THE LEGAL NEWSLETTER

LEXICON TAYLOR’S LAW SCHOOL

JULY 2012 ISSUE

ACCESS TO JUSTICE

INSIDE: The Rule of Law in Malaysia The Democratic Situation in Malaysia Lim Chee Wee on Access to Justice and Democracy in Malaysia

ARTICLES: The Rule of Law in Malaysia 3 The Democratic Situation in Malaysia 8 Mr. Lim Chee Wee on Access to Justice & Democracy in Malaysia 11

REPORTS: Law Speaker Series 2012: An Inspirational Talk by Dato' Mahadev Shankar 19

Law Speaker Series 2012: A Talk on Legal Aid 20

Law Speaker Series 2012: Qualities of a Lawyer 22 Annual Law School Student Orientation 2011 24 Annual Law School Student Orientation 2012 25 Law Awareness Week 2011 26 The Palace of Justice & Attorney-General’s Chambers Experience 28 Unforgettable Bangkok 29

2

LEXICON

JULY 2012

The Rule of Law in Malaysia

1.0 Introduction

In this present day and age in the nation of Malaysia, a greater

awareness is arising in its citizens – an awareness of their

rights and liberties as well as the role, power and function of

their government. With this comes a desire to see justice and

the rule of law being upheld in this nation which is based on

democratic principles. What then is the definition of the rule

of law? Countless legal textbooks and legal authorities will

give one endless variations as to the definition of the rule of

law. But in its very essence, as propounded by the famed con-

stitutional theorist A.V. Dicey in the most well-known defini-

tion, the rule of law is that no one is above the law, neither

individual nor government; all are subjected under the law and

are equal before the sight of the law.1 For a nation with a Con-

stitution to facilitate the rule of law, three elements must exist:

supremacy of the Constitution, equality before the law, and

the existence of fundamental human rights.2

2.0 Supremacy of the Constitution – Sepa-

ration of Powers

The Malaysian Constitution must be supreme

in the land, not only in principle, but also in

practical reality, in order to uphold the rule of

law. In terms of constitutional supremacy,

the aspect of the separation of powers of the

Malaysian government will be considered.

The Federal Constitution of Malaysia (the

Constitution) provides for the separation of

powers of the Executive, Legislature, and Judiciary in Articles

39, 44, and 121 respectively. The principle of the separation of

powers is important as it prevents one body of government

from exercising power outside its limits, and from amassing

too much power that its decisions go unchecked. As Malaysia

was once a part of the British Empire, it has modelled its sys-

tem of government after the British Westminster system.

Accordingly, there is no true separation of powers in the

Malaysian government, as the ruling party in Parliament

(the Legislature) will make up the government (the Ex-

ecutive). Chang Min Tat J in Fan Yew Teng v Government

of Malaysia 3 observed that although the executive and

legislature are separate, there are overlaps between these

two organs of government.4

Although this blurring in the separation of power between

the Executive and the Legislature is necessary for a stable

government (e.g. it avoids deadlocks in government), it

has led to some negative results. These negative results

include the bulldozing of a number of controversial bills

through Parliament without heeding recommended

amendments, such as the 1988 amendment of Article 121

of the Constitution limiting the judicial independence of

the courts, the Internal Security Act 1960 (which is now

replaced by Security Offences (Special Measures) Act

2012 (SA) which is still controversial among the public 5)

and the Peaceful Assembly Act 2012 (PA).

No doubt that with the SA and the PA,

there are obvious improvements to the dra-

conian laws that it replaced, however there

are still a number of controversial areas in

them which Members of Parliament and

non-governmental organisations have

called upon for amendments, but amend-

ments were not made.

As there is no clear separation of power

between the Executive and Legislature, it is of utmost

importance that the Judiciary remains separate and dis-

tinct from the other two bodies to ensure an effective sys-

tem of check and balance in Malaysia’s government. A

positive example of the judicial independence in Malaysia

is when the Court of Appeal ruled Section 15 of the Uni-

versity and University Colleges Act as invalid. 6

3

EBBIE WONG

“THE RULE OF LAW IS ERODED

WHEN THE INDEPENDENCE

OF THE JUDICIARY IS SUBVERTED”

H.P. LEE

4

This was because Section 15 of the said Act was unconstitu-

tional as it prevented students from participating in politics,

infringing on their right to free expression, as provided for in

Article 10 of the Constitution.

Despite that, in recent years, the quality of Malaysia’s judicial

independence has been undermined. An example of such is

seen in the removal of the Lord President (Tun Salleh) and

two Supreme Court judges in what is known as the Malaysian

Judicial Crisis of 1988.7 Article 125 of the Constitution legiti-

mise the composition of the tribunals and the procedures used

to investigate the actions of the Lord President and the two

Supreme Court judges; however the composition and proce-

dures used by the tribunals have been questioned by commen-

tators.8 The resulting tribunals’ report, particularly the tribunal

set up to inquire the Lord President, have drawn criticisms and

have been labelled as among ‘the most despicable document

in modern history’,9 as the tribunal discharged its duty in a

superficial manner, not investigating meticulously and rigor-

ously the materials brought to them.10

It is arguable that this outcome could have been so because the

Executive used Article 125 loosely to justify its decision of

wanting the Lord President and the two judges removed as

they were perceived to have spoken out against the govern-

ment.

Judicial independence has been further weakened as a result of

multiple Constitutional amendments made in 1960, 1962,

1964, 1971, 1973 and 1981 and 1988, firmly favouring the

Executive.11 As a result of the 1988 Judicial Crisis, Parliament

amended Article 121, dangerously confining the courts powers

as provided to them by the federal law. Previously, the courts

had the independence to adjudicate on any matter that arose,

but with this amendment– where its significance lies in the

deletion of the phrase “judicial power”12 – the courts’ inherent

role to judicial review of all laws and exercise of power by the

Parliament and Government has been severely restricted.13

Professor H.P. Lee wrote in his book that ‘the rule of law is

eroded when the independence of the judiciary is subverted.’14

3.0 Equality before the Law

Another element of the rule of law, equality before the law,

is enshrined in Article 8(1) of the Constitution where it

states that “All persons are equal before the law and entitled

to the equal protection of the law”.

However, this Article is seemingly contradictory as it is sub-

ject to clauses within Article 8 which makes this equality

provision not absolute. Suffian LP laid down the principle,

among other principles, that Article 8, specifically Article 8

(5) envisions “lawful discrimination” such as “Muslim as

opposed to non-Muslims, residents in particular states as

opposed to others, and Malays and natives of Borneo as op-

posed to others.”15 If the rule of law is upheld, no one would

be above the law, neither rich nor poor, high standing politi-

cian or commoner. Equality before the law, as stated by AV

Dicey, in effect means the consistent application of the law

irrespective of a person’s status – where officials and com-

moners be subjected to the same law and same courts.16

However in Malaysia it is lamented that this second postu-

late of the rule of law is ignored as exemplified by the cor-

ruption that goes on within the Government and no charges,

or the inappropriate charges, are laid. An example of a cor-

ruption case is that of Khir Toyo, the then Menteri Besar

(Chief Minister) of Selangor. The Select Committee on

Competence, Accountability and Transparency (SELCAT)’s

inquiry revealed serious inappropriate use of the state’s fi-

nances by Toyo. 17 Despite that fact, the Malaysian Anti-

Corruption Commission never called him in, and Toyo was

only charged under the section 165 of the Penal Code,

where the maximum imprisonment is 2 years, instead of

under sections 16 and 24 of the Malaysian Anti-Corruption

Commission Act 2008, where he would instead face a maxi-

mum of 20 years imprisonment or a fine no less than five

times the sum of the bribe.18 But despite this, as of Decem-

ber 2011, Toyo has been sentenced to 12 months imprison-

ment for graft and his properties are to be handed back to

the Government. This demonstrates that there is some form

5

of equality before the law, as even an ex-Minister is subjected

to the law – as Judge Datuk Wira Mohtarudin Baki said, “This

clearly shows the court will not compro-

mise in such cases. A fine is not sufficient

in this case and a prison sentence on a

state government chief executive needs to

be emphasised.”19 On the other hand, it is

argued that this punishment is a mere slap

on the wrist for such a large offence.20

When comparing this 12 months impris-

onment for graft committed by a then

Minister with a two years imprisonment

of an unemployed man for stealing shampoos worth less than

RM 150 21, one cannot help but wonder whether there is actu-

ally genuine equality before the law, an equal subjection under

the law between lay members of the public and those in the

Government.

