INFO Johore Bar - January 2014

FEBRUARY 2014 BULLETIN OF THE JOHORE BAR

FOR MEMBERS ONLY Private Circulation

LEAD ARTICLE

“JUDGE NOT, THAT YE BE NOT JUDGED”

- S. Balarajah

In This Issue …

1. “Judge Not, That Ye Be Not Judged”

- S. Balarajah 1 & 4 - 13 2. Johore Bar Chair Writes: Time For Change

- S. Gunasegaran 2-3

THIS PIECE is not a treatise on Judges. Nor is it a condemnatory condemnation of the school of judges.

This is but a cursory study with incidental suggestions and recommendations as to what could/must /may be done to educate, enlighten and encourage those chosen to adorn the Bench so that they may live up to the expectations of both lawyers and litigants in the solemn and fervent discharge of their judicial duties. A caveat. One is mindful that the color yellow the veg kangkung and political satires detrimental to the powers that be and the protected species may be politically incorrect and ought to be avoided. (In India there is a special class known as Harijans (not Pariahs, please) who are a protected specie protected from the invidious and the insidious.) When embarking on a discourse such as this, the words of Mark Twain come to mind. He lamented: “It is by goodness of God that in our country we have those 3 unspeakably precious things: freedom of speech, freedom of conscience and the prudence never to practice any one of them”.

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3. Advice to new Advocates

- Tuan Samsudin Bin Hassan

14 - 15

4. Religion And The Law

- Roger Tan

16 - 19

5. The Sabah Issue – How The

Sulu Claim Originated

- Tuan Awang Kerisnada bin

Haji Awang Mahmud

20 - 27

6. Johore Bar Activities & Pictures

28 - 41

7. Hyde Park Corner

- S. Balarajah

42 - 47

8. RPGT – deceased’s estate and

beneficiaries

- Yang Pei Keng

48 - 50

9. Pages of Poetry

- S. Balarajah

51 - 53

10. ‘Lest We Forget’

– May Day for Justice 8.8.88

54 - 56

11. Chief Justice Chagla

‘A Son Remembers’

57 - 61

12. GST to commence in 2015

- Yang Pei Keng

62 - 64

13. New Admission to the Bar

65

14. Pictures from the Past

66

15. Breaking News

67

16. Johore Bar Statistics

68

INFO JOHORE BAR – february 2014

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JOHORE BAR COMMITTEE 2013/2014

From the Chairman of the Johore Bar TIME FOR CHANGE

Chairman S. Gunasegaran Committee Members Andrew Wong Fook Hin Tho Kam Chew Puan Shahareen Begum Binti Abdul Subhan Puan Norhayati Bte Mohamed Ms. Meneka E Kanasmoorthy Mathews George Kuna Nadasen Ms. Yvonne Young Ai Peng Goh Tiong Sin Fadhil Ihsan Bin Mohamad Hassan Representative to the Bar Council K. Mohan Hon. Secretary Ms. Kalpana Kumara

INFO JOHORE BAR EDITORIAL Chairperson - Goh Tiong Sin Deputy - Puan Shahareen Begum S. Balarajah Yang Pei Keng Chandra Sekran Norman Fernandez K. Sandrasegaran Shyamala Manoharan Aimi Syarizad binti Datuk Hj. Khutubul Zaman INFO JOHORE BAR welcomes articles be they legal non legal or extra-legal. We do not want the INFO Johore Bar to be a dull government gazette-like publication. Please therefore put pen to paper and let us have articles, stories, views and reviews for publication. The editorial sub-committee’s decision on materials submitted is final and matters that infringe on sedition, defamation inflammation or provocation will most definitely be excluded and might find their way back. The views of the writers of articles etc are not reflective of the views of the Bar Committee neither does the Bar endorse or adopt their views.

Editorial Committee Info Johore Bar 2013/2014

JOHORE BAR COMMITTEE

No. 5 Jalan Tun Abdul Razak Susur 1/1 80000 Johor Bahru, Johor Tel: 07-276 3888 Fax: 07-276 1188 Email: secretariat@johorebar.org.my Website: www.johorebar.org.my

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Dear fellow members of the Johore Bar,

S. Gunasegaran

Happy New Year to all of you and GONG XI FA CHAI to all our Chinese friends who have just ushered in the Lunar New Year. May we all enjoy good health and fortune in the Year of the Horse.

New Year is the time for change. A time to bid adieu to the old and to welcome the new. When we leave the past behind and embrace the future. It is the time to move ahead. To set new goals and directions. And to harness the wisdom gained in the past to realize the new goals and directions in future.

For the Johore Bar too, it is the time for change. We would soon be holding our Annual General Meeting and electing a new Chairman and Committee to run the state Bar for the ensuing year. My Committee and I would be completing our term of office and handing over the reins to a new team of players, who hopefully, would perform better than us and take the Johore Bar to greater heights in the days ahead.

It is my fervent wish that more members, especially the younger ones, would come forward and share the burden of running the Bar this time. I say this because in the last few years we have sadly witnessed a general decline in interest in the affairs of the Bar among our members and a reluctance to come forward and serve in the Committee.

This problem was not so visible when the Bar was much smaller, say about twenty years ago, but has now become acute and critical. As a result the task of running the state Bar appears to have fallen on the shoulders of a small band of concerned members, mostly very senior, who not only have the interest of the Bar at heart but a little bit of spark still left in them, keep the flame aglow. While there is no doubt that these members are giving their best to the task before them and that the Johore Bar machinery is in fact moving quite smoothly, we need to ask ourselves whether we can or should be happy with the present scenario. The answer is obvious. The Johore Bar is one of the largest state Bars in the country, with 1,646 members on our rolls, and of which at least 1,164 are based in Johor Bahru alone. The fact that we cannot attract a sufficient number of members from such a large pool to contribute a bit of their time and energy to the Bar, but instead continue to fall back on the Ancient Mariners, year in and year out, to steer the ship to shore, is a clear sign of a chronic disorder.

It is disappointing, embarassing and a poor reflection of our profession. Furthermore, there is also the question of fairness. The Ancient Mariners have already done their part, and for so long. How long more do we expect them to plod on?

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Perhaps we need to remind ourselves that the Bar is not the private property or domain of a select few, but the common property of us all. It is there for us. To serve our interests. As members of the Bar we not only have a common interest in its activities and affairs, but share the responsibility of running it properly and ensuring its well-being. I therefore make this impassioned plea to all our members to rise to the occasion and come and play your part in ensuring that the Johore Bar remains a vibrant and dynamic Bar. We need new blood to recharge and rejuvenate the Bar. We need new and fresh ideas along with new ways and approaches for doing things.

To me it was really an honour and privilege to have been given this opportunity to helm the Bar for the past three years. It was a call of duty that I could neither decline nor resist. I accepted the job readily and now part with it readily with the satisfaction of having played my part and making my small contribution to the professional body that I feel proud to belong to.

I take this opportunity to record my deepest appreciation to the members of the Johore Bar for entrusting me with the Johore Bar during the past three years. I have tried my best to deliver, and in this I was ably guided and assisted by my wonderful Committee Members, to whom I owe a debt of gratitude. I hope that I have served you well and mohon maaf for any failures or shortcomings.

My best wishes to the new Chairman and Committee.

S. GUNASEGARAN Chairman

THE OUTGOING COMMITTEE

Standing from left:

Seated from left:

Not in the picture:

K. Mohan (Bar Rep), Kuna Nadasen, Andrew Wong Fook Hin, Tho Kam Chew, Fadhil Ihsan Bin Mohamad Hassan, Goh Tiong Sin, Yvonne Young Ai Peng Kalpana Kumara (Hon. Secretary), Shahareen Begum Binti Abdul Subhan, S. Gunasegaran (Chairman), Norhayati Binti Mohamed, Meneka Kanasmoorthy Mathews George

A big Thank You INFO JOHORE BAR – february 2014

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We are said to have some freedom so let’s exercise it, cautiously though. The words of the versatile and wise Lord Alfred Denning on contempt may insulate these presents lest some may want to activate and or ignite the laws of contempt, sedition and or others of similar flavor which seems to be in vogue in these turbulent days, so we fasten our seat belts: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.

It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest… We must rely on our conduct itself to Lord Denning be its own vindication.”

- Lord Denning Regina versus Commissioner of Police, ex parte Blackburn, 1968(2) QB 150

Judge Felix Frankfurter

The famed American Judge Felix Frankfurter said “Judges as persons, or Courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial officer are indentified with interest of justice they may forget their common human frailties…”

In an address to the Cambridge Law Society (quoted by former Indian Judge V.R Krishna Iyer in his book “Off the Bench” – Page 14) Lord Justice Scrutton is quoted to have said :

“The habits you are trained in, the people with whom you mix, lead to you having certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as one would wish… it is difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between 2 disputants, one of your own class and one not of your class.”

Judge V R Krishna Iyer

It is said that at the present times, the Malaysian Judiciary has the most number of judges of all manner and all classes in our several tiers of Courts.

From Puisne Judges to puny penghulus from learned and wise Federal Judges to “mighty” magistrates. The influx of great many people from all manner of classes and from diverse background to the Bench may be a cause for concern. The entry of such people may be said to be a sure sign of progress and may be a new development in the professions and in the public service. It may have great future potential. The vast signification thereof cannot be challenged or denied but one must not tamper with the Judiciary nor use it as a base to test new entrants. The sudden surge of ill equipped and unexposed persons to the Bench may indeed be a factor to be reckoned with. The law and the Courts cannot stand aside, afar or idle and indifferent to the social changes that seem to take place. But the judiciary cannot be a testing ground. People mount the bench with their own baggage. Some from their childhood, some from their breeding and some perhaps from the alleged indoctrination of the BTN (Biro Tata Negara) which may spell disaster to an independent judicial mind. Biro Tata Negera – NationalCivics Bureau is said to have the noble aim and ambition to train future leaders of the country.

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Wikipedia however claims that BTN’s programmes are controversial and have been accused of promoting Ketuanan Melayu (Malay Supremacy) (the Jews claim to be God’s chosen ones?) and securing the future of the UMNO and the governing party the Barisan Nasional. The Selangor State Government on 25.11.2009 banned its Government servants and students from attending BTN. Penang followed suit in 2009.

Back to the Bar and the Bench.

People remember that a former Chief Justice (Ahmad Fairuz) who retired in 2007 without any salutations had in a ceremony of elevation of Superior Court Judges when he was in office extolled the Judge to work for “Bangsa Ugama and Negara” - a UMNO war-cry. Many felt it rather obnoxious and myopic of a Chief Justice to utter those words but retirement was imminent and retired Indian Judge V.R Krishna Iyer in a speech said Judges near retirement try and endear themselves to the powers for positions after retirement. It seems Eusoff Chin got the chair of Bintulu Sarawak/Port, Lamin got on to the Board of Talam, Dzaiddin the Bursa Chair, Zaki S P Setia Chair, Fairuz is on the Maxis board and Hamid Mohamed a Chair in University of Islam to name a few appointments which show that there is indeed life after in Bench.

The Bar Judges the Judges. Dr L M Singhvi Delhi Bar Chair 1981 said: “…the Bar is the Judge of Judges and no judge can avoid or escape the verdict of the Bar.” 1981(2) MLJ pg cxlvii It is sad, though trite, that majority of people live in polarized and self contained myopic environments. They are not exposed to social norms cultures and standards of the different populace. They become pro their own kith and kin. No wonder members of some Bars in some jurisdictions are heard to criticize and question why the burden of proof is different for different species and the quantum of damages awarded by the Courts and Judges are also said to be different for different peoples. It is alleged that a Dr L M Singhvi degree of prejudice has been seen in awards fines and judgments as it is suspected that the awarding authority leans towards its own kind with mercy generosity and kindness whereas the full power of the of laws are applied to all others and sundry. Some even allege that in criminal sentences one is able to fathom differences based on similar facts. If the bloke on the bench (as the Aussies crudely say) is experienced enough to camouflage his judgments in cases before him and base it on finding of facts and the awards/fines are high but not inordinately so, then an appeal to a higher Court will be an exercise in futility. An Appellate Court will not as a matter of practice interefere with findings of facts or on awards/fines/sentences which are generous but not inordinately out of line.

There also arises the question of the mentality and maturity of those elevated to the bench. A chap from the Karai Nagar Rubber Estate, Pontian, the Yong Peng New Village or Kampung Laut, Bakar Batu will emerge and sit on the Bench with his own prejudices and background. He may not have a friend or foe outside his own little polarized world and so he is limited in all spheres and becomes totally irrelevant and maybe a misfit. It is perhaps why you find a Deputy Registrar or a Judge calling an elderly orderly or a file searcher in the Registry “abang Din” instead of Encik Din and we look in horror as we see a Judge enjoying a few cancer sticks (cigarettes) in the corridors of the Court with his driver or his orderly. Nothing belittling, but it compromises the dignity of the high office. A peribahasa seems to fortify the fears aforesaid: “Setinggi-tinggi burung bangau terbang, Akhirnya hinggap juga di belakang Kerbau”.

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A little learning, it is said, is a dangerous thing (Alexander Pope) and whereas a lawyer or Judge is not a mere journeyman or a pen-pusher, he has to make just and judicial decisions. He must have broad outlook and justice must be his goal. Of course, some learned ones may be mentally constitutionally unsuitable to take a seat on the bench as they may lack judicial temperament, learning culture and perhaps even scholarship and legal learning. It is alleged that some are made to pass the law exams to meet set quotas for certain peoples. Some suspect that “National schools are the breeding ground for racial polarization and the education system is the root cause of the problem plaguing the country now.”

Leaders of the Bar even take the view that a few members of the judicial and legal service keep a safe distance from the Bar because of their possible inferiority complex and hence are a little coy, perhaps. It is expected that the Judges to be, must be exemplary in their conduct courteous in manners, easy of address but always steady and firm in principle and well skilled in the noble science of the laws.

His Royal Highness Sultan Azlan Shah in his speech at the opening of the Moot Court on 30-4-84 reported in (1984) (2) MU page xi said: “Being a judge is the best career in the world, one is never contradicted, one is never interrupted and one always has the last word.”

In Law notes – May 1960 Viscount Kilmuir noted that: “A kindly and patient man who was not a profound lawyer might make a far better Judge, at least of first instance, than an illtempered genius.”

YM Sultan Azlan Shah

It is perhaps normal and undeniable that a little honest and harmless fun and hilarity in a Court of law which is supposed to be a serious and solemn forum cannot be questioned but what do you make of a Judge who once adorned the High Court in a “Call to the Bar” ceremony (not strictly a trial in Court, perhaps) rebuked counsel for the Petitioners and judiciously remarked “why are you all saying that the Petitioners are grateful to their fathers for the support finance etc? Do you know it is only the mother who knows who the real father is!” The parents must have been squirming in their seats in the public gallery!

And the same Judge (now retired) in another Petition for admission to the Bar, when the counsel for the Petitioner applied for leave for the husband of the Petitioner (who was also a member of the Bar) to robe the Petitioner proffered: “of course, he can robe her, after all he disrobes her nightly.” A wildly repeated anecdote at the Bar is that there was a very well witted chief clerk in a Court who was manning the front desk of the Court Registry. A lawyer from an outlying district barged in early one morning and asked the clerk if his case was before “J1” or “J2” (Judge no. 1 or Judge No. 2). The clerk looked the lawyer in his eyes and said: “Sir, in our Courts there is no “J1” or “J2”. Both are tiga suku!”

A ‘GURINDAM’ (which is much like a “pantun”) goes thus: “Kurang fikir, kurang siasat, Tentu dirimu, kelak tersesat.

Fikir dahulu sebelum berkata, Supaya terelak silang-sengketa.”

The Courts cannot function without lawyers. And lawyers cannot exist without the Courts. Some may wonder if lawyers are a necessary evil. Others say they are just evil. But an independent and fearless Bar insulates the Judiciary. This cannot be challenged or denied. The Bar secures the Judiciary.

Members of the Bar do not lack or at least, the ones of the golden era gone by, did not lack wit, humour or the ability and sharpness of mind to “give it back”.

The late Sir Robert Megarry of the English Courts in his speech to the Twentieth 6

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Sir Robert Megarry

Australian Legal Convention in Adelaide (1980) MLJ pg xli recounts that long ago in the United State a judge put a question to a witness, whereas one of the attorneys asked the judge on whose behalf he was putting the question. “What does it matter?”, said the judge. “Only this”, said the attorney; “if the question is put on behalf of my adversary I object to it, while if you are putting it on my behalf I withdraw it.” The late Mr C.K G Pillay a doyen of the Johore Bar was fun to reminisce pontificate and ponder with over a glass of his favorite ambrosia the awesome Black Label in the Temple of Doom which is what Jega calls the club. He narrated how a Sessions Court President Puan Tabarina once shouted at a leader of the Criminal Bar and said “Counsel stop barking like a dog!” The The late C K G Pillay Senior lawyer shot up quite astounded but his razor sharp tongue and wit with him retorting “Madam, so long as the bitch is around the dog will bark!.” And the Court President said: “Counsel I will report you to Dato Wan upstairs.” (Dato Wan Suleiman was the High Court Judge). The lawyer retorted: “Madam, I am not concerned about Dato Wan upstairs. I am only concerned about the One above.” C.K.G may have mentioned that the above retorts emanated from the late leader of the Negeri Bar the late Mr Stanley Ponniah. In a criminal appeal before a bench presided by Tan Sri S.S. Gil, Chief Justice, Mr C.K.G Pillay appeared as counsel for the appellant and put up a heavily loaded emotional submission. The Chief remarked “Mr Pillay you look more remorseful than the appellant.” Mr C.K.G Pillay, a man of quick wit retorted: “My Lord, I am paid to look so!”.

In another case in another Court, presided over by the late Brahmin Judge, Justice Narain Sharma, counsel had been testing the Judge’s patience all day and when it was past high noon counsel suggested: “My Lord would it be an appropriate time to adjourn for lunch?” The Judge replied “Very well counsel.

May I suggest you eat plenty of fish for lunch. I am told fish is food for your brains.” Counsel retorted: “Much obliged for the kindly advice, my Lord.

Would My Lord like to join us as well?” Subtle wit and humour are embedded in the brains of the vintage wonders of the Bar! The aberration of judges and counsel above are penned, not for sake of ridicule or levity, but to ensure that persons elevated to sit in judgment are fair minded and level headed ones. One need not be brilliant in the law or to have been top in the law school to be a good judge.There must be no allegations of plagiarism as once there was. Law is said to be a “discrete discipline”. Judges ought to steer clear of indiscretion and unhappy and irritating observations for instance the wounding words in the judgment found in 1995 (1) AMR 283 where the learned Judge said “this means in blunt language the petitioner is a bastard.” And in 1992 (3) AMR 2833 the same High Court judge Justice Abdul Malik Ishak penned: “A scoundrel like the Applicant is now free to re-enter public service as a police constable notwithstanding his conduct of irresponsibility.” The litigants, sadly, have no recourse against the Judge, for the perceived abuse. In the case is Abdul Razak Ahmad vs Majlis Bandaraya Johor Bahru (1995)2 AMR 1186, Justice Abdul Malik Ishak unkindly said of Razak who was an icon of the Johore Bar as follows: “He was more concerned about the publicity that went along with this case. As a lawyer that kind of publicity must have been good to him. The Dato’ Bandar aptly described him as busybody. I venture to describe him as a trouble shooter, a maverick of a sort out to stir trouble.”

Tan Sri Haidar, C.J.

Tan Sri Ghazali Yusoff, F.J

Dato Malik Ishak, JCA

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But Razak in a book ‘Abdul Razak – Hidup Berjasa Mati Mulia’ Razak said of the Judge:“I think the Judge who decided the case was very conservative and very pro-Government – that was why he called me a trouble maker!”

The same trial Judge Malik Ishak who once also ridiculed Tan Sri Haidar, who became Chief Judge and Tan Sri Ghazali Yusoff who became a Federal Judge in a judgement is a Dato’ and now in the Court of Appeal (juniors having superseded to lofty heights) and retires this year (2014). The said Dato Abdul Malik b. Ishak in his judgement on the case Chong Siew Choong v Public Prosecutor 1996 (5) MLJ Page 66 penned: “There are four observations to be made. Firstly, there are three High Courts of Malaya comprised in Johor particularly Johor Bahru manned by three resident High Court judges. The senior resident High Court judge will be in charge of High Court No. 1.

