Praxis May Jun2006

‘MOBILITY OF LABOUR IN THE LAWASIA REGION - THE LEGAL ANDSOCIAL PROBLEMS OF MIGRANT LABOUR’

Please fax a copy of the bank transfer to us for verification purposesWebsite:www.malaysianbar.org.my

Email: [email protected]

Registrant

Full Name (please underline surname): _______________________________________________Title: Tun Tan Sri Dato Justice Judge Prof Dr Mr Mrs MsOther Special Status : _____________________________________________________________Institution/Company: ______________________________________________________________Address : _______________________________________________________________________Postcode : ______________ City: ____________________ Country : _______________________Telephone: ________________________________ Facsimile : ____________________________Email: _________________________________________________________________________Preferred name for Badge : ________________________________________________________

Category

i) Local Delegates RM750.00

ii) Foreign Delegates USD300.00

Conference Registration Fee

Payment can be made by cheque, bank draft or banktransfer. Cheques and bank drafts should be madepayable to “Bar Council Lawasia Labour LawConference”. Payment must be made in advance ofthe Conference.

Bar Council MalaysiaNos 13, 15 & 17, Leboh Pasar Besar

50050 Kuala LumpurTel: 603 - 2031 3003

Fax: 603 - 2032 2043 / 2034 2825 / 2072 5818

Method of Payment

Note: Substitution / Cancellation1. Substitutions may be made for registered delegates

provided the Organisers are informed in writing beforethe Conference.

2 . For cancellation, a refund less 10% will be given if thecancellation is received in writing by 1 August 2006. Norefund will be given for cancellations received after 1August 2006.

Bank Transfer : HSBC, No 2, Leboh Ampang,50100 Kuala Lumpur, Malaysia

Account No : 301-022166-104SWIFT CODE NO : HBMB MYKL

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.

Contribution: The Bar Council welcomes letters,articles, views and news (including photographs)for possible inclusion in the publication. However,the Bar Council reserves the right not to publishthem or to edit those published as regards content,clarity, style and space considerations.

Articles from individuals that are published herecontain the personal views of the writers concernedand are not necessarily the views of the BarCouncil.

BAR COUNCIL OF MALAYSIABAR COUNCIL OF MALAYSIABAR COUNCIL OF MALAYSIABAR COUNCIL OF MALAYSIABAR COUNCIL OF MALAYSIA

BAR COUNCILNos 13, 15 & 17

Leboh Pasar Besar50050 Kuala Lumpur

MalaysiaTelephone (03) 2031 3003

Fax (03) 2026 1313, 2034 2825, 2072 5818e-mail: [email protected]: www.malaysianbar.org.my

Hj Kuthubul Zaman Bukhari, Hendon Mohamed, HjSulaiman Abdullah, Mah Weng Kwai, R RChelvarajah, Low Beng Choo, Cecil Rajendra,Yasmeen Hj Muhamad Shariff, Hj Hamid SultanAbu Backer, Lim Chee Wee, Jerald Gomez, R VLingam, Steven Thiruneelakandan, Zulkifli Nordin,Edmund Bon, George Varughese, KrishnaDallumah, Tony Woon Yeow Thong, Dato’AbdulRahman Abdullah, Roger Tan Kor Mee, HjMohamed Sazali Abdul Aziz, Hj Asmadi Awang, LeeLeng Guan, Indran Rajalingam, Fredrick IndranNicholas, Ngan Siong Hing, V Sithambaram, GBalakrishnan, Lalitha Menon, M Ramachelvam, NgKok Peng, Hj Sukri Hj Mohamed

Publications CommitteePublications CommitteePublications CommitteePublications CommitteePublications CommitteeHj Vazeer Alam Mydin Meera (Chairman), Ng KongPeng (Deputy Chairman), Andrew Das Solomon,Cecil Rajendra, Colin Andrew Pereira, EdmundBon, S Gunasegaran, Sanjeev Kumar Rasiah, TanBan Cheng , PK Yang, Nicole Tan Lee Koon,Jahaberdeen Mohamed Yunoos, K Shanmuga

SecretariatSecretariatSecretariatSecretariatSecretariatExecutive Director: Catherine EuDeputy Executive Director: Kenneth Goh

Publications ExecutivesGurmeet KaurTel:+ 603 2031 3003 extn 143DL: + 603 2032 4498Fax: + 603 2032 [email protected]

AdvertisementChandrika BhaskaranTel: +603 203 13 003 extn 143DL: + 603 203 13 180Fax: + 603 2026 [email protected]

Design & Layout:Khairul Anuar / Norazaliza Azlin

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


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


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


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


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.


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


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


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.


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)


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.


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


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.


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


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.


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


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


NewsSnapshots of the Bench & Bar Games 2006


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.