4.0 Protection of Fundamental Human Rights

In upholding the rule of law in Malaysia, protection of funda-

mental liberties is provided for in the Constitution. Fundamen-

tal liberties are rights that all humans possess inherently which

cannot be taken away, unless expressed otherwise in the Con-

stitution. Part II of the Constitution protects these rights –

from rights to life and personal liberty (Article 5) to freedom

of speech, assembly and association (Article10).

In regards to the freedom of assembly (Article 10), Malaysia

has done relatively well in protecting fundamental human

rights, when compared with other countries, such as Libya

where their Constitution does not provide for the freedom of

assembly. 22 However this liberty in the Constitution falls

short when compared to countries such as the United States,

where the right of freedom of assembly is virtually out of the

reach of the Legislature, as the First Amendment to the

American Constitution provides that Congress cannot make

laws that abridge the people’s right to assemble.23 In Ma-

laysia, the freedom of assembly is subjected to a clause

allowing Parliament to impose restrictions

on the right to assemble freely (Article 10

(2b)).24 As a result the Police Act 1967 has

been enacted and enforce, which has se-

verely curtailed the freedom of assembly

through means such as a requirement for a

police permit in order to assemble. This is

seen in court rulings of Cheah Beng Poh 25

and Datuk Yong Teck Lee 26. The Freedom

of Assembly Act 2012 has now replaced

relevant provisions of this Police Act 1967,

which has improved the law in some aspects, such as

there is now no requirement to obtain a police permit to

have an assembly, only that the authorities be notified 10

days in advance.27 However the Act is said to be even

worse than the Police Act as it imposes more restrictions

on the freedom of assembly, including age restrictions,

prohibition of protests, and prohibition of street marches

in many urban areas classified as ‘prohibited places’, and

the outright banning of street protests. 28

Effectively, the fundamental freedom of assembly of Ma-

laysians has been severely encroached upon.

The Malaysian Constitution provides for the right to per-

sonal liberty (Article 5 (1)) and equal protection of the

law (Article 8). However, these have been infringed in the

case where 30 members of an opposition party (Parti

Sosialis Malaysia) were detained on unsubstantiated accu-

sations, to prevent them from joining the Bersih 2.0 Walk

for Democracy. This raises the concern that the police

have impunity to detain anyone on baseless charges. The

rule of law was clearly ignored in this case where the fun-

damental liberties of Malaysians were infringed.29

“ONE CANNOT HELP BUT WONDER

WHETHER THERE IS ACTUALLY

GENUINE EQUALITY BEFORE

THE LAW”

6

Furthermore, the recent passing of the Security Offences

(Special Measures) Act 2012, infringes with human rights,

such as those provided in Article 5 of the Constitution.

Although this Act has finally replaced the draconian Internal

Security Act 1960 (ISA), yet it is still not in full compliance

with human rights. This Security

Offences Act allows for a person to

be detained up to 28 days without

being brought before a judge, allow-

ing the police to detain people just

on a belief that they may be involved

in security offences. Suara Rakyat

Malaysia (SUARAM) and Gerakan

Mansuhkan ISA (GMI) views this

double vagueness clause as allowing

the police to carry out searches and

intercept communications without judicial warrant, potentially

opening room for abuse of power.30 Furthermore, this Act al-

lows for the police to put electronic tagging devices on those

released from detention, severely infringing on a person’s per-

sonal liberty and privacy.31 This Act prohibits detention of a

person “solely for his political belief or political activity”;

however in defining what constitutes security offences – “an

act prejudicial to national security and public safety"- the

wording is too broad and can be abused as it gives the Govern-

ment sufficient power as to what is a security breach.32

In Malaysia, like in any other country, there is a struggle to

balance the individual rights of its citizens with national secu-

rity. Sometimes, as proponents for Jeremy Bentham’s utilitari-

anism school of thought would put forth, the law needs to

achieve the greatest good for the greatest number of people –

hence the need for these laws such as the Freedom of Assem-

bly Act 2012 and the Security Offences Act 2012. Perhaps

then from this view, there is a “justification” for the infringe-

ment of the citizens’ rights for the greater good of the public.

Therefore now it would be pertinent that the Judiciary be inde-

pendent and uninhibited by the Government to interpret such

laws fairly and impartially for there to be adequate protection

of the citizens’ rights.

This remains to be seen whether the Judiciary can strike

the balance between fundamental rights and the need

for national security.

5.0 Conclusion

In Malaysia’s Rukun Negara (Nation’s Principles), the

fourth principle is to uphold the rule of law. Has Malay-

sia succeeded in doing so? The Constitution is the su-

preme law of the land; however there should be safe-

guards against arbitrary and ill-made amendments to the

Constitution, as there have been numerous constitu-

tional amendments which have eroded the independ-

ence of the Judiciary, including their role of judicial

review. Equality before the law is enshrined in the Con-

stitution, but it is juxtaposed with clauses which seem to

taint this principle of equality. Statutory law too has

encroached into the endowment of fundamental liberties

in Malaysia, especially in areas of preventive detention

and freedom of assembly. While the Constitution does

provide for fundamental liberties, a greater effort is

needed by both the three organs of government and the-

citizens to ensure that statutes do not infringe the Ma-

laysians’ fundamental rights that have been bestowed

upon them in the Constitution.

The upholding of the rule of law boils down to the Gov-

ernment’s actual desire to respect this principle. But

also the citizens need to arise from their state of com-

placency and actively receive their responsibility of

being part of a democracy and take part in the affairs of

their nation, instead of having an attitude of apathy and

indifference – as Noam Chomsky once said, “…to some

degree it matters who is in office, but it matters more

how much pressure they are under from the public.”33

The failure to uphold or the imperfect sustenance of the

rule of law cannot be blamed solely upon the Govern-

ment; the citizens have their role to play as well.

“IMPERFECT SUSTENANCE

OF THE RULE OF LAW CANNOT BE BLAMED

SOLELY UPON THE

GOVERNMENT”

1 Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution (1885) 2Geof Bailey, Legal Studies Key Ideas Stage 2 (Revised edn, Essentials Textbook 2008) 3Fan Yew Teng v Government of Malaysia [1976] 2 MLJ 262 4 Abdul Aziz Bari and Farid Sufian Shuaib, Constitution of Malaysia Text and Commentary (3rd edn, Prentice Hall 2009) 5‘Malaysia Replaces Its Worst Law’ (The Wall Street Journal, 10 April 2012) <http://online.wsj.com/article SB10001424052702303772904 577335223310 9058 92 .html> accessed 27 June 2012 6 Muhammad Hilman Idham & Ors V. Kerajaan Malaysia & Ors [2011] CLJ JT(5) 7 H. P. Lee, Constitutional Conflicts in Contemporary Malaysia (Oxford University Press 1995) 8Trinidade, ‘The Removal of the Malaysian Judges’, pg 85, as reprinted in H. P. Lee, Constitutional Conflicts in Contempo-rary Malaysia (Oxford University Press 1995) 9 Geoffrey Robertson, ‘Justice Hangs in the Balance’ (The Observer, 28 August 1988, p. 22) as reprinted in H. P. Lee, Constitutional Conflicts in Contemporary Malaysia (Oxford University Press 1995) 10 Lee (n 7) 63 11 Tommy Thomas, ‘Human Rights in 21st CenturyMalaysia’ (Aliran, June 2001)<http://aliran.com/archives/hr/tt3.html> accessed on 26 February 2012 12 Bari and Shuaib (n 4) 221 13 Deborah Loh, ‘Understanding Separation of Powers’ (The Nut Graph, 14 January 2012) <http://www.thenutgraph.com/understanding-separation-of-powers/> accessed 25 February 2012 14 Lee (n 7) 76 15Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155 16 Hilaire Barnett, Constitutional And Administrative Law (8th edn, Routledge 2011) 17Din Merican, ‘Equality before the Law: The Case of Khir Toyo and Others Less Fortunate’ (Malaysia Today, 20 June 2011) <http://malaysia-today.net/mtcolumns/from-around-the-blogs/41256-equality-before-the-law-the-case-of-khir-toyo-and-others-less-fortunate>accessed on 26 February 2012 18Ibid 19Bernama, ‘Khir Toyo Gets 12 Months, Properties To Be Confiscated’ (The Borneo Post Online, 24 December 2011) <http://www.theborneopost.com/2011/12/24/khir-toyo-gets-12-months-properties-to-be-confiscated/> accessed on 25 July 2012 20‘A Slap On The Wrist For Khir Toyo’ (Malaysia Kini, 24 December 2011)<http://www.malaysiakini.com/news/184909> accessed on 25 July 2012 21 ‘Jobless Man Jailed Two Years For Shampoo Theft’ (The Star Online, 25 May 2011)<http://thestar.com.my/news/story.asp?file=/2011/5/25/courts/8752601&sec=courts> ac-cessed 25 July 2012 22 Carnegie Endowment and FRIDE, ‘Arab Political Systems: Baseline Information and Reforms - Libya’ (Carnegie Endowment, 6 March 2008) <http://www.carnegieendowment.org/2008/03/06/arab-political-systems-baseline-information-and-reforms/2nn> ac-cessed on 26 February 2012

