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MOBILITY OF LABOUR IN THE LAWASIA REGION - THE LEGAL AND

SOCIAL PROBLEMS OF MIGRANT LABOUR


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Keynote Address and Official Opening
DYMM Paduka Seri Sultan Azlan Muhibbuddin Shah
Sultan of Perak Darul Ridzuan
Special Addresses
The 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 Talk
Anil Divan, India, Former President, Lawasia
Topics
1. Impact of Migrant Labour on Society
2. Legal Migration
3. Effect of Immigration Laws on Migrant
Labour
4. Obligations of Labour Contractors and
Agents
5. Terms and Conditions of Employment /
Unionism
6. Access to Local Industrial Adjudication
Systems
7. Working Conditions for Service Sectors /
Households
10-12 August 2006
Crowne Plaza Mutiara, KL
PRAXIS 1 MAY / JUN_2006
Editorial
Chairman Chairman Chairman Chairman Chairman Yeo YangPoh
Vice Chairman Vice Chairman Vice Chairman Vice Chairman Vice Chairman Ambiga Sreenevasan
Secretary Secretary Secretary Secretary Secretary Ragunath Kesavan
T TT TTreasurer reasurer reasurer reasurer reasurer Vazeer AlamMydin Meera
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contain the personal views of the writers concerned
and are not necessarily the views of the Bar
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PRAXI S
CHRONICLE OF THE MALAYSIAN BAR
BAR COUNCIL BAR COUNCIL BAR COUNCIL BAR COUNCIL BAR COUNCIL 2006/2007 2006/2007 2006/2007 2006/2007 2006/2007
Editorial
2 The Wind of Change
News
4 Nazri launches the Red Book
6 Tun Suffian Foundation Fund Raising Dinner -
A Note of Appreciation
9 Federal Constitution Protection for All
10 Speaker rejects MPs emergency motion on
maltreatment of lawyers by police
12 Inaugural Dinner Of The Barristers Of The Honourable
Society Of The Inner Temple, London
15 Doyen of the Malaysian Bar, Datuk Wrigglesworth dies
16 Bench & Bar Games - Malaysia Triumphs
19 Raja Aziz Addruse elected Commissioner of ICJ
20 Diary of Events
21 Members of the Bar march to Bukit Aman
Secretariat
22 Contact List of Committee Chairpersons 2006/2007
Comment
26 Move to Drop Written Arguments
27 Bahasa Inggeris merupakan bahasa yang lebih sesuai di
Mahkamah
29 Bahasa Melayu Mampu Menjadi Bahasa Perundangan
Negara
31 Judges and Accountability
34 The aftermath of the Federal Court judgment in Adorna
Properties Sdn Bhd vs Boonsom Boonyanit
Press Statements
35 Movement towards a better police force
Articles
36 An Appeal to International Lawyers and Law Professors
Hold the Bush Administration Accountable for Flouting
International Law
37 To Hell With All of You The Power of Saying No
39 Strengthening the Integrity and Professionalism of
Judges and Prosecutors with the Implementation of a
Code of Ethics
HumanWrites
46 Economic, Social and Cultural Rights in International
Human Rights Law
50 UN Committee Against Torture demands closure of
Guantanamo Bay prison
52 Lord Goldsmith: Terrorism and Human Rights
58 Implementation of Human Rights Treaties through the
United Nations mechanism
Lifestyle
64 Meditation for a calm heart
65 The Largest Natural Limestone Caves
Disciplinary Orders
66 Orders of the Disciplinary Board
Library Update
68 Legislative updates and Library Notice
Cover Photo
History was created by the M'sia & S'pore Bar cricketeers in the B&B
Games, when a competitive international cricket match was played for
the first time in Langkawi.
PRAXIS 2 MAY / JUN_2006
Editorial
The Wi nd of Change
Hj Vazeer Alam Mydin Meera
Editor
I
n 1960, the then Bri ti sh Pri me
Minister Harold Macmillan delivered
what isnow known as hiswind of change
speech at the South African Parliament.
It wasa watershed moment in the struggle
for black nationalism in Africa and the
independence movement around the
globe. It also signalled a changein western
attitude towardsthe Apartheid regime of
South Africa. Macmillan infamously
declared that "Thewind of changeis
blowingthrough this[African] continent
and whether welikeit or not thisgrowth of
national consciousnessisa political fact. We
must accept it asa fact and our national
policiesmust takeaccount 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 lyricstoo had a
moving poetic flow, heralding in with
opt i mi sm t he changi ng pol i t i cal
landscape. No matter how many times
one listens to that song, one never grows
tired of it. A part of the song goes thus:
Theworld closingin
Did you ever think
That wecould beso close, likebrothers
Thefuturesin theair
I can feel it everywhere
Blowingwith thewind of change
Takemeto themagic of themoment
On a glorynight
Wherethechildren of tomorrow dreamaway
In thewind of change
Walkingdown thestreet
Distant memories
Areburied in thepast forever
Yes, it istherareoccasion 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 hopefulnessand
sanguinity of Malaysians. There isgrowth
in our collective national consciousness
which demands change to the old order.
The wind of change has changed tack. It
i s now blowi ng 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
willingnessto be inclusive in their policy
making. Merit hasbeen given due credit.
Raci al quot as have gi ven way t o
meri t ocracy i n t ert i ary educat i on
admissions. The establishment of the
Royal Commission on the Police Force to
address peoples concerns about the rot
i n the Force was long overdue but
welcome. The speed and openness with
which the Nude Squat episode was
handl ed was agai n a boost t o t he
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
trialsand tribulation. The AGM quorum
amendments in the late seventies and
eightieswere the result of the tussleswith
the executive branch then. When once
the Bar wasconsulted 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 asoppositionists views. Wewere
completely shut out from main stream
media. When we opposed rule by law
and fought relentlessly for theruleof law,
we were labeled as miscreants. The force
of law was brought on us. Charges of
unl awful assembl y, sedi t i on 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 wasemasculated. In
spite of the onslaught by the government,
the Bar stood firm in itsprinciples; never
waveri ng, never fl i nchi ng, never
succumbing. The Malaysian Barsresolve
received international support.
The Bars steadfastness and unwavering
resolve to adhere to principleshasbecome
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.
Confront at i on has gi ven way t o
consultation. Come July thisyear, we will
PRAXIS 3 MAY / JUN_2006
Editorial
have t he I nt ernat i onal Legal Ai d
Conference, jointly organized by the Bar
Council and the Malaysian Government.
This will afford us the opportunity to
drive home the point that accessto justice
for the impecunious and marginalized
members of t he soci et y i s a st at e
responsibility, which for some twenty-five
years now has been shouldered by the
Bar aswell. It ishigh timethe 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 conduct i ng l aw 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 havebeen guided by theinfamous
words of Edmund Burke that Theonly
thingnecessaryfor thetriumph of evil isfor
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 i n four
languages, namely, Malay, Engli sh,
Mandarin and Tamil to be distributed to
the public free of charge.
The defactoLaw 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, representativesof NGOs, aswell
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 hisappointment asMinister of Law,
asked to meet theBar for a dialogue. Again
thiswasa welcome change. Immediately
after the l aunch of the Red Book,
Minister Nazri accompanied by Yeo Yang
Poh, theBar President and a good number
of lawyerswent on a walk about to Central
Market where several thousand Red
Bookswere distributed to the public. The
act of the Minister in publicly distributing
a bookl et on ri ghts upon arrest i s
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 sal ut es t hese sel fl ess and
dedicated members who have worked
very hard indeed.
Datuk Seri Mohd Radzi Sheikh Ahmad
shortly after his appointment to the
Cabinet asthe then Law Minister invited
the Bar to make representations to the
Parliamentary Select Committee looking
into amendmentsto the Penal Code and
Criminal ProcedureCode, which in many
respects are archai c. 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
commentson the proposed Amendment
Bills.
The Bar isnow 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 seemsto have blown
into the AG Chambers as well. The
Honourable Attorney General has been
engaging the Bar Council on various
issuesand we now have established a good
worki ng rel ati onshi p. The quorum
amendment proposals have been well
received. A series of meetings were held
with the AG aswell ashisofficersand we
hope to see the amendmentsbeing tabled
in the current sitting of the Parliament.
The AG hasalso asked for our input and
comments on the intended reform and
amendmentsto theLaw Reform (Marriage
and Divorce) Act. The Bar Council was
invited by the AG to take part in a
workshop t o st udy t he proposed
implementation of community service as
a form of sentencing in criminal cases.
Very importantly, following Murthys
case, the government set up a committee
headed by t he AG t o st udy and
recommend possi bl e sol ut i ons t o
problemsposed by this case, in particular
matters relating to religious conversion
and itseffect on matrimonial regime and
attendant problems of reli gi on 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 bui l d a more open and
transparent society. I can only hope that
this desire for change; the clamour for
openess; the willingness to be inclusive,
laststo bear fruit and that my optimism is
not misplaced. I have one other wish for
change. That isin respect to the corporate
plunder of the nation's wealth. There
must be a reversal of the current trend of
"nati onali si ng debt and pri vati si ng
profits". May be we should all fan the
blowing wind in that direction.
PRAXIS 4 MAY / J UNE_2006
News
M
ore t han 60 l awyers and
representativesfrom NGOs, the
USEmbassy and the pressgathered at the
Bar Council Auditorium thismorning, all
for a very noble cause, to witnessthe birth
of a Red Book or Buku Merah known as
PolisDan Hak-Hak AsasAnda.
Yeo Yang Poh, the President of the Bar
Council, started his speech by thanking
all thosein attendance, in particular, Datuk
Seri Mohamed Nazri Bin Abdul Aziz, the
Mi ni st er i n t he Pri me Mi ni st ers
Department in charge of Law, for his
valuable time to launch the Red Book.
I must congratulate a group of dedicated
lawyersknown asTANGKAP, in working
tirelessly to produce the self-funded Red
Book, said Yeo in hisopening speech.
The purpose of the Red Book isaimed at
disseminating valuableinformation so that
the public would know their basic rights
when faced with the Police.
TheBar Council hasalso started an Online
Petition two weeks ago on Movement
Towardsa Better PoliceForce in urging the
Government to set up an Independent
Poli ce Complai nts and Mi sconduct
Commission (IPCMC). Yeo hoped more
peoplewill support thePetition by signing
the same.
In reply, Nazri said:
ThePoliceforcesaregovernment
organisations charged with the
responsibility of maintaining law
and order. The main function of
the police isto act asthe 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 ti me to ti me, we are
reminded that the custodians of
peace are the police who are
empowered to protect us from
criminals. But sometimesin their
fervour, afew of them do transgress
and overstep the boundari es
empowered to them. The Police
are our protectors, and should not
be the persecutor and perpetrator.
It isabout 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 movetheprocessof reform along if they
are aware of their rights. It isunfortunate
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 libertiesisa
citizenry that is conscious of its rights,
sai d Nazri . He added t hat whi l e
i nst i t ut i onal change i s ext remel y
important it is also important that we
empower our citizensto 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 sai d that
although the Criminal Procedure Code
allows remand orders to be granted not
exceeding 15 daysif investigation cannot
be completed within 24 hours of the
Dat uk Ser i Nazr i l aunc hes t he Red Book
by Cindy Goh Joo Seong & Will Fung Jui Seng
Datuk Seri Nazri and Yeo Yang Poh at the launch
MAY / J UNE_2006 PRAXIS 5
News
arrest, the Magistrates should not as a
matter of duecourse grant a remand order
against the suspect without checking the
desi rabi l i ty of such an order. The
Magistrate must scrutinise the propriety
of the arrest, not merely exercising their
administrativerole, for in many casesthere
is no logical connection between the
length of remand period and the alleged
offence.
Very often, the family members and
l awyers are made t o run around
concerning the place of detention. A
telephone call is not regarded as a right
and isdiscretionary, the defactoMinister
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
rightsin thiscountry.
Nazri isglad to see the Bar Council living
up to its statutory purpose to facilitate
the acquisition of legal knowledge by
membersof thelegal 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
thispossible. Thisgroup hastirelessly spent
weeks in perfecting the book and this
informal group isknown astheTindakan
ANti penyalahGunaan KuasA Polis group
or TANGKAP.
TANGKAP have initiated this effort of
creating awarenessand to provide an easy
step by step guideline which would be
most beneficial in ensuring that everyone
haslegal accessand to ensurehis/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. TheRed Book containsfour
major languages, in
Bahasa Malaysi a,
Engli sh, Chi nese
and Tamil.
Finally, Nazri said
he actual l y went
t hrough t he
contentsof the Red
Book thoroughly,
and found the little
pocket sized Red
Book containing a
weal t h of
information in thelanguageof thelayman,
and he was i mpressed t o see t hat
TANGKAP hastaken painsto ensure the
public areeducated not only on their rights
when confronted by the police, but also
some practical advice to the public with
regard to their responsibilitiesto assist the
police, for e.g. in paragraphs3.2 & 3.3 to
co-operate with police if possible even
when not under arrest.
The Minister, accompanied by Yeo and a
group of Tangkapersthen went to Central
Market to distribute thousandsof copies
of the Red Book to the public.
An individual who is
aware of his rights and
i s prepared t o exert
t hem wi l l i n al l
likelihood receive better
t r eat ment by a
det ai ni ng aut hor i t y
than an individual who
i s i gnor ant and
prepared to accept any
f or m of t r eat ment
meted out,
- Datuk Seri Nazri.
Several young ladies with the Red Book at Johor Bahru
The Red Book being distributed at Central Market, KL
PRAXIS 6 MAY / J UNE_2006
News
Tun Suf f i an Foundat i on Fund Rai si ng Di nner
- A Not e of Appr ec i at i on
by Dato' K C Vohrah
I
would like, asChairman of the Fund
Rai si ng Di nner Organi si ng
Committee, on behalf of the Tun Suffian
Foundation Incorporated, thank themany
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 histimelessjudicial qualities.
Naysayers notwithstanding, the Tun
Suffian Foundation Inaugural Dinner
received a positiveand wonderful response
wi th donati ons amounti ng to over
RM600,000.00. The Judiciary, the Bar,
the Attorney GeneralsChambersand 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 TheSunday
Star 16 April 2006 ran a delightful article
by Chelsea Ng on the reasonsfor 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 tableson dinner day itself with
over RM50,000.00 in donationspledged
just before the dinner.
To those members of the Judiciary, the
Bar, theAttorney GeneralsChambersand
to the public who had magnificently
responded with their donations the
si ncere thanks of the Tun Suffi an
Foundation.
That the response wasso 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. TheFoundation thanksHisRoyal
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 wasso generous.
On the royal table asbefitted the occasion
wasTun Dzaiddin a former Chief Justice
and hiswife. Also there were former Lord
President Tun Salleh and Chief Judge of
Malaya Tan Sri Siti Norma and their
spousestogether 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
theViceChairman of theBar Council Ms.
Ambiga Sreenevasan asguestsof honour
on the next table. We thank all our
HRH Sultan Azlan Shah and HRH Tuanku Bainun with the Trustees of Tun Suffian Foundation
MAY / J UNE_2006 PRAXIS 7
News
honoured guests for thei r graci ous
presence.
The planning for the dinner took many
monthswith endlessmeetings. The pace
become frenet i c wi t h
twice a week meetings in
the last month leading to
the dinner.
Dato Shaik Daud, Datin
Dr. Li ew Yi n Mei ,
Professor Khaw Lake Tee
and myself (asChairman),
t rust ees of t he
Foundat i on, were
appointed as members of
the Fund-Raising Dinner
Committee, and we in
turn co-opted Dato Dr.
Yaacob Hussain Merican
and hiswife Tunku Dato
Sofi ah Jewa, also trustees, i nto 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
insightsinto what could and what should
not be done. The good response from the
Judiciary and the retired Judges and the
Attorney Generals 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 wehad MsCatherine
Eu to manage the incredible number of
details for such a dinner with her usual
depth of knowledge and experience and
her enormouspatience.
One of the biggest headaches leading to
the dinner was the planning of who sits
on which tableand 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
changesand fortunately there were just a
few bruised sensibilitiesand some crushed
toesthat night! Catherine Eu deservesour
thanksunreservedly and wealso 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 hiswriting
skills. He worked on and edited the
Souvenir Book for the dinner. It isabout
Tun Suffian with poignant recollections
by many on Tun Suffian and hisgreatness
asa Judge and hisinnate humility. There
isa quiet but thoughtful article by Roger
Tan reproduced from TheNew Sunday
Timesof 2 April 2006 which also bears
reading. Many havecommended thebook
and we should print more for distribution
especially for law studentsand graduates.
The Committee requested for young
lawyers to help out. We were more than
fortunate when
Mr Richard Wee
and Mr Wi l l
Fung joined us.
We never knew
what hit us! These
young l awyers
had t erri fi c
enthusiasm, great
ideasand were on
high octanedrive.
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, hisachievementsand hislast days.
Thereweremany 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.
ThisSub-Committee complemented the
Banquet and Hot el Mat t ers Sub-
Committee under the leadership of Dato
Seri Vi su Si nnadurai . That we had
excellent cuisineserved uswith impeccable
hotel service wasin no more measure due
Dato Zaid Ibrahim the successful bidder for the caricature with Tun
Dzaiddin the Chairman of the Foundation
PRAXIS 8 MAY / J UNE_2006
News
to Dato Visusrefined tastesand hisgreat
rapport with the Hotel Management and
staff. We are greatly indebted to him and
histeam.
MsJune Lee our Secretary deservesa very
special thank you. She was the one who
sent out thelettersof appeal for donations,
t ot ed up t he donat i ons, wrot e
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 thenight till 11.30pm when it should
have ended at 11.00pm! To the busy and
gracious lawyer and TV personality our
heartfelt thanksfor theflawlesstiming and
for taking off time almost every week for
our sometimeslackluster meetings!
Reggie Lee the well known cartoonist put
RM50,000.00 into our kitty when the
cari cature of Tun Suffi an whi ch he
sketched was taken up by silent auction
that night. The man modestly said, This
ismy way of contributing back to society
and to keep the legacy of thisgreat judge
alive. Reggie Lees 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 thanksalso
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
performancewith theelectric violin. Most
in the hall wanted to hear more but she, it
will be remembered, said Time isof 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 precioustime.
To theReluctant Performers, what a show!
As Lord Millet remarked. They are
remarkably talented! I wasworried 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 Li h and her t eam from
SUHAKAM and the Law Faculty the
unreluctant ushersthank 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 lightsand sounds.
We would be remissin our duty if we did
not thank Meor Azmi (YA Tan Sri Siti
Normas son) for helping to record the
eventsdigitally. We must not forget Puteri
Fateh Arina, granddaughter of Dato
Yaacob Merican and Dato Sofian who
presented a bouquet of flowers to Her
Royal HighnessTuanku Bainun on behalf
of the Foundation.
I may havemissed mentioning someperson
or other who helped usand I do apologise
for the omission.
With the generousdinner donationsand
what theFoundation had earlier collected,
again through generous donations, the
Foundation will hopefully be able to
establish TheTun Suffian Research Centre
at the UM Law Faculty Library soon to
benefit all undergraduates and we can
certainly make a start to finance one
candidateto pursuea MastersProgramme
at Cambridge.
Thank you, thank you very much.
The remarkably talented Reluctant Performers
MAY / J UNE_2006 PRAXIS 9
News
Feder al Const i t ut i on Pr ot ec t i on f or Al l
by Wong Fook Meng
T
he Malacca Bar Committee, in
collaboration with theNGO, Article
11, organised a forum entitled Federal
Constitution Protection For All at the
Legacy Hotel here recently.
R.R. Chelvarajah, theformer Bar President
commenced the forum by stating that the
Malaysian Bar in itsquest for justice, had
organised the forum in the earnest desire
to protect and assist thepublic in all matters
touching, ancillary or incidental to thelaw.
He also said freedom of religion had been
the focal point in a number of litigated
cases, and therefore justice and law as
involved in these caseshad to be explained
to the citizenry at a forum of thisnature.
