This document provides information about the upcoming "Mobility of Labour in the Lawasia Region - The Legal and Social Problems of Migrant Labour" conference organized by the Malaysian Bar. It includes a registration form seeking details about registrants. The conference will take place from August 10-12, 2006 at the Crowne Plaza Mutiara in Kuala Lumpur, Malaysia. It will address topics related to the impact of migrant labour on society, legal migration, immigration laws, labour contractors and agents, employment terms and conditions, and access to local adjudication systems.
This document provides information about the upcoming "Mobility of Labour in the Lawasia Region - The Legal and Social Problems of Migrant Labour" conference organized by the Malaysian Bar. It includes a registration form seeking details about registrants. The conference will take place from August 10-12, 2006 at the Crowne Plaza Mutiara in Kuala Lumpur, Malaysia. It will address topics related to the impact of migrant labour on society, legal migration, immigration laws, labour contractors and agents, employment terms and conditions, and access to local adjudication systems.
This document provides information about the upcoming "Mobility of Labour in the Lawasia Region - The Legal and Social Problems of Migrant Labour" conference organized by the Malaysian Bar. It includes a registration form seeking details about registrants. The conference will take place from August 10-12, 2006 at the Crowne Plaza Mutiara in Kuala Lumpur, Malaysia. It will address topics related to the impact of migrant labour on society, legal migration, immigration laws, labour contractors and agents, employment terms and conditions, and access to local adjudication systems.
MOBILITY OF LABOUR IN THE LAWASIA REGION - THE LEGAL AND
SOCIAL PROBLEMS OF MIGRANT LABOUR
Please fax a copy of the bank transfer to us for verification purposes Website:www.malaysianbar.org.my Email: council@malaysianbar.org.my Registrant Full Name (please underline surname): _______________________________________________ Title: Tun Tan Sri Dato Justice Judge Prof Dr Mr Mrs Ms Other Special Status : _____________________________________________________________ Institution/Company: ______________________________________________________________ Address : _______________________________________________________________________ Postcode : ______________ City: ____________________ Country : _______________________ Telephone: ________________________________ Facsimile : ____________________________ Email: _________________________________________________________________________ Preferred name for Badge : ________________________________________________________ Category i) Local Delegates RM750.00 ii) Foreign Delegates USD300.00 Conference Registration Fee Payment can be made by cheque, bank draft or bank transfer. Cheques and bank drafts should be made payable to Bar Council Lawasia Labour Law Conference. Payment must be made in advance of the Conference. Bar Council Malaysia Nos 13, 15 & 17, Leboh Pasar Besar 50050 Kuala Lumpur Tel: 603 - 2031 3003 Fax: 603 - 2032 2043 / 2034 2825 / 2072 5818 Method of Payment Note: Substitution / Cancellation 1. Substitutions may be made for registered delegates provided the Organisers are informed in writing before the Conference. 2 . For cancellation, a refund less 10% will be given if the cancellation is received in writing by 1 August 2006. No refund will be given for cancellations received after 1 August 2006. Bank Transfer : HSBC, No 2, Leboh Ampang, 50100 Kuala Lumpur, Malaysia Account No : 301-022166-104 SWIFT CODE NO : HBMB MYKL 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 Pra xis is the chronicle of the Malaysian Bar, published bi-monthly by the Bar Council of Malaysia. Contribution: The Bar Council welcomes letters, articles, views and news (including photographs) for possible inclusion in the publication. However, the Bar Council reserves the right not to publish themor to edit those published as regards content, clarity, style and space considerations. Articles fromindividuals that are published here contain the personal views of the writers concerned and are not necessarily the views of the Bar Council. BAR COUNCIL OF MALAYSIA BAR COUNCIL OF MALAYSIA BAR COUNCIL OF MALAYSIA BAR COUNCIL OF MALAYSIA BAR COUNCIL OF MALAYSIA BAR COUNCIL Nos 13, 15 & 17 Leboh Pasar Besar 50050 Kuala Lumpur Malaysia Telephone (03) 2031 3003 Fax (03) 2026 1313, 2034 2825, 2072 5818 e-mail: council@malaysianbar.org.my Website: www.malaysianbar.org.my Hj Kuthubul ZamanBukhari, HendonMohamed, Hj SulaimanAbdullah, MahWengKwai, R R Chelvarajah, Low BengChoo, Cecil Rajendra, YasmeenHj MuhamadShariff, Hj HamidSultan AbuBacker, LimChee Wee, J eraldGomez, R V Lingam, StevenThiruneelakandan, Zulkifli Nordin, EdmundBon, George Varughese, Krishna Dallumah, Tony WoonYeow Thong, DatoAbdul RahmanAbdullah, Roger TanKor Mee, Hj MohamedSazali Abdul Aziz, Hj Asmadi Awang, Lee LengGuan, IndranRajalingam, Fredrick Indran Nicholas, NganSiongHing, V Sithambaram, G Balakrishnan, Lalitha Menon, M Ramachelvam, Ng Kok Peng, Hj Sukri Hj Mohamed Publications Committee Publications Committee Publications Committee Publications Committee Publications Committee Hj Vazeer AlamMydinMeera (Chairman), NgKong Peng(Deputy Chairman), Andrew Das Solomon, Cecil Rajendra, ColinAndrew Pereira, Edmund Bon, S Gunasegaran, Sanjeev Kumar Rasiah, Tan BanCheng, PK Yang, Nicole TanLee Koon, J ahaberdeenMohamedYunoos, K Shanmuga Secretariat Secretariat Secretariat Secretariat Secretariat Executive Director: Catherine Eu Deputy Executive Director: KennethGoh Publications Executives Gurmeet Kaur Tel:+603 2031 3003 extn143 DL: +603 2032 4498 Fax: +603 2032 2043 gurmeet@malaysianbar.org.my Advertisement Chandrika Bhaskaran Tel: +603 203 13 003 extn143 DL: +603 203 13 180 Fax: +603 2026 1313 chandrika@malaysianbar.org.my Design& Layout: Khairul Anuar / Norazaliza Azlin 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. Established legal firm in J .B. requires a qualified legal assistant for litigation work. Experience not essential. Attractive salary, 5 working-day week. Please call Ms Tay / Mr Kang at 07-3351928 or email arthurlee@po.jaring.my for an appointment. ARTHUR LEE & COMPANY Unit 5.17,Level 5, Plaza DNP No.59, J alan Dato Abdullah Tahir. 80300 J ohor Bahru Contact No. :07-3351928 Facsimile :07-3335911 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. PRAXIS 52 MAY / J UNE_2006 Human Writes 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 PRAXIS 53 MAY / J UNE_2006 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 PRAXIS 54 MAY / J UNE_2006 Human Writes 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 PRAXIS 55 MAY / J UNE_2006 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, PRAXIS 56 MAY / J UNE_2006 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 PRAXIS 57 MAY / J UNE_2006 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 Disciplinary Orders 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) 2. Marzaini binti Zainuddin, M/s Zainuddin & Co (immediate effect from 22 April 2006, until further notice) 3. Nizam bin Yahya, M/s Azizi Nizam & Anwar (immediate effect from 22 April 2006, 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 Opening Hours Mondaysto Fridays 8.30 a.m.- 7.00 p.m. Saturdays 8.30 a.m.- 1.00 p.m. Sundaysand Public Holidays Closed Photocopying Services Legal Firmsrequiring photocopiesof library material (cases, legislation, etc) can fax their requeststo the Malaysian Bar Library at Fax: 03-2032 4067, undertaking to pay the charges and indicating whether the material is to be faxed, sent by ordinary post/PosLaju or left at the counter for collection. The chargesfor the above servicesisasfollows: 1. Photocopying per page RM 0.60 2. Faxing per page RM 2.40 3. Postage to be determined by the Post Office Legal firmsare encouraged to have with the Malaysian Bar Library a refundable deposit of RM200.00 when seeking services. The said deposit shall be utilized towards payment for photocopying, faxing and/or postage incurred by the Library. This deposit should be topped up once it falls below RM 50.00. Library Contact The Library can be contacted by calling the Bar Council Line at 20313003 ext. 154, 155, 156, 157 or the Librarys new Direct Line at 03-20317981 International Bar Association 2006 Conference 17-22 September 2006 Chicago, USA With over 3,000 international lawyers expected to attend, this conference presents a unique networking opportunity with over 150 working sessions covering all areas of practice and 2 showcase sessions focusing on issues which are of interest to lawyers of all disciplines. The conference not only provides the opportunity to make contacts but also to learn from some of the most acclaimed speakers in the legal world. For further information and to register online, please see: www.ibanet.org/chicago06