7

23‘Freedom of Assembly’ (ENotes, 2006) <http://www.enotes.com/freedom-assembly-reference/freedom-assembly-299495> accessed on 25 July 2012 24 Bari and Shuaib (n 4) 40 25Cheah Beng Poh v Public Prosecutor [1984] 2 MLJ 225, SC 26Datuk Yong Teck Lee v Public Prosecutor [1993] 1 MLJ 295 27 Shad Saleem Faruqi, ‘Learn More About The New Assembly Act’ (The Star Online, 27 June 2012) <http://thestar.com.my/columnists/story.asp?col=reflecti ngonthelaw&file=/2012/6/27/columnists/reflectingonthel aw/11552419&sec=Reflecting%20On%20The%20Law> accessed on 27 June 2012 28 Whiting (n 6) 29 ‘What Has Happened to Our Rule of Law?’ (Aliran, 24 September 2011) <http://aliran.com/6753.html> accessed on 20 February 2012 30 ‘The Security Offences (Special Measures) Bill 2012 lacks in human rights compliance’ (SUARAM, 11 April 2012) <http://www.suaram.net/?p=2671> accessed on 27 June 2012 31 Ibid 32 Mickey Spiegel, ‘Malaysia’s New Security Act All Smoke And Mirrors’ (Bangkok Post, 19 June 2012) <http://www.bangkokpost.com/news/local/298649/malaysia-new-security-act-all-smoke-and-mirrors> accessed on 27 June 2012 33‘Noam Chomsky Quotes’(Brainy Quote, 2001-2012) <http://www.brainyquote.com/quotes/authors/n/noam_chomsky.html> accessed on 25 July 2012

The Democratic Situation in Malaysia

What is Democracy ? Democracy ‘is government by the people in which the supreme power is vested in the people and exercised di-rectly by them or by their elected agents under a free elec-toral system.’1 In the words of Abraham Lincoln, ‘democracy is government of the people, by the people, and for the people.’ Representative government is the most common form of democracy as officials elected by the people for-mulate laws, make political deci-sions and administer programs for the public good. On behalf of the people, complex issues are deliber-ated by such officials in a thoughtful and systematic manner which re-quires an investment of time and energy unreasonable for the vast majority of private citizens. The ex-istence of thousands of private or-ganizations free from Government control are allowed in a democracy and many of them lobby the Government and seek to hold it accountable for its actions. Thus, in a democratic society citizens can explore the possibilities of freedom and the responsibilities of self-government un-pressured by the potentially heavy hand of the state.2 In this article, democracy in Malaysia will be analysed with respect to freedom of assembly and association. The Pillars of Democracy A truly democratic country ensures that firstly the people are sovereign, the government is elected to ensure the needs of the people are met, they are a government for the people and by the people. Secondly, basic human rights should be upheld, protected and practised in a democratic county subjecting no one to infringements of their rights and ensuring that they have access to justice as accorded to them by the law. Free and fair elections are a must to ensure the government of the day is one that is capable and is the choice of the people, dirty politics are

to be avoided. Besides that, the Government should be sub-jected to constitutional limits whereby it cannot enact legis-lation ultra vires to the constitution along with the practice of social, economic and political pluralism and the imple-mentation of values of tolerance, pragmatism, cooperation, and compromise.3 Suppression of Malaysia’s Constitutional Rights

The ‘democratic’ status of Malaysia is plagued by at least two issues (a) that the elections have not been free and fair, for example the phantom voting issue in 2008’s general elections and that (b) she has never experienced party alternation for the entire 52 years of electoral history. 4 This is an indication of democracy not functioning at its best. Besides that, under the Federal Consti-tution Malaysians are guaranteed the rights to freedom of Assembly and Article 10(1)(b) of the Federal Constitution provides that all citizens have the right to assemble peacefully and with-

out arms. However, this freedom is not absolute and the Federal Parliament has the authority to regulate such expres-sions due to national security and to uphold public peace.5

These constitutional rights have thus been suppressed result-ing in discontent among the people in general. Rallies such as the Bersih Rallies which have exercised the constitutional right to Freedom of Assembly have been discouraged and deemed to taint the image of the country in the eyes of the international community. Thus, participatory democracy is the issue of the day in Malaysia’s context whereby the choice of people to affiliate themselves to particular politi-cal groups or societies and openly voice their discontent has been suppressed. Bersih Rallies Bersih Rally 2.0 July 2011 ‘Walk for Democracy’ The purpose of BERSIH 2.0, the Coalition for Clean and Fair Elections was to promote democracy and demand for electoral reform.6

8

NICOLE JO PEREIRA

“THE CHOICE OF THE PEOPLE TO…

OPENLY VOICE THEIR DISCONTENT

HAS BEEN SUPPRESSED”

9

The BERSIH 2.0 had 8 immediate demands which were:

1. Clean the electoral roll 2. Reform the postal ballot

3. Use of indelible ink 4. Minimum 21 days of campaign period

5. Free and fair access to media 6. Strengthen public institutions

7. Stop corruption 8. Stop dirty politics7

The Bersih Rally ‘Walk for Democracy’ which was led by Datuk S. Ambiga former president of the Bar Council took to the streets to express their views and demand clean and fair elections as well as to hand a memorandum over to the Yang di-Pertuan Agong. However, the actions of the police in ban-ning this rally was unconstitutional and illegal said renowned constitutional law expert Abdul Aziz Bari. It is the duty of the police to consider every permit application, and not take ir-relevant considerations into account. ‘The police have no power to suspend the right of peaceable assembly guaranteed by Article 10(1)(b) of the Constitution by declaring it illegal at will. Even the (lower) courts cannot do that,’ said Abdul Aziz Bari the International Islamic University Malaysia (IIUM) lecturer. This is so as the article guarantees all citizens the right to assemble peaceably and without arms. Abdul Aziz is of the opinion that it is also illegal for the police to set up road blocks. Police road blocks restrict freedom of movement, a right guaranteed by Article 9(2) of the constitution. The police have to justify any such restrictions to civil liberties or they constitute abuse of power. The lecturer recalled the 2006 Royal Commission on the police chaired by former chief Jus-tice Dzaiddin Abdullah which recommended the repeal of sec-tion 27 of the Police Act empowering police to issue gathering permits, as it is often abused.8 The outcome of the Bersih Rally 2.0 was the setting up of a Parliamentary Select Committee consisting of 5 members from the ruling Barisan National committee, 3 members from the Opposition and 1 independent Member of Parliament. It was set up to study and deliberate on issues relating to the Election Commission to ensure accountability. Consequently, 22 reforms were proposed by the Parliamentary Select Com-mittee seeking to fulfill some of the demands of the Bersih Rally 2.0 including the usage of indelible ink during the up-coming 13th General Elections.9