The first speaker for the night wasMeera
Samanther, President of Womens Aid
Organization. Meera sought to give a
human face to individualswhose liveshad
been turned upside down due to certain
deci si ons 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. Meeras presentation was a
great start to the forum as the audience
was vividly reminded that the issue of
freedom of religion is not an academic
discussion that providesa mereintellectual
gourmet for the evening. It is a real and
pressing concern that affectsthe rightsof
every Malaysian to professand practise his
own chosen faith.
Thesecond speaker wasProf. Shad Saleem
Faruqi, an academician and constitutional
law expert. He referred to the Federal
Constitution as Malaysias document of
destiny and examined the issuesof Islamic
State, hudud laws, deviationism in religion
and human rights against the backdrop
of the Federal Constitution. He also
referred to Article 121 (1A) of the Federal
Constitution and stated that the said
Article did not provide for the problem of
conflict of jurisdiction between the civil
court and the Syariah court. He wasof the
view that the determination of issues
pertaining to fundamental rights was
within the province of the civil courtsand
he proposed for a special court to be
established or for the High Court to have
a Syariah Division.
Next up was Dato Dr. Cyrus Das, an
experienced constitutional lawyer. He
spoke about t he cul t ure of
const i t ut i onal i sm t hat pl aces t he
Const i t ut i on at t he cent re of t he
admi ni strati on of our country. He
reminded the audience that there could
be an erosion of the rightsasenshrined in
theConstitution without useven noticing
it. A cultural redefining and a redrawing
of cultural boundaries can take place
slowly, silently and imperceptibly. He also
spokeagainst thedrivetowardsconformity
that breedsintoleranceand leavesno room
for dissenting opinions. He concluded
with a note on access to justice and in
likening it to oxygen, he said we never
realised how important it isuntil it istaken
away from us.
The fourth speaker for the night was
Mal i k I mti az, another wel l known
const i t ut i onal l awyer and Deput y
Chairman of the National Human Rights
Committee of the Bar Council. Malik, in
hisusual eloquence and wit, spoke about
the Islamisation process in Malaysia and
how it had crept forward at a greater pace
in recent times. He said there isconfusion
between the aspirationsof some people to
make Malaysia an Islamic state and the
reality that we are a secular state as
provided under the Constitution. He
believed that we are at a significant
crossroad in the history of our nation and
we have to engage in a culture of dialogue
and deal with the issues of Islamisation
whether in the administration, politicsor
the judiciary.
The last speaker for the night wasDatuk
Zaid Ibrahim, the Kota Baru MP and
founder of the Malaysian Civil Liberties
Society. He jolted the audience with his
opening statement, I think we live in a
sick country! He then entertained the
audience with his witty and humorous
remarksabout racerelationsin thecountry,
and in particular how the Malaysshould
co-exist with other racesin a harmonious
spirit. He said Islam should not and will
not bethreatened by issuesof fundamental
liberties. He also stressed that intolerance,
religiousbigotry and excessivenationalism
should not be tolerated in a multi racial
and multi religiouscountry like ours.
The forum ended with a question and
answer session and there was some lively
dialogue between the panel of speakers
and the audience.
The forum attracted approximately 600
people, which isa respectable figure for a
forum held in Malacca. Thisdemonstrates
thefact that theissueof freedom of religion
isa very pressing concern in our society as
it touches on the fundamental facet of
being a human, that is, having the right
to choose and practise a faith according to
the dictatesof onesown conscience.
PRAXIS 10 MAY / J UNE_2006
News
Speaker r ej ec t s MPs emer genc y mot i on on
mal t r eat ment of l aw yer s by pol i c e
by Charles Hector
O
n 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 incidentsinvolving
other lawyers li ke P. Uthayakumar,
Leonard Teoh, Zainur Zakaria and Cheah
Kah Peng.
Kulasmotion 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 Kulasemergency 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 Xavi er, Rashi d,
Latheefah Koya, Richard Wee, Rajpal
Singh, Ravindra Kumar, Colin Pereira,
Edmund Bon, and CharlesHector.
This was yet another great day for the
Malaysian Bar when once again lawyers
turned up in numbersduring a work day
at very short notice to show support for
the plight of fellow lawyerswho had been
harassed, beaten, arrested and/or detained
by the police.
Kula's motion was a result of a series of
incidentsinvolving thepolice and lawyers
culminating in the harrasment and arrest
of SBalasubramaniam on 18 April 2006.
Balasubramaniam's complaint is that he
wasat PJ Police Headquarterson that day
to render legal assistanceto hisclientswho
had been detained by the police. Despite
repeated requests, thepolicerefused to give
him basic information on the reason for
the arrests and the status of his clients.
Bal asubramani am sai d that he was
physically pushed and then unlawfully
arrested by a plainclothespoliceman. He
was not given any reason for the arrest
and wasreleased after about 3 hours. On
19
th
April, he lodged a police report
regarding the earlier incident.
Subsequently, at about 12.00pm on the
27th Apri l 2006, about 40 lawyers
gathered at the PJ Police Headquartersto
hand over to the OCPD a memorandum
of protest which was supported by 112
lawyers.
George Varughese flanked by Charles Hector and Surendran handling
over the memorandum
MAY / J UNE_2006 PRAXIS 11
News
However, the OCPD Mohd Hazam Abd
Halim, refused to come down from his
offi ce and recei ve t he prot est
memorandum. George Varughese, the
Selangor Bar Chairman and member of
the Bar Counci l , handed over the
memorandum of protest on behalf of the
lawyersto a representative of the OCPD.
The members of the press were stopped
at the gate and prevented from entering
t he compound of t he PJ Pol i ce
Headquarters. The lawyersprotested this
denial of accessto 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
peaceful l y hand over a prot est
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 concernsthe rightsof lawyersto carry
out their duties to the lay client without
fear or favour; and wi thout pol i ce
interference and intimidation. We must
not tolerate or accept a violation of this
right which isfundamental to the proper
workingsof the criminal justice system.
Learn from Mistakes
Thomas Edison tried two thousand different
materials in search of a filament for the light bulb.
When none worked satisfactorily, his assistant
complained, All our work is in vain. We have
learned nothing. Edison replied very
confidently, Oh, we have come a long way and
we have learned a lot. We now know that there
are two thousand elements which we cannot use
to make a good light bulb.
A section of the lawyers at the peaceful protest
PRAXIS 12 MAY / J UNE_2006
News
I naugur al Di nner Of The Bar r i st er s Of The Honour abl e
Soc i et y Of The I nner Templ e, London
by S Radhakrishnan
T
hi rt y seven Barri st ers of t he
Honourable Society of the Inner
Temple residing in Malaysia in response
t o an i nvi t at i on i ssued by Mr S
Radhakrishnan, a Barrister of I nner
Temple attended the inaugural dinner.
They were YAA Tan Sri Dato Haji Abdul
Malek bi n Haj i Ahmad (Honorary
Bencher of theInner Templeand President
of the Court of Appeal Malaysia), YAA
Tan Sri Datuk Amar SteveShim Lip Kiong
(Chief Judge, Sarawak and Sabah), YA
Dato Bentara Istana Dato Nik Hashim
bin Nik Ab. Rahman (Judge Federal
Court , Malaysia), YA Dato JamesFoong
(JudgeCourt of Appeal, Malaysia), YA Mr
KP Gengadharan Nair (JudgeHigh Court
Johor Bahru), Dato Mahadev Shankar,
Dat o Thomas Lee, Mr
Thiruchelvasegaram, Mr Lee Leng Guan,
Mr Cheah Kam Chiew, Dato Adnan
Shuib, Ms Rasamani Kandiah, Dato
Param Cumaraswamy, Mr Ponni ah
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
Mahal i ngam, Mr Murel i daran
Navaratnam, Mr Woon Yeow Thong, Ms
Elizabeth Verghis, Mr Nad Segaram, Ms
Jacquel i ne Chang Li Ch i ng, Mr
Mugunthan Vadiveloo, Mr Edwin Ng
Aik Win and Dato V Sivaparanjothi.
The inaugural dinner was held on 14
th
April, 2006 at the Orchid Room, Royal
Lake Club, Kuala Lumpur, Malaysia.
The Honorary Bencher of t he
Honourable Society of the Inner Temple,
YAA Tan Sri Dato Haji Abdul Malek bin
Haji Ahmad in his welcome speech said
that after consulting someBarristersof the
Inner Templeit wasdecided to form abody
known asMalaysia Inner TempleAlumni.
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
Barristerswith theBenchersand Treasurer/
Sub-Treasurer of the Inner Temple in
London.
YAA Tan Sri Dato Haji Abdul Malek bin
Haji Ahmad announced that a Protem
Group photograph taken of the Malaysian Barrister of the Honourable Society of the Inner Temple at the Inaugural
dinner held on 14 April 2006. Seated sixth from the left is Justice Tan Sri Dato' Hj Abdul Malek bin Hj Ahmad (Protem
President of the Malaysia Inner Temple Alumni)
MAY / J UNE_2006 PRAXIS 13
News
Committee hasbeen formed consisting of
the following members - YAA Tan Sri
Dato Haji Abdul Malek bin Haji Ahmad
(President), YA Dato JamesFoong Cheng
Yuen (Vi ce Presi dent ), Mr S
Radhakrishnan (Honorary Secretary),
Datuk N Chandran (Honorary Treasurer)
and Commi t t ee Members - Dat o
Mahadev Shankar, Dato ThomasLeeand
Dato Param Cumaraswamy.
Hesaid theapplication for registration and
other related papershave been submitted
to the Registrar of Societiesand Datuk N
Chandran isfollowing up to expedite the
approval of thisbody. He said the date for
the official launch and dinner in a leading
hot el i n Kual a Lumpur has been
tentatively scheduled for Saturday, 16
th
September, 2006 subject to obtaining
formal approval of registration from the
Registrar of Societies. Hesaid theTreasurer
or the Sub-Treasurer and some Benchers
of the Honourable Society of the Inner
Temple, London are expected to attend
the official launch of the Alumni.
YAA Tan Sri Dato Haji Abdul Malek bin
Haji Ahmad concluded his speech by
thanking the Barristerswho attended the
dinner despite the short notice. He said it
wasthe 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.
Theguest speaker for thedinner wasDato
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.,
7
th
Floor, Wi sma Hamzah-Kwong Hing,
No.1, Leboh Ampang,
50100 Kuala Lumpur
Malaysia.
Tel: 603-2076 2856
Fax: 603-2070 6201
Email: radhakrishnan@shearndelamore.com
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 welcome
speech. Seated left to right are Dato M. Shankar, Dato Thomas Lee and Mr.
Lee Leng Guan.
PRAXIS 14 MAY / J UNE_2006
News
Mahadev Shankar was called to the
English Bar in 1955 and the Malaysian
Bar in 1956. Dato ThomasLee 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 waselevated to the Court of
Appeal in 1994. His elevation to the
Bench wasagreat lossto theBar. Heretired
from theBench in 1997 and now practises
asan arbitrator.
The following paragraphs contain a
summary of the speech of Dato Mahadev
Shankar.
Dato Mahadev Shankar in his speech
stated that he wasgreatly honoured to be
invited to speak at thishistoric inaugural
dinner. He said all those present from the
Inner Temple should take great pride in
belonging to the Alumnus. He said that
oursisanobleinstitution 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 thenotablepersons
include the Duli Yang Maha Mulia Seri
Paduka Baginda Yang diPertuan Agong,
Tuanku Abdul Rahman, thefirst sovereign
Ruler of the Federation of Malaya was
called to the Bar of the Inner Temple in
1928. The fi rst Pri me Mi ni ster of
Malaysia, YTM Tunku Abdul Rahman
Putra Al Haj wasalso 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 that
subscriptions to the following Funds for the year
2006 are now due and payable:
1 Bar Council Subscription RM350
2 Bar Council Building Fund RM100
3 Bar Council Legal Aid Centre RM100
4. Bar Council Sports Fund RM10
5. Bar Council Lawcare Fund RM100
You are kindly requested to remit the abovesaid payments
in ONE single cheque for RM660 made payable to BAR
COUNCIL without having to indicate the respective
Funds by AR Registered Post as soon as possible. Please
add the necessary Bank Commission for outstation
cheque. Kindly also ensure that your name and Sijil Annual
numbers are clearly written on the reverse side of the
cheque. The receipt for the sum of RM660 will
acknowledge same as Bar Council Subscriptions to
facilitate tax exemptions.
Your attention is drawn to Section 46(5) and (6) of the
Legal Profession Act 1976, which reads as follows:
(5) Liability to pay any annual subscription to the
Malaysian Bar shall arise when the subscription
has been fixed by the Bar Council. All annual
subscription to the Malaysian Bar shall be paid
by the 30TH DAY OF JUNE OF EACH YEAR.
(6) An advocate and solicitor shall, if he pays his
annual subscription after the date mentioned in
subsection (5), pay to the Bar Council, in addition
to the subscription date, AN AMOUNT
EQUIVALENT to the subscription so due.
Please note that the deadline for payment of annual
subscription on June 30 will be strictly applied and no
application for waiver of penalty will be entertained.
Bar Council Subscriptions 2006
pol i t i ci ans such as Mohandas
Karamchand Gandhi, Jawarlal Nehru,
Mohamed Ali Jinnah and Clement Atlee
were also called to the Bar of the Inner
Temple.
Hesaid each Barrister present at thedinner
to be able to claim kinship with such very
di sti ngui shed persons was a uni que
privilege.
At the end of the dinner everyone present
endorsed thedecision to form theAlumni.
They also pledged to attend the official
launch.
Justice Mr. K.P. Gengadharan Nair in serious discussion with Justice Tan Sri
Datuk Amar Steve Shim Lip Kiong. The others in the picture from the left
are Mr. Ponniah Norendra and Dato Iskandar Micheal Abdullah
MAY / J UNE_2006 PRAXIS 15
News
Doyen of t he Mal aysi an Bar, Dat uk Wr i ggl eswor t h di es
D
atuk 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 hishome. During the robbery,
the old but energetic lawyer waspushed.
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 aft er bei ng admi t t ed t o t he
Honourabl e Soci ety of Grays I nn,
London.
On March 2, the Kelantan Bar celebrated
his 88th birthday after the conclusion of
itsannual 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
demiseof 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 wasalso
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 thiscountry.
In 2002, incensed by the Federal Courts
dismissal of the former deputy prime
minister Anwar Ibrahims 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 wasquoted 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 isimportant 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 wasthepassion of theman to uphold
justice and the rule of law. The Malaysian
Bar will forever value his support and
contri buti on to the legal fraterni ty
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
Datosdistressing end. He wasa gem of a
man and lawyer and an i nvaluable
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 t he Bar and Mal aysi a 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 celebrated
Wrigglesworths 88th birthday after
its AGM on March 2.
PRAXIS 16 MAY / J UNE_2006
News
Benc h & Bar Games 2006 Mal aysi a Tr i umphs
by Edmund Bon and Editorial Team
W
ith no clear winner over the
Bridge, thebattlecontinued with
lawyersfrom both countriesfighting it out
at the 2006 Malaysia/Singapore Bench &
Bar Games held north of Malaysia in
Langkawi from 28
th
to 30
th
April. In the
processhistory wasunwittingly created.
The gamesstarted 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 respectivecontingents. There
were also an unusually large number of
members judges from both countries
present. Thiswasa welcome change.
Dartswasplayed at the Boardwalk while
theWelcomeDinner wasin progress. This
allowed the diners to cheer on their
respective teams. The atmosphere was
wonderful and it wasa perfect start to the
weekend of activities. Singaporewon darts.
The following morning, the beach and
crosscountry run washeld. Therun started
at Pantai Tengah, the runnersthen 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 thisevent.
Most of the other gamesfor 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. Tennisthisyear wasa close
call. Though, Singapore won tennis4-3.
Our team put up a spirited fight. Well
done Ranjit and gang. Keep up the good
work and we will over run them soon.
Asexpected, Malaysia trounced Singapore
5-0 in badminton. Did I hear someone
say ThomasCup? 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 itswinning form. We
won table tennis3-0. 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 savea penalty beforeour
Lee Tee Keat (incidentally, who also gave
away the penalty) scoring from outside of
thebox with an unstoppableshot. Premier
soccer ended the day, but wasa yawn with
Malaysia going up 3-0 before halftime,
and supportersleaving the stadium early
for dinner and drinks. Malaysia ran out
winnersafter downing Singapore 5-1.
In the battle of the minds, Chess was
drawn at 2 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 was7 winsfor Malaysia,
1 draw and 2 winsfor Singaporein 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 conclusi on and
Singaporecould well haveplayed 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. Thiswasa historic occassion asit
was the first time that an international
cri cket mat ch had been pl ayed
competitively on the shoresof 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 the
Judges Trophy
MAY / J UNE_2006 PRAXIS 17
News
At the beach, Singapore won beach soccer
5-4 and Malaysia beach volleyball 3-2.
Singaporeran out clear winnersof theboat
racewhen our usually excellent and reliable
Carolyn Oh choked in the midst of the
first down.
Malaysia triumphed 9 - 2 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 wherethe
Malaysian contingent stayed was fun-
filled and energy-packed. The usual
speeches and formal pleasantries were
exchanged by the respective Presidentsof
the Malaysian Bar and Singapore Law
Society, and souvenirs changed hands.
Wonder at the storage space for annual
eventssuch asthis.
There were performances by a band and
then a singer who entertained the diners,
and whilst thefood could havebeen better,
one cannot usual l y harbour hi gh
expectationsof hotel fare.
The Mentri Besar of Kedah closed the
Games. The diners by then had already
commenced celebrationsat theback of the
Ballroom and outside. Friendly heckling
and ribbing between the Malaysian and
Singaporean contingents were heard
throughout the night particularly when
the resultsof each game were announced.
As the night wore on, it was evident that
everyone had a good time and many
continued the party at variousnightspots
in Langkawi, including a Reggae Bar by
the Cenang Beach.
Therewill beanother Gamesthenext year,
and it is expected to be better!
D
ato VP Nathan hasbeen a strong
supporter of the Bench/Bar
Gamessince itsinception 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 Datos quiet but steadfast
support for the Malaysian team, with
Datin at his side. At the final night
dinner of the 2006 Bench and Bar
Gamesin Langkawi, thePresident of the
Bar presented a token of appreciation to
Dato for hisunfailing support. We look
forward to having Dato and Datin at
theGamesfor many moreyearsto come.
SPECI AL APPRECI ATI ON TO
DATO' V P NATHAN
The President presenting the token of appreciation to Dato VP Nathan
Dato & Datin V P Nathan with Ravichandran the Sports Com Chairman
PRAXIS 18 MAY / J UNE_2006
News
Snapshot s of t he Benc h & Bar Games 2006
MAY / J UNE_2006 PRAXIS 19
News
Raj a Azi z Addr use el ec t ed Commi ssi oner of I CJ
by Web Reporter & Gurmeet Kaur
T
he International Commission of
Jurists (ICJ) today announced the
election of Raja Aziz Addruse asa new ICJ
Commissioner.
Two other leading juristsfrom Asia-Pacific
elected as new ICJ Commissioners were
Imrana Jalal (Fiji) and Professor Vitit
Muntabhorn (Thailand), increasing from
nine to twelve the number of membersof
the ICJ from Asia-Pacific.
The I CJ i s an i nt ernat i onal non-
governmental organisation comprising
sixty of the worlds most eminent jurists
and hasa 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 Commissionersto join the ICJ.
The ICJ also announced that Justice
Arthur Chaskalson, former Chief Justice
of South Afri ca, was re-elected I CJ
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 aschairperson of theUnited
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 pressrelease from the ICJ,
Raja Aziz Addruse is a leading practising
lawyer from Malaysiaand former President
of the Malaysian Bar. He isrecognised 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 theBar
Council in 1985).
He graduated with an LLB (Hons) from
theUniversity of Bristol, England in 1958
and was called to the English Bar at
Lincolns Inn in 1959.
Heserved in theJudicial and Legal Service
in Malaysia first asAssistant 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 Chai rman of the
Mal aysi an Bar Counci l four ti mes
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.
ICJsimmediatepast vice-president Datuk
Param Cumaraswamy in his statement
issued here Thursday said Raja Azizs
election, is a recognition of his untiring
contribution to the cause of human rights
and judicial independence which are
prerequisitesfor a just rule of law.