(Haidar) This is the privilege accorded to him. The next senior High Court judge will control and take charge of High Court No. 2, while the junior and not necessarily the youngest will be in charge of High Court No. 3. (Ghazali) That would be the hierarchy of the three High Courts of Malaya at Johor Bahru. For convenience the three resident High Court judges will be referred to as J1, J2 and J3 having regard to their seniority and to the High Courts of which they are in charge.”(Do read the full judgement for the perceived unparlimentary, unsavoury and unnecessary comments).

Henry Cecil in his book “The English Judge” at pg 56 writes: “The public puts great trust in our judges and, on the whole, this trust is not abused. But a few judges do occasionally say wounding and hurtful things to or about witnesses, counsel or solicitors and the person concerned usually has no remedy.”

With respect, comments such as the above quoted quotes, may border on contempt of the Court by the very same judge who adorns the Court. Judges ought not to think or believe that they are above it all and are beyond question. Power does Henry Cecil strange things to strange people. According to Betrand Russel: “Men who allow their love of power to give them a distorted view of the world are to be found in every asylum; one man will think he is the Governor of the Bank of England, another will think he is the King, and yet another will think he is God. Highly similar delusions, if expressed by educated men in obscure language, lead to professorships in philosophy..”

Officers and people are as Shakespeare said: “mere players who strut and fret their hour upon the stage, and then is seen no more.” So they must act with caution and circumspection. Judges must read the book “The Unprotected Lawyer” by Phiroza Anklesaria quoted in 1978(2) MLJ page ii, where he wrote:

William Shakespeare

“A Judge can render himself liable to criminal contempt of Court in various ways. The commonest way in which a Judge can render himself open to this grave criminal charge, is by habitually adopting a discourteous or otherwise rude and insulting behavior towards an Advocate whilst the latter is pleading a cause.”

“Seasoned Advocates or Advocates of status, when rudely or discourteously treated might be taken aback, but not thwarted. A Junior Advocate, habitually ill-treated, might even be subjugated by terror. Very few would find the courage to stand up to such a Judge. Self respect is dear to all and to those weaker in spirit, even dearer than their client’s case. In all such cases, a bitter and unpleasant relationship of personal feud builds up between the Judge and the Advocate. Good arguments are lost in the unpleasantness that follows.”

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Just because Judges are seated on a wee pedestal or bench a few meters higher than the Bar and attired a wee bit differently, they need not be proud, puerile and or pugnacious. Shimon Shetreet in “Judges on Trial” at page 243 noted: “In cases where the Court of Appeal considers complaints against the conduct of judges, it frequently reminds trial judges that the role of the Bar in the trial is equally as important as theirs. In a case where the conduct of Lord Hewart C.J was attacked, Sankey L.J observed: ‘The Bar is just as important as the Bench in the administration of justice, and misunderstandings between the Bar and the Bench are regrettable, for they prevent the attainment of that which all of us desire – namely, that justice should not only, be done, but should appear to have been done. Later, Sankey L.J said that “in attaining finality open Courts and a vigilant Bar will reduce the margin of error to a minimum, thus recognizing the role of the Bar in checking judicial conduct in Court.”

Lord Denning in Jones v National Coal Board 1957(2)QB 55 proffered that: “The Judge’s object above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role.” And Sir Robert Megarry , then Vice-Chancellor of the Chancery Division England in an address to the Twentieth Australian Legal Convention in 1979 (Australian Law Journal 1980) noted the quote from Erle C.J who over a century ago who is reported to have lamented: “It is easy for a judge to be impartial between plaintiff and defendant, indeed, he is almost always so: it is difficult to be impartial between counsel and counsel.”

Let us be ever mindful of two views of other learned ones as well: Mr Justice Abdul Razak one reminisced as follows: “The Bar is supposed to be distinguished by its nobility. It is a noble profession they say. But nobility without the realization and attainment of its true virtues is merely a pious word. Whether therefore our profession stays noble or not, rests on what its members do and how they conduct themselves…I suppose nobility presupposes the inculcation of a high sense of honesty and integrity in oneself which I think are the first and primary requisite of a lawyer, Because a dishonest lawyer may finally end up cheating his client, cheating himself and landing in jail.

- 1977(2) MLJ pg lxv

Justice Saddar Muhammad Iqbal

Mr Justice Saddar Muhammad Iqbal Chief Justice, Lahore High Court opined: “The relationship of lawyers and Judges is a fraternal one.

Without the Lawyers, the Courts cannot function, and without the Courts, there would be no legal profession, and when we have Courts we must have Judges. This is such a basic truism that one cannot but see its real impact. Without this realization, a Judge would be incomplete in his comprehension. Similarly, without fully appreciating this principle, the lawyer would not be doing justice to his profession.”

- (1977) MLJ (2) pg viii

Tun M Suffian

Tan Sri Ong Hock Thye

Tan Sri S. S. Gill

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The casual entry of large numbers of people to the Benches may have diluted the quality of Judges. Gone are the days of real judicial judges, giants like Tun M Suffian, Tan Sri S.S. Gill, Tan Sri H.T. Ong, Dr Narain Sharma, Tan Sri Dr Eusoffe Abdoolcader and Dato Fred Arulanandom, to name just a few. They were judges par excellent who wrote beautiful and well crafted judgments on the law. They all had wit, stoicism and tenacity and had great and maturing judicial quality. They were bold and not beholden. Never did they display inexperience or incompetence, nor were they belligerent or insensitive. They were mindful of what Sir Winston Churchill had said: “The independence of the judiciary from the executive is the prime defence against tyranny. And Justice A Barack – of California who said: “Judges must act according to the law…When we sit we are being judged.”

Dato Fred Arulanandom

Tan Sri Dr Eusoffe Abdoolcader

Justice Narain Sharma

Samuel Johnson (1709-1784), who was a son of a rather poor and quite unsuccessful bookseller in Staffordshire, England went on to compile the dictionary and became a great writer poet and philosopher.

In ‘The Vanity of Human Wishes’ Samuel Johnson inter alia penned a couple of lines on ruffians and judges!

“But scarce observ’d, the knowing and the bold.”

Fall in the gen’ral massacre of gold;

Wide-wasting pest! that rages unconfin’d,

And crowds with crimes the records of mankind;

For gold his sword the hireling ruffian draws,

For gold the hireling judge distorts the laws;

Wealth heap’d on wealth, nor truth nor safety buys,

The dangers gather as the treasures rise.”

(Underlining added) Samuel Johnson It is always an unalloyed delight to read some of the judgments of Judges of the past. The present day Judges do not seem to put pen to paper readily or fingers on their note book or computers. It may be out of fear, out of inability or even out of incapacity! Even if they do, it may be at best diffused arrangements, immethodical and their styles quite repulsive and totally guarded so as not to offend powers that be. As an example of bold judgment, see the powerful words of the awfully English Malaysian Judge Justice Fred Arulanandom who in the case of Lui Ah Yong v Superintendent of Prisons, (1977) 2 MLJ 226 Penang said: “Something is rotten in the State of Denmark. These words were uttered by Marcellus in Shakespeare’s Hamlet after the ghost of Hamlet’s father appears to Hamlet and beckons Hamlet to follow it , and Hamlet follows. Marcellus uses these words not so much in condemnation but more in frustration and bewilderment.”

“Today in 1975, the Court is asked to decide whether the continued detention of the applicant is lawful. Eight years have slipped by while the applicant has been deprived of his liberty and has languished in prison – not for any offence he had committed, because he has already served two months’ imprisonment for entering the country illegally; he has been detained for administrative expediency.”

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“This, to say the least, discloses a most scandalous state of affairs and does not bring any credit to the Administration. A man has been incarcerated for the ostensible purpose of deportation, and nine years later the Court is told, and even that, as a result of a Writ of Habeas Corpus being filed, that arrangements to remove him are still in progress. The word progress must surely be used euphemistically. Progress is defined in the Oxford Dictionary as “advance, continuous improvement.” And here after a passage of nine years, during which the authorities have not succeeded in putting a man on a ship, or a plane, or even a bullock cart, to take him away from the country, it is said that arrangements are in progress. During this period of time, space has been conquered, kingdoms have been lost and won, and man has even visited the moon and come back. And yet this unfortunate human being, unknown to the rest of the world, has been deprived of his liberty and held in a prison, while, I quote, ‘Arrangements are still in progress to remove him from the Federation’. It is true that the subject matter is a human being be destroyed by burning or by being dumped into the sea. But the least one could have expected in a just society would have been for the authorities, when they were faced with problems of deportation, to consider alternate ways of keeping track of him, so that when the Order of Removal was ready to be executed, he could be removed without him having to languish in prison for nine years, or even longer.”

The Judge did not mince his words. He was aghast with the state of affairs. In some more mature jurisdictions the Minister concerned would have resigned in shame but here life goes on. Words do not hurt us. We are impervious to condemnation and comments. The respected Tun Mohd Suffian in his speech to the 9th Malaysian Law Conference (10.10.1991) said: “In a country, newly independent country, Third world country, usually there is somebody who is all powerful. You take for instance, this country. The Prime Minister controls Parliament. He chooses Ministers, he chooses Judges and Ambassadors and he chooses members of the Tribunal that can recommend the dismissal of Judges, power which President Bush must wish he has sometimes.

“And supposedly the Judiciary in our country is supposed to be independent. Well you know what the position is today regardless of what individual Judges think and feel and there are honest men. Public confidence in the Judiciary has been seriously eroded and it will take a whole generation before the damage done can be remedied.

It has been reported that youthful persons made to sit on the bench use, abuse and misuse their powers and positions as the powers attached to their newly acquired positions goes to their hollow heads. It has been said that one must be slow to judge others but quick to judge oneself. Lawyers and litigants are abused and treated with contempt. They are made to line up in front of some petty inconspicuous clerks to obtain dates and order-in-terms for miscellaneous applications. And when the Order is extracted it will read as though it was heard and disposed by a Judicial Officer! Some new entrants lack civility, respect and culture. Some are rude and uncouth to both counsel and litigant. A course in BTN may not be the answer. The answer may well be a finishing school not to finish them off but to teach and educate them so that they can be courteous cultured and civil in their conduct. After all the seeds we sow today determines the fruits we shall harvest later on.

American Judge Felix Frankfurter in a letter to a 12 year old Paul Claussen Jr. who wanted to be a learned lawyer penned his advice as follows: “Mr dear Paul, No one can be a truly competent lawyer unless he is a cultivated man. If I were you, I would forget all about any technical preparation for the law.

The best way to prepare for the law is to come to the study of the law as a well-read person.

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Judge Felix Frankfurter

Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give. No less important for the lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings, in the original or in easily available reproductions, and listening to great music. Stock your mind with the deposit of much good reading, and widen and deepen your feeling by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget all about your future career.”

With good wishes,

Sincerely yours,

(Signed) Felix Frankfurter” Master M Paul Claussen Jr.

A great lesson on judicial temperament can be imbibed from the book “Straight From the Bench” Judge James Pickle at page 69 says as follows: “How should a Judge behave to those who appear before him?

With dignity but not pomposity. I am for an unstuffy down-toearth style, I try to use simple, homely language but not slang.

Lord most complex points of law or sets of facts can be broken down and put simply. Admirers of plain English should read any reported judgment of his. Lucidity can be taken no further, though he over-does it at time – too many sentences without verbs and so on. Behaviour out of court by a judge should be on similar lines sensible, sober, unstuffy, no strutting or condescending.”

Judge James Pickle

To the uninstructed and uninitiated men and women who seek to adorn the Benches of our Courts, one cannot do better than quote the very scintillating and telling words of the late Justice Dr Narain Sharma in Loo Pang – vs- Ng Chye where he rebuked minions and minor officers on the Bench and said as follows: “I need only add that a reasonable and workable amount of harmony and goodwill, if not a complete accord and adjustment, ought to prevail between the officer of the court whether he be a judge or a magistrate sits a few feet higher than the floor from which in the attitude, duties and status of the two. Both of them are part of the same machinery of justice. Both of honour, no doubt performing different functions but those functions are aimed at one and the same end and that is the administration of justice with dignity, courtesy and honour and these qualities should be seen and reflected in their respective conduct and behavior. The Bench and the Bar both serve the public and the law which the public is expected to respect and honour.

Those connected with the administration of law and justice should be so worthy as to command that respect and honour.”

- (1974(2)MLJ pg 193) It may be true that what is really needed is change in social and cultural education and not putrid sermons.

It is suggested that a person learned in the law must be trained to be a Judge. This must be done in a manner so as to enable him to harvest low lying or hanging fruits first and then only progress to heavier metal. They must mature with time. There was a time when superior Court judges did not want new and inexperienced entrants to the Bar to appear before them. They felt slighted when a junior counsel appears before a Senior judge. For freshly elevated ones, the Judge in the new appointee must begin to bud so that once he is elevated to high judicial office, the bud will blossom into a judicious flower, free of embellishes, prejudices, scorn and other unworthy baggage. They have to show and display humanity and humility, simple courtesies and the rudimentary standards of being a fair and good judge. Then only will we produce the fairest fruits of Solomon-like judges; fair and square.

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It is true to the Bench as it is to the Bar to adhere to what the American Bar Association reckoned. It reckoned that it is proper indeed it is most necessary and essential for the Bench and Bar to “pause periodically to assess where it is going and out of what tradition it has come.” Stop reflect and reform. Some traditional values held by conservative judges have to be altered to regain and restore public trust in our system of administration of justice. We have to justify the ways of judges to the man on the street failing which public confidence cannot be restored. We have to modernize the mechanism of the judiciary. The Judiciary must safeguard our laws and liberties. They are public guardians of liberties.

A caveat from Francis Bacon reads: “Judges ought to be more learned than witty, more reverent than plausible and more advised than confident.”

Francis Bacon -1st Viscount St Alban Kt, QC (22.1.1561 – 9.4.1626)

Francis Bacon

Lets pray for winds of change and may all those in positions of power in the judiciary and who adorn pedestals be shorn of arrogance and be mindful of the poignant words of the ever famous Emperor of France Napoleon the Great (1769-1821) who said: “Those who failed to oppose me, who readily agreed with me, accepted all my views, and yielded easily to my opinions, were those who did me the most injury, and were my worst enemies, because by surrendering to me so easily they encouraged me to go too far.. I was then too powerful for any man, except myself, to injure me.”

Emperor of France Napoleon

So the truth must be told. And the devil shamed. The powerful ones and the powerless ones must remember an Italian proverb which goes,: “After the game, the King and the pawn go into the same box”.

The judicial system may be said to be like the equilateral triangle - that is when all 3 sides and all 3 angles are equal - they symbolize the strength and the unity of the 3 parts that make the whole complete.

Therefore let us all be humble meek and forgiving. A short course on civics, manners and the like must be a compulsory requirement for Judges-to-be. This is better to qualify them to take the challenge and equip them for the proper discharge of the duties of the important and formidable task and trust without detriment to the system the lawyer and the litigant. Let us lawyers and Judges live our lives such that when we pass on even the funeral director/undertaker will mourn our passing and may shed a tear or two!

S. Balarajah Johore Bar 16th Feb 2014

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Yang Arif Tuan Samsudin Bin Hassan Welcomes 6 Adults To The Bar on 26 January 2014 at Johor Bahru High Court Setelah mendengar hujahan dan ucapan daripada peguam yang bijaksana yang menyokong permohonan pempetisyen serta ketiadaan sebarang bantahan daripada pihak Yang Berbahagia Peguam Negara dan Majlis Peguam serta Jawatankuasa Peguam Negeri Johor, maka Mahkamah dengan ini dengan sukacitanya membenarkan perintah seperti dipohon dan mnerima masuk sebagai Peguambela dan Peguamcara di Mahkamah Tinggi Malaya di bawah Seksyen 10 Akta Profession Undang-Undang 1976, Pempetisyen-Pempetisyen berikut : 1. Aimi Syarizad binti Khutubul Zaman (18-113-02/2013)

YA Tuan Samsudin bin Hassan

2. Syazana binti Khairul Anuar (18-132-02/2013) 3. Chua Yee Leng (18-171-02/2013) 4. Nur Farhana binti Mohd Isa (18-221-03/2013) 5. Nor Hamiza binti Azmi (18-222-03/2013) (May I now invite the Masters to robe the petitioners) Let me begin by congratulating

1. Aimi Syarizad binti Khutubul Zaman 2. Syazana binti Khairul Anuar 3. Chua Yee Leng 4. Nur Farhana binti Mohd Isa 5. Nor Hamiza binti Azmi on the admission and enrollment as Advocates and Solicitors of the High Court in Malaya. I am very delighted to be given the opportunity to address you today on such an important day in your lives. This would also be one of the best days for all of your family and friends. As such we extend to you our warm welcome.

The practice of law is a noble and respected calling. It calls for commitment to fairness and integrity in all that you do.

I wish to take this opportunity to remind our fresh advocates and solicitors who are here with us this morning to remind them the importance of ethics in the legal profession: • Firstly always maintain good relationship with fellow lawyers. Loyalty to one’s client is limited to the one brief but relationship with other lawyers are for the long term; • Study and learn from your seniors; • An advocate is known as a person of integrity, someone a judge can trust; • The best advocate is known for the qualities he or she displays in the court room; • He or she must know the evidence and the contentious issue in each case; • The need for solid preparation and planning cannot be substituted; • For case preparation, master the facts and then master the documents. It is important to make the court understand the case and appreciate the points on its making and to be able to state what a case is about succinctly; • You must be able to relate the law to the facts and the facts to the law.

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Knowledge is the most powerful tool and lawyers should start learning the law by reading law books and law reports; • Cite authorities. There is no need to have so many. One or two on the main point(s) is sufficient. The Court only needs to be convinced on the main point(s) of the case.

• You are expected to know the basic rules of evidence; • And we know that in court all too often basic rules on the admissibility of evidence need to be applied on the spur of the moment, almost without thinking and without time for reason reflection far less chance to consult books or friends; • Time and again the need for sound understanding of the rule arises without warning, typically during examination in chief and cross examination making objection to admissibility and of course how to deal with interjection by the judge; • You require courage. If the judge interjects and you are satisfied that you are right, press on and stick to your point firmly, forcefully but always be polite; • If you are wrong admit your mistake. It is always right to be seen to admit a wrong; • If you have made an unintentional mistake never be to egoistic to admit you error. In that way you earn your respect; • Tenacity and self control are important qualities and absolutely necessary; • Both all depends on your having the strength of character to do a good job in adverse and difficult circumstances; • You must avoid the most unpleasant scene of you engaging in a quarrel with witnesses, your opponent or with the judge; • And finally remember this, no case is so important that you risk your reputation, honesty and integrity for it.

Dewasa ini saya melihat, semakin kurang peguam-peguam muda yang datang ke Mahkamah Tinggi untuk mengemukakan kes mereka. Ini adalah satu senario yang kurang enak jika ditelusuri untuk jangka masa panjang.

Mungkin sektor litigasi tidak lagi menjadi bidang pilihan peguam-peguam muda di dalam amalan guaman mereka.

Kerap kali, lingkungan peguam yang sama akan hadir di mahkamah terbuka untuk mengendalikan kes di Mahkamah Tinggi. Pada hemat saya, pengalaman mengendalikan kes di mahkamah adalah penting. Dari situlah, seseorang peguam boleh menguji ketajaman pengetahuannya dan kebolehan berkomunikasi dengan tertib.

Pada usia yang muda seperti anda ini sesuailah peringkat menimba pengalaman di mahkamah ini dipupuk.

Pengalaman yang paling baik adalah pengalaman yang datang dari diri individu itu sendiri berbanding dengan hanya belajar dari cerita-cerita pengalaman orang yang mungkin kurang analoginya kebenarannya. Saya berharap anda semua dapat menjadi peguam litgasi yang kosmik pada masa hadapan sekaligus disegani pada masa akan datang.

Dikesempatan ini juga, saya ingin mengucapkan tahniah kepada ibu, bapa dan keluarga anda kerana berjaya mendidik and sehingga menjadi seorang peguam pada hari ini. Kejayaan yang anda kecapi pada hari ini adalah hasil pengorbanan ibu bapa anda yang tidak pernah sepi mengharapkan yang terbaik untuk anda.