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


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


23 & 24 August 2006Officer in Charge: Ms. Lilian

FAMILY LAW - MEN’S RIGHTS FORUM

9 September 2006Officer in Charge: Mr Dominic Chan


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


20 & 21 September 2006Officer in Charge: Ms. Lilian


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


8 & 9 November 2006Officer in Charge: Ms. Lilian


WORKSHOP “CONDUCTING INDUSTRIAL

COURT TRIALS (SECTION 20 DISMISSAL

ACTION)”18 NOVEMBER 2006Officer in Charge: Mr Dominic Chan


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


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.


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


Officer in Charge: GURMEET KAUR

Tel: 03- 2031 3003 ext 143

DL: 03- 2032 4498


ARBITRATION & ADR

Chairperson: HJ KUTHUBUL ZAMAN BUKHARI

Tel: 07- 2229 788/ 9 Fax: 07- 2238073


Officer in Charge: MARIANNA LAUREEN TAN

Tel: 03- 2031 3003


BAHASA MELAYU

Chairperson: HJ HAMID SULTAN ABU BACKER

Tel: 2693 5677 Fax: 2282 5797


Officer in Charge: HAFSYAM OTHMAN

Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071


CONVEYANCING PRACTICE

Chairperson: ROGER TAN

Tel: 07- 2211 888 Fax: 07- 2211 889


Officer in Charge: ROHANI ADNAN

Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184


SOLICITORS’ REMUNERATION ENFORCEMENT

Chairperson: ROGER TAN

Tel: 07- 2211 888 Fax: 07- 2211 889


Officer in Charge: EMILY LEE

Tel: 03- 2031 3003 ext 189 DL: 03- 2031 5769


CORPORATE & COMMERCIAL LAW

Chairperson: JERALD GOMEZ

Tel: 2031 4151 Fax: 2031 4131


Officer in Charge: EMILY LEE

Tel: 03- 2031 3003 ext 189 DL: 03- 2031 5769


CRIMINAL LAW

Chairperson: V. SITHAMBARAM

Tel: 04- 2299 905 Fax: 04- 2299 978


Officer in Charge: DOMINIC CHAN

Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762


FAMILY LAW

Chairperson: LALITHA MENON

Tel: 04- 2632 719 Fax: 04- 2632 720



Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762


FINANCE

Chairperson: VAZEER ALAM MYDIN MEERA

Tel: 04- 7317 933 Fax: 04-7315 633


Officer in Charge: LILY AW

Tel: 03- 2031 3003 ext 118 DL: 03- 2026 9818


GATS

Chairperson: MAH WENG KWAI

Tel: 2698 2588 Fax: 2691 3017


Officer in Charge: KENNETH GOH

Tel: 03- 2031 3003 ext 139 DL: 03 –2031 2825



SecretariatGENDER ISSUES & EQUAL OPPORTUNITIES

Chairperson: YASMEEN SHARIFF

Tel: 2693 3276/ 7 Fax: 2693 1280



Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762


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



Chairperson: STEVEN THIRU

Tel: 2031 1788 Fax: 2031 1775/ 8/ 9



Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762


INTELLECTUAL PROPERTY

Chairperson: NGAN SIONG HING

Tel: 05- 2551 333 Fax: 05- 2558 799


Officer in Charge: LYNETTE TAN

Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857


INFORMATION TECHNOLOGY AND CYBERLAW

Chairperson: LIM CHEE WEE

Tel: 2094 8111 Fax:2094 3211


Officer in Charge: SOON PER LANG

Tel: 03- 2031 3003 ext 135 DL: 03- 2031 8561


LAW REFORM & SPECIAL AREAS

Chairperson: DATO’ RAMACHELVAM

Tel: 09- 2961 262/ 473 Fax: 09- 2962 073



Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762


LAWCARE, CHARITY & WELFARE

Chairperson: INDRAN RAJALINGAM

Tel: 09- 7482 742/ 7448 705/ 7444 600 Fax: 09- 7487966



Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857


LEGAL PROFESSION

Chairperson: TONY WOON

Tel: 06- 7651 711/ 2 Fax: 06- 7651 713


Officer in Charge: KENNETH GOH

Tel: 03- 2031 3003 ext 139 DL: 03 –2031 2825


LIBRARY

Chairperson: HJ SULAIMAN ABDULLAH

Tel: 03- 7960 9235 Fax: 03- 7960 9235


Officer in Charge: DR PATHMAVATHY

Tel: 03- 2031 3003 ext 156 DL: 03- 2031 5082


NATIONAL LEGAL AID

Chairperson: FREDRICK INDRAN NICHOLAS

Tel: 05- 5482 324 Fax: 05- 5482 341



Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071


NATIONAL YOUNG LAWYERS

Chairperson: EDMUND BON

Tel: 03- 2055 3888/ 3909 Fax: 03- 2055 3880/1



Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857


PROFESSIONAL DEVELOPMENT

Chairperson: KRISHNA DALLUMAH

Tel: 06- 7622 051/ 7616 159 Fax: 06- 7622 306



Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857



SecretariatPROFESSIONAL INDEMNITY INSURANCE

Chairperson: RAGUNATH KESAVAN

Tel: 03- 2095 2299 Fax: 03- 2093 7670


Officer in Charge: VINODHINI SAMUEL

Tel: 03- 20313003 ext 141 DL: 03- 2032 1870


PUBLICATIONS

Chairperson: VAZEER ALAM MYDIN MEERA

Tel: 04- 7317 933 Fax: 04-7315 633



Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498


RULES AND REGULATIONS

Chairperson: JERALD GOMEZ

Tel: 03- 2031 4151 Fax: 03- 2031 4131



Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857


SHIPPING & ADMIRALTY LAW

Chairperson: HJ HAMID SULTAN ABU BACKER

Tel: 03- 2693 5677 Fax: 03- 2282 5797



Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498


SPORTS

Chairperson: GEORGE VARUGHESE

Tel: 03- 7954 9095 Fax: 03- 7955 2789



Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857


STUDY LOAN

Chairperson: R R CHELVARAJAH

Tel: 06- 2823 911 Fax: 06- 2846 244


Officer in Charge: LILY AW

Tel: 03- 2031 3003 ext 118 DL: 03- 2026 9818


SYARIAH LAWS