Thisisalso a distinct honour for Malaysia
and the legal profession, he said.
Raja Aziz is the third Malaysian to be
elected asCommissioner of thisprestigious
international organisation of distinguished
jurists.
PreviousCommissionerswere Tun Mohd
Suffian and Param, who completed his
term of 15 yearsasCommissioner and the
last year asVice-President.
ICJ was founded in 1953 and over the
yearsearned international recognition as
the Global Advocate of the rule of law.
PRAXIS 20 MAY / J UNE_2006
News
BAR COUNCI L
Di ar y of upc omi ng CLE Event s 2006
MEDIATION SKILLS TRAINING COURSE AT
PENANG
14-18 June 2006
Officer in Charge: Ms. Marianna
CLINICAL LEGAL EDUCATION / LAWYER
SUPERVISOR TRAINING WORKSHOP
14 June 2006
Officer in Charge: MsLynette Tan
INTELLECTUAL PROPERTY BASIC
LICENSING COURSE
16-17 June 2006 (to be conf )
Officer in Charge: MsLynette Tan
MEDIATION SKILLS TRAINING COURSE AT
IPOH
21-25 June 2006
Officer in Charge: MsMarianna
ETHICS LECTURE PROGRAMME
21 & 22 June 2006
Officer in Charge: Ms. Lilian
MARITIME LAW PRE-CONFERENCE
EVENT
23 June 2006
Officer in Charge: MsGurmeet Kaur
INDUSTRIAL COURT PRACTICE
WORKSHOP THE LAW ON SECTION 20
REPRESENTATIONS
24 June 2006
Officer in Charge: Mr Dominic Chan
TALK ON REAL ESTATE INVESTMENT
TRUST
27 June 2006
Officer in Charge: MsLynette Tan
TALK (MONASH UNIVERSITY MSIA -
STUDY ABROAD PROGRAMME)
29 June 2006 (11-1pm)
Officer in Charge: MsElizabeth
BAR COUNCIL STAFF IN HOUSE TRAINING
1 July 2006 (9am-12.30noon)
Officer in Charge: MsRebecca
INDUSTRIAL COURT PRACTICE WORKSHOP
DRAFTING OF PLEADINGS (SECTION 20
DISMISSAL ACTION)
15 July 2006
Officer in Charge: Mr Dominic Chan
PUBLIC FORUM INDEPENDENT POLICE
COMMISSION (IPCMC): YES OR NO?.
20 July 2006
Officer in Charge: Mr. Rajan
WORKSHOP ON NEW ARBITRATION ACT
21 July 2006
Officer in Charge: MsMarianna
INTERNATIONAL LEGAL AID CONFERENCE
21-23 July 2006
Officer in Charge: MsChandrika
ETHICS LECTURE PROGRAMME
26 & 27 July 2006
Officer in Charge: MsLilian
LAWASIA LABOUR LAW CONFERENCE
10-12 August 2006
Officer in Charge: MsLynette Tan
INDUSTRIAL COURT PRACTICE WORKSHOP
DRAFTING OF PLEADINGS (SECTION 20
DISMISSAL ACTION)
19 August 2006
Officer in Charge: Mr Dominic Chan
ETHICS LECTURE PROGRAMME
23 & 24 August 2006
Officer in Charge: Ms. Lilian
FAMILY LAW - MENS RIGHTS FORUM
9 September 2006
Officer in Charge: Mr Dominic Chan
INDUSTRIAL COURT PRACTICE
WORKSHOP ADDUCING EVIDENCE IN
THE INDUSTRIAL COURT (PREPARATION
OF BUNDLE OF DOCUMENTS AND
DRAFTING WITNESS STATEMENTS-
SECTION 20 DISMISSAL ACTION)
16 September 2006
Officer in Charge: Mr Dominic Chan
ETHICS LECTURE PROGRAMME
20 & 21 September 2006
Officer in Charge: Ms. Lilian
INDUSTRIAL COURT PRACTICE
WORKSHOP ADDUCING EVIDENCE IN
THE INDUSTRIAL COURT (PREPARATION
OF BUNDLE OF DOCUMENTS AND
DRAFTING WITNESS STATEMENTS-
SECTION 20 DISMISSAL ACTION)
14 OCTOBER 2006
Officer in Charge: Mr Dominic Chan
ETHICS LECTURE PROGRAMME
8 & 9 November 2006
Officer in Charge: Ms. Lilian
INDUSTRIAL COURT PRACTICE
WORKSHOP CONDUCTING INDUSTRIAL
COURT TRIALS (SECTION 20 DISMISSAL
ACTION)
18 NOVEMBER 2006
Officer in Charge: Mr Dominic Chan
INDUSTRIAL COURT PRACTICE
WORKSHOPCONDUCTING INDUSTRIAL
COURT TRIALS (SECTION 20 DISMISSAL
ACTION)
9 DECEMBER 2006
Officer in Charge: Mr Dominic Chan
* For updates/changes, please visit our website at
www.malaysianbar.org.my
MAY / J UNE_2006 PRAXIS 21
News
Member s of t he Bar mar c h t o Buk i t Aman
by Dinesh Nair a/l Krishnan Kvuavn
S
ome 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 representativeswho 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 Barsconcern in respect
of alleged police misconduct against
lawyersS. Balasubramaniam and V. Raja
Singam.
The Bar was in the meeting led by its
President, Yeo Yang Poh. Otherswho were
present were Ragunat h 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 questi oned on the
outcome of the meeting, the President
replied that there was now a better
understanding by both parties as to each
others positions on various matters,
particularly asfollows:
The I nspector General
said that investigations of
police misconduct against
S. Balasubramaniam had
been completed and the
resul t of t he pol i ce
findings had been sent to
the Attorney General for
instructions. He could not
disclose the findingsof the
i nvest i gat i on as t he
Attorney General isnow looking into
the matter.
Asfor V. Raja Singamscase, the police
had completed their investigations
which had been sent to the Attorney
General. V. Raja Singam has refused
to give a statement ashe wantsto file a
civil suit.
There wasan agreement to draw up a
protocol document to regulate the
relationship between lawyersand the
police with regardsto situationswhen
lawyers wish to see their clients in
remand. Both partiesare to work out
the details.
The IGP initiated a new mechanism
to prevent a further recurrence of
similar problems, and to expedite
mattersinvolving lawyer-policeaffairs.
Thi s new mechani sm i s t he
appointment of a senior police liaison
officer to work exclusively with the
Bar i n an effort to foster better
rel ati onshi p and understandi ng
between both parties.
The Bar and the I GP 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 asnon-payment of
overtime. Healso said therewasa need
to revisethesalary structureof theforce
and further to re-vamp the Public
Servi ce Department. The Bars
posi t i on i s t hat t he publ i cs
expectationsisto havean 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 wi ll be further follow-up
meetingsbetween theBar and theIGP
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 isstill 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 effortsand the meeting
would bring about a better Malaysia.
PRAXIS 22 MAY / J UNE_2006
Secretariat
Cont ac t Li st of Commi t t ee Chai r per sons 2006/2007
Contributed byWeb Reporter
ANTI MONEY LAUNDERING
Chairperson: KRISHNA DALLUMAH
Tel: 06- 7622 051/ 7616 159 Fax: 06- 7622 306
Email: krismay1221@yahoo.com
Officer in Charge: GURMEET KAUR
Tel: 03- 2031 3003 ext 143
DL: 03- 2032 4498
Email: gurmeet@malaysianbar.org.my
ARBITRATION & ADR
Chairperson: HJ KUTHUBUL ZAMAN BUKHARI
Tel: 07- 2229 788/ 9 Fax: 07- 2238073
Email: syarizad@tm.net.my
Officer in Charge: MARIANNA LAUREEN TAN
Tel: 03- 2031 3003
Email: ml.tan@malaysianbar.org.my
BAHASA MELAYU
Chairperson: HJ HAMID SULTAN ABU BACKER
Tel: 2693 5677 Fax: 2282 5797
Email: janab@tm.net.my
Officer in Charge: HAFSYAM OTHMAN
Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071
Email: hafsyam@malaysianbar.org.my
CONVEYANCING PRACTICE
Chairperson: ROGER TAN
Tel: 07- 2211 888 Fax: 07- 2211 889
Email: rtkm@nsi.com.my
Officer in Charge: ROHANI ADNAN
Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184
Email: a.rohani@malaysianbar.org.my
SOLICITORS REMUNERATION ENFORCEMENT
Chairperson: ROGER TAN
Tel: 07- 2211 888 Fax: 07- 2211 889
Email: rtkm@nsi.com.my
Officer in Charge: EMILY LEE
Tel: 03- 2031 3003 ext 189 DL: 03- 2031 5769
Email: emily.lee@malaysianbar.org.my
CORPORATE & COMMERCIAL LAW
Chairperson: JERALD GOMEZ
Tel: 2031 4151 Fax: 2031 4131
Email: jeraldgomez@jeraldgomez.com
Officer in Charge: EMILY LEE
Tel: 03- 2031 3003 ext 189 DL: 03- 2031 5769
Email: emily.lee@malaysianbar.org.my
CRIMINAL LAW
Chairperson: V. SITHAMBARAM
Tel: 04- 2299 905 Fax: 04- 2299 978
Email: firstlaw@tm.net.my
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: dominic@malaysianbar.org.my
FAMILY LAW
Chairperson: LALITHA MENON
Tel: 04- 2632 719 Fax: 04- 2632 720
Email: lalithamenon10@yahoo.com
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: dominic@malaysianbar.org.my
FINANCE
Chairperson: VAZEER ALAM MYDIN MEERA
Tel: 04- 7317 933 Fax: 04-7315 633
Email: vazeer@vamco.com.my
Officer in Charge: LILY AW
Tel: 03- 2031 3003 ext 118 DL: 03- 2026 9818
Email: lily.aw@malaysianbar.org.my
GATS
Chairperson: MAH WENG KWAI
Tel: 2698 2588 Fax: 2691 3017
Email: mwk@streamyx.com
Officer in Charge: KENNETH GOH
Tel: 03- 2031 3003 ext 139 DL: 03 2031 2825
Email: kenneth.goh@malaysianbar.org.my
MAY / J UNE_2006 PRAXIS 23
Secretariat
GENDER ISSUES & EQUAL OPPORTUNITIES
Chairperson: YASMEEN SHARIFF
Tel: 2693 3276/ 7 Fax: 2693 1280
Email: yasmeenshariff@hotmail.com
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: dominic@malaysianbar.org.my
HUMAN RIGHTS
Chairperson: CECIL RAJENDRA
Tel: 04- 2626 018 Fax: 04- 2622 228
Email: -
Officer in Charge: RAJEN DEVARAJ
Tel: 03- 2031 3003 ext 194 DL: 03- 2032 1715
Email: rajen@malaysianbar.org.my
INDUSTRIAL COURT PRACTICE
Chairperson: STEVEN THIRU
Tel: 2031 1788 Fax: 2031 1775/ 8/ 9
Email: stevent@shooklin.com.my
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: dominic@malaysianbar.org.my
INTELLECTUAL PROPERTY
Chairperson: NGAN SIONG HING
Tel: 05- 2551 333 Fax: 05- 2558 799
Email: ngan@abasan.com.my
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: lynette.tan@malaysianbar.org.my
INFORMATION TECHNOLOGY AND CYBERLAW
Chairperson: LIM CHEE WEE
Tel: 2094 8111 Fax:2094 3211
Email: lcw@skrine.com
Officer in Charge: SOON PER LANG
Tel: 03- 2031 3003 ext 135 DL: 03- 2031 8561
Email: plsoon@malaysianbar.org.my
LAW REFORM & SPECIAL AREAS
Chairperson: DATO RAMACHELVAM
Tel: 09- 2961 262/ 473 Fax: 09- 2962 073
Email: ramarozi@streamyx.com
Officer in Charge: DOMINIC CHAN
Tel: 03- 2031 3003 ext 148 DL: 03- 2031 3762
Email: dominic@malaysianbar.org.my
LAWCARE, CHARITY & WELFARE
Chairperson: INDRAN RAJALINGAM
Tel: 09- 7482 742/ 7448 705/ 7444 600 Fax: 09- 7487966
Email: archangel.indy@gmail.com
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: lynette.tan@malaysianbar.org.my
LEGAL PROFESSION
Chairperson: TONY WOON
Tel: 06- 7651 711/ 2 Fax: 06- 7651 713
Email: tonywoon@pd.jaring.my
Officer in Charge: KENNETH GOH
Tel: 03- 2031 3003 ext 139 DL: 03 2031 2825
Email: kenneth.goh@malaysianbar.org.my
LIBRARY
Chairperson: HJ SULAIMAN ABDULLAH
Tel: 03- 7960 9235 Fax: 03- 7960 9235
Email: hjsulaiman2003@yahoo.co.uk
Officer in Charge: DR PATHMAVATHY
Tel: 03- 2031 3003 ext 156 DL: 03- 2031 5082
Email: dr.pathma@malaysianbar.org.my
NATIONAL LEGAL AID
Chairperson: FREDRICK INDRAN NICHOLAS
Tel: 05- 5482 324 Fax: 05- 5482 341
Email: fred2000@tm.net.my
Officer in Charge: HAFSYAM OTHMAN
Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071
Email: hafsyam@malaysianbar.org.my
NATIONAL YOUNG LAWYERS
Chairperson: EDMUND BON
Tel: 03- 2055 3888/ 3909 Fax: 03- 2055 3880/1
Email: ebon@chooi.com.my
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: lynette.tan@malaysianbar.org.my
PROFESSIONAL DEVELOPMENT
Chairperson: KRISHNA DALLUMAH
Tel: 06- 7622 051/ 7616 159 Fax: 06- 7622 306
Email: krismay1221@yahoo.com
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: lynette.tan@malaysianbar.org.my
PRAXIS 24 MAY / J UNE_2006
Secretariat
PROFESSIONAL INDEMNITY INSURANCE
Chairperson: RAGUNATH KESAVAN
Tel: 03- 2095 2299 Fax: 03- 2093 7670
Email: rkesavan@maxis.net.my
Officer in Charge: VINODHINI SAMUEL
Tel: 03- 20313003 ext 141 DL: 03- 2032 1870
Email: vino.bs@malaysianbar.org.my
PUBLICATIONS
Chairperson: VAZEER ALAM MYDIN MEERA
Tel: 04- 7317 933 Fax: 04-7315 633
Email: vazeer@vamco.com.my
Officer in Charge: GURMEET KAUR
Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498
Email: gurmeet@malaysianbar.org.my
RULES AND REGULATIONS
Chairperson: JERALD GOMEZ
Tel: 03- 2031 4151 Fax: 03- 2031 4131
Email: jeraldgomez@jeraldgomez.com
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: lynette.tan@malaysianbar.org.my
SHIPPING & ADMIRALTY LAW
Chairperson: HJ HAMID SULTAN ABU BACKER
Tel: 03- 2693 5677 Fax: 03- 2282 5797
Email: janab@tm.net.my
Officer in Charge: GURMEET KAUR
Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498
Email: gurmeet@malaysianbar.org.my
SPORTS
Chairperson: GEORGE VARUGHESE
Tel: 03- 7954 9095 Fax: 03- 7955 2789
Email: gvco@streamyx.com
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: lynette.tan@malaysianbar.org.my
STUDY LOAN
Chairperson: R R CHELVARAJAH
Tel: 06- 2823 911 Fax: 06- 2846 244
Email: rrchelva@hotmail.com
Officer in Charge: LILY AW
Tel: 03- 2031 3003 ext 118 DL: 03- 2026 9818
Email: lily.aw@malaysianbar.org.my
SYARIAH LAWS
Chairperson: MOHAMED SAZALI ABD AZIZ
Tel: 09- 2965 715 Fax: 09- 0965 707
Email: mmsazali@tm.net.my
Officer in Charge: HAFSYAM OTHMAN
Tel: 03- 2031 3003 ext 171 DL: 03- 2034 2071
Email: hafsyam@malaysianbar.org.my
STANDING COMMITTEE FOR THE PROMOTION OF
BEST PRACTICES BY DETAINING AUTHORITIES
Chairperson: AMBIGA SREENEVASAN
Tel: 03- 2095 2122 Fax: 03- 2095 1322
Email: info@sreenevasan.com
Officer in Charge: RAJEN DEVARAJ
Tel: 03- 2031 3003 ext 194 DL: 03- 2032 1715
Email: rajen@malaysianbar.org.my
STANDING COMMITTEE ON COURT RULES
Chairperson: DATO CECIL ABRAHAM
Tel: 03- 2070 0644 Fax: 2078 5625/ 2034 2763/ 20706201
Email: info@shearndelamore.com
Officer in Charge: ROHANI ADNAN
Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184
Email: a.rohani@malaysianbar.org.my
STANDING COMMITTEE ON ELIMINATION
DISCRIMINATION
Chairperson: CHARLESHECTOR
Tel: 03- 7958 1844 Fax: 03- 7954 4018
Email: chef@tm.net.my
Officer in Charge: GURMEET KAUR
Tel: 03- 2031 3003 ext 143 DL: 03- 2032 4498
Email: gurmeet@malaysianbar.org.my
STANDING COMMITTEE TO REVIEW LPA 1976
Chairperson: DATO DR PETER MOONEY
Tel: 03- 2094 8111 Fax: 03- 2094 3211
Email: aeriel193@yahoo.co.uk
Officer in Charge: ROHANI ADNAN
Tel: 03- 2031 3003 ext 149 DL: 03- 2032 4184
Email: a.rohani@malaysianbar.org.my
14
TH
MALAYSIAN LAW CONFERENCE ORGANISING
COMMITTEE
Chairperson: GEORGE VARUGHESE
Tel: 03- 7954 9095 Fax: 03- 7955 2789
Email: gvco@streamyx.com
Officer in Charge: LYNETTE TAN
Tel: 03- 2031 3003 ext 142 DL: 03- 2031 4857
Email: lynette.tan@malaysianbar.org.my
MAY / J UNE_2006 PRAXIS 25
Committee
I T & Cyber l aw s Commi t t ee 2006/2007
byLimCheeWee
Chairman
IT & CyberlawsCommittee
Dear Members,
T
he IT & CyberlawsCommittee 2006/2007 wasrecently
ratified by the Council and recently convened their first
meeting.
We would like to begin the 2006/2007 term by encouraging all
membersof 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 addressesin order for usto 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 usthe above information on your firmsletterhead.
Earlier thisyear, the IT & CyberlawsCommittee undertook an
IT Usage Survey. The purpose of thisSurvey isto assessthe level
of IT usage amongst law firmsin order for the Bar CouncilsIT
related efforts (whether in the form of training, workshops or
special vendor offerings) to be geared towards the actual as
opposed to the perceived needsof the membersof the Bar. The
survey form wasinitially emailed to membersof theBar. 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
thissurvey. 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 Councilsdelivery of IT related services.
Thank you.
The Secretariat's New Addition
Pr ess & Publ i c at i on
Executive Officer: Gurmeet Kaur
Tel: 03 - 2031 3003 ext 143 / DL: 03 - 2032 4498
gurmeet@malaysianbar.org.my
T
he Bar Council wishes to announce
the appointment of our new Executive
Officer; Gurmeet Kaur.
Gurmeet is legally qualified from the University of
Lancaster, England and the University of Technology
Sydney, Australia. She isalso an Advocate and Solicitor
of New South Wales, having practiced in the areas of
civil and criminal litigation before joining the Bar
Council.
Her primary responsibilitieswill be to assist in the following
committees: Publications, Shipping and Admiralty Law,
Anti-Money Laundering and the Standing Committee on
Eliminating Discrimination.
Gurmeet is looking forward to working with members to
enhance the role played by each of these committees.
PRAXIS 26 MAY / JUNE_2006
Comment
Move t o Dr op Wr i t t en Ar gument s
by Wong Fook Meng
I
refer to thearticlein New StraitsTimes
dated 01.02.2006 where Chief Justice
Tun Ahmad Fairuz Sheikh Abdul Halim
wasreported to say that lawyerscan drop
the use of written argumentsin favour of
oral submissionsin simple court hearings.
