006 (RM1,000)
38. Anisa binti Abdullah, M/s Anisa & Associates- 22 April 2006 (RM1,000)
39. Mohd Faizal bin Shafie @ Shapiai, M/s ElvizaRenny & Faizal - 19 May 2006 (RM1,000)
40. Baharudin bin Atan, M/s Zaid Ibrahim &Co - 19 May 2006 (RM1,000)
41. Chew Eng Cheng, M/s Abbas & Ngan - 19May 2006 (RM500)
Order under s 103D Legal Profession Act 19761. Hau Hock Khun, M/s Hau Hock Khun &
Co - 21 April 2006 (RM10,000)2. Gurbachan Singh a/l Bagawan Singh, M/s
Bachan & Kartar - 21 April 2006 (RM3,000)3. Rajadevan a/l Vamadevan, M/s Rajadevan &
Associates - 6 May 2006 (RM2,000)4. Lian Meng Wah, M/s Ngeow & Tan - 6 May
2006 (RM10,000)5. Jasvinjit Singh s/o Gurcharan Singh, M/s A J
Ariffin Yeo & Harpal - 19 May 2006(RM1,000)
Ledchumiah s/o Ramamoorthy
Further to our notice in the March/April 2006issue, under members struck off (item no 2),kindly note that an interim stay was obtained on17 April 2006 pending appeal to the High Court.
6. Nora'ini binti Mohd Yazam, M/s Nora'iniMohd Yazam & Co - 19 May 2006(RM5,000)
7. Khamshah bin Abu Bakar, M/s Khamshah &Partners - 19 May 2006 (RM15,000)
8. Leong Chuan Wah, M/s C W Leong &Associates - 19 May 2006 (RM10,000)
9. Ho Yuk Yuen, M/s Y Y Ho & Associates - 19May 2006 (RM5,000)
10. Krishnamurthy s/o Karthikesu, M/s KKrishnamurthy & Assoc - 19 May 2006(RM3,500)
Struck OffOrder under s 103D Legal Profession Act 19761. Su Kien Cheok, M/s Su How & Co (w.e.f. 21
days from 22 April 2006)2. Pasupathy Kanagasamy, M/s Pasupathy & Co
(w.e.f. 21 days from 22 April 2006)
PRAXIS 68 MAY / JUNE_2006
Library UpdateBILL 2006
1. National Skills Development Act
2006 –DR 6/2006
First Reading 25.4.2006 Tam no. 4
2. Patent (Amendment) Act 2006 –DR
8/2006
First Reading 2.5.2006 Tam no.4
3. Supplementary Supply (2005) Act
2006-DR 7/2006
First Reading 25.4.2006 Tam no. 4
4. Malaysian Pepper Board Act 2006
– DR 10/2006
First Reading 9.5.2006 Tam no. 5
5. Road Transport (Amendment) Act
2006 –DR 9/2006
First Reading 8.5.2006 Tam no. 5
AMENDING ACTS 2003
Patents (Amendment) Act 2003 (Act
A1196)
Notes:-Amends ss.34, 35 and 52
-Inserts new Part XIVA
-Repeals s.13 of Patents (Amendment) Act
2000 [Act A1088]
w.e.f:-14.8.2003-ss.3 & 6
w.e.f:-20.4.2006-ss.2, 4 & 5 [PU(B) 120/
2006]
INDEX TO SELECTED P.U. (A)
SERIES 2006
Optical Act 1991 [Act 469]
Optical (Amendment of First Schedule)
Order 2006 [P.U.(A)158/2006]
Issued under s.41, Optical Act 1991
Notes:-Amends Sch 1, Optical Act 1991
w.e.f:-28.4.2006
Optical Act 1991 [Act 469]
Optical (Amendment of Second
Schedule) Order 2006 [P.U.(A) 159/
2006]
Issued under s.41, Optical Act 1991
Notes:-Amends Sch 2 , Optical Act 1991
w.e.f:-28.4.2006
INDEX TO SELECTED P.U. (B)
SERIES 2006
Patent (Amendment) Act 2003 [Act
A1196]
Appointment of Date of Coming into
Operation [P.U. (B) 120/2006]
w.e.f:-20.4.2006-ss.2, 4 & 5
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International Bar Association 2006 Conference17-22 September 2006Chicago, USA
With over 3,000 international lawyers expected to attend, this conferencepresents a unique networking opportunity with over 150 working sessionscovering all areas of practice and 2 showcase sessions focusing on issueswhich are of interest to lawyers of all disciplines. The conference not onlyprovides the opportunity to make contacts but also to learn from some of themost acclaimed speakers in the legal world.
For further information and to register online, please see:www.ibanet.org/chicago06