Akhir kata, saya mengucapkan selamat datang ke profesion kepeguaman. Saya berdoa agar anda berjaya dalam segala usaha yang anda lakukan kelak. Sentiasalah bersyukur pada apa yang kita peroleh kerana syukur itu menjadikan kita sedar dari mana kita datang.

•

Assalamualaikum dan salam sejahtera.

Photo shot after the call on 26-01-2014

INFO JOHORE BAR – february 2014

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RELIGION AND THE LAW

By Roger Tan (Sunday Star, 12 January 2014)

Roger Tan

The Jais raid on the premises of the Bible Society of Malaysia has put into focus the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of SelangorThe Jais raid on the premises of the Bible Society of Malaysia has put into focus the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor.

THE Jan 2 raid by the Selangor Islamic Affairs Department (Jais) on the premises of the Bible Society of Malaysia (BSM), in which 331 copies of Malay and Iban Bibles were seized, has brought to national attention a piece of state legislation hitherto unknown to many Malaysians – the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 of Selangor (Selangor Enactment).

So far, Jais has argued they were empowered to do so under Section 9 (1) of the Selangor Enactment, which prohibits any non-Muslim to use in writing or speech any of 25 words or any of their derivatives and variations, as stated in Part 1 of the Schedule, pertaining to a non-Islamic religion.

The 25 words are Allah, Firman Allah, Ulama, Hadith, Ibadah, Kaabah, Kadi, Ilahi, Wahyu, Mubaligh, Syariah, Qiblat, Haj, Mufti, Rasul, Iman, Dakwah, Injil, Salat, Khalifah, Wali, Fatwa, Imam, Nabi andSheikh.

Section 9 (2) also prohibits a non-Muslim to use 10 expressions of Islamic origin set out in Part II of the Schedule, including Alhamdulillah and Insyallah.

Non-Muslims can, however, use the words and expressions by way of quotation or reference.

Jais contended that Section 9 (1) had been contravened because the Malay and Iban Bibles contain the word “Allah”.

Further, they were entitled to arrest without warrant the BSM chairman, lawyer Lee Min Choon, and manager Sinclair Wong as section 11 provides that all offences and cases under the Selangor Enactment are deemed to be seizable offences and cases under the Criminal Procedure Code (CPC), that is, offenders of seizable offences can be arrested without any warrant of arrest.

A fortiori, as this is a law passed by a state legislature, it has the force of law and quite rightly it can, therefore, override the 10-point solution decided by the Federal Cabinet and communicated via the Prime Minister’s letter dated April 11, 2011 to the Christian Federation of Malaysia.

Apart from section 9, the Selangor Enactment also makes it an offence for any non-Muslim to: > influence or incite any Muslim to change his faith (Section 4); > subject any Muslim minor to influences of a non-Islamic religion (Section 5); > approach any Muslim to subject him to any speech on or display of any matter concerning a non-Islamic religion (Section 6); > send or deliver any publications concerning any non-Islamic religion to a Muslim (Section 7); and > distribute in a public place any publications concerning a non-Islamic religion to a Muslim (Section 8).

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To date, 10 states have passed similar enactments with almost identical provisions except for the penalties and the words and expressions stated in the Schedule (see the table)

Effective July 20, 2007, Kelantan has imposed the most stringent punishment, which includes mandatory whipping for all offences. The Johor State Enactment does not contain any schedule, but it imposes a blanket ban on the use of any “words of Islamic origin”.

There is no equivalent federal law for the federal territories except for section 5 of the Syariah Criminal Offences (Federal Territories) Act, 1997 (Act 559) which makes it an offence for any person to proselytise a Muslim to a nonIslamic religion. Act 559 has no similar provision like section 9.

In fact, in October 1999, then Terengganu Mentri Besar Datuk Seri Abdul Hadi Awang, who was also Marang MP, tried but failed abysmally to move a private member’s bill titled the Control and Restriction of Propagation of NonMuslim Religions (Federal Territories) Bill at the Federal parliament.

It is interesting to note that the attempt received vociferous opposition from Barisan Nasional parliamentarians, especially the non-Muslims. This was rather a risible response because, at that time, similar enactments had already been passed in nine states (other than Perlis), including those governed by Barisan unless the non-Muslim state legislators had been caught unawares.

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To the best of my knowledge, only one person has been prosecuted and convicted under such law. Krishnan a/l Muthu was charged in 2002 and convicted under Section 4 of the Pahang State Enactment for trying to convert a Muslim to Hinduism and was fined RM1,500 and jailed for 20 days (Public Prosecutor v. Krishnan a/l Muthu (Magistrate Case No. MA-83-146-2002)).

Further, no such similar enactment has been passed in Penang, Sabah and Sarawak. However, a fatwa with regard to certain words being exclusive to the Muslims may have been issued under section 48 of the Administration of Religion of Islam (State of Penang) Enactment 2004 but it does not bind the non-Muslims.

Generally, non-Muslims have no problem with sections 4, 5, 6, 7 and 8 because the offences deal with a non-Muslim’s specific acts of propagation to a Muslim. They only take issue with section 9 because the offence has been created without any act of propagation whatsoever by a non-Muslim. In other words, by law, certain words and expressions now belong exclusively to the Islamic religion. There is no problem if such words are indeed not used by other religions.

Conflicts have now arisen over the use of the word “Allah” because Bahasa Malaysia speaking Christians and Sikhs also use it to describe their God. Hence, the constitutionality of section 9 has been called into question in that the relevant state legislatures have no competency to enact section 9 for the following reasons: > Article 11(4) and Paragraph 1, List II of Schedule 9 of the Federal Constitution only allow states to pass law to control or restrict the propagation of any religious doctrine or belief among Muslims. To put it in another way, Muslims may propagate the Islamic religion to non-Muslims but not vice versa. But the states do not have the power to make laws controlling or restricting, let alone prohibiting, the use of certain words and expressions without any act of propagation.

In other words, a state law can only be enacted to proscribe a Christian from delivering a Bible which contains the word “Allah” to a Muslim, and not if the former uses the same Bible for his own personal belief. > Section 9 is also contrary to Articles 3(1) and 11(1) which confer on every non-Muslim the fundamental right to profess and practise his own religion in peace and harmony. Article 11(3)(a) states that every religious group has the right to manage its own religious affairs. A Malaysian’s right to freedom of religion is further entrenched under Article 12(3) which provides that no person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own. > It is also against a person’s right to freedom of speech under Article 10. As regards whether Parliament can restrict the right to freedom of expression over the use of such words on the grounds of national security under Article 10(2((a), reference can be made to the case of Minister of Home Affairs v Jamaluddin Bin Othman, 1989.

In that case, Jamaluddin was detained under the repealed Internal Security Act, 1960 on the ground that he had participated in a work camp and seminar for the purpose of spreading Christianity and, as a result, converted six Malays to Christianity.

The High Court ordered his release. When the matter went up for appeal to the then apex court, the Supreme Court, Chief Justice of Malaya Tan Sri Hashim Yeop Sani said: “We do not think that mere participation in meetings and seminars can make a person a threat to the security of the country. As regards the alleged conversion of six Malays, even if it was true, it cannot in our opinion by itself be regarded as a threat to the security of the country.” > Article 4 (1) upholds the supremacy and paramountcy of the Constitution in that any law which is inconsistent with it shall, to the extent of the inconsistency, be void.

Having said that, Section 9 is still a valid law unless repealed or amended by the respective state legislature. In the alternative, anyone can challenge its validity but he must first obtain leave from a Federal Court judge under Article 4 (4) unless the challenge comes from the federal or state government.

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It is now apposite to point out that under Paragraph 1, List II of Schedule 9 of the Constitution, the Syariah courts have no jurisdiction over non-Muslims. It follows the CPC shall apply in the arrest of any non-Muslim under the State Enactment.

This is correctly reflected in section 11(5) of the State Enactments of Johor, Pahang, Perak and Negri Sembilan and section 12(5) of the Kedah State Enactment in that anyone arrested under these State Enactments must, without unnecessary delay, be handed over to the police or taken to the nearest police station and the provisions of CPC shall apply.

Similarly, as all the State Enactments do not have any express provision relating to search and seizure and because only CPC has application to non-Muslims, it is illegal for Jais to enter BSM’s premises and seize the Bibles without first having obtained a warrant of search from a magistrate under Section 56 of the CPC. I must hasten to add that no non-Muslim can be charged in a Syariah court. He has to be prosecuted in a civil court.

If he is to be charged in a civil court, then only the Attorney General will have a say in the prosecution under Article 145(3) of the Constitution. If he is charged or convicted or jailed by a Syariah court, then the non-Muslim offender is entitled to seek remedy from the civil court under section 25(2) and the Schedule of the Courts of Judicature Act, 1964 which empower the civil High Court to grant various orders including the writs of habeas corpus and prohibition (see Abdul Rahim bin Haji Bahaudin v Chief Kadi, Kedah, 1983).

The above explains my opinion of the legality of the Jais raid. But frankly, I do not think the Allah issue can or should be resolved through the courts. In terms of enforcement, the hard copies of the Malay and Iban Bibles can always be seized, but the soft copy is still easily available for download through the Internet. It is, of course, axiomatic that Pakatan state governments should also observe the 10-Point Agreement albeit Barisan-controlled states are expected to do so.

If our founding fathers could set aside their differences and achieve independence through social consensus, I see no reason why current political leaders from both divides do not have the same political will and gumption to come to grips with an issue which has now threatened our national cohesion.

Perhaps if we only had a royal council of inter-faith leaders akin to the presidential council set up under the Maintenance of Religious Harmony Act of Singapore, it may be the way out of this religious stalemate.

INFO JOHORE BAR – february 2014

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THE SABAH ISSUE - HOW THE SULU CLAIM ORIGINATED

Tuan Awang Kerisnada bin Haji Awang Mahmud Hon. Judge Sessions Court Miri

In the month of January 2013, a group of Sulu gunmen or as I see it; terrorists, invaded Kampung Tanduo and FELDA Sahabat in Lahad Datu, Sabah. They claimed sovereignty over, and ownership of the North Western territory belonged to the Sulu Sultanate. The episode soon escalated to a full blown battle between the Sulu army (in actual fact, bandits) and the Malaysian armed forces. The Sulus were defeated and soon peace was again restored in Lahad Datu. Let us now examine the history which led to the Sulu claim for Sabah.

This claim traces back centuries. During the 15th century, Sabah together with Sarawak, were vassal territories of the Sultan of Brunei.

In 1658, the Sultan of Brunei gave the Sultan of Sulu the north east coast of Borneo (Sabah) in gratitude for his help in settling a civil war dispute between Sultan Abdul Mubin and Pengiran Bongsu, both of the Bruneian royalty.

During the early 1870s, the east coast of Sabah was under the rule and control of the Sultan of Sulu and the Philippine Islands, who also ruled what is now, the southern Philippines. From historical records, the first European settlement in the area was said to be founded by William Clarke Cowie; a Scottish gun smuggler from Glasgow, who received permission from the then Sultan of Sulu & Sabah, North Borneo to establish a small trading base. Cowie was a shrewd businessman and trader and named his settlement Sandakan.

There is significance to the name Sandakan, which in the Tausug (Sulu) language, means “the place that was pawned”. Sandakan strangely came to be known as “Kampung German” after the large number of Germans, who had also set up trading posts and business premises there. It is important to note that the settlement was part of a lease which an Austro-Hungarian consul, Baron von Overbeck, acquired from the Sultan of Sulu & Sabah, North Borneo in 1878.

SABAH UNDER BRUNEI Sabah or North Borneo and the island of Palawan were given as gifts to the Sultan of Sulu by the Sultan of Brunei in 1658 in gratitude for the assistance of the Sultan of Sulu in averting a civil war in Borneo. Thus, since that time, Sabah became a property of the Sultan of Sulu and therefore, the Sultanate of Sulu.

THE CESSION TO ALFRED DENT AND BARON OVERBECK In 1878, the then Sultan of Sulu, by the name of Jamalul Ahlam Kiram (Sultan of Sulu and Sabah), as the legitimate owner, leased Sabah to a British company of Gustavus Baron de Overbeck and Alfred Dent for their use and their heirs or assigns. The Lease prohibits the transfer of Sabah to any nation, company or individual without the consent of the Government of the Sultan of Sulu. Thus, the claim by the present “Sulu Sultanate“ on the North East Coast of Sabah is very much on the basis that Sabah was leased by the previous “sultanate“ to another entity.

THE PHILIPPINES CASE FOR ARGUMENT During the tenure of President Macapagal in the 1960’s, the formation of Malaysia was strongly opposed by the Philippines government. From the Philippines perspective, the granting of independence of Sabah by Great Britain to Malaysia in 1963 constituted a breach of the provisions of the 1878 Lease as the Government of the Sultan of Sulu did not consent to the transfer to Malaysia. As a point in law, Sabah must and should be returned to the Lessor, the Sultan of Sulu and the Sultanate of Sulu.

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The Philippines government, in the past, frequently argued that Overdeck and Dent (the lessees) did not acquire sovereignty or dominion over North Borneo. This is because, according to international law, sovereignty can be ceded only to sovereign entities (e.g. government to government agreement) or to individuals acting for sovereign entities (agreement between leaders of nations). Obviously, in their (the Philippines) argument, Overbeck and Dent were private citizens of their respective countries who did not represent any sovereign entities, but instead acted as mere businessmen who only acquired grant of lease from the Sultan of Sulu.

Hence, neither of them did not, and could not, acquire sovereignty or dominion.

GREAT BRITAIN IGNORE USA REMINDERS It was on historical records that in 1906 and 1920, the USA did cautiously remind Britain that Sabah might be a case of lease and thus the state must not be subject to any transfers. Great Britain, after considering her sovereignty and interest, had chosen to ignore this advice and in 1963 decided, after the referendum conducted by the Cobbold Commission in 1962, that it was best to transfer Sabah. In 1963, Sabah, together with Malaya, Sarawak and Singapore finally merged to become Malaysia.

THE PHILIPPINES FAILED IN ITS APPLICATION TO INTERVENE BEFORE THE ICJ The Philippines, had for years, strenuously argued over its claim for Sabah. This is evident during one case before the International Court of Justice (ICJ) between Malaysia and Indonesia in the year 2001 over the disputed islands of Sipadan and Ligitan. Even though Philippines was not a party, it applied and sought to intervene. When the Philippines presented oral arguments before the ICJ in its Application for Permission to Intervene in the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan between Malaya and Indonesia in 2001, the Philippines sought to put on record, her claim to Sabah. However the ICJ dismissed the Philippines application to intervene and to be made a third party.

To understand the complete picture of Sabah’s history, it is imperative for us to understand and be mindful of several important historical dates, their cutting points and their significance. These centuries and significant years of history are: (1) The rule of the Brunei Sultanate in the 16th century; (2) The bestowing of Sabah by the Brunei Sultanate to the Sulu Sultanate in 1658; (3) The Spanish rule of the Philippines from 1521 to 1898 (because Spain considered Sulu as one of its dominion and Spain did not recognise Sulu as a country); (4) The American rule of the Philippines from 1898 to 1946 (because the USA also considered Sulu as one of its dominion); (5) The independence of the Philippines in 1946 (which made Philippines the real de facto ruler of Sulu and its dominions); (6) The formation of the British North Borneo Company in 1882; (7) Sabah as a British crown colony in 1946; and (8) The independence of Sabah (and Sarawak) and the eventual formation of Malaysia in 1963.

These historical dates are important to advance the Malaysian case and perspective because it proves that from 1521 until 1898, the Sulu Sultanate was never an independent state but another dominion of foreign powers. The Sulu Sultanate was only independent and sovereign up till the 15th century but its claim to Sabah can only be valid from 1658 (when Sabah was given as a gift by Brunei to Sulu).

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However, let me emphasise here that the actions of the Spanish government in the later part of the 1890’s (when they ruled the Philippines), had made any of the Sulu’s claim to Sabah, invalid. I will explore this point at the later part of this article.

HISTORICAL FOUNDATION OF THE BRUNEI SULTANATE AND SULU The sultanates of Sulu and Borneo were well established political entities in the Malay world during the late 15th and 16th century.

In fact many Spanish and Portuguese explorers and admirals paid visits to Brunei and described it in their writings For instance in 1521, a Spaniard explorer and researcher by the name of Antonio Pigafetta visited Brunei. He travelled with the Portuguese explorer Ferdinand Magellan and his crew on their voyage to the Indies. In 1526, the Portuguese, under Jorge Menezes visited Brunei and recorded the events in his formal ship logbook. He described Borneo as an island of beauty. He recorded the domination of the old Brunei Sultanate over Sabah and Sarawak.

SULU SULTANATE AND ITS RELATION WITH BRUNEI The sultanate of Sulu was founded in 1380, nearly one and a half century before the arrival of the Spaniards in the Philippines. The sultanate possessed some sort of political organization, extending its influence in Zamboanga, Basilan, Palawan, aside from the Sulu archipelago. During its supremacy, the sultanate extended its control as far as the Visayas and Luzon but later lost control to the Spanish conquistadores in the Philippines. For many years to come, as the Spanish colonial government consolidated it as a Spanish territory, the sultanate was to remain a problem to the Spanish and American colonial government (viewed as pirates and buccaneers).

The Sultanate of Brunei, on the other hand, was founded in the 15th century. For a brief period, it became a tributary of the Majapahit Empire. However, the Majapahit (ancient Java) empire had disintegrated and a considerable part of the empire began rebellions and wars for independence. Brunei was no exception. Soon, Brunei refused to give tribute to Majapahit and distanced herself from the disintegrating empire. Before the British entry in to the region, the [Brunei?] sultanate exercised control over the whole north western and eastern coast of the [Borneo?] island. This would include the Sulu sultanate. They shared many similarities; the religion of Islam, the Malay culture and ethnicity. These common shared similarities meant that the two sultanates were bounded together by religious ties, ensuring the spread of Islam in the Malay world. Trade between their respective subjects served to reinforce this relationship.

THE CESSION OF SABAH BY BRUNEI TO SULU (1598) The Brunei sultanate was rich and powerful. It had many vassal states and tributaries. However, although the kingdom was considerably wealthy, the Sultan of Brunei had a royal court that was corrupt and ridden with vengeance and family intrigues. Consequently, the sultan found difficulty in extending control over many of his [datus?] throughout the domain. As such, rebellion and strife were frequent in the sultanate. Allegedly, the Sulu Sultanate had given military assistance to quell one of these frequent internal strife and civil wars in the Brunei Sultanate. It has been claimed that, the territory, comprising most of what is now the state of Sabah, was ceded to the Sulu sultanate in gratitude for the said military assistance.

In brief, the catalyst of the above mentioned civil strife was the murder of the 12th Sultan of Brunei, Muhammad Ali, by his distant cousin known as Bendahara Abdul Mubin. Bendahara Abdul Mumin then attempted to claim the throne but was contested by Pengiran Bungsu, a nephew and son-in-law of the deceased sultan. In this bloody civil war, both contestants to the throne sought the support of Pengiran Badaruddin, a relative of both and also the reigning Sultan of Sulu. However Pengiran Badaruddin, despite being a

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supporter of Pengiran Bungsu (who took the name Sultan Muazdin), was unable to solve the crisis. There was a “stalemate“ in the war with both sides equally strong and unable to secure a victory.

However in the end, Sultan Muazdin scored a complete victory and the large territorial regions known at that time as SABAHA (former name of Sabah) was ceded to the Sultanate of Sulu as gratitude for the assistance given during the civil war.

DIVISION WITHIN THE PHILIPPINES GOVERNMENT ON THE SABAH ISSUE Even within the Philippines government, especially in its legislature, there was division on the Sabah issue.

Here I produce an excerpt of a speech by Senator Lorenzo Sumulong, an influential Senator in the 1960’s who opposed Philippines’ claim to Sabah. This famous speech was delivered in the Senate on 25th March 1963.

AN EXCERPT OF A SPEECH MADE BY PHILIPPINES SENATOR WHO OPPOSED HIS COUNTRY’S CLAIM TO SABAH (Picture - the Congress and Senate of the Philippines) Philippine Senate, March 25, 1963. “.....I have refrained from discussing on the floor of the Senate the Malaysia plan or the alternative plan of a Greater Malayan Confederation proposed by President Macapagal in connection with the Philippine claim of sovereignty to a portion of North Borneo, while the Senate Committees on Foreign Relations and National Defense and Security were holding joint closeddoor hearings in Camp Murphy. As your Chairman of the Committee on Foreign Relations, I had made my own studies and researches, but I thought that there might be new facts and considerations which our defence and foreign affairs officials might bring to our attention during the briefing.