Indeed, thisisa welcomemoveto thelegal
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 simpleapplicationsthat come
before the court.
When casesare 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 , t here i s 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
coul d respond t o t he quest i ons
accordingly. However, such an interaction
will be absent when cases are decided on
written submissionsalone.
Judges are also deprived from having an
audi o vi sual advant age of an oral
argument . Any communi cat i on i s
enhanced when t here i s an oral
presentation. Non verbal communication
isalso a dimension of advocacy. A strategic
pause, a raised eyebrow and even hand
gesturescan speak volumes. Thus, essential
argumentscan beenhanced when counsel
runsan attractiveoral argument beforethe
court. In an oral argument, counsel can
amplify or explain certain major pointsof
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 hasto return to their
chambers and churn out wri t t en
submissions. Thisisalengthy and laborious
processwhich consumesthe professional
time of a lawyer and increasesthe cost for
consumersof legal services.
Due to the sheer volume of cases filed in
court and the limited judicial time to hear
oral arguments, lawyershave to accept the
fact that thepracticeof thecourtsordering
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 hisaddressentitled, Key
Issuesin Judicial Administration
1
, hasthis
to say about oral and written submission:
Written [argument] and oral
argument are not alternati ve
means of advocacy. They are
complementary, and both call for
an application of theadvocatesart
and skill. Written argumentscan
provide the intellectual building
bl ocks for t he concl usi on
advanced. But written argument
does not exhaust the advocates
function. In oral argument, the
advocate isto display the issue for
determination in an attractiveway,
t o respond t hought ful l y t o
judicial questioning, to rebut
fi rml y adverse j udi ci al pre-
conceptions, to captivate the
j udi ci al mi nd by reasoned
argument conci sel y and
courteously expressed and to lead
it on the true path of judgement.
The use of wri tten and oral
argument to complement each
other can shorten the time of
hearing and enhance the impact
of essential points.
Dangerous consequences
will follow when politicians
and rulers forget moral
principles. Whether we
believe in God or karma,
ethics is the foundation of
every religion.
- Tenzin Gyatso, the 14th
Dalai Lama quotes, b.1935
PRAXIS 27 MAY / JUNE_2006
Comment
Bahasa I ngger i s mer upak an bahasa yang
l ebi h sesuai di Mahk amah
by Shaikh Abdul Saleem
S
aya ingin mengambil isu ke atas
dakwaan saudara Yusmadi yang
kegagal an di dal am perl aksanaan
kegunaan bahasa Malaysia di Mahkamah
adalah terbit dari, sikap malaspengamal
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.
Pi ndaan kepada Akt a i ni unt uk
menukarkan shall be in the national lan-
guageor theenglish 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
i tu j uga tel ah menj adi pemangki n
terhadap penegasan bahasamalaysiakeatas
Mahkamah tanpa penel i ti an 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 bahasamalaysiayang
terl ampau yang tel ah menj ej askan
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 prosescommon law. Sayarasa
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-kesyang 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 mungki n akan
menyebabkan hilangnya maksud sebenar,
malah yang lebih penting lagi akan
mengaki bat kan pembazi ran masa!
Ti dakkah pernah saudara Yusmadi
membuat hujahan di Mahkamah yang
mana kesyang dirujuk adalah kesHouse
of Lords. Tidakkah kesukaran dihadapi
apabilamembacapetikkan di dalam bahasa
i nggeri s dan kemudi annya cuba
menterjemahkan kepada Mahkamah
dalam bahasa Malaysia?
3. Kedaulatan Bahasa Malaysia tidak
tergugat
Sayamerujuk kepadaIndiasebagai contoh.
Itu merupakan suatu negara yang begitu
kuat semangat nat i onal i st i knya.
PRAXIS 28 MAY / JUNE_2006
Comment
Kedaulatan 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-
kesterdahulu ataupun luar negara. Sistem
perundangannya wujud di dalam vakum
yang hanya melibatkan Indonesia sahaja.
Dengan demikian, ianya boleh hidup
dengan bahasa I ndonesi a sahaj a.
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
j awa sekal i pun, seki ranya i a 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
sendi ri tel ah menyatakan, terdapat
pengecualian penggunaan bahasa malaysia
iaitu, sekiranya mahkamah berpendapat
bahawa keadilan akan terjejas melalui
penggunaan bahasa kebangsaan tersebut.
Persoalan kepada saudara ialah, sekiranya
perbi caraan t ersebut merupakan
perbicaraan dalam kamar yang dihadiri
ol eh peguamcara dan haki m yang
mendengar. Sekiranyaautoriti-autoriti dan
dokumentasi yang dirujuk adalah di dalam
bahasa inggeris dan penghujahan dalam
bahasa malaysi a 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-kesakan 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?
Ti dakkah i ni lebi h 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
begi t u 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
mal aysi a mahupun I nggeri s. Saya
mengenali ramai pengamal undang-
undang seperti saya, tidak kira samada
graduan luar negara mahupun dalam
negara. I tu 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
di pel aj ari nya di uni versi t i adal ah
berdasarkan common law yang mana kes-
kesyang menjadi asasijazahnya adalah di
dal am bahasa i nggeri s! Ol eh 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
li ti gan yang hanya boleh berbahasa
malaysia. Dalam keadaan itu, maka
menjadi tanggungjawab sebagai pengamal
undang-undang untuk memasti kan
prosiding difahami oleh litigan tersebut
dan i ni dapat di capai dengan
menggunakan bahasa perantaraan, bahasa
malaysia.
"You do not do evil to
those who do evil to you,
but you deal with them
with forgiveness and
kindness."
- Prophet Muhammad
PRAXIS 29 MAY / JUNE_2006
Comment
Bahas a Mel ay u Mampu Menj adi Bahas a
Per undangan Negar a
by Dara Waheda Mohd Rufin
B
ahasa Melayu merupakan bahasa
keempat dalam turutan bahasa yang
paling banyak penuturnya selepasbahasa
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 atassebab
sosi opol i t i k negara i ni . Keraj aan
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.
Pel bagai al asan di beri kan unt uk
memperlekehkan usaha ini. Sukar untuk
ki ta mendapatkan satu i mpak yang
berkesan j i ka t i ada i mpl ement asi
berterusan dilakukan. Sebagai seorang
peguam lulusan universiti tempatan, saya
melihat kegagalan ini berpunca dari sikap
t i dak ambi l pedul i 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 Inggerisdi kamar Mahkamah,
tetapi sampai bila alasan undang-undang
ki t a di wari si dari undang-undang
Common Law I nggeris menghalang
perkembangan bahasa Malaysia dalam
konteksperundangan?Buku-buku seperti
Sistem TorrensDi Malaysiaoleh Prof. Salleh
Buang, Jurisprudens dan Teori Undang-
undang dalam konteksMalaysia oleh Prof.
Badariah Sahamid, Panduan Amalan
Litigasi di Malaysiaoleh N Nahendran dan
Gopal Sreenivasan terbitan Sweet &
Maxwell dan banyak lagi buku-buku
bahasa Inggerisyang telah diterjemahkan
ke dalam bahasa Malaysia menunjukkan
tiadaperkarayang 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 rasanyasaya
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 bersekol ah di Mal aysi a dan
mengambi l kertas dan li san Bahasa
Melayu/Malaysia sebagai kertas wajib
peperiksaan utama.
2. Kemajuan di peringkat
antarabangsa
Ada rungutan mengenai kegagal an
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
bel um mampu menggal akkan
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
mel akukan perkara yang serupa
memperbanyakkan l agi buku-buku
rujukan dalam bahasa Malaysia atau
menterjemahkannya ke dalam bahasa
Mal aysi a. I t u l ebi h bai k dari pada
memberikan serupaalasan mengapabahasa
Malaysia tidak sesuai digunakan dalam
Mahkamah. Saya ingin menyatakan usaha
PRAXIS 30 MAY / JUNE_2006
Comment
ini 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
berbandi ng bahasa I nggeri s. I ni
berl angsung ke sekol ah 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 i tu. Sudah
semestinya. Beliau hadir ke sini lengkap
dengan bahasa kita sedangkan pada masa
yang sama ki ta sendi ri ti dak 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 unt uk 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 di samakan dengan merangka
sesuatu yang baru sedangkan mereka lebih
gemar menceduk perjanjian-perjanjian
lama yang telah di susun sejak zaman
penj aj ah l agi . Ji ka pent erj emahan
dilakukan mengambil masa yang panjang
dan kerana itu mereka MALAS.
5. Laporan kes-kes dan buku
perundangan
Ada juga pihak yang menyamakan hasrat
unt uk mel i hat bi dang kehaki man
menggunakan bahasa Melayu ibarat katak
dibawah tempurung dan saya sangat malu
jika ada warganegara Malaysia yang masih
beranggapan sedemikian dan merendah-
rendahkan usaha i ni . Sej arah tel ah
menunjukkan banyak teks berbahasa
Melayu diterjemahkan ke dalam bahasa
Inggerisdan pihak penjajah mengenali kita
melalui terjemahan teks-teksberkenaan.
Jika ada pihak yang melihat ramai rakyat
negara i ni masi h 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 SarjanaMuda
dan Sarjana dengan penulisan bahasa
Malaysia. Kebolehan berbahasa Inggeris
bukanl ah kayu pengukur kej ayaan
seseorang pelajar tetapi di mana ada
kemahuan di situ ada jalan. Saya pernah
ment erj emah senaskah buku
Administration Law oleh Prof MP Jain
dan lain-lain buku berbahasa Inggeris
berpandukan kamus Bahasa Inggeris-
Malaysia untuk lulusdalam subjek-subjek
di universiti.
Isu bahasa bukanlah isu politik tetapi satu
i su sosi opoli ti k yang perlu di ambi l
perhatian. Bukanlah mahu menjadikan
rakyat Malaysialebih Malaysiatetapi cuma
mahu memupuk semangat cintakan
bahasa dan budaya Mal aysi a. Ki ta
sepatutnya kagum pada usaha-usaha
peguam yang cuba mendaulatkan bahasa
kita sendiri.
Saya ingin berkongsi satu pengalaman
ketika di Mahkamah berhadapan dengan
seorang peguam seni or yang
memperlekehkan saya kerana berbahasa
Malaysia di Mahkamah dan mendakwa
saya tidak akan maju hanya dengan bahasa
Mal aysi a. Dan saya membukt i kan
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. Counsel
in a Civil Case were hammering away hammer & tongs on law and
facts. When both counsel quietened down, the Learned Magistrate
asked the Court Interpreter, who always appeared to be bored and
asleepy, to get SARKAR. Immediately the Interpreter stand up and
called SARKAR to come forward. The Learned Magistrate flushed
with anger asked the Interpreter if he understood what he requested.
He replied Yes Your Honour. I have called 3 times and there is no
sign of him. I ask for a warrant of arrest to be issued. That brought the
Court ceiling down. The Learned Magistrate quickly left the Bench.
The Interpreter swore that he heard the Learned Magistrate laughing
away in his Chambers.
- N T Vello
PRAXIS 31 MAY / JUNE_2006
Comment
Judges and Ac c ount abi l i t y
by Datuk Param Cumaraswamy
Former UN Special Rapporteur on the Independence of Judges and Lawyers.
T
HE statement by Chief Justice Tun
Ahmad Fairuz Sheikh Abdul Halim
in the Federal Court on March 7 that the
immunity of a judge isnot 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
questionsregarding judicial independence
and judicial accountability. It isnecessary
first to state why judgesare insulated with
certain guarantees.
The principle of separation of powers in
Government isthebedrock of ademocratic
state based on the rule of law. Judicial
power isone of the three powersof such a
Government.
It ispursuant to thispower that justice is
dispensed in disputes not only between
citizensbut also between citizensand the
Government and itsagencies.
Hence the need to vest thisjudicial power
independently of the legislative and
executive powers of the Government,
with adequate guarantees to insulate it
from political and other influencein order
to secure itsimpartiality.
The guarantees i nclude the j udges
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 dutiesasjudges.
All these guarantees are entrenched to
protect theindependenceand 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
becausethejudgehasany privilegeto make
mistakesor to do wrong. It isso that he be
abl e to do hi s duty wi th compl ete
independence and free from fear.
Subject to theseguaranteesto enablethem
to discharge their judicial duties, judges
are subject to the law just like any other
citizen.
Accountability and transparency are the
very essenceof 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 t he j udi ci al arm of t he
Government , t oo, i s account abl e.
However, judicial accountability isnot the
same asthe accountability of the executive
or the legislature or any other public
i nsti tuti on. Thi s i s because of the
independence and impartiality expected
of the judicial organ.
Judges are accountable to the extent of
deci di ng t he cases before t hem
expeditiously in public (unlessfor 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
t he medi a, may comment on t he
judgment.
If judgesmisbehave then they are subject
to discipline by the mechanism provided
under the law. Beyond these parameters,
they should not be accountable for their
judgmentsto others.
The judicial function is unique. In a
judgment, the Supreme Court of Canada
in 2002 had this to say: Our society
assi gns i mport ant 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 bet ween t he t wo l evel s of
Government in our federal state.
Public confidence in and respect for the
judiciary are essential to an effective
PRAXIS 32 MAY / JUNE_2006
Comment
j udi ci al system and, ul ti matel y, to
democracy founded on the rule of law.
Many factors, i ncl udi ng unfai r or
uni nformed cri t i ci sm, or si mpl e
misunderstanding of the judicial role, can
adversely influence public confidence in
and respect for the judiciary.
Another factor which is capable of
undermi ni ng publ i c 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 confi dence i n t hei r i nt egri t y,
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
bei ng an exampl e of i mpart i al i t y,
independence and integrity. What is
demanded of them issomething far above
what isdemanded of their fellow citizens.
Judges, too, have freedom of expression.
The United Nations Basic Principles on
the Independence of the Judiciary require
j udges to exerci se thei r freedom of
expression in such a manner asto preserve
the di gni ty of thei r offi ce and the
impartiality and independence of the
judiciary.
Si mi larly, the Bei j i ng Statement of
Principles of the Independence of the
Judiciary in theLAWASIA region (theLaw
Association for Asia and the Pacific) states
that judges are entitled to freedom of
expression to the extent consistent with
their dutiesasmembersof the judiciary.
It follows that judges do not have carte
blanche to say all and sundry, either in the
adjudicating processor even in their extra-
judicial capacities.
Particularly in the adjudicating process,
they must becircumspect with their words
t o mai nt ai n t hei r obj ect i vi t y and
impartiality. Otherwise, they will losetheir
judicial decorum and eventually their
insulation from the guaranteesfor 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
hisdaughter 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
sentenceof lifeimprisonment unlessthere
are mi ti gati ng ci rcumstances, these
pronouncements unleashed a wave of
anger among womensrightsgroups. The
prosecutor instantly filed anoticeof appeal.
In the aftermath, newspapers reported a
parliamentary committee had summoned
the judge to appear and explain himself
over the sentence.
Thisled to a counter- protest from judicial
circlesassuch action by Parliament would
amount to encroachment into judicial
independence. The tension between
j udi ci al i ndependence and j udi ci al
account abi l i t y came al i ve i n t he
controversy.
Surely it was wrong for Parliament to
summon thejudge. Theproper procedure
wasfor 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.
Asfor theremarksof thejudge, theproper
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 termsof
our Const i t ut i on, t he j udi ci ary i s
independent from both the legislative and
the executive. The principle of separation
of powers and the i ndependence i s
strongly entrenched in our Constitution.
The judiciary, asan organ of state, had to
be accountable in itsactions, but thisdid
not mean that judgesshould appear before
a parliamentary committeeto 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 j udi ci al mi nd i n the
adjudicative process.The UNs Basic
Principles on the Independence of the
Judiciary doesnot expressly provide that
only statements made in good faith are
protected with immunity.
However, an analogy can be drawn from
the UNs Basic Principles on the Role of
Lawyers, which provide expressly that
lawyers shall enjoy ci vi l and penal
immunity for relevant statements made
in good faith in written or oral pleadings
or in their professional appearancesbefore
the court.
Even if mala fide can be proved against a
PRAXIS 33 MAY / JUNE_2006
Comment
j udge for st at ement s made i n t he
adjudicative process, at most the judge
concerned may only be subjected to
di sci pl i ne t hrough t he compet ent
disciplinary mechanism.
He may not be subjected to civil suitsfor
monetary damages. This is expressly
provided for in the UNsBasic 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 suitsfor monetary damagesfor
improper actsor omissionsin the exercise
of their judicial functions.
In a judicial system modelled on the
common law, mala fide could rear itsugly
head in other aspects. It could show up in
si t uat i ons l i ke t he sel ect i on and
recommendat i on for j udi ci al
appointmentsand promotions.
The UNs Basi c Pri nci pl es on the
Independence of the Judiciary expressly
provides that such appointments and
promotions be based on merit and the
syst em shoul d safeguard agai nst
appointmentsand promotionsmade for
improper motives.
Hence, in the case of judicial promotions
when a junior judgeisseen promoted over
a more senior and competent judge, such
promotion will beperceived asbeing made
for improper motivesand therefore made
mala fide.
It isto avoid such public perceptionsthat
morecountriestoday haveconstitutionally
entrenched mechanismsfor selecting and
recommending judicial appointmentsand
promotions. Even the United Kingdom
hasopted for such a mechanism.
Malaysia, too, should move in that
di recti on. As stated earli er, judi ci al
independence is founded on public
confidence in the system and therefore
public perceptionscannot be ignored.
T
hisisto notify membersthat there
havebeen complaintsraised to the
Bar Council that somePupil Masters are
not properly attired at pupil'slong calls.
Members are referred to Circular No.
34/2004 that was issued by the Bar
Council in respect to thismatter.
Pupil Masters are reminded that when
you robe your pupi l s duri ng cal l
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 brassbuttons
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
printsin black / dark colours
Jacket: Black. No brassbuttons
Nylons(optional): Skin-tonesonly
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 beappreciated if all memberscould
strictly observe the dress code when
appearing to robe your pupils during
call proceedingsin order to preserve the
dignity of the profession.
Dr ess Code f or Pupi l Mast er s on c al l days
PRAXIS 34 MAY / JUNE_2006
Comment
The af t er mat h of t he Feder al Cour t j udgment i n
Adorna Properties Sdn Bhd vs Boonsom Boonyanit
by Kong Kim Leng
M
any articles have been written by
both l egal practi ti oners and
academi ci ans expressi ng thei r grave
concern on the decision of the Federal
Court in respect of theabovecontroversial
landmark case.
In a nutshell, the Federal Court held that
a bona fide purchaser who purchased a
property from thefraudulent act of a third
party who forged the registered owners
signature on the transfer form becomes
the rightful and lawful owner and the
innocent registered owner hasno recourse
to recover the property.
A year after the Federal Courtsdecision,
my firm in 2002 handled a fraudulent
land transaction similar to the Boonsom
Boonyanit case. Our client then aged 72
isthe 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 his
ol d t orn and t at t ered t i t l e deed.
Subsequently in 2002 when he decided
to sell hisland, a search of the land title at
Shah Alam Land Office showed that his
land was transferred to a third party and
charged to a bank by a private limited
company notwithstanding that hedid not
sell or chargetheland and thenew original
document of title is in his possession. To
hissurprise when he went to pay the quit
rent, he discovered the quit rent had
already been paid by someone else.
When questioned, theLand Administrator
at theShah Alam Land Officetold usthere
was no instrument of transfer involved
and that thiswasa cheating case. Without
further ado, our client lodged a police
report, entered a privatecaveat and applied
to enter a registrarscaveat on hisown land.
A summon was then issued by my firm
on our clientsbehalf against thethird party
and the chargee Bank. The Solicitors for
the third party denied that their client was
involved in the fraudulent transfer and
alleged that someone made use of their
clientsname. TheSolicitorsfor thechargee
Bank did not deny thechargeto theBank.
After taking the above actionsand before
our clients case was heard in the High
Court another search was conducted on
the land title. To our surprise and relief
the search disclosed the land title is free
from encumbrances and registered back
in our clientsname.