Bersih Rally 3.0 28th April 2012 The Coalition marched again however, as the Election Commission had not met most of their key demands. Thus, the fight for free and fair elections continued. One of Ber-sih’s demands was to lengthen the campaign period to at least 21 days from the current 7 days however the cam-paign period was only lengthened to 10 days by the Par-liamentary Select Committee. Besides that, Bersih wanted an independent audit of the electoral roll and international observers at polling stations to ensure transparency. Fur-thermore, multiple instances of irregularities in voter rolls were discovered including over 50 voters registered at one address. In addition to that, on the 19th of April 2012 many bills and amendments to Acts were rushed through parliament. One such Act was the Electoral Offenses Act 1954 which contained many amendments such as the de-letion of Section 11(c) which required print materials to have the full name of the printer and publisher. One of Bersih’s demands were to end dirty politics however this deletion encourages dirty politics as it means that anyone can put up anonymous, racist, defamatory and sexist print materials without identifying the publisher. This among many other reasons resulted in Bersih supporters taking to the streets once again demanding clean and fair elections. Peaceful Assembly Act 2011 The Peaceful Assembly Act 2011 tabled in parliament by a Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Aziz, is an effort initiated by the Govern-ment to undertake the transformation of the existing legal framework, in relation to the constitutional rights of citi-zens to assemble. It seeks to allow citizens to organise and participate in assemblies peaceably and without arms, subject to restrictions deemed necessary and in the interest of public order and security. In consequence to the Peace-ful Assembly Act 2011, the Police Act 1967 (Act 344) was also amended. The Act sought to delete sections 27, 27A, 27B and 27C of the Act 344, which does away with the requirement for a licence to convene or to form a pro-cession in any public place. All licence issued for any processions to be convened or formed before the date of coming into operation of this Act, shall cease to have ef-fect.10

10

Thus, according to the Peaceful Assembly Act, assemblies, gath-erings or meetings are allowed if it is deemed fit however street protests are banned outright. Problems associated with the Peaceful Assembly Act 2011 However, there are those who regard the Peaceful Assembly Act 2011 unconstitutional and antidemocratic as said by Tommy Tho-mas a senior lawyer of the Malaysian Bar. Fundamental liberties are enshrined in Part II of the Federal Constitution, the supreme law of the land. Article 10(1)(b) of the Federal Constitution pro-vides that “all citizens have the right to assemble peacefully and without arms”. Freedom to as-semble is not an absolute one thus, the Federal Parliament may enact laws that have the effect of restricting such free-dom in the interest of security or public order. Parliamentary re-striction however must be reasonable by objective standards. Thus, Parliament cannot stifle the enjoyment of such liberties. Freedom of assembly is customarily exercised together with other fundamental liberties like personal liberty (Article 5 (1)); freedom of movement (Article 9(2)); freedom of expression (Article 10(1)(a); freedom of association (Article 10(1)(c) and so forth. The Peaceful Assembly Act introduces a new type of assembly “street protest”, which is defined in Paragraph 3 to mean ‘an open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes’. Paragraph 4(1) of the Bill imposes an outright ban on street protests. The former position is that if the police issue a license under Section 27 (2) of the Police Act, 1967, a “street protest” is permitted. Hence, the new provision in this reforming Act makes it worse by totally banning such types of assemblies. This would be unconsti-tutional. Under this Act only assemblies that are not street protest are permitted. The permitted form of assembly allowed under this act is as such. Part IV contains 11 separate provisions that specify the requirements before the police would approve the holding of such an assembly. To start off, written notice of at least 30 days must be given to the police. Hence, spontaneous gatherings are not permitted. The First Schedule to the Bill contains 12 categories of prohib-ited places. Assemblies cannot be held within 50 meters of

“PARLIAMENTARY RESTRICTIONS

MUST BE REASONABLE”

these prohibited places. The Bill is so extensive in its reach, as is shown by an exclusion provision for innocent daily activities . 11 Conclusion The democratic situation in Malaysia in relation to the constitutional right to Freedom of Assembly and Associa-tion appears to be suppressed and restricted however this right is not an absolute one and thus the Federal Parlia-ment has the right to regulate such expressions if it threat-ens national security or disrupts public order. Neverthe-less, this should not be an excuse to deny citizens from exercising their fundamental rights enshrined in the Con-stitution. Parliamentary restrictions must be reasonable and not deny outright the exercise of such liberties. Par-ticipatory democracy should be encouraged in this coun-try and for this to occur a change in attitude would be re-quired. The Government should lead the way by initiating genuine reforms to the political landscape of this country to ensure the constitutional rights of the people are pro-tected. 1 ‘Defining Democracy’ http://usinfo.org/mirror/usinfo.state.gov/products/pubs/whatsdem whatdm2.htm accessed 18 February 2012 2 ibid 3 ‘Defining Democracy’ http://usinfo.org/mirror/usinfo.state.gov/products/pubs/whatsdem/whatdm2.htm accessed 18 February 2012 4 Abdul Razak Baginda (ed), Governing Malaysia ( Ma-laysian Strategic Research Centre 2009 ) 5 Hazlan Zakaria, ‘Don: Cop’s Bersih Ban is against con-s i tu t i ton ’ (Ma lays iak in i , 25 June 2011 <blog.limkitsiang.com> accessed 21 February 2012 6 Coalition for Clean and Fair Elections(BERSIH 2.0) Joint Memorandum to SUHAKAM by BERSIH 2.0 and SUARAM on Excessive Police Abuse of Powers during Perhimpunan BERSIH 2.0 on 9 July 2011’ (Press Re-lease,July 14,2011) http://bersih.org//p=4456 7 Coalition for Clean and Fair Elections(BERSIH 2.0) Joint Memorandum to SUHAKAM by BERSIH 2.0 and SUARAM on Excessive Police Abuse of Powers during Perhimpunan BERSIH 2.0 on 9 July 2011’ (Press Re-lease,July 14,2011) http://bersih.org//p=4456 8 Hazlan Zakaria, ‘Don: Cop’s Bersih Ban is against con-stitution’ (Malaysiakini, 25 June 2011 ) <blog.limkitsiang.com> accessed 21 February 2012 9 Martin Carvalho, Yven Meikeng and Rahimi Rahim, ‘Report by PSC on Electoral Reform passed in Parliament (Update) Sarawaknews, April 2012 http://sarawaknews. wordpress.com/2012/04/03/22‐recommendations‐by‐p s c‐ o n‐ e l e c t o r a l‐ r e f o r m s‐w h e r e‐ i s‐theenforcement‐mechanism/ 10, 11 ‘Peaceful Assembly Bill 2011 tabled in Parlia-ment’ (Bernama, 22 November 2011 ) http://www.mysinchew.com accessed 21 February 2012

LIM CHEE WEE on ACCESS TO JUSTICE & DEMOCRACY IN

MALAYSIA

Interview conducted by Nicole Jo Pereira, Ebbie Wong and Jonathan Yong

11

12

Mr Lim Chee Wee is the President of the Malaysian Bar Council. The Bar Council is an independent Bar which seeks to

uphold the rule of law and justice in the land of Malaysia. On the 23rd of March 2012, members of the Taylor’s Law

School’s Lexicon were graciously granted an opportunity to interview Mr Lim, the President of the Bar Council, where we

had the privilege to seek his opinions on the topics of access to justice and democracy in Malaysia.

Lex: How far has Malaysia progressed in terms of Hu-

man Rights since the birth of our nation in 1957?

Mr Lim Chee Wee: When Malaya declared Independence, it

was during the Malayan Emergency where we faced Com-

munist threat to our national security. The Internal Security

Act 1960 (“ISA”) was enacted to combat the Communist

threat and the then Deputy Prime Minister, Tun Abdul

Razak, pledged that the ISA would not be abused to perse-

cute political dissent or stifle critics, but unfortunately the

State had abused this detention without trial law for the last

fifty two years. Under Tun Hussein Onn, he introduced the

Essential (Security Cases) Regulations 1975 (“ESCAR”)

which changed for security trials the basic rules of evidence

and removed the judge’s discretion in sentencing.