Now that the briefing is over and the administration experts have submitted to the two Committees all the facts within their knowledge and possession, I believe it is already proper, nay, I believe it is my duty to submit for the consideration of the entire Senate and of our people the facts and considerations which I believe are material and necessary to the formation and crystallization of an intelligent opinion about the two plans. In so doing, I want to make clear the responsibility for the facts and considerations I am about to present is my own.

I want to make clear that I am always subject to correction. If my facts and considerations are wrong, I would be ready to admit and correct my mistakes. And I do hope that others will do likewise.

Our commitments Under the United Nations Charter, it is the duty of every colonial power administering non-self-government or independence and until that people has been made self-governing or independent, it is the duty of the colonial power to submit to the United Nations every year a report of its administration of the territory.

Since the organization of the United Nations in 1945, Britain in accordance with the obligations imposed by the Charter has declared herself to be the colonial power administering Sarawak as British colony and has been submitting to the United Nations every year a report of her administration of these three non-self-governing territories. During all that time, the Philippines as a member of the United Nations has not put forward any claim of sovereignty over North Borneo, (Sabah) nor has the Philippines registered any reservation or protest to the report submitted by Britain to the United Nations every year as the administering power over North Borneo. It was only in December of last year (1962) that the Philippine delegation, during the consideration of the yearly report of the British administration over North Borneo in the Trusteeship Committee, made a reservation contesting for the first time the right of the British to rule and administer North Borneo.

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Belated claim Why was the Philippine claim of sovereignty to North Borneo so tardily presented in the United Nations?

The answer is that North Borneo is not a part of the national territory of the Philippines as defined and delimited in our Constitution. When the United Nations was organized in 1945, the claimants to North Borneo was not the Philippines but the heirs of the late Sultan Jamalul Kiram who died in 1936. If the said heirs had any claims to sovereignty over North Borneo — as distinguished from their proprietary claims — they could have filed a petition or a reservation to the United Nations protesting against British rule and administration over North Borneo, but they did not file any such petition or reservation. It was only in February of last year (1962) that the said heirs informed our Department of Foreign Affairs that they were claiming sovereignty to North Borneo and they offered to turn over such claim of sovereignty to the Republic of the Philippines, reserving however to themselves their proprietary claims.

This offer was accepted by President Macapagal and to give semblance of legality to the transfer of sovereignty from the said heirs to the Republic of the Philippines, in September of last year (1962) out of the several surviving heirs of Sultan Jamalul Kiram who died in 1936, Esmail Kiram was proclaimed the new Sultan of Sulu claiming to possess all the attributes and prerogatives of a sovereign ruler and as such he executed a deed of cession of his alleged claim of sovereignty to North Borneo in favor of the Republic of the Philippines.

A mistake I am and have always been in favour of our government giving every possible support to the proprietary claims of the heirs of the late Sultan Jamalul Kiram. But I have always believed as I still believe that it was a mistake for the President Macapagal to have agreed to such transfer of the claim of sovereignty from the said heirs to the Republic of the Philippines for the following reasons: (1) The said heirs had never filed a petition or reservation before the United Nations claiming sovereignty to North Borneo and protesting British rule and administration thereof. Since the transferee acquires no better rights than the transferor, this weakens the present claim of the Republic of the Philippines.

(2) Even if the said heirs had a strong claim of sovereignty to North Borneo, our government should have advised them to file a petition or reservation to that effect before the United Nations, instead of agreeing to a transfer of such claim of sovereignty to the Republic of the Philippines. If the said heirs lose their case before the United Nations, there would be no loss of honour of prestige for the Republic of the Philippines.

As it is now, if the belated claim of sovereignty of the Republic of the Philippines to a portion of North Borneo does not prosper in the United Nations, the damage to our national honour and prestige would be incalculable. We would appear as attempting to colonize North Borneo without any lawful or just cause, contrary to our vehement denunciations of colonialism and our loud demands that the grant of self-government or independence to subject peoples be accelerated. Even if the United Nations should sustain the belated Philippine claim of sovereignty to North Borneo, we stand to gain nothing because we are committed to speedily end our rule and administration there, grant its people self-government or independence and respect their will and wishes as to whether they will join the Federation of Malaysia or the Greater Malayan Confederation proposed by President Macapagal.

(3) Contrary to the impression created in the minds of our people, the claim of sovereignty put forward by our government as transferee of the Sultan of Sulu does not cover the entire area of North Borneo, but only a portion thereof. This was admitted by the Philippine panel during the London talks, but the administration of President Macapagal has kept mum and has not brought this important fact to the attention of our people. During our joint committee meetings in Camp Murphy, I asked the members of the Philippine panel present if they could tell us the exact metes and bounds and the exact area of this portion of North Borneo claimed by our government but none could give us a positive answer. This was amazing in the extreme. When a man sues in court to recover title and possession to a piece of land, the first thing he has to prove in court is the identity of the land. But here is the administration of President Macapagal involving the honor and prestige of our government in a claim of sovereignty to a portion of North Borneo, without being able to tell us the identity of that portion. And yet, administration stalwarts have been daring the British to have the case tried and decided by the International Court of Justice.

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Common concern The balance of power in Asia between the forces of freedom on the one hand and the forces of communism on the other, is in a very precarious and critical posture today. Laos has turned neutralist. The ruler of Cambodia has decided to align himself on the side of Red China. South Vietnam is facing a life and death struggle with the Viet Congs. India’s borders have been invaded by Red China. If Sarawak, Brunei, North Borneo and Singapore, should be lost to the free world by their turning communist or neutralist, the peace and security of the free world countries in Asia including the Philippines would be gravely imperilled.

We in the Philippines are firmly and uncompromisingly against communism. Whether under the former Nacionalista administration or under the present Liberal administration, that has been our consistent policy.

We are a religious people and we cannot accept a godless ideology. We want progress, but we do not want to achieve progress through dictatorship and violence; we want to achieve progress through freedom and peaceful reform.

In the fight between the forces of freedom and the forces of communism, we do not believe in being neutralist or non-aligned. We want to stand up and be counted on the side of the forces of freedom.

British plan Let us recall the history of Malaya. For a hundred years, Malaya was under British rule before she won her independence on August 31,1957. Malaya is a Federation of 11 states, two of which were formerly British colonies and the remaining nine were formerly protectorates. Under her constitution, these 11 states upon becoming independent agreed to form a Federation with a federal parliament composed of two houses in which each of the 11 states was given representation.

Because of the success of the Federation of Malaya under the leadership of Abdul Rahman and with the British military and economic aid to fight communist infiltration and subversion, it is also expected that the enlarged Federation of Malaysia under the same leadership of Abdul Rahman and with continued British military and economic aid will be able to meet and overcome any communist attempt to capture Singapore, Sarawak, Brunei and North Borneo through infiltration and subversive activities.

Conclusions From the foregoing facts and considerations, I submit to the Senate and to our people the following conclusions: (1) If the administration of President Macapagal seriously believes that the Philippine claim of sovereignty to a portion of North Borneo should be prosecuted to the bitter end, it must be prepared to establish the identity of that portion whether the case is brought before the International Court of Justice or before the United Nations.

(2) If the Philippines lose its case, the damage to the honor and prestige of our Republic would be incalculable. We would appear as having attempted to colonize a portion of North Borneo without any lawful or just cause, forgetting our colonialism and our loud demands for accelerating the grant of self-government or independence to subject peoples especially those in Asia.

(3) Even if the Philippines win its case, we stand to gain nothing because under the United Nations charter, the Bandung Conference declaration and the 1960 decolonization resolution of the United Nations General Assembly, we have to give up our rule and administration to the portion of North Borneo we are claiming, grant its people self-government or independence and respect their will and wishes as to whether they will join the Federation of Malaysia or the Greater Malayan Confederation or exist as a separate independent state. In this connection, it is worthy of note that judging from press reports of Filipino newspapermen who had gone to North Borneo, the popular reaction there to our claim of sovereignty is one of surprise and resentment rather than sympathy and support.

(4) If President Macapagal honestly believes that the Federation of Malaysia plan is not according with the freely expressed will and wishes of the people of North Borneo, despite the information recently given by the Mayor of Jesselton while here as an ECAFE delegates that 96 out of 111 representatives elected to the legislative council of North Borneo last December favor Malaysia, he can raise the question before the

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United Nations and ask that a plebiscite be held under the auspices of the world organization to determine whether the people of North Borneo really favor Malaysia or not. And if Indonesia insists that the peoples of Sarawak, Brunei and North Borneo are against Malaysia, we should point out to her that there is available UN machinery and there is the peaceful remedy of asking for a plebiscite under the auspices of the United Nations, which renders unnecessary resort to war or use offeree and violence.

(5) If President Macapagal honestly believes that his proposed Greater Malayan Confederation is a better substitute to the Malaysia plan to defend and protect ourselves and the other Malayan peoples of Asia against the danger of communist infiltration and subversion, then he must abandon talking in platitudes and generalities and at once spell out concretely and specifically, the ways and means, the military and economic aid if any by which the Greater Malayan Confederation expects to help the people of North Borneo, Brunei and Sarawak to fight and overcome successfully the forces of communism once they become self-governing or independent.

(6) Our people must be told and made to realize that if we are to be consistent with our avowed policy of opposing communism firmly and uncompromisingly, then for the peace and security not only of ourselves but of our free world allies in Asia, we must see to it that North Borneo, Brunei and Sarawak, remain on the side of the free would and not turn communist or neutralist, once they become self-governing or independent.

(7) Rather than prosecute the Philippine claim of sovereignty to a portion of North Borneo to the bitter end. I for one believe in all sincerity that under the present circumstances, the better course to follow is for our government to inform the United Nations in due time, i.e., when the Federation of Malaysia plan is submitted for consideration in the United Nations that we are voluntarily relinquishing whatever claim of sovereignty we may have to any portion of North Borneo in order to accelerate the changing of its status from a non-self governing territory to that of a self-governing or independent state and that we favor holding a plebiscite under United Nations auspices to give the people of North Borneo the opportunity to freely express their will and wishes as to whether they want to join the Federation of Malaysia or the Greater Malayan Confederation or exist as a separate independent state.........” ( end of the speech ) THE AUTHOR’S VIEW It was in the year 1698 onwards that Sabah was ceded to Sulu. For centuries, Sulu had regarded Sabah as its dominion. However this, in its true legality may be questionable and subject to further debate.

It is clear that when Spain ruled Philippines, it too considered Sabah as its dominion as Sulu was, for all intent and purpose under the rule of Spain.

Tuan Awang Kerisnada

In the author’s view, it is insignificant whether Spain had allowed the Sulu sultanate to exist or not because the clear de facto ruler of the Sulu then, were the Spanish. This is just one part of the argument which now is mere academic. In the author’s view, what was clear was that when Sabah was “leased” by the Sulu Sultanate to Alfred Dent and Baron Overbeck, that act, as time evolved was in fact a clear cession not a lease despite its name. Further events after the act, including that of the independence and formation of Malaysia must be constituted as events overtaking all claims of territorial ownership over Sabah and validating the sovereignty of Sabah as a part of Malaysia.

From 1882 to 1946, Sabah was run like a company by the name and style of North Borneo. From the Sulu Sultanate perspective, the earlier “lease” by the Sulu sultanate did not allow Sabah to be transferred to any foreign power without the sultanate’s consent.

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However my argument is simple – while we recognise that there is such a lease agreement, we submit forth that in 1882, the Sulu Sultanate was not an independent country or a sovereign power but just a mere entity under the rule of Spain until 1898 and later under the rule of the USA in 1898 until 1946.

Therefore, since the Sulu Sultanate was not a sovereign and independent power in 1882, the agreement that it had entered with Overbeck and Alfred Dent, was just an agreement between two non-sovereign entities..

In my view, the legality of the agreement is recognised as there was nothing illegal in the action of both parties. However, that agreement has to be interpreted keeping in mind ALL THE SUCCEEDING EVENTS from the date of the agreement until the formation of Malaysia on September 16, 1963.

To further advance my view here, we must presume that since the Sulu Sultanate was an entity under the rule of Spain, Spain had to know of the agreement but took no action to rescind it. Thus it can be safely concluded that Spain had indirectly agreed to the cession of Sabah to the company belonging to Dent and Overbeck. When Sabah was given by the Dents and Overbecks to the British in 1898, the United States of America, the then ruler of the Philippines took on a similar stand to that of the Spanish. The USA government did not support a case filed at the Jesselton High Court (now Kota Kinabalu) by the inheritors of the Sulu sultanate in an action to claim the money which remain unpaid by the British North Borneo to the sultanate.

Similarly, when the Philippines gained independence in 1946, no issue was taken up against the British with regards to Sabah. Even when the idea of the formation of Malaysia came about in 1961 and finally in 1963, the Filipino ambassador to the United Nations did not protest strongly. In addition, even when Britain presented its yearly report to the UN Assembly for the administration of Sabah in 1961, the Filipino representative and envoy did nothing to object and to make their claim. It was only at the Southeast Asia region that President Diosdodo Macapagal raised an objection with his counterpart Tunku Abdul Rahman Putra Al Haj, the then Prime Minister of Malaysia. However all the successors of President Macapagal took very little or no steps to pursue the Sabah claim. President Ferdinand Marcos did attempt to infiltrate Sabah 1968 but that attempt failed and was an embarrassment to the Marcos regime. In 1977 President Marcos even mentioned in his speech at one ASEAN summit that his country intended to drop the Sabah claim by amending the country’s constitution but nothing came out of it. President Corazon Acquino down played the Sabah claim in her tenure of presidency. President Fidel Ramos was so tired of pursuing the claim and he even tried to officially abandon it.

But be that as it may, Sabah is a territory in our country and is truly very much Malaysian soil. Patriotism and the love of our country demands that we should protect its pride and sovereignty at all times. We formed this country out of an agreed referendum and an overwhelming consensus which supported it. We exist as one of right and let no one take that right away from us.

An honest expression by : Awang Kerisnada bin Haji Awang Mahmud, Sessions Court Judge, Miri, Sarawak (Formerly Deputy Registrar, Johor Bahru High Court) (5th February 2014)

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From left Bar Chair Guna, YA Tuan Samsudin and Deputy CPO Dato’ Ismail

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Greeting’s before taking the field

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Tuan Aliman retired Sessions Judge (in collar) with the Bar

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Speech by YA Tuan Teo Say Eng during the closing of the Bench & Bar VS Police Games on 14 December 2013.

Sports helps us to know each other better on how to work as a team. It even makes teamwork plus spirit equals to success. In sports we may also know our personal capabilities and skills. However sports is not always about winning. It is all about teamwork.

The games we have played involving the judiciary, the Bar and Police is far a unique one. We have know each other in our daily routine, but today we might know our friends better. We may even able to differentiate between formality and the spirit in sports.

I am very glad to attend this dinner and this closing ceremony. As it is an event which had YA Tuan Teo Say Eng been widely accepted by both sides. The progress of the game went on very well and hope younger members of the Bar, judiciary and the police would take this opportunity to work together in the name of sports.

I hope this event will be accepted by all quarters of judicial, Bar and police members to be continued with a milestone of memories for us to enjoy and laugh about. Finally I would like to congratulate all the members of the Bar, Judiciary and Police in making this event possible and a managing a successful event.

Urinary Incontinence Urinary incontinence is a condition where you are unable to control urination, such that urine is lost at the wrong time and place. During urination, the muscles in the wall of the bladder contract, forcing urine out of the bladder and into the urethra. At the same time, sphincter muscles surrounding the urethra relax, letting urine pass out of the body. Incontinence occurs if your bladder muscles contract suddenly or the sphincter muscles are not strong enough to hold back urine.

Causes There are many types of urinary incontinence.

Urge incontinence is caused mainly by the presence of elements that irritate the bladder, such as the presence of urinary tract infection, bladder stones or even bladder tumours.

Overactive bladder syndrome (OAB) Is a diagnosis of exclusion where there are no identifiable causes irritating the bladder, yet there is a severe urge to empty the bladder.

Stress urinary incontinence (SUI) is usually related to a weak pelvic outlet from previous trauma, multiple pregnancies, or undue repeated high abdominal pressure such as recurrent persistent cough, obesity or constipation.

From Sing Health Healthy Living Series

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Speech by YDH Dato’ Ismail Bin Yatim, Timbalan Ketua Polis Johor during closing Dinner Bench & Bar VS Police Games on 14 December 2013.

Assalamualaikum Warahmatullahi Wabarakatuh dan salam sejahtera dan salam 1 Malaysia.

Saudari pengacara majlis, Yang Arif Tuan Teo Say Eng, Persuruhjaya Kehakiman Mahkamah Tinggi Johor Bahru. Yang Arif Tuan Gunalan Muniandy, Pesuruhjaya Kehakiman Mahkamah Tinggi Johor Bahru. Yang Berusaha Encik K. Mohan mewakili Pengurusi Jawatankuasa Peguam Negeri Johor. Yang dihormati pengerusi jawatankuasa penganjuran bersama sukan PDRM Bench & Bar tahun 2013 ACP Abd Aziz Bin Ahmad. Ketua-ketua Jabatan Kotinjen Johor, Ketua Polis Daerah Wilayah Iskandar, Pegawai-pegawai kanan, Wakil-wakil peserta Majlis Peguam Negeri Johor, Ahli-ahli jawatankuasa pengelola kejohanan, para peserta kejohanan, tuan-tuan dan puan-puan yang dikasihi sekalian.

YDH Dato’ Ismail Bin Yatim

Di malam yang mulia dan berkat ini marilah kita semua mengambil kesempatan untuk memanjatkan kesyukuran ke hadrat Allah S.W.T kerna dipanjankan umur untuk dapat kita berkumpul di dewan Ledang Urban Retreat, Nusajaya, Johor pada hari ini. Di kesempatan ini, saya ingin mengucapkan terima kasih kepada pihak Majlis Peguam Negeri Johor.

Hadirin yang dihormati sekalin,

The Ali Hassan trophy

Terlebih dahulu, saya ingin mengucapkan tahniah kepada Majlis Peguam Khususnya Jawatankuasa Penganjur Kerana telah Berjaya mengadakan sukan tahunan untuk kali ini.

Saya difahamkan sebanyak 11 jenis sukan dipertandingkan dalam sukan tahunan kali ini terdiri daripada sukan kriket, hoki, ping pong, bola jarring, badminton, futsal lelaki, tenis, bola sepak, sepak takraw, golf dan acara tarik tali. Kakitangan yang terdiri dari pelbagai peringkat jawatan dalam jabatan PDRM serta Majlis Peguam telah mengambil bahagian dan menjayakan sukan pada kali ini. Kejayaan ini merupakan satu bukti bahawa dengan adanya kerjasama yang erat seta perpaduan dikalangan yang erat seta perpaduan dikalangan semua peserta maka tidak mustahil sesuatu boleh dilaksanakan.

Untuk makluman, sukan tahunan ini secara tidak langsung adalah program untuk mendekatkan jabatan PDRM dengan Majlis Peguam iaitu dengan mewujudkan keakraban dan kerjasa melalui sukan dan menekankan amalan gaya hidup sihat. Sukan merupakan satu lagi landasan yang boleh digunakan untuk memupuk dan menyuburkan perpaduan serta boleh menjana pembangunan Negara kerana dengan bersukan akan melahirkan individu yang mempunyai minda yang sihat serta fizikal yang cergas.

Yang Arif, Dato, Tuan-Tuan dan Puan-Puan, Apabila kita bersukan, bukan sahaja bertanding untuk merebut pingat atau piala tetapi juga kita ingin ‘lari seketika’ daripada persekitaran kerja rutin kita dan merehatkan minda secara keseluruhannya. Inilah peluang yang seharusnya digunakan sebaik mungkin untuk menenangkan fikiran, bertemu rakan lama dan berkongsi pengalaman yang telah dilalui.