Our clients case was highlighted in The
Star newspaper under theheading Tapper
shocked to find land no longer his
showing his photograph holding the
original land title. It issad to note that the
police report lodged by our client served
no purpose. Notwithstanding thefact that
there were many scandals highlighted in
the newspapers, until now there was no
reply from thepoliceauthority about their
investigation to our clientsreport.
Our client may be lucky to recover
ownership of hisland, but the question is
what will happen to other landowners
who may lose their property through
fraud or forgery ?Applying the Boonsom
Boonyani t case, they have no legal
protection. They are still in fear and in
danger of losing their property through
fraud and forgery. They will only realise
their losswhen they decideto transfer their
property to their loved onesor to dispose
of their property.
Perhaps and hopefully in the near future
another Boonsom Boonyanit case is
brought before a new panel of the Federal
Court who would view thecasedifferently
and decided in favour of the innocent
registered landowner against thebona fide
purchaser who bought property arising
from a fraudulent transaction of a third
party or theland law isamended to protect
theregistered landowners indefeasibletitle
and ownership of their property through
the fraudulent dealings of a third party.
Fellow practitioners of the law, if you
encounter a case of thisnature, do not be
discouraged to take it up to the highest
Court, notwithstanding the decision in
Boonsom Boonyanit. ThelateTun Suffian
once said at the opening of the Bar
conference-
"In our judicial system, which is
model l ed al ong the Engl i sh
system:
If a magistrate makes an error of
judgment, the High Court would
correct it;
If the High Court makesan error
of judgment, the Federal Court
would correct it;
If the Federal Court makes such
errors, the errorsthen become the
lawsof the land."
Unlessthelawyerswould correct theerrors!
PRAXIS 35 MAY / J UN _2006
Press Statements
All statementswereissued by Yeo YangPoh, Chairman, Bar Council 2006/2007 unlessstated otherwise
T
he Pri me Mi ni st er and t he
Government have, in the past two
years, taken the commendable first step
towards reform, by setti ng up two
Commissionsof Inquiry to look into the
conduct and practicesof the police.
The fi rst Commi ssi on conduct ed
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
servi ce and wel fare. Among t hese
recommendations is one regarding the
formation of an I ndependent Police
Complaintsand 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
Commi ssi on al so re-i t erat ed t he
importance of the IPCMC.
Our nation must do justice to the good
work performed by the 2 Commissions,
by i mpl ement i ng al l t hei r maj or
recommendations. The fact that both
Commissionshave repeated the need for
an I PCMC speaks vol umes of i t s
importance in a processof reform.
Reform is what we need, and what we
must have, if our nation doesnot wish to
see the situation further deteriorate.
Reform cannot be achieved by insisting
on the old waysthat 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 thepolicesinternal mechanism
to check abuse has proven, here and
elsewhere, to be both unreliable and
i neffect i ve, not t o ment i on 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 recommendationshad 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 t owar ds a bet t er pol i c e f or c e
7 April 2006
Unfortunately, reluctance to change and
opposition to the IPCMC hasdeveloped
within the police force, who have not only
openly opposed the proposal, but also
lobbied many parliamentariansto oppose
the same.
Such opposition to the IPCMC, in the
Bar Counci l s vi ew, 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 thissubject,
and will invite participation from the
policeand membersof parliament, among
others.
The Bar Council will also, starting today,
initiateamovement towardsabetter police
force, and i nvi te organi sati ons 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 changesand reform of
the police force.
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 polices 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.
- Yeo Yang Poh
PRAXIS 36 MAY / J UNE_2006
Articles
An Appeal to I nternational Lawyers and Law Professors
Hol d t he Bush Admi ni st r at i on Ac c ount abl e f or Fl out i ng
I nt er nat i onal Law
by Curtis F J Doebbler*
I
just wanted to take thi s ti mely
opportunity to encouragethoseof you
who are courageous enough, to think
about what you can do to encourage the
United Statesto respect international law
through outside pressure on the United
States.
While I laud the efforts of those within
the United States such as therecent
effort of Ben Davi s and those who
supported it and hope that such efforts
will continue, at the same time I am every
day moreand moreconvinced 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 USto respect
international law.
Thisbelief isbased on dozensof 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 governmentseven
friends of the United States at their
highest levelsbelievethat theUnited States
is very harmful for international law and
must be forced to change through outside
pressure. Some believe thispressure must
be radical, othersbelieve that thispressure
must be slow and careful. But that there is
a significant international consensusthat
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 arean honest international lawyer
one who at least believesin the supremacy
of international over domestic law and
who believesthat domestic law can never
be used as an excuse for vi ol ati ng
international law and who believes that
international law isformed and interpreted
through the consensus of all states and
not uni laterallythan speak to the
diplomatsin the United Statesor 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
governments underst andi ng 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 affairsenough
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 Afri ca, Si ngapore, Malaysi a,
Indonesia, Palestine, Iran, or Jordan. Dont
stay in the four or five star hotelseveryday,
but spend a couple of nightsin mosques,
sleeping on the floor with other travelers
and those who have no other shelter.
Speak to themyou can usually find an
English speakerask them why their
country ispoor, ask them if they think the
United Stateswasright to bomb Iraq and
Afghanistan, ask them if they respect
George W. Bush, and most importantly,
ask them if they think the United States
respectsinternational law. Then tell ustheir
answersto thislast question.
If you are a professor teach abroad in Asia,
Africa, or the Middle East or a semester or
even a few weeksin the summer and learn
from your guests. Speak to thegovernment
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 studentsbetter then
in the mere formalities of the classroom.
Volunteer to speak with their student
groups, meet civil society, the lawyers
unions, the teachersunions, the religious
leaders. Even volunteer to advise the
government s. Ask t hem t he same
questions. Spend one weekend every
month seeking out the refugees and the
displaced and ask them thesamequestions.
And even contemplatewhy you feel scared
asyour plane must nose dives10,000 feet
*Dr. Curtis F.J. Doebbler is an international human rights lawyer. He can be reached at: cdoebbler@gmail.com
PRAXIS 37 MAY / J UNE_2006
Articles
to avoid being shot down; or why you get
gunspointed 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
chi l dren rounded up some t o be
disappeared; or why an Ethiopian living
on US$2 per day paysmorefor fresh water
produced in the USA, than you do; or
why many people look at you with hatred
when they learn you arean 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 waysthat you
can do this. As international lawyers it is
probabl y one of our most urgent
responsibilities.
Unlessinternational law startsto respond
to the concerns of the people who are
affected by it most, it will lose relevance.
Unlessyou asAmericansor 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 generationsof 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 theworld. 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
i nt erest s and t o perhaps vi ol at e
international law?
To Hell With All of You
The Power of Sayi ng No
by Jeff Halper*
A
s 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
populationswith little history of religious
fundamentalism, to vote Hamas?Mere
protest at Fatah i neffectual ness i n
negotiations and internal corruption
doesnt go far enough. While warning
Hamasthat their vote did not constitute a
mandate for i mposi ng an I ran-li ke
theocracy on Palestine, the Palestinians
took the only option left to a powerless
people when all other avenues of redress
have been cl osed t o t hem: non-
cooperation.
Gandhi put it best: How can one be
compelled to accept slavery?I simply refuse
to do themastersbidding. Hemay torture
me, break my bones to atoms and even
kill me. He will then have my dead body,
not my obedience. Ultimately, therefore,
it isI who am the victor and not he, for he
has failed in getting me to do what he
wanted done. Non-cooperation isdirected
not against the Governors, but against the
system they administer. The rootsof non-
cooperation lie not in hatred but in
justice.
Non-cooperation, perhaps the most
powerful meansof 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
avenuesof redressto the Palestinians, they
carry the blame for the rise of Hamas. It
i s 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 theFourth Geneva
Convention been applied, Israel could
never have constructed itsOccupation in
the first place. International law defines
an occupation as a temporary military
si tuati on that can only be resolved
through negoti ati ons. Therefore an
Occupyi ng Power such as I srael i s
prohibited from taking any unilateral
action that makesitscontrol permanent.
Besides its military bases, every single
element of IsraelsOccupation ispatently
illegal: settlements and the construction
of a massivesystem of Israel-only highways
that link the West Bank settlements to
Israel proper; the extension of Israelslegal
and planni ng system i nto occupi ed
Palestinian areas; theplunder of Palestinian
water and other resources for Israeli use;
house demolitionsand the expropriation
of Palestinian lands; the intentional
impoverishment of the local population;
military attackson civilian populations
*Jeff Halper is the Coordinator of the Israeli Committee Against House Demolitions
(ICAHD). He can be reached at jeff@icahd.org.
PRAXIS 38 MAY / J UNE_2006
Articles
to name but a few. Even when Israels
construction of the Separation Barrier
wasruled illegal by theInternational Court
of Justice in the Hague and its ruling
ratified by the General Assembly, nothing
wasdone to stop it.
To hell with the United Statesthat closed
off negotiationsasan avenuefor redressing
Palestinian rights and for enabling Israel
to makeitsOccupation permanent. At the
very start of the Oslo peace process, at
Israels urging, the US reclassified the
Palestinian areas from occupied to
disputed, thus removing international
law asthebasisof negotiationsand pulling
the rug out from under the Palestinians.
Had international law been respected, the
Occupation would have ended under the
weight of itsown illegality. But oncepower
becametheonly basisof negotiations, Israel
easily overwhelmed thePalestinians. Until
today Palestinians have nothing to look
for in negotiations. With the Americans
supporting Israeli unilateralism, with the
USveto neutralizing theUN asan effective
avenue of redress, and with European
passivity, they have been cut adrift.
To hell with Israel that hasclosed 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 Palestinianstoday a
majority in thecountryaccepting a state
only on 22%. Israel is now posed, with
American support and international
complicity, to make its Occupation
permanent and reduce the Palestiniansto
a prison-statetruncated into fivecantons
all controlled by Israel. No borders, no
freedom of movement, no water, no viable
economy, no Jerusalem, no possibility of
offeri ng a hopeful fut ure t o t he
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 itsaffairsremoved from the
people, failing to provide material and
moral support to victimsof 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 itslesson from thissetback.
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 processthat
i s onl y l eadi ng t o Pal est i ni an
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
Palestiniansare saying. You can all impose
upon us an apartheid system, blame us
for theviolencewhileignoring Israeli State
Terror, pursueyour programsof American
Empire or your notions of a clash of
civilizations, we the Palestinianswill not
submit. We will not cooperate. We will
not play your rigged game. In the end, for
all your power, you will come to usto sue
for peace. And then we will be ready for a
just peace that respectsthe rightsof all the
peoplesof theregion, including theIsraelis.
But you will not beat us.
As an I sraeli Jew who sees how the
Occupat i on has eroded t he moral
foundations of my society and, indeed,
my entirepeople, and asaresident of Israel-
Palestine who knows that my fate is
intricately intertwined with that of the
Palestinians, I pray that such an end will
come sooner rather than later.
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PRAXIS 39 MAY / J UNE_2006
Articles
St r engt heni ng t he I nt egr i t y and Pr of essi onal i sm of
Judge and Pr osec ut or s w i t h t he I mpl ement at i on of a
Code of Et hi c s
by Dato' Syed Ahmad Idid
1
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 thisbrief paper
and to discusson impartiality apart from
giving all in attendance some regional
experiences.
I hope to discusson issuesasto:
What obstacl es ari se i n the
i mpl ement at i on and t he
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 Et hi cs can run
effectively?
What are the principlesneeded to
be included in a Code of Ethics?
And whi ch pri nci pl es need
elaboration so that such a codecan
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:
Aretheguidelinesstated within the
draft Codeof Ethicswith respect to
impartiality of the judiciary
appropriatewithin thecontext of
therequirement of Cambodia?
Provide recommendations to
improvethedraft Codeof Ethics.
When I received the Background Note
from t he East -West Management
Institute,
3
I wasinformed that the Scope
of the workshop will be to focus upon a
review of the substance of the Code of
Ethicsand to discusson
Do the guidelines of behavior as
regulated in the draft Code of
Ethics meet the needs of the
supervisory bodiesand thepublic-
at-large?
Do the guidelinesof behavior
4
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 themanner 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
wi t hi n t he cont ext of t he
requirements of Cambodia and,
therefore, executable?
What are the constraints, if any,
in theimplementation of theCode
of Ethics?
How will these constraints be
addressed, speci fi cal l y wi t h
reference to regional experiences
in implementing similar codesof
conduct?
5
Isit necessary to stipulate a special
legislation regarding sanctionsin
the draft Code of Ethi cs? I f
1
Director of KLRCA =Kuala Lumpur Regional Centre for Arbitration under the auspices of AALCO=Asian African Legal Consultative
Organization. Former J udge 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 in
Kuala 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 the
Government of the Kingdom of Cambodia.
4
Konrad-Adenauer-Stiftung in Malaysia prepared a Paper Building Ethical Values and Accountability in which it asked: What kind
of Ethical Standards and Moral Values are we going to promote?
5
See the Declaration Toward a Global Ethic signed by the Parliament of the Worlds Religions on 4 September 1993.
PRAXIS 40 MAY / J UNE_2006
Articles
required, should those sanctions
be elaborated or expressed in
general t erms, l eavi ng
interpretation thereof to the party
authorized to enforce the Code of
Ethics?
At the point of time when I prepared this
Paper, theother Speakersinvited to handle
the respective areasare:
1. HisExcellency Dith Munty, President
of the Supreme Court of Cambodia
(Openi ng Speech at Di nner
Reception)
2. Jonathan Addleton, Mission Director,
USAID (Opening Remarks)
3. HonorableJ. Clifford Wallace, United
StatesCourt of Appeal, Senior Circuit
Judge, Chief Judge Meritus
4. Just i ce Maruarar Si ahaan,
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 ETHI CS FOR JUDGES AND
PROSECUTORSand after the Chapter
III on Impartial Principle, I now include
the part of Bangalore Principles of
Judicial Conduct
6
2002 Value 2 on
IMPARTIALITY.
I have done this so that all of us can gain
from thediscussion tomorrow whereI 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.
Thefollowingisan extract from the
relevant part of theproposed Codeof
Ethicsfor Judgesand Prosecutorsin the
Kingdom of Cambodia
Chapter III
Impartial Principle
Article7- 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 issuesinside
the court because it may affect the trust
on impartiality of judgesand 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.
Article8 - Behavior and hearing
Judge and prosecutor shall:
Demonst rat e fi rm punct ual i t y,
patience, politeness, and compassion
whi l e performi ng j udi ci al and
prosecutorial work.
Not comment on somet hi ng
unnecessary and unreasonable in the
court of law.
Always maintain just manner and
avoid any confrontation or act that
may cause suspiciousof impartiality.
Article9 - Investigation or
examination of caseand
communication with party of thecase
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 isallowed by thelaw or with consent
of another party. Judge and prosecutor
shal l not conduct i nvesti gati on or
examination of fact of the case alone and
personally in and outside the court.
Article10 - 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
membersfrom other sector providing legal
service such aslawyers....etc
Judge and prosecutor shall not hear any
case in which lawyershave close personal
relationship with them.
Article11 - 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
casesat the court.
Article12 - Social and humanitarian
activities:
Judge and prosecutor are encouraged to
participate in related social humanitarian
and educational activitiesasprivatecitizens
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 J udicial Group on Strengthening J udicial Integrity as revised at the Round Table Meeting of Chief J ustices held at the
Peace Palace. The Hague, November 25-26,2002
PRAXIS 41 MAY / J UNE_2006
Articles
Article13: 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 aswriting books
and other worksto be sold.
Article14: 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.
Article15: Speakingin public placeby
judgeand prosecutor asindividual
The speech of judge and prosecutor on
legal issuesmay have tremendousvalue to
encouragethepublic awarenesson 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 careful
7
when they make the
public statement individually. Especially,
judge and prosecutor shall absolutely
avoid making statement that:
1. relatesto political provocation
2. relatesto political party
3. leadsto conflict or censure of judicial
staff who have opposite vision
4. reflectsthe perception that causesbias
or prejudice of the cases they handle
or will handle.
5. relatesto their decision or judgment
Article16: 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.
Thismeansjudge 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.
Article17: Withdrawal by Judgesand
prosecutors
If judge and prosecutor have reasonable
grounds that they could not decide
i mpart i al l y, t hey shal l wi t hdraw
themselves from the hearing based on
procedure code.
Here we have the Bangalore-Principlesof
Judicial Conduct.
8
I shall only discusson
the same topic of impartiality. So let me
quote.
Thefollowing is an extract from the
relevant part of theBangalorePrinciples
of Judicial Conduct 2002
Value2
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 processby which the decision ismade.
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 i n 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 asisreasonable,
so conduct himself or herself asto minimise
the occasionson 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 isbefore, or could comebefore,
the judge, make any comment that might
reasonably be expected to affect the
outcome of such proceeding or impair the
manifest fairnessof 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
hersel f from part i ci pat i ng i n any
proceedingsin which the judge isunable
to decide the matter impartially or in
which it may appear to a reasonable
observer that the judge isunable 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, it
requires 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 BEIJ ING STATEMENT (For Asia and the Pacific): 19 August 1995 as amended in Manila and 20 August 1997 where
it declares that the J udiciary is an institution of the highest value in every society.
PRAXIS 42 MAY / J UNE_2006
Articles
2.5.2 the judge previously served as
a lawyer or wasa material witnessin
the matter in controversy; or.
2.5.3 the judge, or a member of the
judges family, has an economic
interest in theoutcomeof thematter
in controversy:
2.6 Provided that disqualification of a
judge shall not be required if no other
tribunal can be constituted to deal with
t he case or, because of urgent
circumstances, failure to act could lead to
a seriousmiscarriage of justice.
Much as I try not to menti on the
Malaysian Judges Code of Ethicsof 1994
- because it istoo short!- I have to assome
areascan be of assistance to the Judgesin
the Kingdom of Cambodia. It is such an
important Code because it is prescribed
under the powers conferred by Clause
(3A) of Arti cle 125 of the Federal
Constitution. I t applies to a judge
9
throughout the period of hisservice and a
breach of any provision may constitute a
ground for the removal
10
of a judge from
office [see paragraph 2(2)].
Parliament in Kuala Lumpur wasasked as
to how complaints against the Chief
Justice for Violations of the Code could
be pursued. In hisreply, the then Minister
in the Prime Ministers Department,
Datuk Seri UtamaDr. RaisYatim, said that
violations of the Judges Code of Ethics
aredivided into two categories, seriousand
lessserious. If serious, the Prime Minister
or the Chief Justice after consulting the
Prime Minister can make representation
to the Yang di Pertuan Agong
11
to appoint
a tribunal to investigate the violation of
the Judges Code of Ethics. On the other
hand, if the violation belongsto the not
serious category, oral reprimand would
be adequate. He said that complaints of
violations of the Judges Code of Ethics
aremadeto theChief Justiceof theFederal
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 theSession Three
on Regional Experiences, we can hold a
Q & A and bring in your thoughts and
concerns.
But for now, l et us get back t o
IMPARTIALITY TheCold neutrality of
an impartial judge
13
. Burke also observed
that it isnot what a lawyer tellsme 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
Judgesand Prosecutorsis, when a person
isimpartial, doesthat 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 Judi ci ary not merel y
independent! That is not enough. We
merely turn some humansinto dragons-
to consume us up! Are not tyrants and
dictators independent?And they wreak
havoc....so be careful over this matter of
i ndependence. May I t herefore
respectfully recommend that judges be
made account abl e! And t o gai n
transparency, judges must write out the
groundsfor 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
fairnessasan important ingredient in their
decisionsand, by these, they arealso people
of propriety.
Indeed IMP ARTIALITY
14
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 isnot easy.
Lives can be lost because judges make
PARTIAL decisions. So too innocent
people lose their employment, property,
children when PARTIAL
15
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 the
requirement 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 J udge? The Code was amended by P.U. (B) 182/200: J udges 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 societys confidence in the impartiality of individual decisions that forms the core strength of the judiciary as an institution. To
decide impartially therefore, without bias and pre-judgment, is the highest obligation of every judge. The Honorable J ohn D Richard,
Chief J ustice, Federal Court of Canada at the 5
th
Worldwide Common Law J udiciary Conference.