However, the violations of and restrictions to human rights

under the premiership of Dr Mahathir Mohamad were un-

precedented. He either amended, enacted new legislation or

abused State powers under existing legislation, with an ar-

moury of these legislation - Sedition Act 1948 (“SA”), ISA,

the Emergency (Public Order and Prevention of Crime) Or-

dinance 1969

“EPOPCO”), the Universities and University Colleges

Act 1971 (“UUCA”), the Printing Presses and Publica-

tions Act 1984 (“PPPA”), and the Dangerous Drugs

(Special Preventive Measures) Act 1985 (“DDSPMA”)

- with the outcome of restricting, if not denying, the

human rights of right to a fair and expeditious trial

(ISA, EPOPCO and DDSPMA), freedom of expression

(SA and PPPA) and freedom of association (UUCA).

Worse, he led numerous amendments to our Federal

Constitution, assault on our Supreme Court (the then

name of our apex court) and he had a fetish for ouster

clauses which weakened the Judiciary, restricted free-

dom of religion and made certain Executive powers

absolute. His only saving grace was that Suhakam was

established during his premiership.

Due to the courage of the Malaysian people in persis-

tently voicing their objection (despite reprisals) to un-

just laws and abuse in its application, the last two Prime

Ministers, Tun Abdullah Ahmad Badawi and now Dato’

Sri Najib Tun Razak, had to listen to this voice and em-

bark on law reform; perhaps a product of their time,

they are also by character, reformists.

“THE VIOLATIONS OF AND RESTRICTIONS TO HUMAN RIGHTS UNDER THE PREMIERSHIP OF DR MAHATHIR MOHAMAD WERE UNPRECEDENTED.” LIM CHEE WEE

13

Tun Abdullah Ahmad Badawi established the Judicial Ap-

pointments Commission at the suggestion of the Bar, in reac-

tion to the VK Lingam video clip scandal involving the inap-

propriate involvement of politicians, business people and law-

yer in the appointment and promotion of judges. He had also

wanted to implement the Independent Police Complaints and

Misconduct Commission (“IPCMC”), but the strong objec-

tions from the police forced him to give up the idea and to

create the Enforcement Agency Integrity Commission

(“EAIC”) which lacked some of the powers and effectiveness

of the proposed IPCMC.

The present Prime Minister had pledged during his Malaysia

Day speech last year that,

“Be confident that it is a strength and not a weak-

ness for us to place our trust in the Malaysian peo-

ple’s intelligence to make decisions that will shape

the path of their own future. . . .It is absolutely

clear that the steps I just announced are none other

than early initiatives of an organised and graceful

political transformation.”

His greatest reform is the repeal of the ISA and the end of all

emergency related legislation passed under the three declara-

tions of emergency. The other notable reforms are amend-

ments to UUCA permitting freedom of association for univer-

sity students, amendments to PPPA allowing judicial review

and no more annual licensing. We are waiting with bated

breath the details of the proposed Law Reform Commission.

However, he has had a few missteps with the Peaceful Assem-

bly Act 2011 and radical departures from ordinary criminal

laws with the new laws of Security Offences (Special Meas-

ures) Act 2012 (“SOSMA”), amendments to the Penal Code,

Criminal Procedure Code and Evidence Act 1950.

Further, the Government’s threat of an alternative Bar in reac-

tion to strong criticisms by the Bar Bersih 3.0 and when the

idea was dropped, the proposal for the establishment of a Law

Academy is a sign of its inability to accept criticisms. All

three Bars of Bar Council, Advocates Association of Sarawak

and Sabah Law Association objected to the Academy on the

grounds that an association need not be created by legisla-

tion when it can be registered under the Societies Act 1966

and it should be formed by people who want it and not be

driven by government.

When it comes to international conventions, we have only

ratified three - Convention on Elimination of Discrimination

Against Women (“CEDAW”), the Convention on the Rights

of the Child (“CRC”) and the Convention on the Rights of

People with Disabilities (“CRPD”). However our weak-

nesses are, firstly with CEDAW, we have the refusal of the

Federal Court to grant leave in Beatrice A/P AT Fernandez v

Sistem Penerbangan Malaysia &Ors where the Court of

Appeal held that the applicant, an air stewardess with Ma-

laysian Airlines System had been rightly dismissed when

she became pregnant in contravention of the collective

agreement between the MAS employees union and MAS.

Secondly, we do not have adequate legislation protecting the

rights of the child. Thirdly, we have a Persons With Disabil-

ity Act that has no penalty for non-compliance.

Are there sufficient provisions in the Malaysian Consti-

tution for safeguarding human rights?

Our Federal Constitution is a well written constitution.

However, the people who breathe life into this document are

our Judges who swore an oath of office to preserve, protect

and defend the Federal Constitution. It is here that there are

more disappointments than comfort, although the bright

sparks are growing in number.

The disappointments include Shamala Sathiyaseelan v Dr.

Jeyaganesh C. Mogarajah involving essentially conflict of

laws between the separate jurisdictions of Syariah and civil

laws, over the custody and guardianship of children arising

out of the conversion of one spouse to Islam.

The Federal Court had an opportunity to resolve fundamen-

tal questions that affect public interest and real agony. It

refused to decide on the matter, on the basis that Shamala,

by leaving the jurisdiction with her children, was in con-

tempt of an earlier High Court order giving the father the

14

right of access to the children. This is an abdication of its role as

the ultimate arbiter in this dispute. Politicians have failed to have

either the will or courage to resolve this human agony.

The other is the Federal Court in PP v Kok Wah Kuan which by

majority held that the doctrine of separation of powers was not a

provision or concept adopted in our Federal Constitution even

though it influenced the framers of the Malaysian Constitution,

and that the extent of the power of the courts depends on what is

provided in the federal legislation. Instead of interpreting the

amended Article 121(1) in an progressive manner thus preserv-

ing the basic structure of the Federal Constitution which in-

cludes separation of powers, it gave a literal interpretation, an

interpretation which Dr Mahathir Mohamad had wanted in mov-

ing the amendment to the Article.

However, there is light now and in the horizon. One of which is

the decision in July 2011 of Justice Datuk Zaleha Yusof’s

enlightened and progressive decision in favour of Noorfadilla

Ahmad Saikin in the High Court at Shah Alam in ruling that the

Government’s revocation of its offer of employment, on the ba-

sis that the plaintiff was pregnant, was unconstitutional, null and

void, In so doing the Judge upheld the prohibition against gender

discrimination that is enshrined in Article 8(2) of the Federal

Constitution. The decision is a significant milestone in our juris-

prudence, as the Judge referred to CEDAW, which Malaysia

acceded to on 5 July 1995, and found that CEDAW is binding

on Malaysia. Just over 16 years after Malaysia’s accession to

CEDAW, our Judiciary has, at long last, recognised that CE-

DAW has the force of law in Malaysia, and that gender-based

discrimination by a public body is illegal. The question now is

whether our appellate courts will uphold this correct decision.

Our present Chief Justice is well respected for his judgments

and independence, and the question is whether he will have

a more active judicial activism compared to his predecessor

who was conservative.

How do we fare in comparison with the neighbouring

countries when it comes to human rights and justice?

The best reference is an assessment by a respected and inde-

pendent international body such as the Economist Intelli-

gence Unit which publishes the EIU Democracy Index. For

2011, compared to some of the other ASEAN nations as

Indonesia, Philippines, Singapore, Thailand and Vietnam,

Malaysia fared better than Vietnam for civil liberties and

worse than the other four countries. In terms of overall rank-

ing of our state of democracy was better than Indonesia,

Thailand and Vietnam.

In terms of assessment of justice, one of the better evalua-

tion reports is the World Bank’s Doing Business Report

2012 for enforcing contract where Malaysia is only second

to Singapore amongst the 6 countries I am examining on

this issue.

What would you like to see being changed in our Malay-

sian justice system?

In order to understand the context of my comments, I need

to set out the history of our Judiciary which is the most im-

portant stakeholder in the justice system because they make

the final pronouncements.