Saya percaya bahawa penganjuran sukan sebegini telah banyak menyumbang kepada usaha memupuk semangat kerja berpasukan, toleransi dan muhibah di kalangan warga pasukan PDRM dengan Majlis Peguam. Suasana bersukan meransang kita berkomunikasi dengan orang lain dan sama-sama berkongsi kegembiraan jika menang dalam permainan mahupun berkongsi perasaan pilu jika tertewas. Saya berharap agar semangat kesukanan yang ditonjolkan oleh para peserta sepanjang berlangsungnya kejohanan sukan ini dapat diterapkan dalam budaya harian, samada dalam aspek kerjaya sebagai penguatkuasa atau pengamal undang-undang mahupun untuk menjadi individu yang cemerlang.

Hadirin yang dihormati sekalian, Tamatlah sudah sukan tahunan di antara Polis Kontinjen Johor dengan Bench & Bar yang bermula pada 5 Disember 2013. Adat bertanding dalam permainan pasti ada yang menang dan ada yang kalah. Yang penting dalam kejohanan sepeti ini ialah semangat betanding secara sihat. Eratkan ikatan silaturrahi yang terjalin ini tidak sahaja semasam perlawanan tetapi hendaklah pada masa-masa akan dating. Adalah harapan saya agar kejohanan sukan ini bukan sahaja medan mencungkil bakat-bakat sukan dalam jabatan tetapi juga akan menjadi satu lagi wadan perpaduan seluruh kakitangan jabatan PDRM dan Majlis Peguam.

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Kepada pasukan yang menang diucapkan tahniah dan pada yang kalah diharap mencuba lagi ditahun hadapan.

Saya jugan ingin ucapkan syabas kepada semua ahli jawatankuasa pengelola dan pengajur serta semua yang telah bertungkus lumus bagi menjayakan kejohana ini.

Dengan ini saya merasmikan majlis perasmian penutupan sukan tahunan di antara Polis Johor dengan Bench & Bar. Sekain, wabillahhitaufik walhidayah, wassalammualaikum warahmatullah hiwabarakatuh dan terima kasih.

TEST UR ABILITY – FROM INDONESIA TRAVEL3SIXTY

For answers – Wait lah for next issue of Info Johore Bar!

INFO JOHORE BAR – february 2014

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Professional Standards Course Held On 22 – 23 January 2014 at Johore Bar Auditorium The Professional Standards Course for the year 2014 was organized by the Johore Bar on 22nd & 23rd January 2014. Fifty-two pupils attended. The course exposed the pupils to various aspects of practice such as maintenance of client’s accounts, conduct with clients, courts and fellow lawyers and the good values of practice at the Bar. The course was conducted by several senior members of the Bar in Johor Bahru. This was followed by exam on the next day and ended with a formal dinner with the High Court Judges in Johor Bahru. The guest speaker at the dinner was Tan Sri James Foong who shared his experience at the Bar and Bench.

Studies and students of the Bar

Exams after the lecture

Relax and enjoying lecture

All the pupils with Puan Norhayati (centre)

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Professional Standards Course Dinner at Berjaya Waterfront Hotel on 23rd January 2014 Formal Dinner for Pupils, Masters and Trainers

Post ethics dinner

All line to received the Judges

“wait lah food will come”

Nice seating

Group photo of a historical moment

INFO JOHORE BAR – february 2014

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Farewell Speech by Dato’ Hj. Abdul Halim bin Aman Assalamualaikum wbt dan salam 1 Malaysia. Yang Berbahagia Saudari Pengerusi Majlis.

1. My Brother Judges of the High Court, Johor Bahru 2. Yang Berbahagia, Encik S. Gunasegaran, Pengerusi, Jawatankuasa Peguam Negeri Johor 3. Ahli-Ahli Jawatankuasa Peguam Negeri Johor, Senior Members of the Bar, Dato’-Dato’, tuan-tuan, puan-puan, para hadirin sekelian Terlebih dahulu izinkan saya untuk merakamkan rasa penghargaan serta terima kasih saya kepada Jawatankuasa Peguam Negeri Johor yang diketuai oleh Pengerusinya yang dinamik, Encik S. Gunasegaran kerana dapat meneruskan tradisi Majlis seperti YA Dato’ Hj Abdul ini. Syabas dan tahniah diucapkan kepada Jawatankuasa Peguam Negeri ini yang Halim Bin Aman tidak pernah jemu menganjurkan Majlis ‘Welcoming’ and ‘Farewell’ seperti ini. Saya turut merasa terharu di atas penganjuran Majlis ini. Ia sebagai tanda menerima, memperingati dan mengenang khidmat seseorang Hakim yang berkhidmat di Negeri ini. Badan kehakiman, khususnya Badan Kehakiman Negeri Johor sentiasa menyokong penuh akan apa jua aktiviti yang dijalankan oleh ‘the Johore Bar’ pada setiap masa.

Seperti Pegawai Kerajaan yang lainnya, pertukaran dan perpindahan tempat bertugas bagi seseorang Hakim adalah sesuatu yang biasa berlaku. Unlike before, the present norm is that, is for a Judge to be stationed in one place not more than 4 years. Di sepanjang perkhidmatan saya, saya pernah berkhidmat dibeberapa buah negeri sebelum ini. Namun saya bersyukur kerana saya telah disuratkan untuk bertugas di Mahkamah Negeri Johor sekali lagi, tempat yang saya pernah berkhidmat sebanyak dua kali semasa saya seorang Pegawai.

Pengamatan saya disepanjang berkhidmat disini, salah satu perkara menarik yang telah saya temui yang jarang ditemui ditempat-tempat lain, ialah jalinan kemesraan yang wujud di antara para Peguam dengan pihak Mahkamah. Disepanjang saya disini, saya sentiasa diberikan kerjasama yang sangat baik oleh setiap lapisan Peguam, baik yang seniors mahupun yang juniors. Semangat hormat menghormati serta semangat setiakawan sentiasa terjalin erat. Apa jua aktiviti yang dianjurkan oleh pihak Mahkamah, pihak Bar sentiasa mendokongnya.

Begitu juga, apa jua aktiviti yang dianjurkan oleh pihak Bar, pihak Mahkamah tidak jemu turut bersama.

Banyak pertemuan samada secara rasmi atau secara ad hoc telah diadakan diantara Jawatankuasa Peguam dengan pihak Mahkamah. Melalui pertemuan tersebut, pelbagai perkara dan masalah telah dapat dileraikan melalui perbincangan dan bertukar-tukar pendapat dan pandangan. Ia bertujuan untuk kemajuan profesion ini.

Malah Pengerusi Jawatankuasa Bar sendiri, En. S. Gunasegaran sering bertemu dengan saya sekiranya terdapat apa jua perkara yang memerlukan perhatian segera tanpa perlu menunggu mesyuarat rasmi. Pertemuan sebegini amat bermakna dan memberikan kesan positif didalam usaha mencari penyelesaian terhadap permasalahan berbangkit.

Dalam mana adanya perhubungan yang baik diantara Mahkamah dan Jawatankuasa Peguam ini, ia tidak sedikit pun melangkaui perbatasan didalam kebebasan kehakiman. Malah saya lihat Jawatankuasa Peguam Johor tidak pernah menggunakan kesempatan melalui hubungan baik dengan Mahkamah ini sebagai peluang untuk mengambil kesempatan.

Sepanjang tiga tahun dua bulan saya berkhidmat disini, saya melihat banyak perkembangan positif telah dicapai melalui pelbagai kerjasama yang dijalinkan baik dari segi sukan, social dan juga riadah. Antaranya Bar & Bench Club yang mana penubuhannya telah dipersetujui oleh kedua-dua pihak. Tetapi sayang sekali, saya tidak dapat bersama tuan-tuan dan puan-puan untuk memajukan lagi hasrat YAA Ketua Hakim Negara bagi penubuhan Bar & Bench Club ini. Saya berharap penubuhan Bar & Bench Club ini akan diperkukuhkan secara organisasi untuk dinakhodakan ke arah yang lebih berjaya lagi oleh pengganti saya kelak.

Tuan-tuan dan puan-puan, suatu hakikat yang tidak dapat dinafikan, perhubungan yang baik yang dijalin diantara Mahkamah dan peguam, lebih mendatangkan munafaat. Ia memberikan banyak kemudahan dan kebaikkan. Melaluinya, masing-masing akan lebih memahami matlamat profesion masing-masing bagi menjadikan profesion guaman dan Mahkamah lebih dihormati. Pemahaman ini tidak dididik kepada kita semasa di universiti,

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tetapi pemahaman ini dipupuk melalui sikap hormat-menghormati, de corum dan saling mengenali antara satu sama lain.

Over the period of 3 years, I noticed that the performance of Judiciary here in Johor, be it either at the High Court or the Lower Court, had improved tremendously. This improved performance would not have been made possible without the fullest corporation coming from the bar. Without the good rapport and cooperation as between the bench and the bar, such achievement is quite impossible. Allow me to congratulate the Members of the Bar for this, without denying at the same time, the excellent works of the Judiciary, too.

Didalam suatu article by Lord McMillan bertajuk : “ The Ethics of Advocacy”, it was said that, “In the discharged of his office the advocate has a duty to his client, a duty to his opponent, a duty to the Court, a duty to the State and a duty to himself”. The views taken by Lord McMillan is quite a straight forward.

It means that the legal profession provides no excuse for us to escape from our duties when we are dealing with ethics. We will not have a graceful ethics if we do not intend to look, listen and know each other better. We can only learn more about each other when we work together in solving issues without encroaching the limitation.

Again, the paramount point refers to the good relationship as between the bar and bench.

Lastly, I would like to thank all advocates and solicitors in Johor for their kind assistances rendered to me throughout my tenure as a High Court Judge here.

I also would like to thank the Johor Bar State Committee headed by Mr. S. Gunasegaran for making this memorable event a success. I pray all the best for all of you.

Saya akhiri dengan, dua rangkap pantun ‘routine’ :

Kalau Ada Jarum Yang Patah, Jangan Disimpan Didalam Peti, Kalau Ada Silap dan Salah, Jangan Disimpan Didalam Hati.

Kalau Ada Sumur Di Ladang, Boleh Kita Menumpang Mandi, Kalau Ada Umur Yang Panjang, Boleh Kita Berjumpa Lagi.

Sekian, saya sudahi dengan Wabillah-hitaufik Walhidayah, Wasallamualaikum w.b.t and Merry Christmas.

Prostate cancer Prostate cancer is a disease where malignant (cancer) cells form in the prostate tissue.

It is the third most common cancer in Singaporean men and the most common cancer in American men.

Risk Factors Prostate cancer is found mainly in older men above 50 years old. Those with a family history of prostate cancer are at slightly higher risk.

Symptoms Early prostate cancer is usually asymptomatic.

Symptoms of prostate cancer usually show up at later stages of the disease as the tumour grows and narrows the urethra (urine passage) and when it spreads to other organs.

The following symptoms are non-specific and may also be caused by benign (non-cancerous) conditions such as benign prostatic hyperplasia and prostatitis. They include : • Weak or interrupted flow of urine • Frequent urination (especially at night) • Difficulty urinating • Pain or burning during urination • Blood in the urine or semen • Nagging pain in the back, hips, or pelvis • Painful ejaculation Diagnosis Several abnormal parameters, including clinical findings and laboratory tests, can help to diagnose prostate cancer : • Abnormal digital rectal examination (DRE). The doctor or nurse examines the prostate by inserting a lubricated, gloved finger into the rectum and feeling the prostate through the rectal wall for lumps or abnormal areas.

INFO JOHORE BAR – february 2014

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Pictures at Farewell for Justice Dato’ Hj. Abdul Halim bin Aman held on 23 December 2013 at Thistle Hotel Johor Bahru.

The main table at all smiles

D’bar - no bottles!

“When we get to makan?”

A large gathering

Johore Bar to bid farewell

“Wish you all the best!”

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Public Forum On The Crime Prevention Act 1959 JOINTLY ORGANISED WITH THE BAR COUNCIL Held On 22 January 2014 at Jotic Auditorium Jalan Ayer Molek, Johor Bahru.

The Johore Bar Committee in collaboration with the Bar Council organized this Public Forum on the Prevention of Crime Act 1959 on 22nd January 2014 at the JOTIC Auditorium. Three eminent speakers spoke on the topic – Mr. Christopher Leong, President of the Malaysian Bar, Mr. Richard Wee, Secretary of the Malaysian Bar and Ms. Karen Cheah, Treasurer of the Malaysian Bar. The forum kicked off at 7.30 pm with welcoming speech by Puan Shahareen Begum Abdul Subhan and followed by speech by the three speakers.

A small gathering

Richard Wee of the Bar Council

Bar President Mr. Christopher Leong

Listen Intently

The inlooked men

A speaker Karen Cheah

INFO JOHORE BAR – february 2014

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Hyde Park Corner – A Miscellany – At-Law and A Potpouri complled by S.Balarajah Sex offenders to face longer sentences if they groom victims or video their crimes The Times of London – 11 November 2013 Judges will be urged to pass tougher sentences from next month for sex crimes involving internet grooming or making videos on mobile phones.

Victims will be central to a new approach to sexual offences by theSentencing Council, which advises judges. Offenders who commit one-off rapes will be sentenced to 15 years or more — a level at present reserved for multiple rapists.

The recommended sentence range for violent one-off rapes will be 13 to 19 years, although a life sentence will still be available for the most serious cases.

The guidelines, covering more than 50 sexual offences, will include a new focus on the psychological harm to victims. They have been drawn up after two years of work as well as a public consultation by the council, a body of judges, lawyers and others in the crminal justice system.

Lord Justice Treacy, who takes over the part time chairmanship of the council today, said: “In the 1970s, the victim was very much the bystander.

The focus has changed in the last 30 years. Now we look not only at the blameworthiness of the offender but the harm done by the offence and what the effect on the victim has been.

Judges have been concerned about the rising use of technology such as mobile phones to photograph victims, which was decried last year by Lord Judge, the former Lord Chief Justice as a “pernicious new habit”.

The guidelines come as ministers plan to give victims the right to read a personal statement in court about the impact of the crime.

At present such statements are taken account of by judges but victims do not read them and often they are not read out at all.

Lord Justice Treacy said that as judges already took account of the statements, the move would not affect sentencing levels.

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RM1.6 mil boost for IJN and NGOs Sunday Star – 29 December 2013

Clerical error overruled in couple’s wills Financial Times – 25 January 2014

Kuala Lumpur: The Sultan of Perak, Sultan Azlan Shah, has handed a contribution of RM1.6mil from the Sultan Azlan Shah Foundation (YSAS) to three organisations here.

A sum of RM1mil was given to the National Heart Institute (IJN) while teo non-government organisations – the Tuanku Bainun Creativity Centre for Children (PKKTB) received RM500,000 while the Diabetes Association of Malaysia received RM100,000.

Also present were the Raja Permaisuri Perak, Raja Dr Nazrin Shah and the Raja Puan Besar, Tuanku Zara Salim.

The contribution to IJN was received by its chief executive officer Tan Sri Dr Robaayah Zambahari.

The contribution was in support of the continuous efforts of IJN in boosting its medical standards.

Sultan Azlan Shah handed the contribution for PKKTB to his daughter, Raja Datuk Seri Azureen, who is chairman of the centre.

PKKTB, under the patronage of Tuanku Bainun, was set up to provide children including the handicapped, aged six to 16 years, with free practical training through various activities.

The contribution for the Diabetes Association of Malaysia was received by its president Datuk Dr Ikram Shah Ismail.

A clerical error which muddled two draft wills should be rectified so as not to disinherit a couple’s intended heir, the UK’s highest court has ruled.

The Supreme Court judgement relates to the £70,000 estate of the late Alfred and Maureen Rawlings who both made wills in 1999 after being visited by their lawyer.

However “by an oversight . . . the solicitor gave each spouse the other’s draft will and nobody noticed” when each signed a document meant for each other, the ruling found.

Under the terms of the will, each spouse left his or her estate to the other – so called “mirror wills” – but if one had already died, the entire estate was left to Terry Marley, whom the Rawlings had treated as a son even though he was not a blood relation.

Mr Rawlings died three years after his wife in 2006, at which point the error came to light. The Rawlings’ own two sons challenged the validity of the will, which Mr Rawlings had signed.

But in a closely watched judgement, the Supreme Court allowed Mr Marley’s appeal and held that the will should be rectified.

Lord Neuberger, president of the Supreme Court, giving the ruling said the contents of the will “if they are to comply with Mr Rawlings’ intention, they should be replaced by the equivalent provisions of the wife’s will”.

Lawyers said that the Supreme Court ruling was significant because it indicated the court was approaching clerical errors in wills in the same way as similiar mistakes are treated in commercial contracts.

Matthew Duncan, partner and head of private client practice at law firm Kingsley Napley, said: “The law has traditionally been generous in finding ways to fix errors in contracts. The Supreme Court saw no reason why the same principles should not apply to wills.

“Lord Neuberger was very clear that he would go as far as the letter of the law would allow in making sure Mr Rawlings’ wishes were carried out.” he added.

He said that the ruling made it clear that clerical errors arising from routine work such as preparing and organising the execution of a will could also be fixed. This was a significant development, given that such errors had proved disruptive for families in the past, he added.

Legal disputes over family legacies have increased in recent years as heirs fight each other in court to win a share of estates. The number of High Court cases launched by claimants contesting trusts, wills and probates hit 663 in 2011, twice the level reached in 2006, according to figures from law firm Hugh James.

INFO JOHORE BAR – february 2014

Helping hand for death row prisoners Sunday Star – 12 January 2014 PUTRAJAYA: Death row prisoners will now be assisted by the National Legal Aid Foundation (YBGK) when making their final pleas for clemency before the Pardons Board.

Attorney General Tan Sri Abdul Gani Patail said currently there is no one speaking up or arguing for these prisoners when their cases reached the Board.

“YBGK is planning to extend its coverage by providing representative services to those on death row, as most Justice march. Chief Justice Tun Ariffin Zakaria of them do not have anyone to assist them in making leading judges in a march in front of the Palce of Justice in Putrajaya applications to the Pardons Board,” the YBGK chairman said when opening the Legal Year 2014, yesterday.

He said there would be better justice if lawyers were able to give their opinions on why a prisoner should be pardoned or otherwise.

For the record, he pointed out that only two people were executed in Malaysia per year.

Abdul Gani said compared to the high number of convictions, the number of executions was very low.

Later at a press conference, he attributed the low number of executions to the length of time it took to complete capital cases.

“It is cruel and inhumane punishment if a man has to wait 10, 15 or 20 years to hang.

“That’s not right,” he said.

Call to drop legal age of sex to 15 Sunday Times London – 17 Nov 2013 BRITAINS’s leading expert on public health has proposed that the age of consent for sex could be lowered to 15.

Professor John Ashton, president of the Faculty of Public Health, wants a national debate because he claims society is sending confused signals about when sex is permitted.

Up to a third of teenagers have sex before they reach 16, the legal age of consent, according to official figures.

Ashton said that if the legal age for sex was lowered to 15 it would “draw a line in the sand” against sex at 14 or even younger.

It would also make it easier for 15-year-olds in a sexual relationship to seek contraception and sexual health advice from the NHS. Saudi Women Are Wary After Defying Driving Ban The Wall Street Jounal – 28 October 2013 RIYADH, Saudi Arabia – A day after dozens of Saudi women challenged the government by driving, the nation watched Sunday to see whether their defiance would be met with arrests or an easing of the country’s broad restrictions on women.

Advocates declared the day of driving a success as more videos appeared online of women who followed the campaign’s call to go out and drive, despite a markedly increased weekend presence of police patrols and police roadblocks in the capital, Riyadh. Saudi newspapers, which tend to follow the government line, either ignored the campaign or called it a failure.

INFO JOHORE BAR – february 2014

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Civil justice reforms: first verdict The Times – 31 October 2013 Seven months into a revolution may be just too soon to assess its impact. After all, the early Chinese communists of the 20th century regarded it as still too early to evaluate the consequences of the French Revolution.

That aside, the London Solicitors Litigation Association (LSLA) is monitoring quarterly the consequences of Lord Justice Jackson ’s civil justice reforms, which came into effect in April. The first results are published tomorrow in the New Law Journal .

The focus of the reforms was to rein in legal costs to make civil litigation more affordable and more cost effective, especially in areas such as personal injury. In a series of key changes, the amounts payable to lawyers under conditional fee (no-win, no fee) agreements were capped.

Referral fees were also banned in personal injury cases and damages-based agreements (DBAs) were allowed for the first time. The package represented a formidable threat to the established business model for many law firms and is already prompting a mass exodus (especially by small firms) from areas such as personal injury work.