Chairperson: MOHAMED SAZALI ABD AZIZ

Tel: 09- 2965 715 Fax: 09- 0965 707



Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071


STANDING COMMITTEE FOR THE PROMOTION OF

BEST PRACTICES BY DETAINING AUTHORITIES

Chairperson: AMBIGA SREENEVASAN

Tel: 03- 2095 2122 Fax: 03- 2095 1322


Officer in Charge: RAJEN DEVARAJ

Tel: 03- 2031 3003 ext 194 DL: 03- 2032 1715


STANDING COMMITTEE ON COURT RULES

Chairperson: DATO’ CECIL ABRAHAM

Tel: 03- 2070 0644 Fax: 2078 5625/ 2034 2763/ 20706201



Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184


STANDING COMMITTEE ON ELIMINATION

DISCRIMINATION

Chairperson: CHARLES HECTOR

Tel: 03- 7958 1844 Fax: 03- 7954 4018



Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498


STANDING COMMITTEE TO REVIEW LPA 1976

Chairperson: DATO’ DR PETER MOONEY

Tel: 03- 2094 8111 Fax: 03- 2094 3211



Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184


14TH MALAYSIAN LAW CONFERENCE ORGANISING

COMMITTEE

Chairperson: GEORGE VARUGHESE

Tel: 03- 7954 9095 Fax: 03- 7955 2789



Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857



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.


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.


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


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


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


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


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


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


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


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]


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].


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.

Established legal firm in J.B. requires a

qualified legal assistant for litigation work.

Experience not essential. Attractive

salary, 5 working-day week.

Please call Ms Tay / Mr Kang at

07-3351928 or email

[email protected]

for an appointment.

ARTHUR LEE & COMPANYUnit 5.17,Level 5, Plaza DNP

No.59, Jalan Dato Abdullah Tahir.

80300 Johor Bahru

Contact No. :07-3351928

Facsimile :07-3335911


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.


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


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”.


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”.


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.


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).


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


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


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.


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.


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.


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


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.


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


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


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


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,


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


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.


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.


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.


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.


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.


Lifestyle


LifestyleADVERTORIAL


Lifestyle



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


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


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)


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)


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


4. Malaysian Pepper Board Act 2006

– DR 10/2006


5. Road Transport (Amendment) Act

2006 –DR 9/2006


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

MALAYSIAN BAR LIBRARY

Opening Hours

Mondays to Fridays 8.30 a.m.- 7.00 p.m.

Saturdays 8.30 a.m.- 1.00 p.m.

Sundays and Public Holidays Closed

Photocopying Services

Legal Firms requiring photocopies of library material (cases, legislation, etc) can fax their requests to the Malaysian Bar Library

at Fax: 03-2032 4067, undertaking to pay the charges and indicating whether the material is to be faxed, sent by ordinary

post/Pos Laju or left at the counter for collection.

The charges for the above services is as follows:

1. Photocopying per page RM 0.60

2. Faxing per page RM 2.40

3. Postage – to be determined by the Post Office

Legal firms are encouraged to have with the Malaysian Bar Library a refundable deposit of RM200.00 when seeking services.

The said deposit shall be utilized towards payment for photocopying, faxing and/or postage incurred by the Library. This

deposit should be topped up once it falls below RM 50.00.

Library Contact

The Library can be contacted by calling the Bar Council Line at 20313003 ext. 154, 155, 156, 157 or the Library’s new

Direct Line at 03-20317981

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

Documents

Praxis May Jun2006