Our Judiciary prior to the 1988 Judicial Crisis, was univer-

sally respected and in reviewing the development of the Ma-

laysian Judiciary during the first 20 years of Independence,

the late Tun Mohamed Suffian bin Hashim (a former Lord

President) proudly observed in his book, The Constitution of

Malaysia: Its Development: 1957-1977 that,

15

and loss they have endured. For Tan Sri Eusoffe and

Tan Sri Wan Suleiman and their families, I know this

sentiment is made too late. For Tun Salleh Abas, Tan

Sri Azmi Kamaruddin, Tan Sri Wan Hamzah and Dato

George Seah, although this acknowledgement is 20

years too late, it is made with much hope that a measure

of the pain and loss may yet be healed.”

Whilst Tun Mohd Dzaiddin Abdullah in his keynote

speech at an IDEAS conference this year had said,

http://www.malaysianbar.org.my/

speecheskeynote_address_ by_tun_ mo-

hamed_dzaiddin_b_haji_abdullah_at_ideas_co

nference_empowering_liberal_ democratic_

institutions_11_feb_2012.html

“The tension between parliamentary and judicial pow-

ers has in the past been the seed which grew into great

controversies – the most obvious example being the

sacking of the then Lord President Tun Salleh Abas in

1988 which was the end product of the public differ-

ences between the then Prime Minister and Tun Salleh

Abas over the role of the court in interpreting statutes in

the context of its constitutionality and the exercise of

executive powers in terms of its reasonableness…

The most insidious outcome of this stormy tension in

the 1980s was the amendment to Article 121 of the Fed-

eral Constitution. Clause 1 of Article 121 originally

read, “Subject to Clause 2 the judicial power of the

Federation shall be vested in two High Courts of co-

ordinate jurisdiction and status… and in such inferior

courts as may be provided by federal law". After the

amendment, Article 121 reads, “There shall be two

High Courts of co-ordinate jurisdiction and status...

and such inferior courts as may be provided by federal

law”, but with an additional phrase subsequent to those

words, namely “and the High Courts and inferior

courts shall have such jurisdiction and powers as may

be conferred by or under federal law.” In simple term,

“The reputation that the Malaysian judiciary enjoys of be-

ing able to decide without the interference from the execu-

tive or legislature, or indeed from anybody, contributes to

the confidence on the part of the members of the public gen-

erally that should they get involved in any dispute with the

executive or with each other they can be sure of a fair and

patient hearing and that their disputes will be determined

impartially and honestly in accordance with law and jus-

tice.”

Dr Mahathir Mohamad was instrumental in weakening the

Judiciary by starting the process that led to the sacking of

three Supreme Court Judges including the Lord President

(the office is now known as Chief Justice) and the suspen-

sion of three Supreme Court Judges, and the amendment to

our Federal Constitution which reduced the scope of judicial

powers.

This has been acknowledged directly or indirectly by the

then Prime Minister Tun Abdullah Ahmad Badawi and Tun

Mohd Dzaiddin Abdullah in their public speeches.

Tun Abdullah Ahmad Badawi is his speech at a Bar Council

dinner in 2008 had said,

http://www.malaysianbar.org.my/speeches/

prime_minister_delivering_justice_renewing_trust.html

“For many, the events of 1988 were an upheaval of the na-

tion’s judicial system. Rightly or wrongly, many disputed

both the legality and morality of the related proceedings.

For me, personally, I feel it was a time of crisis from which

the nation never fully recovered.

Again, ladies and gentlemen, let us move on. I do not think

it wise or helpful to revisit past decisions as it would only

serve to prolong the sense of crisis, something our nation

can do without. The rakyat wants movement and progress,

not continuing strife.

Therefore, the Government would like to recognise the con-

tributions of these six judges to the nation, their commit-

ment towards upholding justice and to acknowledge the pain

16

this means that as a result of the amendment the “judicial

power” of the courts was removed and they had only such judi-

cial powers as Parliament gives.

The reason why this amendment is so objectionable is because

Parliament attempted to dictate to the Judiciary that it only has

the judicial powers which Parliament itself says the Judiciary

has. This alters, in my view, in a very fundamental manner the

basic structure of the Federal Constitution, from the concept of

independence of the Judiciary of its judicial powers to depend-

ence of the Judiciary on the executive for its judicial powers.”

What I want to see happen is as follows.

Firstly, easier access to court and here we do see that for the

controversial high profile cases courts either deny leave where

there is challenge to administrative decisions or the courts refuse

to hear the case involving the divide between the civil and

syariah court.

Secondly, consistent

and competent legal

representation by

good advocates. The

Bar acknowledges

that it has to do more

to raise the standard and it is doing so introducing mandatory

Continuing Professional Development Programme which in-

cludes advocacy training courses run by senior and experienced

barristers from UK.

Thirdly, independent and intelligent judges with integrity who

have sufficient time to read court papers, listen to submissions of

counsel and testimony of witnesses, think over the decision and

grounds, and write the grounds. Finally, an Executive and Par-

liament which understand the importance of the rule of law, the

role of and need for an independent Bar and Judiciary.

In furtherance to this understanding, the Government to provide

the resources and support to the Bar and Judiciary, notwithstand-

ing that these institutions are corrected by way of court decisions

or criticisms from lawyers.

To what extent are ordinary Malaysians aware of their

rights? What is, if any, the social role of the Executive in

informing the citizens of their rights? And what should

be done to bring about a greater awareness of their

rights?

Certainly Malaysians do not know enough, this view is

based on anecdotal experience compared to other developed

societies such as UK and certain European nations but there

are a significant number of civil societies who are doing

their part in educating the public, including the Bar through

its MyConsti campaign and the Redbook Pamphlet which

on rights and the police.

The Executive’s role at the minimum is to provide free and

easy access to the laws and here more work is needed. The

Attorney General Chambers is doing its part with its e-

federal gazette, www.federalgazette. agc.gov.my which

contains federal legislation since June 2011.

More importantly, is the necessity of a freedom of

information legislation which is a fundamental hu-

man right in itself where Malaysians are entitled to

government information. Instead, we have restric-

tion or denial of information in the form of Official

Secrets Act, 1972.

Are there any quarters left behind in the area of human

rights and access to justice? What can be done to im-

prove this?

Yes a significant number are left behind, the poor, refugees

and asylum seekers and members of the LGBT community.

The poor do not have adequate access to justice; refugees

and asylum seekers have no legal status in Malaysia and

lack access to lawful work, affordable healthcare and formal

education - economic and social rights we take for granted;

members of the LGBT community are persecuted and dis-

criminated against without a voice because politicians pub-

licly condemn them (although a few of them have family

members or friends who are members of this community)

for political mileage.

“I WANT TO SEE... AN EXECUTIVE AND PARLIAMENT

WHICH UNDERSTANDS THE IMPORTANCE OF THE RULE OF LAW ... AND AN INDEPENDENT

JUDICIARY”

17

What do you think of the current democratic situation in

our country Malaysia?

When a country moves from less democratic space to more

democratic space, it will go through a painful but cathartic

phase. Whilst there is a significant amount of negative and

pessimistic developments such as the mushrooming of Perkasa

and other extremist groups, intellectually challenged politi-

cians and declining education system without any resolve to

improve it in an immediate, systematic and comprehensive

manner, this is more than balanced by the good news of the

law reform programme led by the Prime Minister and assisted

by the hardworking lawyers in the Attorney General Cham-

bers, an increasing number of intelligent and articulate politi-

cians on both sides of the floor (e.g. Dato’ Saifuddin Abdul-

lah, Gan Ping Sieu, Tony Pua, Sivarasa Rasiah, Dzulkefly

Ahmad and many others).

What are your views on a 2-party system as de facto exists

in the UK for Malaysia?

This would be a healthy democratic development as we have

seen in other countries moving away from being governed for

long periods of time by a single party or coalition, such as

Taiwan, Japan, South Korea and Indonesia. Malaysia is proba-

bly a democratic country which has been ruled for the longest

time by the same coalition.

What are your views on the recent Bersih Rally? Do you

think it was appropriate to ban the rally outright?