Blissful Chinese couples divorce to dodge new tax The Times – 31 October 2013 Registry offices in Shanghai have begun warning couples on the brink of breaking up that property booms are temporary but divorce is for ever.

The admonition, which draws an unorthodox link between marital harmony and the health of the property market, was aimed at a particular type of couple: the sort whose impending divorce would be a sham.

Tax changes introduced in March, aimed at taking some of the inflationary froth out of the property markets, imposed a 20 per cent capital gains tax on sales of second homes.

As many quickly spotted, however, there was a loophole: if a married couple divorced, husband and wife could claim to own a house each, and, as an individual, escape the tax when one of the properties was sold.

As property prices in big cities have surged higher, it has taken the value of that 20 per cent tax levy to levels that, for many couples, could easily justify a paper divorce.

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Addict offered old men sex and stole their wallets The Times of London – 31 October 2013 The granddaughter of a magistrate and former mayor has been jailed for a series of distraction thefts in which she promised elderly men sex and stole from them.

Tyne Yates, 23, would snatch her victims’ wallets while groping or hugging them on Blackpool Promenade. A widower of 87 fell victim to her “kiss me quick” thefts shortly after his wife’s death. Yates targeted another man of 73 for his wallet and mobile phone at a bus stop.

Preston Crown Court was told that she turned to drugs and crime despite havingtwo doting grandparents, both of whom are in public life in Blackpool.

Sylvia Taylor, her grandmother, is a magistrate and Labour councillor, and retired as mayor of Blackpool last year.

Yate’s grandfather Ivan Taylor, also a former mayor, is a company director and was head of education and social services.

He now sits on the Joint Executive and Scrutiny Panel for Blackpool Council.

When contacted about his granddaughter, Mr Taylor passed the phone to his wife, who said: “I’m sorry but we don’t want to talk about it.” The couple, both 74, adopted Yate’s mother, Lisa, and later set her up in her own home. Lisa died in 2007, aged 38.

Old Bailey adorned with finest silks for ‘trial of the century The Times – 31 October 2013 It has been called the trial of the century and will certainly be one of the biggest and most costly.

With eight defendants and about 100 witnesses, the Old Bailey case could cost up to £7 million.

If privately paid, the eight defence QCs would be on about £850 an hour, and their seven juniors £400. A five-month trial at six hours a day in court would mean a £4.4 million bill for QCs alone, not counting their preparation.

The QCs are all well known but the trial is likely to seal their reputations.

Andrew Edis, QC, leading the prosecution, is at the top of his games and was named crime Silk of the Year this month. He has featured in several major trials and was once described in The Times as “inspirational and quite oustanding in performance”.

Owners of killer dogs to get longer jail terms – unless attack is on burglar The Independent - 30 October 2013 Scotland

The Government plans to increase the maximum prison sentence for dog owners whose pets are involved in a fatal attack to 14 years.

The Environment Secretary, Owen Paterson, said the Government also proposes raising the penalty for the owner of a dog which causes injury to a victim to five years.

In a written ministerial statement, he said there would be a maximum three-year sentence if a guide dog is killed or injured by a dangerous dog.

Mr Paterson said the new sentences would be in line with the penalties which are imposed on motorists whose dangerous driving leads to someone being killed.

Mali judge arrested over 2012 occupation Sunday Times London – 19 January 2014 The Malian army on Friday arrested a judge accused of being a key figure in the brutal 2012 Islamist occupation of the country’s northern desert, the government said.

Houka Houka Ag Alfousseyni, who is said to have sat in the ancient caravan town of Timbuktu during the occupation, was taken into custody at midday and handed over for questioning, government spokesman Youssouf Toure said in a statement.

The arrest comes three weeks after Aliou Mahamar Toure, the former chief of the Islamic police in Gao, Mali’s largest northern city, was taken into custody by the army.

Toure is accused of presiding over numerous rights abuses as a key member of the Movement for Oneness and Jihad in West Africa, commonly known by its French initials MUJAO. “Thus, less than a month after the arrest of the former Islamic commissioner of Gao, the armed forces have just neutralised the threat of another influential member of the terrorist groups that prevailed in the north of the country,” Toure said.

He did not indicate the charges that Alfousseyni may face.

MUJAO was one of several Islamist militias linked to Al-Qaeda which occupied Gao, Timbuktu and northern Mali’s other towns and cities for nine months in 2012.

The groups exacted a brutal version of Islamic sharia law characterised by amputations, beatings and executions before they were ousted by a French-led military intervention launched 12 months ago.

Toure said the government was encouraging Malians to help security forces conduct “a relentless struggle against all forms of extremism”.

Thief guilty of stealing clergyman’s booze cache The Scotsman – 19 November 2013 A THIEF broke into the home of one of Scotland’s leading Catholic clergymen and stole his collection of valuable whisky and cognac.

The Rt. Rev Monsignor Hugh McInally, 80, kept the collection of expensive bottles of alcohol in his bedroom and was robbed after going away on holiday.

Simon Winks, 36, was yesterday warned he faces a lengthy spell in prison after robbing the 80-year-old retired priest at his home.

Winks was caught red-handed with wine, whisky and brandy and told police he had bought them from a group of Polish workmen in a nearby Portakabin.

Ex-pope defrocked nearly 400 priests over sex abuse Sunday Times – 19 January 2014 VATICAN CITY: In his last two years as pope, Benedict XVI defrocked nearly 400 priests for raping and molesting children —more than twice as many as the two years that preceded a 2010 explosion of sex-abuse cases in Europe and beyond, according to a document obtained on Friday and analysis of Vatican statistics.

The data – 260 priests defrocked in 2011 and 124 in 2012, a total of 384 – represents a dramatic increase over the 171 priests defrocked in 2008 and 2009.

It was the first compilation of the number of priests forcibly removed for sex abuse by the Vatican’s in-house procedures, and a canon lawyer said the real figure was likely far higher, since the numbers do not include sentences meted out by diocesan courts.

The spike started a year after the Vatican decided to double the statute of limitations on the crime, enabling victims who were in their late 30s to report their abuses.

The Tie is Dead. (Long Live the Tie) The Wall Street Jounal – 28 October 2013 Something was missing. When Barack Obama met with Vladimir Putin this June at the G-8 summit in Northern Ireland, congeniality wasn’t the only thing that was noticeably absent; both leaders’ neckties were missing. The gesture apparently came at the behest of host and British Prime Minister David Cameron, who lobbied for a more relaxed dress code at the two-day international conference. The new look immediately raised eyebrows in the British press.

However, this was hardly Mr. Obama’s first public appearance sans neckwear. “Obama Wears His Suit Without a Tie. Can You?” was a question posed by Esquire magazine in the early months of his first term. In 2011, the president confronted Bill O’Reilly wearing an open collar when they sat down for a pre-Super Bowl interview. He even persuaded Chinese President Xi Jinping to go tieless when they met this summer. While Mr. Obama is photographed wearing a necktie more often than not, for a certain brand of conservative (sartorial, not political), he can be seen as a destroyer of decorum. When the leader of the free world eschews tradition and establishes a new neckwear standard, one has to ask: Is the tie dead?

World’s best taxi service Star 2 – 14 December 2013 THE iconic London black cab has been voted the world’s favourite taxi for the sixth year in a row, for everything from cleanliness, knowledge of the city and quality of driving. London taxis beat out the equally iconic yellow cabs in New York, in Hotels. com’s global taxi survey, taking 22% of the vote.

British taxi drivers swept five of the seven catergories, taking the top spot for cleanliness, quality of driving, friendliness, safety and knowledge of the city.

INFO JOHORE BAR – february 2014

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Nun unaware of pregnancy gives birth Sunday Times London – 19 January 2014 ROME: A Salvadorean nun who said she had no idea she was pregnant gave birth in Italy this week after feeling stomach cramps and was rushed to hospital, Italian media reported on Friday. The 31-year-old mother and her 3.5kg baby boy are doing well. “I didn’t know I was pregnant. I only felt stomach pain,” she was quoted as saying at the hospital, reported Italian news agency Ansa. La Repubblica said she gave birth on Wednesday. Ansa said the nun named her baby Francesco, the pope’s chosen title and one of the most pupular names in Italy.

Earl Grey – For Tea Lovers The Times of London – 30 October 2013 The 6th Earl Grey lived a varied and entrepreneurial life. He worked in the building trade, dabbled in PR, and launched his own brand of men’s clothing – as well as a range of teapots. He also served as president of the Association of Cost and Executive Accountants, and took time out from the Liberal benches in the House of Lords to head the multi-millionpound magazine and sex shop empire of the pornographer David Sullivan, prompting in 1982 the gleeful newspaper headline: “Earl Grey to be Lord Blue”.

Heel Hitler…meet Patch the lookalike puppy Times of London – 26 November 2013

With a black smudge on his upper lip and another over his left ear to complete the look, Patch the puppy bears more than a passing resemblance to Adolf Hitler.

Although it may be too early to tell, seven-week-old Patch is said to have a gentle and loveable temperament, however.

The puppy’s mother, Betty, is a French bulldog and father, Teddy, is a shih tzu. He has two brothers and lives with his owner, Lynda Whitehead, in York. She said: “Although he’s called Patch, everybody call him Adolf now.”

Indian minister’s wife found dead in hotel New Sunday Times – 19 January 2014 NEW DELHI: The wife of minister Shashi Tharoor, found dead in a luxury Hotel after accusing her husband of being unfaithful, suffered an “unnatural, sudden death”, a doctor who performed an autopsy on her body said yesterday.

“More tests” were needed to determine the cause of Sunanda Pushkar’s death and the results would not be known for two to three days, said Dr Sudhir Gupta.

He added Pushkar’s body had “some physical injuries”, but it was unclear whether they were related to her death. The body was expected to be cremated later, local media reports said.

Tharoor found his wife dead in a luxury hotel room on Friday, just two days after she accused him on Twitter and in other media of having an affair with Pakistani journalist Mehr Tarar.

“There were no signs of any foul play,” Tharoor’s press assistant Abhinav Kumar said.

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Wife finds husband dead and naked with woman Sunday Star – 5 January 2014 IPOH: A woman worried about her missing husband sought him out at his office only to find his naked body and that of his female colleague in a car in Bandar Cyber here.

According to sources, the 58-year-old man was believed to have had sex with the woman, 51, before they dozed off in the car with its engine still running.

The car was parked inside the man’s office garage, which had been locked at about 9pm on Friday.

The woman was believed to be working with the man at the office.

Perak deputy police chief Deputy Comm Datuk A. Paramasivam said the bodies were found by the man’s wife at the garage.

The wife, he said, was worried when her husband failed to return home and lodged a missing person report at about 8pm on Friday.

“Soon afterwards, she and her family went to the office and saw smoke coming out from the garage.

Upon opening the garage door, she discovered her husband’s body together with the body of a woman in the car with the engine still running,” he said, adding that the woman’s car was parked nearby.

China bans shark fin soup from official receptions The Sun – 10 December 2013 BEIJING: China announced a ban on the serving of shark fin and bird’s nest soup at official banquets on Sunday, as part of a sweeping government crackdown on corruption and excessive spending.

An order from the Communist Party Central Committee and the State Council “explicitly ruled out dishes containing shark fins, bird nests and wild animal products in official reception dinners,” the official Xinhua news agency reported on Sunday.

“Officials on business tours should arrange their own meals according to relevant expenditure standards and local hosts are allowed to provide only one reception dinner if needed,” it said, citing the regulation.

The detailed document also bars expensive liquors and cigarettes from being offered at local authority receptions, as it aims to “regulate” spending on receptions given by local authorities for visiting party or government officials, Xinhua said.

Officials below provincial level are also banned from renting hotel suites on business trips, while local hosts are forbidden to give them cash, securities or souvenirs as gifts.

Cops complete probe on ex-judge for alleged sedition The Sun - 6 June 2013

KUALA LUMPUR: Police said yesterday they have concluded their probe on former Court of Appeal judge Datuk Mohd Noor Abdullah who allegedly made seditious comments at a post-13th general election forum.

Kuala Lumpur deputy CID chief ACP Abdul Aziz Zakaria said the investigation papers were handed over to the Attorney-General’s Chambers last week for further action.

He said the case was classified under Section 4(I)(b) of the Sedition Act. Among the scathing and provocative comments Mohd Noor had allegedly made was that the Chinese had betrayed the Malays by vastly voting for the Opposition in the election.

He allegedly went on to warn the Chinese that they could expect a backlash from the Malays as Malays shunned betrayals.

Mohd Noor had allegedly made the comments at a May 12 forum called “GE13 post-mortem: Muslim Leadership and Survival” which was jointly organised by the UiTM Malaysia Alumni Association and Gabungan Melayu Semenanjung.

The comments caused an uproar among many quartes, especially leaders of opposition parties who labelled Mohd Noor a racist attempting to sow hatred and discord among the races.

Among those who lodged police reports against the former judge was lawyer and DAP chairman Karpal Singh, who described the comments as “extremely provocative”.

(Question: Is this on a NFA tray ?)

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RPGT - deceased’s estate and beneficiaries Yang Pei Keng 10-2-2014

Date of acquisition and acquisition price In normal circumstances , when a property is sold , there is little or no difficulty in finding out the date of acquisition and the acquisition price of the property. The date of acquisition is the date you buy or acquire the property. If you bought a dwelling house on 10 February 2014, that is the date of acquisition of the house. If you bought the house at the price of RM800,000, that is the acquisition price.

Yang Pei Keng

To prove the date of acquisition, you have to show the date you bought the property. For practical purposes, the evidence available for proving the date of purchase of the property, in order of preference, is one of the following 1. the sale and purchase agreement; 2. the memorandum of transfer (the transfer form); and 3. the document of title (Grant, HS(D), HS(M), EMR, Mukim Grant, etc.) showing the date of change of ownership.

If you have the Sale and Purchase Agreement (SPA), the date of acquisition is the date of the agreement.

But if you do not have the agreement, then use the date of the transfer form as the date of acquisition. If you do not have both the agreement and the transfer form, then you use the date of change of ownership as shown in the document of title as the date of acquisition.

Date of sale or disposal by the seller Generally, the date of the sale and purchase agreement (SPA) is the seller’s date of disposal [Para 15(1) (a)]. But where there is no agreement, the date of disposal by the seller is the date of completion [Para 15(1)(b)].

The date of completion by the seller has been defined to mean: (1) the date of transfer by the seller; or (2) the date the seller received the sale price, whichever is earlier. [Para 15(3)(a)]. In other words , If the seller received the sale price after the date of transfer, then the date of transfer is the date of completion.

And that is the seller’s date of disposal (i.e. the date he sold the property).

The acquisition price is usually the purchase price stated in the sale and purchase agreement. If there is no agreement, the transfer form will show the purchase price of the property.

Sale or disposal by the Executor / Administrator When it comes to the sale or disposal of a property forming part of the estate of a deceased person, some perplexing issues may arise. The sale will be effected by the “personal representative” (PR for short), that is the proper description of the executor/administrator of the estate of the deceased person as provided in the National Land Code.

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The Land Registry will endorse the title with a memorial to the effect that the land is vested in the executor/ administrator “as representative” (not as administrator or as executor). [See s.346(3)] [Note: Executor/admininstrator must be described as “representative”.

Of late, it has been noted that an endorsement on a document of title shows the asset of the deceased person was transmitted to the executor/administrator “as executor ” or “as adminstrator”. This is inconsistent with the provisions of the National Land Code. The proper endorsement on the document of title should be “as reperesentative”.

This is highly improper in the eyes of the law since the National Land Code provides clearly that an executor or an administrator can only be described and endorsed as representative” in the document of title. There is no law permitting the endorsement of the expression “as executor” or “as administrator” in the document of title.

Probably the error could have come about as a result of the solicitor concerned wrongly preparing the “memorandum of transfer ” (i.e. the transmission document) for transmitting the asset of the deceased person to the executor/ administrator. He could have erroneously used the expression “as executor” or “as administrator” in the “transfer form” for transmission to the executor/ administer. He should have used the expression “as representative” in the transfer form as required by the National Land Code.

On the other hand, the officer concerned in the Land Registry attending to the matter appeared to be unaware or ignorant of the relevant provisions of the National Land Code. Hence, the endorsement of the title with the expression “as administrator” or “as executor” instead of the proper expression “as representative” required by the National Land Code.

This blatant error should have been avoided. The legality of such wrong endorsement on the title is highly questionable. No where in the National Land Code can you find a provision allowing such improper endorsement (as executor/ administrator”)on the document of title.

Solicitors involved in conveyancing practice would do well to bear in mind that, when preparing the transmission of the asset of a deceased person to the executor/administrator, the correct expression “as representative” ought to be used in the transfer form. You must also see to it that the document of title is endorsed with the proper expression “as representative”.]

1. Date of acquisition of the executor/adminstrator [para 15B(1)] How would you determine the date of acquisition of the executor/ administrator of the asset of a decease person? It is to be noted the asset of the deceased person was not in fact purchased (or acquired) by the executor/administrator, but it was purchased (or acquired) by the deceased person much earlier on, probably some years ago.

The asset of the deceased person is to be transmitted to the executor/administrator by virtue of the Grant of Probate or the Grant of Letters of Administration (L/A) as the case may be. The so-called “transfer” to done by way of transmission. The transmission is strictly speaking not a transfer of any interest in the land.

The interest in the asset of the deceased person will be transmitted to the executor/administrator, to be subsequently transferred to the beneficiaries. Therefore, in reality, there is no purchase or acquisition as such by the executor/adminstrator. Therefore there is no actual date of acquisition, nor actual acquisition price for the PR.

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Legal fiction created : (1) date of acquisition of executor/administrator = date of death of the deceased Since there is no actual date of acquisition by the executor/administrator, for purposes of computing RPGT, a legal fiction has to be created. His date of acquisition and acquisition price have to be created by a statutory provision. The statutory provision is that, where an asset of a deceased person is sold or disposed of by the executor/ administrator, he is deemed to have acquired it on the date of death of the deceased person. [ para 15B(1), Schedule 2, RPGT Act 1976] (2) Acquisition price of executor/administrator = market price as at the date of death of the deceased Similarly, there is no actual acquisition price for the executor/administrator. It has to be created by a legal fiction. This is done by another statutory provision stipulating that the market price of the property as at the date of death of the deceased, is deemed to be the acquisition price. [para 19(3)] 2. RPGT and the beneficiary of a deceased’s estate Similarly, the date of acquisition and the acquisition price of a beneficiary do present some problems.

This is because in reality, there is no date of purchase by the beneficiary. Neither is there any price paid by the beneficiary. Statutory provisions have to be introduced to ascertain the date of acquisition and the acquisition price of the beneficiary.

One of the provisions in Schedule 2 of the RPGT Act states that the date of transfer of the asset of the deceased person by the executor/administrator to the beneficiary is taken to be the date of acquisition of the beneficiary.

The market price as at the date of transfer by the executor/administrator to the beneficiary is regarded as the acquisition price of the beneficiary.

This whole scenario about the date of acquisition and the acquisition price of the beneficiary of the estate of a deceased person may be summarized as follows: Date of acquisition of the beneficiary = The date of transfer to the beneficiary [para 15A(c)] Acquisition price of the beneficiary = market price as at the date of transfer to the Beneficiary [para 19(1)] The abovementioned cases are described as the date of acquisition and the acquisition price in particular cases in Schedule 2 of the RPGT Act 1976. ###

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Kahlil Gibran (1883-1931) was a Lebanese – US Arabic write philosopher sculptor painter and poet. He was born near Mount Lebanon and it is said that this partcular region was most fertile place as it has produced many prophets in its time. In this issue of the Info, we enjoy a few of Kahlil’s Gibran’s poems on life, death and justice.

(SB)

0, Mist, my sister, my sister, Mist, I am one with you now.

No longer am I a self.

The walls have fallen, And the chains have broken; I rise to you, a mist, And together we shall float upon the sea until life’s second day, When dawn shall lay you, dewdrops in a garden, And me a babe upon the breast of a woman.

In the late eighteenth century, materialism gained wide hold in Europe. The economic life of society became more important than religious ethics. The theory of natural selection was held to justify might against right, whether between individuals or nations.

Nietzsche and many other writers made the “self” the center of something approaching worship. Nietzsche even proclaimed that God was dead.