15
The Beijing Statement clearly spells out that the objective of the J udiciary is to administer the law impartially among persons and
between persons and the State.
PRAXIS 43 MAY / J UNE_2006
Articles
thrown against them.
Ministra de la Justice statesthat Judicial
Independence
16
is a cornerstone of the
Canadian judicial system. Having said
that, theCanadian Judicial Council invites
people to submit complaints against
judges. While Canada has no written
Code of Conduct for federally appointed
j udges, 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 dutiesof the
office impartially and diligently of the
Code of Conduct for United States
Judges
17
. I am sure Justice J. Clifford
Wallacehascovered thisin thesession one.
Lest we be tempted elsewhere, let usagree
here that while the Code is important,
what ismore important isthe PEOPLE
18
we select asour Prosecutorsand Judges. If
thesepeoplepossessthecharacteristicsand
qualities which are essential for such
positionsof responsibility, then that isthe
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, Generi c
Competencies Framework offer us a
glimpse of what qualitiesare essential in a
j udge: (and t hese are requi red i n
Prosecutorsaswell so that we do not have
bad casesbeing persecuted!
19
Extract of C.A.J.A. Annual Report 2003
- 2004
JUDGEMENT
Investigatingand Analysing
Logically analysesargumentsand explores
the i nformati on avai l abl e (verbal /
written).
1. Accurately analyses and assimilates
information and arguments.
2. Focuses on sal i ent pi eces of
information e.g. filets, points of
contention..
3. Identifiesthe real issues; isnot lost in
detail.
4. Recalls and refers back to important
filets.
5. Ensures information is complete;
fol l ows up i naccuraci es and
contradictions.
Resolvingand Deciding
Appliesjudgement to reach solutionsand
make incisive, fair and legally sound
decisions.
1. Takes an objective
20
and impartial
view.
2. Is confident to take a decision when
the solution is unclear or may be
unpopular.
3. Makes i nformed deci si ons
expeditiously; e.g. knowing when to
reserve judgmentsor adjourn.
4. Recognizesthe 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
DemonstratingTechnical Knowledge&
Expertise
Has acquired in-depth legal or related
relevant knowledge of the jurisdiction
appl i ed for (see appropri at e j ob
specification) or the potential to acquire
it.
1. Has comprehensive legal knowledge
and experience, or other relevant
knowl edge and experi ence as
appropriate to the particular post.
2. Demonstratesup-to-date knowledge.
3. Has at t ai ned a hi gh l evel of
achi evement i n hi s/ her chosen
professi onal arena or i n fi eld of
expertise/area of law.
4. Broadensand extendsknowledge e.g.
learns new areas of law, clarifies
uncertainty.
DemonstratingIntegrityand
Independence
Shows commi t ment by appl yi ng
themselvesto providea highly professional
16
See the BURGH HOUSE Principles on the Independence of the International J udiciary (The work of the Group is supported by the
Project on International Courts and Tribunals) (Refer to Ruth Mackenzie at r.mackenzie@ucl.ac.uk). 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 United
States Courts, One Columbus Circle, N.E, Washington D.C. 20544, USA. See also the Code of J udicial Ethics (State of California
Commission of J udicial Performance) amended by the Supreme Court effective J une 1,2005.
18
The Beijing Statement states that to enable the judiciary to achieve its objectives and perform its functions, it is essential that judges
be 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 posses
the true sense of justice.
PRAXIS 44 MAY / J UNE_2006
Articles
service.
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. Act i vel y mai nt ai ns j udi ci al
independence and is not influenced
by external forces.
ShowingAuthority
Keeps effective control of proceedings
showing self assurance when influencing
othersand 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. Mai nt ai ns pat i ence t o remai n
concentrate on relevant points and
take a logical path through the fact
and key issues.
DevelopingKnowledge
Isopen to developing an awarenessof social
issues, enhancing their legal knowledge
and understanding of the court service.
1. Seeksto beup-to-datein relevant legal
areas.
2. Learns about other cultures and
diversity issues.
3. Recogniseshow businesspressureson
the court service can affect court
administration and judges work
wi t hout affect i ng j udi ci al
independenceor quality of theprocess.
4. Ask for others help and advice when
nessary.
5. Broadensand extendsknowledge e.g.
learns new areas of law
22
, clarifies
uncertainty.
6. Uses past experiences to learn and
improve.
ManagingWorkload
Workseffectively and efficiently, preparing
and planning to makethebest useof time.
1. Makesappropriate investigationsinto
time needs and can challenge others
estimates.
2. Maintains pace to work within time
limits(where appropriate).
3. Prepare for casesin advance e.g. reads
files, checkslists.
4. Works qui ckl y wi th si gni fi cant
amountsof information.
5. Isflexible; jugglesworkload and copes
with the quantity and variety of work.
6. Cl earl y documents and records
information e.g. orders, file notesetc.
PEOPLE SKILLS
Communicating
Takes steps to ensure people understand
the proceedings, ordersand decisions.
1. Clearly explainsan order or decision,
the reasonsfor it, and implicationsof
actionstaken.
2. Ensures others understand thei r
optionsand / or the future progressof
the case.
3. Summarisesand confirmsinformation
t o ensure own and ot hers
understanding.
4. Keepsothers(colleagues, staff, litigants
etc.) informed, sharing knowledgeand
information asappropriate.
5. Varies style of communication to
converse clearly with a variety of
people from all backgrounds and
cultures.
BuildingPositiveRelationships
Showssensitivity to thediversity and needs
of litigants, witnesses, advocates, staff and
colleagues.
1. Openly treatspeople with respect and
in a fair and equal manner.
2. Listensattentively and showsinterest.
3. Givesothersan opportunity to air their
views, commentsand concerns.
4. Showsan appreciation of other cultures
and the needs of individuals from
diverse backgrounds.
5. Understands peoples situations and
aspects of everyday life e.g. general
househol d expendi t ure, publ i c
transport.
6. Is aware of peoples concerns and
anxi et i es; recogni zes ot hers
perspectivesand priorities.
7. Works co-operat i vel y and
constructively in partnership with
colleaguesand staff.
Let me say here: Among a people
generally corrupt, liberty cannot long
exist.
23
AFP reported that Thelow level
of corruption and victims abilitytoseek legal
redressthrough thelocal legal systemwhen
theydoencounter graft aremajor attributes.
And it addsthat thelegal systemin that
21
In the BURGH HOUSE Principle, it is clearly stated that In accordance with the governing instruments, judges shall be chosen from
among persons of high moral character, integrity and conscientiousness who posses the appropriate professional qualifications,
competence and experience and required for the court concerned.
22
Let us face it not every judge is qualified or trained or educated in all fields. But where a judge has to hear and decide on a matter, he/
she must learn and gather information on the facets/aspects so that a proper decision can be arrived at in good time.
23
Edmund Burke: Letter to the Sheriffs of Bristol (1999).
PRAXIS 45 MAY / J UNE_2006
Articles
countryremainssuspectAnd graft isseen
asa 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 objectivesof Code of Ethics, you can
refer to Honourable Justi ce Adri an
Sounders of the Eastern Cari bbean
Supreme Court . The OECS =
Organisation of Easter Caribbean States
normally organiseOrientation Program for
new Judges.
While I am of the opinion that judges, as
are all other humans, be subject to
puni shment (s), we can see t hat
Macedonian Judges Association (in their
Codeof Judicial Ethics) providesfor judges
who violate the code be only morally
liable.
CONCLUDING - AND HOPE FOR
FUTURE
It isessential that we get the most suitable
people asour Judgesand Prosecutors(and
investigatorstoo)
25
and I liketo quotehere
asregardslawyers:
Lord Hailsham summarised these
qualitiesthus.
26
...Success at the bar depends in
the end upon the respect in which
one i s hel d by ones fel l ow
practi ti oners ... and perhaps
particularly, the Bench, and not
upon ones success i n 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
worl d but, l i ke many other
activitiesin life, it isa 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 lawyerswho
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 Ethicsissome guidance but
with it must come the willingness to
comply. Sadly, Legal Ethics has become
and remainsan unloved orphan of legal
education.
28
OneAsian member hasstated quiteclearly
thus:
In thepast decade, international
institutions and foreign aid
programshavefocused on theneed
to insulate institutions from
corruption, and an important part
of that effort hasfocused on cleansing
thelegal profession and thecourts.
AsthePhilippinestakespart in that
global effort, I inviteyou to re-
examine the tried-and-tested
strategiesfor promotingethicsin the
legal profession, and to ask whether
much of thiswork iswasted in what
Filipinoscall sermonizing, i.e.,
thetendencyto preach fromthe
pulpit oblivioustowhether thefaith
islived out in thestreetsand outside
thetemples.
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
desi re for et hi cal devel opment or
improving their standard of ethics.
30
In
my opinion, the best years to nurture
ethical standardsare those between three
and t went y-t hree. But persons i n
adulthood can still learn and benefit.
And, finally, as a note of caution, I say
what Lord Boli nbroke sai d: the
profession of thelaw, in itsnaturethenoblest
and most beneficial to mankind, isin its
abuseand abasement themost 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
asbeacon to guideall 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 the
incidence of financial mismanagement. The Star of 6
th
December 05 reported that Corruption is the major obstacle to investment and
business growth in Asias 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 Hailshams Memoris entitled A Sparrows 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 Philippines
30
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. 5
th
Edition (Philadelphia: T & J W J ohnson & Co. 1984)p.171
PRAXIS 46 MAY / J UNE_2006
Human Writes
Ec onomi c , Soc i al and Cul t ur al Ri ght s i n
I nt er nat i onal Human Ri ght s Law
by Edmund Bon
1
See http://www.usconstitution.com/franklinrooseveltfourfreedomsspeech.htm. He defined freedom from want as economic
understandings which will secure to every nation a healthy peacetime life for its inhabitants and freedom from fear as a world-wide
reduction 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 physical
aggression 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 group
rights, individual duties, collective ownership of property): see Carol Devine, Carol Rae Hansen and Ralph Wilde, Human Rights: The
Essential 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 are
categorized 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
I
n his State of the Union address to
Congress on 6 January 1941, US
President Roosevelt proclaimed four
freedomswhich weresought to besecured
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 fear
1
. In
1945, these freedomsbecame part of the
Preamble to the Universal Declaration of
Human Rights(UDHR) asthehighest
aspiration of the common people. Thus,
a creation and management of a social
and international order wasnecessary in
which the rightsand freedomsset forth in
the UDHR can be fully realized
2
. In
jurisprudential terms, rightsin theUDHR
have today, through variousmechanisms,
formed thecorpusof international human
rightslaw.
An analysi s of the nature of ri ghts
established under the UDHR revealstwo
broad categories: (i) civil and political rights
(CPR) and (ii) economic, social and
cultural rights(ESCR)
3
. CPR are found
in articles3-21 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 mi xture of
philosophical and religious traditions
4
-
Kantsuniversal principle of mutual love,
teachings in the Bible and Quran of
chari tabl e gi vi ng, benevol ence 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 injusticeand hardship through the
establishment of conventionsdealing with
freedom of association, minimum working
condi t i ons and freedom from
discrimination in employment.
The UDHR was drafted in a form of a
declarati on wi th the i ntenti on that
implementation and the specific content
of the rights stated therein would evolve
through subsequent bi ndi ng treaty
instruments. The result were two key
documents whi ch were opened for
ratification by States the International
Covenant on Civil and Political Rights
( I CCPR ) and t he I nt ernat i onal
Covenant on Economic, Social and
Cultural Rights(ICESCR).
The UN General Assembly in 1951
decided in favour of the argument that
ESCR wereto beenforced differently from
CPR, hence, necessitating two separate
covenants
5
. Those who wished to have a
single covenant rested on the premise that
thereisno 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 rightswhich are to
be enforced or applied immediately by
individuals against States
6
. CPR are
justiciableby thecreation of agood offices
committee. On the other hand, ESCR
are not or might not be of absolute
character, and are to progressi vel y
PRAXIS 47 MAY / J UNE_2006
Human Writes
implemented as programme rights
7
. A
syst em of peri odi c report s i s
recommended
8
. The progeny of this
debate which led to the evolution of two
covenantscontinue to haunt effortsin the
promotion of ESCR and enforcement of
ICESCR today.
The problem with the implementation
of ESCR
An account of thenecessity to differentiate
CPR and ESCR through the formulation
of different strategiesfor implementation
in the ICCPR and ICESCR does not
appear to si t comfortably wi th the
integrated nature of these rightsunder the
UDHR. Thejusticiability trigger for CPR
and ESCR had originally been envisaged
in Article 8 UDHR asaugmented by the
ri ght t o an effect i ve remedy by
competent national tribunals which are
not necessarily limited to the judicial arm
of States, and includesother quasi-legal or
administrative bodies. This now appears
to be diluted by the language adopted in
the ICESCR. Further, the initial cynicism
regarding thejusticiability of ESCR claims
is proving to be unfounded as there is
evidencethat ESCR-typeactionsarebeing
enforced by regional bodies in Europe,
the UN Human RightsCommittee, local
disputes tribunals and the Judiciary of
countriessuch asIndia, South Africa and
the US
9
.
Nevertheless, it must be noted that in
contemporary human rights theory, the
cont ent of CPR and ESCR are
i nt erdependent , i ndi vi si bl e and
inextricably linked
10
. 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 responsesto the same
11
. The
Vienna Declaration and Programme of
Action
12
reaffirmsthisand callson States
to promote and protect all human rights
and fundamental freedoms, irrespectiveof
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 asbeing indispensable
for an i ndi vi duals di gni ty and free
development of hispersonality. It isto be
realized through national effort and
i nt ernat i onal co-operat i on and i n
accordance with the organization and
resourcesof each State. ESCR includethe
right to work, right to equal pay for equal
work, right to social security, right to join
tradeunions, right to rest and leisure, right
to a standard of living adequate for the
health of theindividual, right to education
and right to cultural life, artsand scientific
advancement. It would appear that article
22 circumscribes the implementation of
ESCR according to theeconomic capacity
of individual States, and delegatesa 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 undertakesto take steps,
to the maximum of itsavailable resources,
with a view to achieving progressively the
full realization of rightsrecognized in the
ICESCR
13
.
ESCR are seen as part of a form of
di stri buti ve justi ce wi th the ai m 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 state
14
. It has
however been argued that the provisions
of the ICESCR are not rightsper seaswe
know it, but merely aspirations or ideals
to be achieved
15
. The implementation of
ESCR are also dependent on aid from
other moredeveloped countrieswherethe
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 objective
indicator of standard which needs to be achieved to satisfy this right. In this sense, ESCR are categorized as positive rights where the
State 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 receive
individual complaints of ICCPR violations: Article 28 and Optional Protocol. There is no equivalent adjudicatory body under the
ICESCR - the Economic and Social Council (which created the Committee on Economic, Social and Cultural Rights in 1985) established
under 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).
Indias concept of directive principles of state policy has provided enforceable avenues through public interest or social action
litigation 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 Ones 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, 1995cited
in Steiner and Alston, supra n. 4 at p. 255.
PRAXIS 48 MAY / J UNE_2006
Human Writes
subject country is unable, due to its
economic resources, to fulfill itsobligations
under the ICESCR. If there are no jobsin
the country, itscitizensobviously cannot
exercise their rights to work. Yet, there is
no legal compulsion or mechanism at
present to have rich countries distribute
aid to poor onesbased solely on the latters
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 i nternati onal i ni ti ati ves of
promoting ESCR standards within the
country. By what measure doesone assess
governmental effortsto feed itshardcore
poor and raise their standardsof living?
16
If the government fails, what can be done?
Reporting by State partiesare inadequate.
There may now be a need for ESCR
claimsto beheard by an adjudicatory body
which may determine cases and make
di recti ons as to budget al l ocati on.
Robertson hassuggested the creation of a
quasi-legal system for (1) ensuring that a
reasonable amount of resources actually
avai l abl e to the State are spent on
providing for basic rights of health and
education and social security, as distinct
from bei ng spent (for example) on
armaments and monuments and the
servicing of debtsrather than people, and
(2) identifying those stateswhere available
resources, although reasonably allocated,
are simply insufficient to satisfy basic
rights, a situation which attractsthe duty
which falls on other states to provide aid
and assistance
17
.
Peoples rights
Closely linked with the concept of ESCR
i s the ri ght to development . It i s
debatable whether thisright isa distinct
human right or a summary of several other
human rights
18
, or whether it results in
the contradiction of other rights
19
. Article
1(1) of the UN Declaration on the Right
to Development
20
states that the right to
development isan inalienablehuman right
by virtue of which every human person
and all peoplesare entitled to participate
in, contribute to and enjoy economic,
social, cultural and political development,
i n whi ch al l human ri ght s and
fundamental freedoms can be fully
realized. This appears tautologous, but
article1(2) positsthisright asan extension
of t he ri ght of peopl es t o sel f-
determination, giving them an inalienable
right to full sovereignty over all their
natural wealth and resources. The right of
self-determination formsthe basisfor and
allows the free realization of CPR and
ESCR
21
. It isa oneof cross-cutting rights
found in both covenants and the UN
Charter
22
, and vested in all peoples. The
right of self-determination in articles1(1)
of both ICCPR and ICESCR is defined
asameansfor all peoplesto freely determine
their political status and enhance their
economi c, soci al and cul t ural
development. It is an emphasis on the
method rather than the result
23
.
The defi ni ti on of peopl es i s not
altogether clear in international human
rightslaw
24
, but it may be outlined by the
nature of the right to self-determination
asboth are linked. It hasbeen 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 pursued
25
. In this limited way,
it would appear that thenotion 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 ) i s probabl y t he most
progressive instrument thus far which
elaborateson theconcept of peoples rights.
Whi l st seeki ng t o enshri ne t he
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 Africas
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 core
obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights: see UN Doc. E/1991/23 (Annex
III).
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. 173
20
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 International
and Comparative Law Quarterly 867.
PRAXIS 49 MAY / J UNE_2006
Human Writes
rightsin African society and motivated by
thedesireto empower thepeopleof Africa
asa collective unit to develop, the venture
of self-determination in articles19-21 seeks
to promote and protect Africans from
economic and environmental exploitation,
as well as discriminatory practices of
authoritarian regimes
26
.
The enforcement of the ACHPR still
leaves much to be desired
27
but the
languageand aspirationsof thesameshow
how ESCR may be advanced within a
framework of group ri ght s as an
aggregation of human rightsgiven to each
26
See Rachel Murray and Steven Wheatley, Groups and the African Charter on Human and Peoples Rights, (2003) 25 Human Rights
Quarterly 213.
27
See Chidi Anselm Odinkalu, Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights
Under the African Charter on Human and Peoples Rights, (2001) 23 Human Rights Quarterly 327.
individual under theACHPR. It attempts
to place individual rightsconsistently by
t he si de of col l ect i ve ri ght s. The
development of a rightsprotection regime
under theACHPR may further thenotion
of third generation rightsof citizensof
the world such as the right to peace,
devel opment , cl ean ai r and t he
environment all of which fall under the
ESCR package. How far thiswill take the
rightsmovement remainsto 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 i s mi splaced. From the
inception of theICESCR, therehavebeen
difficultiesgrappling with ESCR in terms
of implementation, and the challenge
today isto continue uncovering meansto
overcome these problems.
PRAXIS 50 MAY / J UNE_2006
Human Writes
UN Commi t t ee Agai nst Tor t ur e demands cl osur e of
Guant anamo Bay pr i son
by Hj Vazeer Alam Mydin Meera
T
he AFP carried a newswire on June
24, 2005, to the efffect that the
Americanshaveadmitted mistreatment of
prisonersat Guantanamo Bay to the UN
CommitteeAgainst Torture. Therelevant
passage from that report reads:
Washington has for the first time
acknowledged to theUnited Nationsthat
prisonershavebeen tortured at US detention
centresin Guantanamo Bay, aswell as
Afghanistan and Iraq, a UN sourcesaid.
Theacknowledgement wasmadein a report
submitted to theUN Committeeagainst
Torture, said a member of theten-person
panel, speakingon condition of anonymity.
Theyareno longer tryingto duck this, and
haverespected their obligation toinformthe
UN, theCommitteemember told AFP.