The government did not ban it except that it obtained a court

order to prohibit entry into a certain area surrounding Dataran

Merdeka. In KL, the police brutality of physical assault, har-

assment, excessive use of non-lethal force without adequate

warning and mass arrests were condemned by the Bar. Con-

trast this to the peaceful rallies in five other cities on that day.

The police has not learnt from past mistakes in handling rallies

as highlighted by four Suhakam Inquiries Reports which were

produced during the period from 2001 to 2012.

Do you think the Police Act being replaced with the Free-

dom of Assembly Act is for the better? One of the provi-

sions under the Assembly Act bans street rallies outright.

What are your thoughts on this matter ?

The Bar has protested against the Peaceful Assembly Act

2011 (“PAA 2011”) and in fact drafted an alternative bill.

Some provisions in PA 2011 that are far more restrictive than

the current law, such as the banning of “street pro-

tests” (assemblies in motion or processions) and the unlimited

powers vested in the police to dictate the time, date, place and

conduct of an assembly. There are also provisions in PA 2011

that are simply illogical. As an example, although police do

not need to be notified of a religious assembly, such an assem-

bly cannot be held at a place of worship. Furthermore, a per-

son living within 50 metres of a kindergarten or school cannot

hold an open house for a festival, a funeral procession or a

wedding reception.

What do you think should be amended or included in the

Peaceful Assembly Bill which would align it more towards

upholding the democratic right to assembly?

Follow our Bill which can be read at,

http://www.malaysianbar.org.my/bar_news/

berita_badan_peguammalaysian_bars_memorandum_on_peac

uful_assembly_bill.html.

18

The Lexicon team with Mr. Lim

With the general elections looming ahead of us, what, in

your opinion, are possible reforms which the “new”

Government should implement to improve the state of

democracy in this country?

Many, let’s start with electoral reform where the Parliamen-

tary Select Committee’s Final Report lacked details for its

policies and deadlines for its recommendations. Government

should implement immediately these proposals after the

details are worked out by another bipartisan group. Establish

immediately the Royal Commission of Inquiry into Project

IC in Sabah with a deadline for implementing any of its rec-

ommendations before the next general elections. Address

the weaknesses in the legislation dealing with CEDAW,

CRC and CRPD. Establish the Law Reform Commission

along the lines of the Bar Council’s draft Bill which will

create an independent body accountable to the public and

Parliament. Amend the PAA 2011 to facilitate and protect

assemblies, amend SOSMA and the other laws relating to

security to ensure adequate safeguards, and prohibit media

entities from being owned by political parties.

As President of the Malaysian Bar Council, what do

you hope to accomplish during your tenure in the

field of human rights and access to justice?

A working National Legal Aid Foundation programme

where every citizen has access to a lawyer during arrest,

remand, bail and mitigation; this Foundation was

launched by Prime Minister in February 2011 and

started operation in April this year.

This will go a long way to ensure access to justice. That

the outspoken voice of the Bar, our activities such as

MyConsti in educating Malaysians of their constitu-

tional rights, our Human Rights Committee for human

rights education, and our intervention in court proceed-

ings acting for Orang Asli in protecting their native cus-

tomary rights in land, and watching brief in constitu-

tional and important human rights cases, will push the

boundaries in the right direction of more freedom and

liberty for all.

19

Law Speaker Series 2012:

An Inspirational Talk by Dato' Mahadev Shankar

SUGRIIVA PARAMASIVAM & KESSIE DULTHUMMON

have to ignite your mind”, those were the opening words used by Adjunct Professor

Dato' Mahadev Shankar during his inspirational talk on the 20th of October 2011 with the students of Tay-lor's Law School. The talk was meant to spark a flame in the minds of the young lawyers to-be, and to inspire them to achieve greater heights. Dato' Shankar started off by highlighting 2 important four-letter words - 'Time' and 'Life'. According to him, Time is Life and we, students, should make the most of our time here, by bringing out our talents, whilst becoming better human beings on this journey.

The 79 year old former Court of Appeal judge went on to describe briefly the sad events that took place on the 13th of May 1969 in Malaysia – the time when numerous outbursts of racial violence occurred within the country. He compared this event to the happenings a few months later on the 20th of July 1969 in America, when 2 men had landed on the moon. The amount of unity shown by the Americans to achieve such a great feat tells us just how far Ma-laysia was left behind. Dato' Shankar then said, “When you look at the Earth from the Moon, you get a sense of responsibility - that your life is not your own.”

Later in his talk Dato’ Shankar inspired us to have that sense of responsibility towards those around us when he encouraged us to study and help this world as it depends on us, the new generation, to make it a better place. In this world where many have yet to overcome the instinct of self-centeredness, he also inspired us to be driven by compassion, love and

understanding, and not by money, greed and power.

At the age of 79, Dato’ Shankar is well aware that the younger generation is relatively a lot more tech-savvy and knowledgeable than those of his genera-tion. Nevertheless, in his opinion, “the weapons of war will always change, but the art of war remains the same”, and he is here to teach this young genera-tion the art of war. Before concluding his talk, Dato' Shankar shared a true story which made a great impact upon his life. It is the story of Samuel Eliot Morison, a great Ameri-can navy, sailor and historian who said, “There is no such thing in the world as a safe haven; only more stormy seas out there, and outer space.” That perti-nent statement woke him up to have that same bold and embracing attitude towards life as the 82-year old Morison. On an ending note, Dato' Shankar left us with a word of advice: “Your greatest challenges and greatest vic-tories are not victories you win outside, but those you win within yourself.”

“I

20

Law Speaker Series 2012: A Talk on Legal Aid

SUGRIIVA PARAMASIVAM

  

n the 18th of November 2011, Taylor's Law

School was honoured to have the Director of

External Relations and Clinical Education from the

University of Manchester, Mrs. Dinah Crystal OBE, to

share with us her experience in running the Legal Ad-

vice Centre (LAC) in the University of Manchester.

Mrs. Crystal is the director of the said Legal Advice

Centre.

The LAC in the University of Manchester was founded

in the year of 2000, with the aim of providing legal

services to those who could not afford it. The pro bono

LAC also helps the law students of the University of

Manchester to acquire practical knowledge by allow-

ing them to gain first-hand experience in dealing with

clients and researching on real life cases under the su-

pervision of legal practitioners, all of whom are volun-

teers for the LAC. Mrs. Crystal observed that medical

students had to do practical work in the hospital, apart

from their clinical education, and she wanted the law

students to have practical experience as well through

the LAC, stating “Aside from learning from clinical

service and observing how important the black letter of

the law is, you're also doing a service to the commu-

nity.”

Mrs. Crystal explained how volunteering for the LAC

benefits law students from both the academic and

practical perspectives. It allows students to gain a

clearer view of legal knowledge, via the research

done for the clients, whilst helping students build

crucial teamwork skills, which is one of the most

sought-after skills in any job application. Students

involved in the LAC are currently working alongside

practicing barristers and solicitors, including one of

Britain's most prominent human rights lawyer - Mi-

chael Mansfield.

The work Mrs. Crystal has in the field of pro bono

Legal Aid is truly remarkable, though she admitted

the process was not an easy one, having been denied

legal funding the first time. Today, 11 years through,

the University of Manchester LAC is sponsored by

Clifford Chance and Hill Dickinson, both major

global law firms based in London and Liverpool re-

spectively. As of October 2009, a new LAC branch

was launched and is currently functioning in the Set-

tlement, East Manchester.

Taylor’s University has our very own Legal Aid

Centre as well. However, it is, according to the Act-

ing Dean of Taylor's Law School, Mr. Harmahinder

Singh, “at the stage of infancy.” Mrs. Crystal had

certainly inspired students from Taylor’s Law School

to strive and make the Taylor’s Legal Aid Centre a

success and contribute back to the society by helping

more people in need.

O

As the age old adage goes, “Rome was not built in a day,” there-

fore students from the law school should seize this chance and

volunteer in the Taylor’s Legal Aid Centre, so that someday we

can look back and proudly say, “I was there to help set the build-

ing blocks for something that is changing the lives of people to-

day.”