John A. T. Robinson maintained that Nietzsche was not an atheist, that he was trying to free man from the God who is a tyrant, who impoverishes, enslaves and annihilates man. He was trying to get rid of the kindly old man who could be pushed into one corner while men “got on with business.”

One of Gibran’s biographers has claimed that Gibran became acquainted with the work of Nietzsche and was even influence by it.

Gibran demanded that his people in the Middle East should revolt against Turkish rule.

But at no time did he ever deny the existence of God.

Mosaic law in the prohibition against murder, theft and adultery and in recognition of each individual’s property rights. Gibran, recognizing the traditions and ethos of religion, also urged prudence, temperance, courage, jus­tice, love, mercy and self-negation. Nowhere, however, does he answer the question, “Is it possible to believe in God, to practice the ethics of religion and to admit salva­tion without the rites of religion?” He does, however, recognize the question in his short poem in Arabic, “0 Soul”: - Kahlil Gibran Khalil Gibran’s internationally acclaimed books include “The Prophet” and “The Broken Wings”. His works contain poems, parables, essays and fiction. Some of his quotes are mind boggling and have deep phylofical and religious on the tones.

You will enjoy pontificating on some of his thoughts.

(SB)

O Soul, if I did not covet immortality, I would never have learned the song which has been sung through all of time.

Rather, I would have been a suicide, nothing remain­ing of me except my ashes hidden within the tomb.

O soul! if I had not been baptized with tears and my eyes had not been mascaraed by ghosts of sickness, I would have seen life as through a veil, darkly.

O soul! life is a darkness which ends as in the sunburst of day.

The yearning of my heart tells me there is peace in the grave.

O soul! if some fool tell you the soul perishes like the body and that which dies never returns, tell him the flower perishes but the seed remains and lies before us as the secret of life everlasting.

- Kahlil Gibran

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A poem from the last page of the book “The Garden of the Prophet”.

Was Gibran a Maronite Christian advering to rebirth?

I reprimanded my soul seven times!

The first time: when I attempted to exalt myself by exploiting the weak.

The second time: when I feigned a limp before those who were crippled.

The third time: when, given a choice, I elected the easy rather than the difficult.

The fourth time: when I made a mistake I consoled myself with the mistakes of others.

The fifth time: when I was docile because of fear and then claimed to be strong in patience.

The sixth time: when I held my garments upraised to avoid the mud of Life.

The seventh time: when I stood in hymnal to God and considered the singing a virtue.

- Kahlil Gibran

DEATH BY KAHLIL GIBRAN “ The Reality of Life is Life itself, whose beginning is not in the womb, and whose ending is not in the grave. For the years that pass are naught but a moment in eternal life; and the world of matter and all in it is but a dream compared to the awakening which we call the terror of Death.

The soul is an embryo in the body of Man, and the day of death is the Day of awakening, for it is the Great era of labour and the rich Hour of creation.

Death is an ending to the son of The earth, but to the soul it is The start, the triumph of life.

Death removes but the Touch, and not the awareness of All good. And he who has lived One spring or more possesses the Spiritual life of one who has Lived a score of springs A child in the womb, no sooner born than returned to the earth – such is the fate of man, the fate of nations and of the sun, the moon, and the stars.

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JUSTICE BY KAHLIL GIBRAN Justice on earth would cause the Jinn To cry at misuse of the word, And were the dead to witness it, They’d mock at fairness in this world.

Yea, death and prison we mete out To small offenders of the laws, While honor, wealth, and full respect On greater pirates we bestow.

To steal a flower we call mean, To rob a field is chivalry; Who kills the body he must die, Who kills the spirit he goes free.

Lyrics by Harry Chapin.

1974 My child arrived just the other day He came to the world in the usual way – But there were planes to catch and bills to pay he learned to walk while I was away and he was talkin fore I knew it and as he grew he’d say I’m gonna be like you, Dad you know I’m gonna be like you. and the cat’s in the cradle and the silver spoon Little boy blue and the man in the moon when you comin’ home, Dad I don’t know when but we’ll get together then – you know we’ll have a good time then My son turned 10 just the other day he said, Thanks for the ball, Dad, com’ on let’s play Can you teach me to throw ?

I said not today, I got a lot to do He said, That’s okay and he walked away but his smile never dimmed it said I’m gonna be like him, yeah you know I’m gonna be like him

You see my new job’s a hassle and the kids have the flu but it’s sure nice talkin to you, Dad It’s been nice talking to you And as I hung up the phone, it occurred to me – he’d grown up just like me; my boy was just like me and the cat’s in the cradle and the silver spoon Little boy blue and the man in the moon when you comin home, Son ?

I don’t know when but we’ll get togethr then, Dad, we’re gonna have a good time then.

and the cat’s in the cradle and the silver spoon Little boy blue and the man in the moon when you comin’g home, Dad I don’t know when but we’ll get together then – you know we’ll have a good time then Well he came home from college just the other day so much like a man I just had to say Son, I’m proud of you, can you sit for awhile He shook his head and said with a smile What I’d really like, Dad, is to borrow the car keys see you later, can I have them please ?

When are you coming home, Son ?

I don’t know when but we’ll get together then you know we’ll have a good time then I’ve long since retired, my son’s moved away I called him up just the other day I said I’d like to see you if you don’t mind He said, I’d love to Dad – if I can find the time

Selected by S. Balarajah

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ASSAULT ON THE JUDICIARY LEST WE FORGET - 8 – 8 – 1988 Forward of Tunku Abdul Rahman Putra Al-Haj The 1st Prime Minister of Malaysia to the Book “May Day for Justice”

This book tells the most shocking story in modem legal and judicial history.

As one of the architects of the Malaysian Constitution, I must say it never occurred to the Constitutional Commission headed

by Lord Scott Reid, that the day would come when the Head of the Judiciary, the Lord President, would be faced with charges of conduct YM Tunku Abdul Rahman Putra unbecoming of a jud­ge.

There are special provisions in the Constitution for removing jud­ges from office, but there is no specific provision in the Constitution for the removal of a Lord President himself. The thought was and is repugnant to any man of the law.

Yet today we are lumbered with a judiciary of the most extraordi­nary character, created as a direct result of the disaster which overtook the Most Honourable Justice Tun Mohamed Salleh bin Abas, Lord President of the Courts of Malaysia, who was accused of misbehaving himself, and removed.

A man does not climb that long ladder to the pinnacle of our judi­cial system without proving himself every inch of the way to be upright, and extremely fastidious about his honour. His integrity must have been proven again and again in his judicial actions, his private life and all his work in the public domain. Any man who was any less than that could not have even approached that position which, by its very nature, presupposes character of the greatest probity and rectitude. The very act of appointing such a man means that he is beyond reproach.

His Majesty the 8th Yang Di-Pertuan Agung, Sultan Mahmood Iskandar of Johor who was in office when Salleh Abas was suspended and dismissed from office

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Tunku Abdul Rahman Putra, Malaysia’s first Prime Minister

INFO JOHORE BAR – february 2014

Tun Dr. Mahathir Mohamad Iskandar, Prime Minister of Malaysia since July 1981

Chief Justice of Malaya when the crisis began, Tan Sri Abdul Hamid Omar, former Lord President of the Supreme Court

Yet, exactly such a man was accused of misbehaviour as a judge! He was publicly humiliated and then removed from his post on what I can only describe as trumped-up charges.

Tun Mohamed Salleh Abas, a man of humble origins - his father was a sailor and small village trader - rose to become the highest judge in the land through sheer hard work, a proven dedication to service and a great love for the law. He is also known to be a scholarly man, and a deeply reli­gious Muslim.

I will not try to tell his story even in summary because this volume tells it all clearly and as truthfully as it is possible without breaking the laws covering official secrets, sedition and libel - though the disgraceful events surrounding his dismissal invited comments which courted all these dangers.

That the Lord President was wronged was obvious not only to the intellectuals in the country and many countries abroad but also to the Tun Salleh Abas, former Lord President of the average man in Malaysia. I myself repeatedly objected to the action Supreme Court of against the Lord President and the way the Tribunal to remove him Malaysia was conducted.

There were a great many protests by many learned men and women against the action by the Government, but these were ignored by the authorities as well as the frightened press and mass media.

The world, nevertheless, found out what was going on. Condem­nation of the affair from across the world made shameful reading. But I must say that the enormity of the travesty of justice perpetrated in order to remove Tun Salleh (and two other Supreme Court Judges) is disclosed in these pages in such detail, with such penetrating insights, that it will surely further shock and scandalize the civilised world.

Episode after episode in the book shows the spiritual corruption, the cynicism, the moral turpitude, the viciousness and the horrible ruthless­ness which attended the exercise of falsely accusing him, hastily putting him before a Tribunal of questionable character and quickly removing him from office.

I do not know how any honourable government can stay in office after this book has been published. It constitutes a denunciation which cannot be answered without confessing to the most dishonour­able conduct in public life.

In my time I participated in and witnessed a great many dramatic events in the national life. There were great days and there were tragic ones, there were days of high euphoria and days of great sorrow, there were days to be proud of and some days to be ashamed of. But nothing that happened in all those years from 1955 to 1970 when I headed the Go­vernment, or in the days of Tun Abdul Razak who succeeded me and later in the years of Tun Hussein Onn, nothing occurred in all those years that so sullied the fair name of this country so completely as this sordid affair: it struck a terrible blow, not only to the independence of the Malaysian Judiciary - and ruined the careers of at least three honourable men - but to national pride itself.

This affair has disillusioned and demoralised many lawyers. It Former Bar Council has severely damaged the people’s faith in the law and brought several President, Datuk Param judges into disrepute. It will take a long time for us to recover from the Cumaraswamy horror and shame of this episode.

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Our judges are the guardians of the Constitution and thus our demo­cratic system of Government When they lose their independence our precious freedoms are at once threatened. And our judges were indeed de­prived of their independence in the year 1988. We are therefore in grave danger today.

We must take care not to allow the mere appearance of security to lull us into believing that because there appears to be no immediate phy­sical danger, all is well. It is not true. As the Malay people say, “Apabila air tenang, jangan di sangka tiada buaya” (Because the water is still, do not think there are no crocodiles below.)

It was not always like this.

Our independence started off very well because of our fairness, Bar Council President, our integrity and our honesty. We take pride in the fact that we were Encik S. Theivanthiran (1989-91) the only country in Southeast Asia which won the battle against the communists fairly and squarely. We beat President Sukarno of Indonesia in his plan to “Crush Malaysia” and we kept the Philippines from pursuing their claim to Sabah. We established ASEAN as an organisation and brought better understanding not only among these peoples of Southeast Asia but also among other countries. We even helped President Ngo Dinh Diem keep the communists out of Vietnam and develop Vietnam on the same basis as we had developed Malaysia. (But the Americans took up the fight and changed tactics, and the Vietnam war ended tragically).

Times have changed.

This terrible episode of sacking the Lord President should serve as a lesson to the people of Malaysia as well as to people in many developing countries where judicial independence is seen by those who wield power only as an inconvenience and a threat to what they arrogantly believe is their God-given right to do as they please.

The way I look at it, they have have made a martyr of Tun Salleh and he deserves to be honoured and respected as such. What happened to him may prevent others in this country from suffering the same fate.

What is written in this book will be a lesson to young Malaysians who have a long way to go.

Let us try do what is right for the future gene­rations.

I sincerely hope this story is widely read and always remembered by the people.

By Charles M. Schulz

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The 1st Indian Chief Justice of Bombay – Mohammedali Chagla “A son remembers” I was, in a manner of speaking, midwife to the birth of Roses in December: I, therefore, thought I should record a few recollections on the occasion of the Centenary Edition. To call it a Foreword would have been presumptuous and pretentious: it is but a postscript, a mere footnote to the great creative endeavour of my father - not only the story of his life but the life of the times.

I have only just finished reading the proofs of this edition: I could not but marvel, it may be for the umpteenth time, at the remarkable, the unique, the infinitely varied and accomplished life he had led. It is given to few to claim the variety of positions, meet the assortment of personages and pursue the enormous and diverse interests that he did. So many have spoken of the public man - I thought I would speak of the father seen through the eyes of a son.

M. C. Chagla

To us siblings, my sister Husnara, my brother Jehangir and myself, he was a father we loved and respected, whose approval we yearned for and whose displeasure we dreaded. He did not believe in corporal punishment and never raised a hand on any of us: he did not need to, a frown was sufficient to still the most undisciplined child.

I was the baby of the family, seven years younger than my sister, five younger than my brother. From as young an age as I can remember, I idolized my father, a sentiment that never diminished with the passing of the years. I basked in the warmth of his successes and felt acutely the pain of his disappointments. Nothing gave me greater pleasure than to know I had not failed him; nothing greater hurt than to know that I had fallen far short of his expectations. I remember I had just joined St. Mary’s School in the lst Standard from a nursery that offered no conventional tuition. I was totally lost and at the end of the first year I was at the bottom of the class. My father asked me, with patience and understanding, whether I would like to repeat the class so that I should not later flounder. I begged that I be given a chance and I would not disappoint him - I was spurred on to do better and so I did: my reward was his approval.

M.C. Chagla with President Kennedy

I was born some two years before he accepted a judgeship: my recollections of him as a puisne judge do not have the focus and clarity of the years in Chief Justice House. He has written that he never brought work home from Court - a fact to which I can bear witness. The first thing in the morning were the daily newspapers read over a cup of tea; a judgement or two that would have been dictated the previous day would be corrected, followed by a shave and bath.

By this time his secretary, Rao, would have arrived and all correspondence immediately dealt with and replies dispatched immediately. Next would be a hearty breakfast followed by a cigar that would see him to the chambers of the Chief Justice where administrative work would be quickly disposed of before the customary meeting of all the judges outside his chambers; a final cigarette and into Court for a full five hours of dispensing justice.

He was possessed of an energy that was boundless and a determination and will-power that would not allow him to succumb to fatigue or illness: in his scheme of things these were but incidental irritants that had to be overcome by the mind, and overcome them he did. After a full day in Court he would readily agree to inaugurate exhibitions, address meetings and preside over executive committee meetings - and, time permitting, a rubber of bridge before returning home. He did not miss a single day’s work - I can see INFO JOHORE BAR – february 2014

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him struggling with pain to wear his shoes on a foot swollen with gout, and my mother protesting that he should wear slippers only to receive the answer “Surely, you don’t expect me to sit in Court in slippers!”

Dinner at home, when he was not entertaining or being entertained, was always together: he would return from his evening bridge at the Willingdon, have a whisky and soda, and then to dinner.

My childhood memories are of Saturday mornings at the Willingdon Sports Club, where we would be in the swimming pool while he played a round of golf. When he had finished he would, after a shower, join us and we would be treated to waffles, chips and ice cream. Summer vacations were, in earlier years, spent in Matheran and later in Mahableshwar at the Club. Mornings would be spent in long walks or golf, the afternoons for rest and reading; and in the evenings he would play bridge. My early memories are of a veritable galaxy of judges at the Club, Sir Harilal Kania, justices Gajendgragadgar, Tendolkar, J.C. Shah, — Rajyadaksha to name a few. To the child they all appeared to be vastly important, but why exactly was not clear - what was clear was that one’s own father was no less important!

He never had to demand respect - whoever he came into contact with naturally extended that respect. And this applied with equal measure to his family: I grew up knowing that none of the normal rituals of respect were at all expected, that I was an individual in my own right with my own views and opinions which I was entitled to air even though they might not conform with his. He expected equality and that produced the supreme respect. He requested me to try and avoid smoking in school and after I finished he wouldn’t at all mind. True to his promise, the day I finished my Senior Cambridge examinations he presented me with a cigarette case and a lighter! And the question never arose of any one of us children not being allowed to smoke in his presence. It made for a relationship that was open and transparent where anything and everything could and was freely discussed.

His liberal outlook was not restricted to the public platform: it was a genuine liberality, the kind that is practised naturally and unthinkingly. He made no secret of the fact that he was agnostic and the ritual of religion was anathema to him. He did not prevent my mother bringing in a mullah to teach us the reading of the Koran, and although my mother was deeply religious, I was drawn to the rational and intellectual approach of my father in matters spiritual. He took great pride in the fact that all his children married outside the community. When I decided to marry my wife who is Parsi, he warned me that should I want to convert her to Islam, I should not expect him to attend the wedding!

His interests were unimaginably vast and diverse - in art, music and, of course, literature. I have inherited a library that is a permanent testimony to his kaleidoscopic range of reading. His speeches, no matter how formal the occasion, were always delivered ex tempore. I recall him sitting in his chair before a meeting, jotting down a word or two and throwing the paper away. I asked him what that was for -it helped, he explained, to bring order in his mind so that the flow of thoughts should run naturally and freely. What always impressed me was the facility and felicity of language and le mot juste for the occasion: the product of a truly cultured mind.

In 1955 my brother Jehangir had secured admission to Cambridge University and I had only just finished school and was due to enter College (Husnara was bound by marital ties and therefore had to remain in Bombay). My father decided to take some part of the leave he had accumulated over the years to treat the rest of his family to a holiday, and his two sons to an educational experience that left an indelible imprint.

Chagla with Mr. U. Thant, Secretary-General of United Nations 58

It was the first time that any of us, my mother and the two brothers, had ventured abroad (apart from a visit to what was then Ceylon): my father would be our friend, philosopher and guide and open the window to a whole new world. We sailed to Genoa and then began an odyssey very few could have been fortunate to experience at so young an age. It was an incredible introduction to the

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western world: we saw through his eyes the great legacy of Imperial Rome, the treasures of the Renaissance, the rich tapestry of the Italian Masters and listened with him to orchestral genius at La Scala. He was never a conscious tutor, never wore his learning on his sleeve: exposure to history and art and culture, to good food and wine, he believed, was what was important. He revelled in every moment of that holiday - he himself was visiting Europe after many decades and was as anxious to learn, as he was to impart.

In Paris he took us to pay our respects to L’Empereur - even today, whenever I am in Paris the pilgrimage to Napoleon’s tomb is the first priority. At the Louvre we saw, in addition to the Masters, the Impressionists (a school of which he was particularly fond); we were introduced to escargot (he was greatly amused that none of us was revolted by the idea of eating snails!). That he practised the liberality he preached is typified by his taking his sons (one of whom was just 15) to the Folies Bergere - to my mother’s protestations his only reply was that there is nothing vulgar or prurient in art. In London his passion for the theatre was infectious and we ended up seeing a play almost every day.

He constantly said he might not leave us much money but he could at least try and give us a good education -and the education he was able to give us, not only in the best of Universities but in daily life, was the greatest inheritance any child could expect.

When he was not otherwise busy, we would often go to the cinema in Bombay - he loved films. We would come out in the interval for a cigarette when people would come up to wish him. He always had a ready smile and a warm welcome for every one of them - even though he might not know the half or more of them. At the Hague when he was ad hoc judge at the International Court, I suggested we see Orfeu Negro, which had been very well reviewed. What I had not realized was that the language would be Portuguese (being a Brazilian film) and the sub-titles Dutch. After a few minutes he asked me what on earth we were supposed to understand in the film: the music, at any rate, is awfully good, I suggested. “Since when do we go to the cinema to listen to music?” he asked as we walked out.

My father had mingled with Presidents, Prime Ministers and Chief Justices around the world and had entertained the Queen of England to dinner at his residence at 9, Kensington Palace Gardens. And yet he was equally at home in the company of the humblest soul. He was never arrogant or conscious of position - in that he was truly an aristocrat. Leena, a maidservant who looked after our children, went to Germany to look after the children of a German family where she met the man she married. Her life was transformed and when she visited Bombay with her husband, she came to our flat with great trepidation, not knowing how she would be received. My wife and I were not at home. When my father was told, he immediately called them into his room, greeted Leena and her spouse warmly, sat them down and shared a glass of beer with her husband. He would be surprised that I am relating this incident - for him he had done nothing extraordinary. His staff, in all his assignments, his domestic servants, and all those who served him, all revered him and never a harsh word did they ever hear. This was something he always told us: “You must be tolerant and never rude to those who serve you. After all, they are in the position they are only because they have not had the same advantages as you.”