Theywill havetoexplain themselves(tothe
Committee). Nothingshould bekept in the
dark.
UN sourcessaid it wasthefirst timetheworld
bodyhasreceived such a frank statement on
torturefromUS authorities.
That news report caused quite a stir
almost a year ago. On May 18, 2006 in its
latest report the UN Committee against
Tort ures cal l ed for t he cl osure of
Guantanamo Bay. This call shows that
international voicesare increasingly being
raised against the institutions set up by
the United States in its war on terror,
and not just against the treatment of
prisonersin them.
The definitions and legal limits of the
structures and the practices the US has
followed are all being tested - and in many
casesfound wanting - asit triesto conduct
what it regards as a war vital to its well-
being. There have been attempts to
legitimisetheuseof torture. Acceptsnorms
of international law and conventionshave
been thrown to the wind.
Thislatest criticism coming from the UN
body charged with overseeing compliance
with the UN Convention Against Torture
and other inhuman treatment, of which
the United Statesisa state party, addsto a
growing chorusof calls including from
Lord Goldsmith, the British Attorney-
General for Washington to close the
camp.
TheUN CommitteeAgainst Torturequite
categorically called on the US to close
Guantanamo and any secret prisons it
operatesabroad. 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
thisdetention facility, permit accessby the
detaineesto judicial processor releasethem
assoon aspossible, the committee said.
The ten-member UN body called on the
US to ensure that no one is detained in
any secret detention facility under its de
facto effective control.
Inmates at Guantanamo
PRAXIS 51 MAY / J UNE_2006
Human Writes
It also urged the Bush Administration to
rescind any interrogation technique that
constituted torture or cruel, inhuman or
degradi ng treatment, ci ti ng sexual
humiliation, the use of dogs, short
shackling suspectsto hooksin the floor,
and a form of mock drowning known as
water-boarding.
The commi t t ee i s made up of 10
independent, international human rights
experts, one of them an American, Felice
Gaer, who has a long record of human
rightswork. 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 conclusionsfrom hearingsthismonth
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 thenew UN human rightscouncil,
which activists attributed to fear that it
would not have been elected.
TheU.S. DefenseDepartment arguesthat
prisoners at the Guantanamo naval base
areenemy combatants not subject to the
UNshuman rightsmandate, and arebeing
held to prevent further terrorist attacks.
However, British Prime Minister Tony
Blair, an ally of the Bush administration
in Afghanistan and Iraq, hassaid thecamp
isan anomaly that hasto end, whileLord
Goldsmith said recently that the existence
of Guantanamo isunacceptable.
The UN panel , whi ch moni t ors
compliance with the Convention Against
Torture, said it regrets the U.S. decision
that the convention doesnt apply to its
campaigns in Afghanistan and Iraq and
that secret U.S. detention facilitiesarent
accessible to the International Committee
of the Red Cross.
BBC NewsquotesJennifer Daskal, U.S.
advocacy director based in Washington for
Human Rights Watch, as saying, The
U.S. should be embarrassed that itsbeing
held publicly accountable for forced
disappearancesand detentionsthat it has
long condemned when carried out by
others. Thisisa very thorough critique of
the panoply of U.S. practices. This is
another glaring example of American
double standards.
The UN panel said it doesrecognize 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 itsjurisdiction, the
committee said.
There are now almost 500 detainees at
Guantanamo, some of whom were
capt ured when t he U.S. oust ed
AfghanistansTaliban regimefollowing the
2001 attacks. The Cuban government
opposestheU.S. presenceat 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
i nt o t he Guant anamo det ent i ons
recommended the closing of the prison,
that while he didnt agree with everything
in the study, the authors basic conclusion
wassound. Sooner or later there will be a
need to close Guantanamo, he said.
Hopefully, assoon aspossible headded.
Isthe United Statesof 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 its 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.
The UN CaT says that this is torture.
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Lor d Gol dsmi t h: Ter r or i sm and Human Ri ght s
Thefull text of attorneygeneral Lord Goldsmithsspeech on terrorismand human rights,
delivered to a Royal United ServicesInstituteconference.
T
errorism isan international problem
and it is therefore critical that the
international community workstogether
to fi nd a soluti on. 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 thisevening isUK
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 iswhat
I shall focuson.
It hardly needsme to say that terrorism is
a huge international challenge. But
terrorism is a particular challenge for
democracies who must strive to protect
individual libertieswhilst at the same time
ensuring collective security. The need to
reconcile these competing demandsisthe
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 isimmunefrom terrorism.
September 11th provided evidence of the
ability of theterroriststo strikeat theheart
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
sui ci de bombers ki lled 52 i nnocent
commuters. Elsewhere the terroristshave
struck in Russia, Israel, Jordan, Indonesia,
Iraq to name but a few. And we know
that theterroristskeep trying to perpetrate
more of their deadly outrages.
Of course t errori sm i s not a new
phenomenon. In recent years thousands
of lives have been lost to terrorism in
Europe, whether asa result of campaigns
by indigenous groups such as the IRA or
ETA or at the hands of international
terrorists, for example, Black Septembers
attack on the Munich Olympicsin 1972
or Abu Nidals attacks on Vienna and
Rome airports in 1985. Nor is the
bombing of transport systemsa novelty
we remember the horror of the bombing
of the Parismetro in 1995.
But while terrorism isnot new September
11th changed the landscape of terrorism
forever. These new outragesare, 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
peopleof many different nationalitieswere
killed in the Twin Towers but the
aspirations of the terrorists they would
have killed 10 timesasmany 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
livesare lost but positively want it; the use
of modern technology to attack:
commercial planesand dirty bombsif 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 messageswhich
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. Thisdiffuse
and gl obal i sed st ruct ure present s
enormous challenges to national law
enforcement agencies.
It isagainst that background that we must
consider the most appropriate steps to
protect our citizensfrom the threatsposed
by terrorism. The primary responsibility
for this in any modern democratic state
fallson 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 governments
responseto thethreat of terrorism will need
to be on a number of different levels
new legislation perhaps, a subject to which
I want t o ret urn l at er, i ncreased
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 stepsthat have to be
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Human Writes
taken to meet theimperativesof thedeeply
threatening situation in which we find
ourselves: maj or i nvestment i n our
domestic frontline forces, building on the
world-classcapacity of the Metropolitan
police, other police forcesand 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 Servicefor which I am
responsible work closely with the police
and intelligence agenciesto produce that
robust response. We have reorganised the
prosecutorsinto aspecial counter terrorism
division to assist that process. I am
determined too that they have all the
available toolswhich iswhy it isright that
we cont i nue t o exami ne maki ng
intercepted communicationsadmissiblein
evidence in court as other countries do.
And I will encourage prosecutorsto press
for tough sentencesfor terroristsand 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
t hought and expressi on and our
commitment to theruleof law; theliberties
which have been hard won over the
centuriesand which we hold dear.
These are the very liberties and values
which the terrorists seek to destroy, not
only through massmurder and destruction
of property but also through the climate
of fear that their actions create, and are
intended to create, and which threaten
those valuesand our way of life.
The bedrock of prot ect i on 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 itsprotection of socio-economic rights
but stripped to its essentials, the
Convention remainsa statement of all that
democracy standsfor.
This government passed the Human
RightsAct 1998 which incorporatesinto
our nati onal and domesti c 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 thisAct hasbeen one of the
great achievements of recent years and
indeed of this Labour government. It
enshrinesin our law the principlesthat all
human beings should be treated with
respect, equality and fairness; that they
should all be accorded basic fundamental
rights.
Oneof thekey themesof theConvention,
and one of the reasons I would suggest
that it hasstood the test of time in the way
that it has, is that it is built around the
concept of balance. As Lord Bingham,
the UKsmost senior Law Lord, stated in
a judgment of the Privy Council The
[European] Court has recognised the
need for a fair balancebetween thegeneral
i nterest of the communi ty and the
personal rightsof theindividual, thesearch
for which balance has been described as
inherent in thewholeof theConvention.
The Convention took its lead in this
respect from the Universal Declaration of
Human Rights, Article 29 of which
expressly recognisesthe dutiesof everyone
to the community and the limitation on
rightsin order to secureand protect respect
for the rightsof 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
rightsof society asa whole. So theright to
freedom of expression isbalanced against
the right of othersnot to be defamed or to
be the subject of racial hatred. The right
to privacy isbalanced against the right for
the State to intervene in private affairsto
prevent or detect crime, or to safeguard
the interestsof children.
While the terrorist does not forfeit his
fundamental rights, the Convention
recognisesthat thoserightscan berestricted
in particular circumstances. Rightsarenot
only one-way. And it isnot only therights
of suspected personswhich areimportant.
The rights and liberties of other citizens
are important too. Let usnot forget that
terrorism, by its methods and aims, has
the potential to negate all the individual
rightswhich we all hold so dear.
I would suggest that the greatest challenge
which freeand democratic statesfacetoday
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. Sometimesthe criticism
comesfrom the right, from those who see
the Human Rights Act as a charter for
criminalsand terroristswhich impedesthe
executivesfreedom of manoeuvre at every
turn. Sometimesthecriticism comesfrom
the left, from those who see in every
government initiative a threat to civil
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liberties. Such criticism isinevitable.
Furthermore, we must expect that there
will be a wide divergence of viewson 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 theLord Chief Justice, themost
senior judge, found that thelegislation was
compat i bl e wi t h our obl i gat i ons.
Although the House of Lordsfound that
there wasa public emergency threatening
the life of the nation, with the exception
of one judge, it did not consider that
detenti on wi thout tri al was stri ctly
necessary to deal with theemergency. 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 isessential in some
cases to be flexible and to be prepared to
countenance some limitation of rightsin
order to ensure collective security, if
properly justified and proportionate, there
are certain principleson which there can
beno compromise. Fair trial isoneof 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 suffi ci ent
guaranteesof a fair trial in accordancewith
international standards.
As you may know having spent time
negotiating with counterparts in the
United StatesI wasunable to accept that
the proceduresproposed for the military
tribunals were adequate to ensure a fair
trial. I am pleased to note that, following
thisdecision, all the British detaineeswere
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, beright 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. Thehistoric tradition
of the United States as a beacon of
freedom, liberty and of justicedeservesthe
removal of thissymbol.
I want to turn now to look at how the UK
hasattempted to deal with the challenges
posed by international terrorism, focusing
on the governmentsresponse in termsof
legislation, asyou have asked me to do.
We had a head-start in termsof 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 gapsto
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 wasa 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 facedeath, tortureor 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 l egi sl ati on i ncl uded si gni fi cant
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
t hat body every t hree mont hs.
Nonetheless, the legislation was very
controversial, not least because it involved
theUK derogating to alimited extent from
i ts obli gati ons under the European
Convention.
AsI have already mentioned the House of
Lordsfound that the derogation wasnot
justified under the European Convention
and declared thelegislation 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 doesremain.
The governments response has been
threefold.
First, in the Prevention of Terrorism Act
2005 the government took new powers
to imposecontrol orders. Aswith so much
of the UKs legislation on terrorism, the
2005 Act was very controversial it was
only passed after all night sittings of
Parl i ament i n whi ch the House of
Commonsand theHouseof Lordspassed
the legi slati on back and forth wi th
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Human Writes
amendment and counterproposal before
finally hitting on a compromise.
Control ordersareavailablewherever there
isa reasonablesuspicion that an individual
isinvolved in terrorism and it isconsidered
necessary to impose the order to protect
the public from the risk of terrorism. A
wholerangeof obligationsmay beimposed
by meansof 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, unlessthegovernment makes
a new derogation from the European
Convention, - which it hasnot sought to
do - a control order cannot be used to
i mpose house arrest or any ot her
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 thecontrol order legislation
to be incompatible with the European
Convention on the basisthat there wasa
breach of the right to a fair trial before an
independent and impartial tribunal. The
judges 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 furthermorein reviewing the
Home Secretarysdecision, it waslimited
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 isin tatters and constitutesanother
i ndi ct ment by t he court s of t he
governments anti -terror poli ci es. I
disagree. First, thisisonly 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
meansof civil ordersand the use of secret
intelligence to make out the case is
untouched.
Turning away from control orders, the
governments second response to the
Houseof Lordsdecision 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 foreignerswho pose a risk to the UKs
national security. As I explained, we
cannot deport these individuals if there
are substantial groundsfor 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 t reat ment on ret urn, t hus
minimising the risk of ill-treatment. So
far, memoranda of understanding have
been concluded with Jordan, Libya and
Lebanon, and negotiationscontinue with
other countries. A number of people are
detained pending deportation on theback
of these memoranda of understanding,
and the extent to which we can rely on
the memoranda vis--vis risk of ill-
treatment isin the processof 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 t hat by negot i at i ng
Memoranda of Understandi ng the
government isseeking 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
achi eve the ri ght bal ance between
collecti ve securi ty 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 beworthwhile, I cannot do better than
quote the UKs independent reviewer of
terrorism legislation, Lord Carlile of
Berriew QC, who said in a recent report:
It really isa counsel of despair to suggest
that no verifiableor satisfactory agreement
can ever be reached with apparently
recalcitrant countries.
The governmentsthird response to losing
the derogation case in the House of Lords
relatesto the European Court of Human
Rightsin Strasbourg. The problemsthat
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 waswhether there
weresubstantial groundsfor believing that
there was a real risk of ill-treatment on
return. The deporting state was not
permitted to takeinto account thenational
security risk posed to itsown nationals.
The UK government hasintervened in a
Dutch case pending before the ECtHR
which raisesthesameissueasChahal. The
government (alongside a number of other
intervening governments) arguesthat the
effect of Chahal is to require a state to
ignore national security considerations,
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Human Writes
thusignoring the human rightsincluding
the right to life of its own citizens. The
governmentsposition will be that instead
a balanceshould bestruck 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 wantsto ask the European Court to
reconsider itsjurisprudence.
I should make clear that intervening in
this case does not mean rejecting the
proposition that the rule against torture is
absolute. Thebasic 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
derogationsare permitted and there isno
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
draft ed t he Convent i on t hat
considerationsof thesafety of other citizens
could not be taken into account in such
circumstanceswhen the issue iswhether a
foreigner should be admitted here or
allowed to remain? It is salutary to note
that those who engage in actsof terrorism
areexplicitly excluded from theprotection
of the Refugee Convention, drafted at
around the same time as the ECHR. It
seemsa surprising outcomethat under the
ECHR participation in acts of terrorism
haseffectively become a trump card.
Let me be clear. The UK government is
not proposing that the prohibition on
tortureshould not apply to thosewho face
deportation, nor that the extent of the risk
to them should be ignored but rather that
the national security risk posed by such
peopleshould betaken into account along
with all other factors. To do otherwise
affords no weight whatever to the rights
of those whose livesmight 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 UKsnational security comes
from foreign nationals and (2) the best
way of dealing with the threat is by
deportation. Asregardsthe nationality of
terrorists, weknow 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
individualswho are involved in terrorism
should be dealt with by means of the
criminal law wherever possibleeven where
deportation is an option. Of course, in
thesomecircumstances and thoseof 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
measureswhich Act containsisoneto deal
with those who publicly celebrate the acts
of terrorism whilst claiming to reject
violence themselves and refraining from
directly inciting othersto commit actsof
terrorism. Such people seek to avoid
falling foul of the criminal law, although
it isoften a close run thing, while making
statementsthat 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 consensuswasemerging before
the appalling attacks on London of 7th
July that action against such people
needed to betaken, although thoseattacks
undoubtedly provided an additional
catalyst. The action took two forms.
Firstly, a changed approach to the existing
powersto deport and exclude non-British
citizenswhose presence wasconsidered to
be non-conducive to the public good.
The government published an indicative
list of unacceptable behavioursincluding
the type of behaviour exhibited by those
who glorify terrorism. Such behaviour
would, in principle, beregarded ascapable
of meeting the non-conducive test and
leading to deportation/exclusion.
Secondly, thegovernment 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 UKs
i nternati onal obli gati ons under the
Council of Europe Convention on the
Preventi on of Terrori sm, al though
international consensusdid not save this
new offence from being subjected to very
intense scrutiny right up until the bitter
end of t he Bi l l s passage t hrough
Parliament.
But the fiercest debate in the UK was
reserved for the governments proposals
on pre-charge detention. Under previous
terrorism legislation, a person arrested on
suspicion of terrorism could be held for
up t o 14 days pendi ng a pol i ce
investigation as to whether there was
sufficient evidence to charge him with an
offence. But as the European Court of
Human Rightssaid in the case of Brogan
v UK : the investigation of terrorist
offences undoubtedl y presents the
authoritieswith special problems.
And it was proposed that the period of
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Human Writes
pre-charge detention should be increased
to three monthsin order to deal with the
compl exi t y of modern t errori sm
investigations: the international spread of
the investigations and the consequent
need for liaison with foreign agencies; the
problemsof computer decryption; foreign
language documents; very large networks
etc. I believe a convincing case wasmade
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
cri mi nal offences: t he offence of
encouragement of terrorism to which I
have already referred, the offence of
disseminating terrorist publications, the
offence of attending terrorist training
campsto name but a few. The question is
asked: why is it necessary to create new
specifically terrorist-related offencesto 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, wasrecently sentenced to
seven years imprisonment for incitement
to murder and racial hatred.
But, as I have explained, there are some
featuresof al Qaeda type terrorism which
distinguish it from other formsof crime.
The law needsto 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. Thiswasnot
necessarily the case with Irish Republican
terrorism where any lossof life waslikely
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, theTerrorism Act creates
a new offence of preparation of terrorist
acts. Critically, the Act providesthat it is
irrelevant whether particular acts of
terrorist or actsof 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 UKsPresidency of the EU in
the last six monthsof 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 telephonecalls, 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 providesevidenceof 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
mi ght have escaped detecti on and
prosecution. But accessing thisdata can
depend upon which communications
service provider a suspect, a victim or a
witness has used. It can depend upon
which country a service isused in.
So I am delighted that the European
Parliament and Council of Ministers
agreed to harmonise the rules so that
serviceprovidersareobliged to retain traffic
and location data for a year, thusmaking
it accessiblefor 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 thecontrary weshould ensurethat
all our actionsare justified and supported
by the law. If we were to abandon our
commitment to the rule of law we would
be giving the terroristsa victory. Second,
we shoul d st ri ve t o mai nt ai n our
adherence to fundamental values and
liberties; some fundamental rights and
libertiesare absolute and there can be no
compromiseon them; for othersthey may
have to give way to other competing
interestsasthe international human rights
instruments recognise; but and this is
the third point where we depart from
traditional ways of guaranteeing civil
libertiesweshould beclear that our actions
are proportionateto thethreat and needed
to meet it.
Fundamental rightsmust 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
theexperienceof other democraciesfacing
thesamechallengefrom acrosstheworld.
Finding this balance is a difficult task.
But giving up is not an option.
PRAXIS 58 MAY / J UNE_2006
Human Writes
I mpl ement at i on of Human Ri ght s Tr eat i es
t hr ough t he Uni t ed Nat i ons mec hani sm
by Edmund Bon
T
he human rightsmovement which
started in 1945 aimed to create
awareness of rights values, change the
attitudesof Statestowardsembracing the
sameand addressrightsviolations. 61 years
may seem a long time but for a matter
whi ch was rather ambi guous i n i ts
inception, the movement has achieved
much in termsof creating, sustaining and
profiling human rights throughout the
world. A great deal of itssuccessisowed 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
i s moni tored and i mpl emented 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 Ri ghts or whi ch 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 rightstreatiesintended
to monitor compliance by State partiesof
their obligationsunder those treatiessuch
as t he Human Ri ght s Commi t t ee
establi shed under the I nternati onal
Covenant on Civil and Political Rights,
1976 (ICCPR)
2
.
Through the lens of the Human Rights
Committee (HRC), thisessay explores
the mandate parameters of treaty-based
organs, and evaluatestheir 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
violatorsof human rights. Human rights
treatiestherefore impose variousdutieson
State parties to acknowledge, respect,
prot ect and promot e t hose ri ght s
articulated in the said treaties. This is
designed to stop violationsand to enhance
good governance. Due to variouspolitical
and legal factors, State parties cannot be
trusted to carry out all their obligations
they have signed up to. The irony of
having thesameviolator-Statefacilitatethe
implementation of rightsnormson itself
i s conspi cuous. The dri vi ng i dea
propelling rightstreatiesisthat the values
propounded therein are universal and
applies to everyone without distinction.