His integrity was proverbial. But unlike so many others he never wore his honesty on his sleeve nor proclaimed to the world that he was holier than the next man. No matter that he had to pay a crippling tax of 97.75%, he did so religiously; but for all that, he did not sit in judgement over those who did not. After his first Cabinet meeting, a journalist asked him whether a certain decision had been taken. Horrified, my father asked the journalist whether he was seriously asking him to breach the confidentiality of Cabinet discussions. Undeterred, the journalist said he would go to one of his colleagues and, sure enough, the next day’s papers carried the whole story! He believed that it was wrong to give his own children an unfair advantage. When practising in the Supreme Court there were occasions when the Advocate on Record would ask him who he would like as a junior.

Chagla (left) with Lord Denning (second on the right)

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My father would say he had no particular preference, whereupon the Advocate would remind him about a son who was practising in Bombay. “Under no circumstances will you brief him only because he is my son” would be the admonition. This, he would relate to me and say, “You may be losing a lot of money but trust me, the day will come when you will thank me that you did it on your own.” Of course, he was right - three times I appeared with him in the Supreme Court and on all three occasions they were my matters from Bombay when we decided to brief M.C. Chagla!

Many have said that perhaps the most glorious chapter of his life was when he was no longer in public life, when there were no more dreams to dream, no more mountains to conquer. Having lived with him through the Emergency I can appreciate that view. It was a time like no other, the fears, the suspicions, the feeling of absolute helplessness, when the very essence of freedom was assailed and almost irretrievably lost. For a liberal democrat like my father, it was unbearable. He had never been to jail and the prospect of incarceration was awesome. But it never deterred him even for a moment from doing everything in his power to strike out against the forces of dictatorship. Our home was a meeting-place, a refuge, an oasis for many who had gone underground or were in imminent danger of being detained.

There is no doubt that the comings and goings did not go unnoticed and were faithfully reported to the authorities. I would receive calls from Reuters and other agencies asking for him; and when I would say he was at the Club I would be asked, “Are you sure? We have only just received information that a detention order has been issued.” We would wait anxiously for his return, and his only comment would be that it would not deter him from doing whatever he was doing.

I went with him to Ahmedabad and was present when he made his historic speech in October, 1975.

The hall was packed to capacity, and as this man of 75 who had suffered three heart attacks spoke, there was not a hint of age or illness but only courage and faith and belief. It is the most eloquent testimony I have ever heard to the spirit of freedom. His concluding words are as stirring as they are poetic (the written transcript is a pale shadow of the spoken words) thundered as they were and, in the context of the Emergency, it left me stunned and speechless and made my hair stand on end. There was tumultuous applause and a standing ovation. But I had only fear in my heart and as we boarded the plane, I was certain he would be detained at Bombay airport.

His refusal to admit to illness and obey doctor’s orders was nothing short of frightening. When I was to be married he came down from Delhi a day earlier. The wedding was to be at my in-laws where there was no lift and two steep flights to climb. He had been looking poorly ever since his trip to Egypt (where, as we learnt, he had suffered a silent heart attack when climbing the Pyramids), and I had called in a doctor friend to examine him. There was no point in asking him to go to a doctor - check-ups, he believed were an Americanism we could well do without. The doctor found that at that very moment he was suffering heart failure and every attempt to persuade him to go to hospital was futile. “Do you realize my son is getting married tomorrow?” he asked. The doctor then tried to persuade him to change the venue and have the wedding at our place. “Certainly not” was the answer, “all the arrangements have been made and it would be most discourteous to disturb them.” If he were determined not to allow any change then, suggested the doctor, he should not walk the two flights but be taken in a chair. “Doctor, do you seriously expect me to be carried up to my son’s wedding? But I must leave now - I have promised to pick up a friend on the way to the Club and I am never late. But thank you, doctor, for all your trouble and your concern.” And out of the front door he went. The doctor collapsed in a chair and told me he had never been so brutally frank with a patient only to have the patient walk out on him. The next day, walk up the stairs he did, laughed off what he described as the doctor’s hysteria, had a hearty wedding lunch and was generally the life and soul of the party.

When he suffered another massive heart attack, it required some five hours of persuasion to get him admitted to a hospital. Once out of hospital, he continued at the same pace, conceding nothing to age or illness. But the body was showing distinct signs of stress. Even after his resignation as Minister and retirement from active practice in the Supreme Court, he continued to lead life to the full. It was sheer will power, a supreme triumph of the mind over matter. The doctors, when he allowed himself to be checked up, would advocate the obvious: he must slow down. He had given up cigarettes (he used to smoke some fifty a day) for a pipe, but which he smoked with equal vigour.

When I remonstrated that he was doing everything the doctors had forbidden, he said the time had come for a serious chat. “Your mother is no more, all of you children are well settled. In my place would you

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lead your life any differently?” I had to answer truthfully, “No.” “Is this the last time we discuss this subject?” he asked. “Yes.” I replied, “But for your sake, I pray that when the end comes it comes suddenly and quickly.

If you suffer a stroke and are confined to bed, it would be a living death.”

“I’m glad you mentioned this, for I want you to promise me that if such a thing should happen, you will not allow me to linger but put me out.”

“That” I replied, “is something no father can ask, and a promise no son can be expected to make.”

On February 9, 1981, he died as he would have wished, and even as I had prayed for him. The last member of the family he spoke with was my son, Riyaz: they had been listening to the commentary on the IndiaAustralia match and Gavaskar was batting. As he left for the Club, he said to Riyaz “Well, Baba, we shall listen tomorrow to Gavaskar getting a century.” They would not listen to the commentary together the next day, nor would Gavaskar make a century. At the Club he bid and made a slam, laughed and joked in the company of friends, and then, almost as if he did not want to be a nuisance, he went to the Dressing Room and there, quietly and unobtrusively, he passed away.

He was cremated according to his wishes. There were a number of orations at the funeral including one by Atal Behari Vajpayee, who had specially flown down from Delhi. The High Court remained closed as a mark of respect, and he was accorded a Full Court Reference. My father had felt that people had been uncommonly kind in what they had said of him in his lifetime, and he had reluctantly included some of the testimonials in the autobiography. Since the true worth of a man is best gauged after he is no more, I have included in this edition two of the speeches, one by H.M. Seervai and the other by K.S. Cooper, which were made at the Reference.

It was decided to form a trust, the Chief Justice Chagla Memorial Trust, whose immediate object was to erect a statue in his memory. The statue is unique in that it is the only statue within the High Court and, fittingly, it is outside the Chief Justice’s Court over which he presided for eleven years. The words at the base of the statue are “a great judge, a great citizen, and, above all, a great human being” On the occasion of the unveiling of the statue in 1985, a large gathering heard a number of speeches, one by Nani Palkhivala which also I have included. In this, his birth centenary year, it is proposed that some fitting memorial be instituted in the Bombay University.

Some nineteen years have passed since he died; this year, had he lived, he would have been a hundred (“God forbid,” I can hear him say, “don’t ever wish such a fate upon me!”). It is gratifying beyond belief to learn that my father is not forgotten but continues to live in the hearts and minds of all those who knew him; and for the generation that did not there is the scent of Roses in December. For myself, there is what he inscribed on the first copy he presented to my wife and I: “with love that endureth for ever”.

- Iqbal Chagla 30.9.2000 Preface to Centenary Edition of “Roses in December” by M.C. Chagla His magic was not far to seek, He was so human! Whether strong or weak Far from his kind he neither sank nor soared, But sat an equal guest at every board.

No beggar ever felt him condescend, No prince presume; for still himself he bore At manhood’s simple level, and where’er He met a stranger, there he left a friend.

- Roses in December

“To the Romans, Justice was a goddess whose symbols were – a throne that tempests could not shake, a pulse that passion could not stir, eyes that were blind to any feeling of favour or ill-will, and the sword that fell on all offenders with equal certainty and with impartial strength.”

- Roses in December

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GST to commence in 2015 Yang Pei Keng 23.1.2013 GST proposed since 10 years ago It has been 10 years since the government proposed to introduce Goods and Services Tax (GST). It was raised during the time when Abdullah Badawi was the Prime Minister. When Prime Minister Najib took office, he also had the intention to implement GST. But the implementation of GST was postponed because of the General Elections.

Yang Pei Keng

The Goods and Services Tax Bill 2009 was tabled for its first reading in Parliament on 16 December 2009. It was delayed amid mounting criticism.

It has been now been confirmed that it will be implemented from the 1 April 2015 onwards. The reason given for introducing GST is that the national revenue has to be increased in order to prevent the country from facing bankruptcy.

The national debt has been on the increase with each passing day. All these years, we have been relying heavily on the revenue collected from tax on oil and gas. Only 10% of the population is paying income tax.

Malaysia runs the risk of facing downgrading by the International Credit Rating Agencies. Malaysia will be the 8th country from ASEAN to implement GST, ahead of Myanmar and Brunei.

The ever-mounting national debts have to be reduced, and the national coffers to be replenished.

6% GST was proposed – higher than expected After the 5 May 2013 General Election, Our Prime Minister cum Finance Minister Najib announced in his 2014 Budget that GST will be implemented from 1 April 2015. The rate of GST to be imposed would be 6%, higher than what was generally expected . In the earlier years, only 4% was suggested. (Note: 3% or 4% was the initial rate collected in other countries). Such high rate of GST will certainly arouse the discontent of the populace.

With a view to appeasing the people (especially the lower income group bearing the brunt of the impact of GST), the government proposed that certain necessities, such as healthcare, public transport service, government service, etc. would be exempted from GST. Besides, the financial aid Bantuan Rakyat (BRIM) would be increased from RM500 to RM650 for lower income group, having a monthly income below the RM3,000 bracket.

The personal income tax relief will be raised by 1% to 3% with effect from 2015. The corporate tax will be reduced from 24% to 23% commencing from 2016. This is to narrow the gap between the corporate tax of our country and that of the developed countries.

Oil and Gas estimated to be depleted in 10 years’ time The existing main source of revenue in our country is the revenue collected from oil and gas production.

But it has been estimated that our oil reserves will be depleted soon, that is, in 10 years’ time. It is of utmost urgency to look for other sources of income. As early as the year 2003, the then Prime Minister Abdullah Badawi intended to implement the GST. But it met with vehement resistance from the people.

That led to the deferment of the implementation of the GST.

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After the General Election last year, the government was relieved of the pressure of having to face any election for the time being. To pacify the populace, efforts have been made to explain to the population the benefit or advantage of having GST. The 2014 Budget was the first Budget announced after the 2013 General Election. Earlier on, ­the government announced the increase in petrol price and cigarette prices. The recent Budget cut the subsidies for sugar. There will be gradual removal of other subsidies.

Credit rating of Malaysia is on the decline For the past 16 years the annual budgets have always been in the red. The national debt in 2008, was about 40% of the GDP. In 2012, it was increased to 53%. This year (2014), it has been estimated that the national debt may reach the dangerous level of 54.7%.

Towards the end of July last year (2013), FITCH (one of the top three credit rating agencis) had evaluated the sovereign credit rating of Malaysia from being “stable” to “negative”. If the government fails to take steps to improve its financial position, it may have to face the risk of having its sovereign credit rating downgraded.

The GST appears to be the means adopted to increase the national revenue in order to prevent the country from sliding into bankruptcy.

Business circle : in favour of GST The Chinese General Chambers of Commerce is in favour of the government implementing the GST. The labour force in Malaysia comprises 13 million workers out of a total population of 28 million. But only 1.8 million people are paying income tax. Only 5% of the private companies pay corporate tax.

The General Chinese Chambers of Commerce pointed out tha every year there are 20 million foreign tourists coming to our country, and more than 4 million foreign workers here. They do not pay income tax, and they enjoy tax-free purchases of goods and services. Such state of affairs is not fair to the Malaysians.

The significance of having the GST is that foreign tourists and foreign workers will have to pay taxes for the facilities they are enjoying. When the GST is implemented, there will be about 30 million people liable to pay the GST. This may be of help to the national economy.

Public’s views on GST The public do not appear to have much confidence in the manner the national finance is being managed in this country. Various views have been expressed by the public at large. One businessman has indicated that he is reluctant to pay the GST because the public are in the dark as to how the revenue collected is to be spent.

An economist opined that the government should in the first place control the expenditure appropriately before introducing the GST for the purpose of increasing revenue. He said that every purchase and expenditure made or incurred in every department ought to be subject to proper scrutiny.

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Rate of 6% GST is on the high side Another complaint is that the rate of GST to be imposed is certainly on the high side. The business circle may be comfortable with a rate of 4%, for a start. The traders have certainly been caught by surprise with the imposition of the excessive 6% GST. With the 6% GST, those in authority will be richer by RM7 billion.

Auditor-general’s annual report on wastage of public funds The auditor-general has time and again raised numerous issues in his report. But year in year out, the problems are yet to be solved. The spokesman for the Chinese General Chambers of Commerce also agreed that resources should be tapped, and caution ought to be taken in arresting wastage. Abuse of public funds should not be tolerated.

The auditor-general’s annual report clearly showed that there had been considerable wastage of public funds all these years. For example, the report revealed that a government department might purchase at a sky-high price of ten times or more over and above the normal price of an item or article. This clearly shows lack of proper control of expenditure in the government department concerned.

No disciplinary action or otherwise seems to have been taken against any one for abuse of public funds.

This is a perennial problem year after year. No effective control of wastage of public funds is in sight.

No positive action has been taken to stop the tremendous drain on the national coffers.

Wastage of 25 billion ringgit a year The public are against the GST mainly on two grounds. The great majority of the people belong to the lower income group – the poor and the marginalized. The government should in the first place solve the serious problems of wastage and corruption.

If the malpractices of wastage and corruption are arrested, billions of ringgit will be saved, and no GST needs to be imposed. According to the Auditor General’s report, the wastage caused by the government runs into 25 billion ringgit in one year alone. If the control of wastage and corruption is tightened, it will go a long way to replenish the national coffers.

Rate of 6% GST is on the high side Another complaint is that the rate of GST to be imposed is certainly on the high side. The business circle may be comfortable with a rate of 4%, for a start. The traders have certainly been caught by surprise with the imposition of the excessive 6% GST. With the 6% GST, those in authority will be richer by RM7 billion.

Since the GST will only be imposed in the year 2015, the public have yet to feel the pinch. It is beyond doubt that the GST will be a controversial issue. Whether the GST issue will turn into a political storm is yet to be seen. [ Source: Lim Yew Soon’s article in Asia Week (Chinese), 10 November 2013 pp. 38-39 ]

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MINI PUPILLAGES – THE ENGLISH BAR COUNCIL EXPERIENCE Mini pupillages – help aspiring barristers to make great strides towards a career Mini-pupillages are short periods of work experience, usually for one week, in a set of chambers. The format varies between chambers, but mini-pupillages generally involve shadowing a member of chambers and learning what their work involves. Mini-pupillages provide an invaluable insight into life as a barrister and may provide some useful contacts to assist you in finding pupillage. You are strongly advised to do at least one mini-pupillage before making pupillage applications and you should try to do more than one. You can apply for mini-pupillages at any stage, although you may find it difficult to obtain one if you are still at school, and some chambers require you to be studying law before you can apply.

As part of the recruitment process for pupillage, some chambers require applicants to undertake an assessed mini-pupillage, which they may use as a selection criteria. However, most chambers offer mini-pupillages which form no part of their selection process but offer you an opportunity to get a feel for the work that their barristers do. You can find out about mini-pupillages from individual chambers’ websites. The Pupillages Handbook provides details of which chambers offer mini-pupillages. Most chambers ask prospective mini-pupils to apply directly with a CV and a covering letter, although some have their own application form. The student officers at the Inns of Court can provide further advice on obtaining a mini-pupillage.

“All of us do not have equal talent, but all of us should have equal opportunity to develop our talent”.

John F Kennedy

Congratulations To The Newly Admitted Members of The Bar 2013/2014 (Johor) (As at 9th February 2014) 1. Abdul Hadi Bin Omar 2. Sakinah Binti Suhaimi 3. Hamizah Bte Hussein 4. Nurhidayah Binti Yazid 5. Nor Hamiza Binti Azmi 6. Nur Farhana Binti Mohd Isa 7. Chua Yee Leng

9/01/2014 9/01/2014 9/01/2014 9/01/2014 26/01/2014 26/01/2014 26/01/2014

8. Syazana Binti Khairul Anuar 9. Aimi Syarizad Bt Datuk Hj. Khutubul Zaman 10. Ungku Masmera Binti U Farouk 11. Rebecca Hong Pei Ling 12. Nur Shakila Binti Zorkefrie 13. Nur Hidayah Binti Zainuddin 14. Azlan Bin Abdul Razak

26/01/2014 26/01/2014 9/02/2014 9/02/2014 9/02/2014 9/02/2014 9/02/2014

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Johor Bench & Bar pose after Johore Bar Ethics Dinner November 2010

At Carcosa after dinner in honour of YA Dato James Foong

At Johore Bar Annual Dinner Dato’ Yeo holding Court

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At a Bar Informal S. Balarajah (left) with late Razak Ahmad (right)

BREAKING NEWS DRAFT ORDER – pending approval Suppiah, Appeal thrown out !

DI DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO: J-02-2862-11/2012 ANTARA P. SUPPIAH

... PERAYU DAN

S.BALARAJAH

…RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Johor Bahru Saman Pemula No. 24M-214 - 2010 Dalam Perkara Akta Profesion Undang-Undang 1976 (Akta 166) DAN Dalam Perkara Aturan 7 dan Aturan 15 Kaedah 16 Kaedah-Kaedah Mahkamah Tinggi 1980 DAN

Dalam Perkara Usul Tidak Percaya (“Motion of No Confidence”) bertarikh 6.10.10 yang dicadangkan oleh En. N. Jagatheeson dan disokong oleh En. Hisyam Teh Poh Teik (“Usul Pertama”) DAN Dalam Perkara Usul Tidak Percaya (“Motion of No Confidence”) bertarikh 18.11.10 yang dicadangkan oleh En. Norman Fernandez dan disokong oleh Pn. Mary Jesmal Pereira (“Usul Kedua”) Antara P. SUPPIAH … Plaintif Dan 1. S.BALARAJAH 8. MOHD NOR BIN ZABIDIN 2. S.GUNASEGARAN 9. NORHAYATI BTE MOHAMED 3. DATO’ HAJI KUTHUBUL ZAMAN BIN SNS BUKHARI 10. N. KUNASEGARAN 4. SHAHAREEN BEGUM BT ABDUL SUBHAN 11. N. JAGATHEESON 5. GURCHARANPAL SINGH 12. HISYAM BIN ABDULLAH @ TEH POH TEIK 6. R.JAYABALAN 13. NORMAN JOSEPH FERNANDEZ 7. IZA DORA BINTI MD HANIPAH 14. MARY JESMAL PEREIRA

KORAM:

… DEFENDAN-DEFENDAN]

Y.A. DATUK ZAHARAH BINTI IBRAHIM, HMR Y.A. DATO’ HAJI MOHD ZAWAWI BIN SALLEH, HMR Y.A. DATO’ UMI KALTHUM BINTI ABDUL MAJID, HMR PADA 11 FEBRUARI, 2014

DALAM MAHKAMAH TERBUKA PERINTAH

ATAS RAYUAN Perayu yang difailkan melalui Notis Rayuan bertarikh 19.11.2012 DAN SETELAH MEMBACA DAN MENELITI Rekod Rayuan, Penghujahan Bertulis Perayu bertarikh 27.1.2014, Penghujahan Bertulis Responden bertarikh 23.1.2014 dan Penghujahan Bertulis Lanjutan Perayu bertarikh 10.2.2014 dan Ikatan-Ikatan Otoriti yang dikemukakan pihak-pihak, kesemua yang difailkan dalam Rayuan ini DAN SETELAH MENDENGAR Encik P. Suppiah bertindak persendirian sebagai Perayu dan Dato’ Yeo Yang Poh (bersama Encik Chen Wai Jiun), Kounsel-Kounsel bagi pihak Responden, DAN SETELAH MENDENGAR hujahan-hujahan peguam-peguam tersebut, MAKA ADALAH DENGAN SEBULAT SUARA DIPERINTAHKAN bahawa; a) Rayuan Perayu dalam Notis Rayuan yang bertarikh 19.11.2012 ditolak tanpa kos; dan b) Deposit dikembalikan.

DIBERI di bawah tandatangan saya dan Meterai Mahkamah pada 11 Februari, 2014.

Catatan No:

2014

Kerani:

........................................................

TIMBALAN PENDAFTAR MAHKAMAH RAYUAN MALAYSIA PUTRAJAYA

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