Practically, theimportanceof international
pressure, political maneuvering and
diplomatic tiesbetween member Statesin
the arena of international human rights
law cannot be understated
3
. Hence, the
consensus to have an i nternati onal
monitoring and adjudication system asan
added layer to ensure State partiescomply
with their accordsof ratification
4
.
The work of the HRC isan example. The
required reporting by State partiesof their
human rightssituation hasled 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 International
Covenant on Economic, Social and Cultural Rights, 1976, Committee on the Elimination of Racial Discrimination established under the
International Convention on the Elimination of All Forms of Racial Discrimination, 1969, Committee on the Elimination of Discrimination
against Women established under the Convention on the Elimination of All Forms of Discrimination against Women, 1981, Committee
against 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 the
Protection of the Rights of All Migrant Workers and Members of their Families established under the International Convention on the
Protection 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 in
Steiner and Alston supra n. 2 p. 572.
PRAXIS 59 MAY / J UNE_2006
Human Writes
norms i n gl obal pol i t i cs. The
corresponding commentsor observations
by the HRC of States rights record
advocate change or reaffi rm ri ghts
practices, and develops jurisprudence
regarding the provisions of the ICCPR.
Thisprimary role of standard-setting and
interpreting the ICCPR isaugmented by
recommendations of the HRC to State
partiesin respect of complaints
5
made by
individualsunder the Optional Protocol
to the ICCPR, 1976
6
. Although the views
of the HRC are not binding on State
parties, the HRC require parties to
subsequently report on measurestaken to
comply with the said views. In general,
themethod utilized by treaty-organsisone
of dialogue and engagement towards
constructive or remedial action by State
parties. This spirit categorizes the extent
of implementation under rightstreaties,
which to a large extent is indirect and
comprisesof written recommendationsor
communicationsto 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
soverei gnt y i s recogni zed t hough
challenged
7
. The extent of such challenge
isadelicateissuebecauseit 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 HRCs
work
The mainstay of the HRCswork isin its
examination of State parties reports.
However, t he persi st ent set backs
hampering the efforts of the HRC have
been the repeatedly late or non-reporting
by State parties
8
. Without reportsbefore
it, the HRC cannot undertake itsreview.
Without powersof effective sanction, this
hasled to the strange situation of placing
State partieswho do not report in a better
position than those who do. Reporting
State partiesare subjected to scrutiny and
questioning, and the HRC may proceed
to make recommendationswhereasnon-
reporting State parties do not face any
penaltiesfor not submitting their reports.
Thisbacklog hasadded to the problem of
slow response/turnaround time by the
HRC. The average time from submission
to consideration of a State partys report
by the HRC is 12 months
9
. Needless to
say, efficiency and rapid response is
necessary in casesof rightsviolationswhich
are widespread and systemic. In thislight,
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. SomeStateshavebecome
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 matterswhich for example, fall under
theConvention against Tortureand 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 schedulesand there isno single
standard reporting guideline applicable to
all 7 treaty-organs. The views which
emanate from one organ have often
overlapped with another, and thismay lead
to inconsistent jurisprudence. This is a
waste of resourcesand opportunities. The
profiling of the HRCs work is also low
and without a collaborated publishing
strategy to the world through the media.
Its views are usually known only by
lawyers, governmentsand academicians.
Steiner argues that the HRC should use
theindividual communicationsprocedure
to substantively build a corpusof case law
elucidating the ICCPR
10
. A reading of
HRCs comments and observati ons
evidence the HRC merely stating their
opi ni ons wi thout argui ng towards
conclusions, a process which is done in
secret. Thisdoesnot 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 complaints
to-date.
7
The issue of national sovereignty is no longer a strong or substantial reason to resist human rights demands within the UN: see Steiner
and Alston supra n. 2 p. 588. Even China has taken the position that to effect international protection of human rights, the international
community should interfere with and stop acts that endanger world peace and security: see Information Office of the State Council
Beijing, 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 High
Commissioners Proposal for a Unified Standing Treaty Body, p.19.
9
See United Nations Secretariat supra n. 8 p. 27.
10
See Steiner supra n. 4 cited in Steiner and Alston supra n. 2 p. 767.
PRAXIS 60 MAY / J UNE_2006
Human Writes
number of communications (which is
increasing each year) submitted to the
HRC, and whi ch have present ed
opportunities to develop the breadth of
the ICCPR but were not taken by the
HRC.
III. Proposals for reform
Thethrust of theUN SecretariatsConcept
Paper
11
isto introduce a unified standing
treaty-body to merge all the 7 treaty-
bodi es together. Thi s body wi l l be
permanent and comprised of full-time
professionals. The idea isto streamline the
reporting obligationsof Statepartiesto one
organ and to allow greater focuson issues.
A unified body, according to the Concept
Paper, will provide a framework for a
comprehensive, cross-cutting and holistic
approach to i mplementati on of the
treaties
12
in accordancewith theuniversal
values of human rights. It will avoid
duplication, inconsistent jurisprudence
and manage the expectations of State
partiesbetter.
It is submitted that whilst it may look
neater on paper, the real question is
whether such a body can better thecurrent
system of separate treaty-bodies under
different treatiesin theprovision of redress
and representation for rightsviolations. I
am of the view that it would not, for the
following reasons:
1. A unified treaty-body still begsthe
question of lateor non-reporting by
Stateparties. Thismay bedealt 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 advi sory assi stance on the
preparation of reports should be
given to Stateswhich request for the
same
13
.
2. If the problem isthe non-existence
of standard reporting guidelinesor
overlapping jurisdiction, theanswer
liesin creating such guidelinesand
criteria of admissibility for hearing
before each t reat y-body. For
example, it may be made clear by
the criteria that issues relating to
complaintsof torture fall under the
purview of the Committee against
Torture and not under the HRC.
3. The current system of treaty-bodies
draws on t he expert i se and
particular specialization of various
members with a certain degree of
speci fi ci ty. The advent i n the
requi rement of more preci se
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 permanenceand full-time
deployment of the membersof 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 (i ncludi ng from the
outset ensuring that a substantial
number of expert members across
the board be appointed) to review
certain specific areas. Thismay lead
to a marginalization of particular
issues, and will not benefit therights
movement in jurisprudential and
practical outcometermsin thelong-
run
14
.
5. The backl og of report s not
considered can only be solved by
i ncreasi ng t he members and
resources of the HRC. Having a
unified body will not automatically
solve the backlog asa global report
by State parties will necessarily be
longer because it seeksto merge all
issues in relation to the respective
treaties ratified into one report. It
would not be useful to limit the
number of pagesor issueseach State
party may wish submit in their
reports- the emphasismust always
beon moreinformation rather than
less.
6. It issaid that a unified body will be
morevisiblethan theexisting organs
and enhances visibility which in
turn will generate media interest.
Whilst thiscannot be denied, there
is again no reason why the present
treaty-based organs are prevented
from formalizing a clear media
strategy with theaim of heightening
the impact of HRCs work. HRC
should, as far as possible, make its
deliberationsmore transparent and
open, and t o di ssemi nat e i t s
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 the
United Nations Human Rights Treaty Regime, (1993) para. 109-122.
14
See UN Document A/58/123, Report of a meeting on Reform of the Human Rights Treaty Body System, (2003) para. 20-28.
PRAXIS 61 MAY / J UNE_2006
Human Writes
The 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 asit may, the base initiative for the
human rights movement must not be
forgotten: theuniversal ratification of core
UN rightstreaties. Countriesthat 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 beset asameasureto encourage
ratification and to have international
agencies assist States as social partners in
realizing the importance of ratification as
was done by t he Uni t ed Nat i ons
Chi l drens Fund i n respect of t he
Convention on the Rights of the Child,
1990
15
.
The concept of implementation through
the UN mechanism has taken a deep-
rooted stand in the rightsagenda and has
produced success. It isstill an imperative.
Thenotion that therearemovesto reform
the system isencouraging purely from the
perspective that, despite the politicking,
the UN has human rights high on its
agenda. It is now time to debate the
proposalstowardsmaking the machinery
of implementation a stronger one. There
isno turning back.
Philip Allott wrote
16
:
The idea of human rightsshould
intimidate governments or it is
worth nothing. If the idea of
human rightsassuresgovernments
it is worse than nothing. But,
once again, there is room for
optimism, on two grounds. (1)
The idea of human rightshaving
been t hought , i t cannot be
unthought. It will not bereplaced,
unl ess by some i dea whi ch
containsand surpassesit. (2) There
are tenacious individuals and
non-statal societieswhose 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 iswith thisin mind that rightsactivists
continueto 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-term
Effectiveness 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 oyster
Whose story I tell,
Who found that some sand
Had got into his shell.
It was only a grain,
but it gave him great pain.
For oysters have feelings
Although theyre so plain.
Now, did he berate the harsh
workings of fate
That had brought him
To such a deplorable state?
Did he curse at the
government,
Cry for election,
And claim that the sea should
Have given him protection?
No, he said to himself
As he lay on a shell,
Since I cannot remove it,
I shall try to improve it.
Now the years have rolled
around,
As the years always do,
And he came to his ultimate
Destiny stew.
And the small grain of sand
That had bothered him so
Was a beautiful pearl
All richly aglow.
Now the tale has a moral,
for isnt it grand
What an oyster can do
With a morsel of sand?
What couldnt we do
If wed only begin
With some of the things
That get under our skin.
PRAXIS 62 MAY / J UNE_2006
Lifestyle
PRAXIS 62 MAY / J UNE_2006
Lifestyle
ADVERTORIAL
MAY / J UNE_2006 PRAXIS 63
Lifestyle
MAY / J UNE_2006 PRAXIS 63
PRAXIS 64 MAY / J UNE_2006
Lifestyle
Medi t at i on f or a Cal m Hear t
by Yogi Bhajan, September 1981
S
it in an Easy Pose
EYES: Either closetheeyesor 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 isflat against the chest, and the
fingersareparallel to theground, pointing
to the right. Make Gyan Mudra with the
right hand (touch the tip of the index
(Jupi ter) fi nger wi th the ti p of the
thumb). Raise the right hand up to the
right side as if giving a pledge. The palm
facesforward, thethreefingersnot in Gyan
Mudra point up. Theelbow isrelaxed 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 nostri ls. Then
suspend the breath in and raise the chest.
Retain it aslong aspossible. Then exhale
smoothly, gradually, and completely.
When the breath is totally out, lock the
breath out for aslong aspossible.
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 isplaced at thenatural homeof prana,
creating a deep stillnessat that point. The
right hand that throws you into action
and analysisisplaced in a receptive, relaxed
mudra and put in the position of peace.
The entire posture inducesthe feeling of
calmness. It technically createsa 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
thismeditation for 3 to 15 minutesbefore
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
conditionsthe 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 classtry 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 pract i ce of
concentration and rejuvenation, build
the meditation up to 31 minutes.
Y
ogis,
r i shi s
and sages
understood how to
withstand stress and
maintain energy. This
meditation when
pract i ced for
three minuteswill relieve your mental and
physical challenges, and leaveyou 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 with
your eyes closed. Raise both arms to the
sidesat 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 you
physically shake from the base of the spine
to the neck. Try your best! Continue for 3
minutes. Relax.
Medi t at i on f or
St r ess Rel i ef
K
eep your body moving effortlessly
in a chilly season with this healing
elixir that nourishesand lubricatesjoints
and spine.
1/8 tsp. turmeric powder
1/2 cup water
1 cup milk
2 T almond oil
honey
Boi l wat er and
t urmeri c i n a smal l
saucepan, over medium-high heat for 8
minutes. In another saucepan, bring
almond oil and milk to boil and remove
from heat. Combine the two mixtures,
adding honey to taste.
Gol den Mi l k
MAY / J UNE_2006 PRAXIS 65
Lifestyle
C
oncealed within this limestone
massif isan intricatesystem of caves
honeycombed inside the limestone hills.
These caves are actually a breath taking
gallery of stalagmites and stalactites and
other amazing rock formationswhich are
superb geological wondersfound 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 kilometresfrom Ipoh,
the cave stretchesfor 1.3 kilometresand is
madeup of fivehugedomeswhoseceilings
resemble coconut shells. Each dome has
different formations of stalagmites and
stalactitesaswell asdiffering 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 timesone
has to crawl on hands and knees to fit
through the labyrinth of stalagmitesand
stalactites. Much of the time you would
also be knee deep in water.
Bats can be heard squealing in the high
cavernsthroughout thecavelending a very
surreal atmosphereto theentireexperience.
Theancient smellstell storiesof their own.
It ishumid and pitch black except for your
flashlights.
In the middle of this cave there is a
stalagmiteover 2 million yearsold. It stands
so tall that it feelslike an enormousEarth
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
woul d become t ot al l y awe
struck. The feeling isone of being
in the presence of a wise sentient
bei ng; an Eart h
Guardian. Standing silent you try
t o l i st en t o what t hi s
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 stoneshave never seen
t he l i ght of day. Become
transfixed asif transported to some
other place in the universe.
When you finally reach the exit of
The Lar gest Nat ur al Li mest one Caves
Thinkingon whereto go next?Dont know how to get rid of therestlessnesthatsirkingyou?Want to spend
somequalitytimewith your loved ones?How about checkingout thisrather 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 bereached from theNorth-
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 hillsin the
distance. Approaching the cavesisa very
mystical experiencewith themist hovering
above the hills.
* Extract taken from
http://www.abcmalaysia.com/tour_
malaysia/gua_tempurung.htm
PRAXIS 66 MAY / JUNE_2006
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Suspended
Order under s94(4)(c) Legal Profession Act 1976
1. Ni k Abdul Rahman bi n Ni k Mat , M/ s
Rahman & Co (immediate effect from 22
April 2006, until further notice)
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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, until
further notice)
4. Wan Mohd Nazri bin Wan Hassan, M/s Wan
& Saif (immediate effect from 20 May 2006,
until further notice)
Order under s103D Legal Profession Act 1976
1. Jegathesan a/l Karupiah, M/s Karupiah & Co
(two(2) years with effect 21 days from 25
March 2006)
2. Ajit Singh s/o Jagat Singh, M/s J Ajit Singh &
Co (two(2) years with effect 21 days from 25
March 2006)
3. Muhamad Sabri bin Mohd Saman, M/s Sabri
Nazli Lana & Azizan (three(3) months with
effect 21 days from 25 March 2006)
Penalty
Order under s102 Legal Profession Act 1976
1. 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. Mari na bi nt i Abdul Mut t al i b, M/ s MA
Mut t al i b & Associ at es - 21 Apri l 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. Akmarosli na bi nti Kamarudi n, M/ s Azra
Salleh & Co - 22 April 2006 (RM300)
9. Abdul Majeed bin Mohamed Hussain, N M
Tiong & Co - 22 April 2006 (RM1,000)
10. Ruzai ni Ayuni bi nti Ahmad, M/s Rashi d
Asari & Co - 22 April 2006 (RM500)
11. Mohd Lotfan Nadzmi bin Ismail, M/s Lotfan
I smai l & Associ at es - 22 Apri l 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 Pritam
Si ngh Doal & Co - 22 Apri l 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 Nair
Mai deen & Associ at es - 22 Apri l 2006
(RM1,000)
16. Rajehgopal a/l Velu, M/s Rajehgopal Velu
& Associates - 22 April 2006 (RM1,000)
17. Rohai zat bi n Othman, M/ s Sai f Ari ff &
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 bi n Abdul Wahab, M/ s
Badrulhisam Zaki & Co - 22 April 2006
(RM1,000)
21. Abdul Roni bin Abd Rahman, M/s Abdul
Roni & Co - 22 April 2006 (RM500)
22. Lee Mun Yi ng Fel i ci a, M/ s Abu Tal i b
Shahrom - 22 April 2006 (RM500)
23. Faki hah bi nti Azahari , M/ s Ni k Hi sham
Fakihah & 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 Balwant
Si ngh Aj mer & Co - 22 Apri l 2006
(RM1,000)
26. Yuen Kwong Wai, M/s Yuen & Co - 22 April
2006 (RM1,000)
27. Murugayah a/ l Balasubramani am, M/ s B
Murugayah & Co - 22 April 2006 (RM500)
MAY / JUNE_2006 PRAXIS 67
Disciplinary Orders
NOTICE
It has been brought to the attention of the Bar
Counci l that an i ndi vi dual by the name of
Gurpreet Si ngh Si dhu has been ci rcul at i ng
pamphlets offering legal services and passing
himself off as an advocate and solicitor practicing
under the name and style of M/s G S Si dhu
(handphone: 016-2813571) i n I poh,
parti cularly; Taman Kledang Emas, Canni ng
Garden, Ipoh Garden South and Ipoh Garden
East.
Kindly take notice that the Bar Council has no
record of any member of the Bar practicing under
the name and style of M/s G S Sidhu.
28. Shri @I ndran Ram a/ l Ramasamy, M/ s
Azman Ahmad & Company - 22 April 2006
(RM500)
29. Ebenezer Ramesh Jaya Raj a/l Jayaraja, M/s
Ebenezer & Co - 22 April 2006 (RM1,000)
30. Venai a/ l Lal j i Gangdas Pat el , M/ s B
Murugayah & Co - 22 April 2006 (RM500)
31. Azman bin Ahmad, M/s Abu Talib Shahrom
- 22 April 2006 (RM500)
32. Mohamad Hafi dz bi n Abd Bakar, M/ s
Mohamad Hafi dz & Co - 22 Apri l 2006
(RM500)
33. Zaidah binti Ibrahim, M/s Amin Hamdi &
Partners - 22 April 2006 (RM500)
34. Wirawati binti Kamarulzaman, M/s Raziff
Razlan - 22 April 2006 (RM1,000)
35. Asmahan binti Hj Sulaiman, M/s Asmahan
Sul ai man & Associ ates - 22 Apri l 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 Elviza
Renny & 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 - 19
May 2006 (RM500)
Order under s103D Legal Profession Act 1976
1. 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
Ari ffi n Yeo & Harpal - 19 May 2006
(RM1,000)
Ledchumiah s/o Ramamoorthy
Further to our notice in the March/April 2006
issue, under members struck off (item no 2),
kindly note that an interim stay was obtained on
17 April 2006 pending appeal to the High Court.
6. Nora' ini binti Mohd Yazam, M/s Nora' ini
Mohd 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 - 19
May 2006 (RM5,000)
10. Kri shnamurt hy s/ o Kart hi kesu, M/ s K
Kri shnamurthy & Assoc - 19 May 2006
(RM3,500)
Struck Off
Order under s103D Legal Profession Act 1976
1. Su Kien Cheok, M/s Su How & Co (w.e.f. 21
days from 22 April 2006)
2. Pasupathy Kanagasamy, M/s Pasupathy & Co
(w.e.f. 21 days from 22 April 2006)
PRAXIS 68
MAY / J UNE_2006
Library Update
BILL 2006
1. National Skills Development Act
2006 DR 6/2006
First Reading25.4.2006 Tamno. 4
2. Patent (Amendment) Act 2006 DR
8/2006
First Reading2.5.2006 Tamno.4
3. Supplementary Supply (2005) Act
2006-DR 7/2006
First Reading25.4.2006 Tamno. 4
4. Malaysian Pepper Board Act 2006
DR 10/2006
First Reading9.5.2006 Tamno. 5
5. Road Transport (Amendment) Act
2006 DR 9/2006
First Reading8.5.2006 Tamno. 5
AMENDING ACTS 2003
Patents (Amendment) Act 2003 (Act
A1196)
Notes:-Amendsss.34, 35 and 52
-Insertsnew Part XIVA
-Repealss.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:-AmendsSch 1, Optical Act 1991
w.e.f:-28.4.2006
Optical Act 1991 [Act 469]
Opt i cal (Amendment of Second
Schedule) Order 2006 [P.U.(A) 159/
2006]
Issued under s.41, Optical Act 1991
Notes:-AmendsSch 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
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