“Aside from learning from

clinical service and observing how

important the black letter of the law is, you're also doing a

service to the community.”

21

Law Speaker Series 2012: Qualities of a Lawyer

n the 22nd of February 2012, Mr Steven Thiru,

being invited by Taylor’s Law School, gave a

talk on the qualities of a good lawyer to first and second

year law students. Mr Thiru is a member of the Malay-

sian Bar Council and a litigation partner at renowned Ma-

laysian law firm Shook Lin & Bok.

The focus of Mr Thiru’s talk was to elucidate to us soci-

ety’s expectation of a lawyer by illustrating nine qualities

that he deemed essential in distinguishing between an

average lawyer and a good one. Before delving into these

qualities, he advised us to never have a sense of arrival,

no matter at what stage we are at our legal careers; every

step is a passage to arrival. The day when we have a

sense of arrival, is when we stop challenging ourselves to

achieve greater things.

Firstly, Mr Thiru shared that having the right attitude is

vital for any good and aspiring lawyer. We must have

humility and willingness to learn about the profession,

especially when we make mistakes.

The second and third qualities that a good lawyer pos-

sesses are that of discipline and hard work. This includes

having good time-management skills, as lawyers are con-

stantly faced with strict time limits. Aspiring lawyers

must not be averse to hard work, because in the legal pro-

fession there are no short cuts – commitment and sacri-

fice would be needed.

Another very important quality is having a good

command of English, for after all is not the legal pro-

fession known for its flair and articulation of the lan-

guage, besides knowledge of the law? Unfortunately,

Mr Thiru and other senior lawyers have noticed a

drop in English proficiency among lawyers today.

Some more needed qualities for a good lawyer in-

clude the need to constantly read within and around

the law; to have a firm knowledge of the law; and the

tenacity to constantly do research.

The final quality that Mr Steven shared and which he

identified as most important is to adhere to ethical

values, such as integrity and honesty. These values

are necessary as the very essence of being a lawyer is

to minister to society.

A year 2 student posed a question to Mr Thiru asking

him if there were much competition in the legal

world. According to Mr Thiru, there are many new

law graduates yearly, however many are just concen-

trated in KL and about one-third of the new graduates

he interviewed had a problem with attitude and lan-

guage skills. Therefore, if you possess all the neces-

sary qualities mentioned, the legal environment out-

side will be conducive towards you.

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EBBIE WONG

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In ending, Mr Thiru stirred respect for the law profession by reas-

serting that it is a great calling and an honest and honourable pro-

fession. With more than twenty years of legal practice, Mr Thiru

gave a talk filled with practical wisdom and advice relevant to us

fresh law school students and as well as to any practicing lawyer.

“every step is a passage

to arrival”

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Annual Law School Student Orientation 2011

n conjunction with the reopening of the Fall 2011 schooling session,

the annual Law School Student Orientation, organized by the Tay-

lor’s Law Society, was held to greet the new school year in.

The occasion, which took place on the 18th of October 2011, was a joyful

event in which both returning and newly enrolled students participated.

The Moot Court, being the venue of choice, contained a buzz of excite-

ment radiating from the students as the activities began, which consisted

of a variation of team building and ice breaking sessions – such as forming

a ‘Human Chain’ of bodies and arranging themselves according to differ-

ent topics while remaining silent.

In addition to that, first year students were also given the opportunity to

meet their second year seniors through the traditional law school buddy

system – head hunting their specific seniors by matching the assigned tags.

Lastly, a round of charades was also well in place as groups of senior-

junior teams, comically ‘moved’ against time to narrowly escape the im-

pending punishment of a wasabi meal. With still very much high spirits

intact, the day drew to an end, establishing new bonds and rekindling old

friendships – marking a successful orientation gathering that the commit-

tee had put together. With this excellent kick start to the new schooling

term, Lexicon wishes returning students welcome back and to those of you

who have recently joined us –welcome on board!

SYAHIDA SHAMSUDDIN

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I

Annual Law School Student Orientation 2012

o welcome in the January Cohort of 2012, the

seniors from Year 2 and the October Cohort of

2011 organised an Orientation session on the 10th of

January 2012.

The event was held in a large lecture theatre where sev-

eral ice-breakers were played. Some of these ice-

breakers included the juniors having to identify the sen-

iors they are paired up with by making the sounds of

different animals. This game, along with hilarious

dance routines as penalty for a losing team, did indeed

break the ice very quickly between the seniors and the

new intake.

Furthermore, the Seniors and the newly elected Law

Society Committee members from the October 2011

and January 2012 Cohorts went to great lengths and

organised a Bonding Day on the 15th of March 2012

as an extension of the Orientation Day. The aim of this

Bonding Day was for the Juniors and the Seniors to

bond over several team building sports event.

There were wide-ranging sports activities from a wa-

ter-shooting game of tag to basketball. A few of the

participants good-naturedly remarked that this was a

rare occasion where the law school students were

tested for their physical strength and sporting abili-

ties, rather than just their mental dexterity.

At the end of the tiring yet fun sports events, the ex-

hausted participants were greeted with numerous

stacks of pizzas and other party food to refresh and

rejuvenate them. To end the night, several perform-

ances were delivered by the Law School’s very own

students, demonstrating a wide range of talents from

singing to playing the instruments amongst the law

students.

These events certainly did bring the law school stu-

dents together, and was an encouragement to the new

intake that the Seniors are around to help make their

entry into law school a pleasant one.

EBBIE WONG

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photo courtesy of Ooi H

ui Ying

Photo courtesy of Jessie Lim

T

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n the 6th to the 8th of December 2011, Taylor’s Law School organised the Law Awareness Week, in collabo-

ration with various non-governmental organisations, including COAR, FOMCA, SUARAM and SUHAKAM. Four promi-nent legal practitioners, including the vice president of the Malaysian Bar, Mr Christopher Leong, were the special guests invited for this event.

With a lecture hall filled with eager and anticipating students, the day started with an opening speech by Lena Chua, Presi-dent of Law Society. This was followed by a welcoming speech by Mr Harmahinder Singh, Dean of Taylor’s Law School, and Professor Dato Dr Hassan Said, Vice-Chancellor & President of Taylor’s University. Mr Christopher Leong, Vice-President of the Bar Council of Malaysia was given the honour of officially launching the Law Awareness Week.

The first day of this event brought forward several insightful talks by the guest speakers. Emeritus Professor Datuk Dr Shad Saleem Faruqi from University Teknologi MARA was the first speaker addressing the right to counsel in Malaysia. The speech was about, among other things, the appearance in front of a judge for the purpose of issuing formal charges, prelimi-nary hearings, indictments where formal charges are brought against the accused in front of a grand jury. Following him, Mr Christopher Leong shared on another practical and inter-esting topic: The Right to a Fair Trial. The right to fair trial is an essential right in all countries respecting the rule of law.

A trial in Malaysia that is deemed unfair will typically be restarted, or its verdict voided. The talk covered areas mainly on the cooperation with human rights mechanisms, implementation of international human rights obligations and administration of justice and the rule of law.

Ms Goh Siu Lin, Secretary for the Association of Women Lawyers then delivered on a topic close to heart for many of the members of the audience – a talk on women’s rights.

Ms Goh started by stating that women's rights are entitle-ments and freedom which have not been automatically given in many societies, but rather they are freedoms that have been fought over and won for women and girls of all ages. The talk consisted of several interesting points, in-cluding gender discrimination throughout a lifetime, fem-inization of poverty, woman reproductive rights and popu-lation issues, and lastly women militarism and violence. The talk was concluded with an aspiring quote by women activist Eleanor Roosevelt:

“You learn by living, you gain strength, courage and confi-dence by every experience in which you really stop to look fear in the face. You are able to say to yourself, I lived through this horror. I can take the next thing that comes along.’" Ms Lin challenged women to continue to ensure their rights are not ignored, no matter how many obstacles they face.

LAW AWARENESS WEEK 2011 PRAVEENNA RAJENDRAN AND SUGRIIVA PARAMASIVAM

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At the end of the day’s session, the students had the opportunity to come up close with the speakers and ask questions regarding the three topics namely The Right to Counsel in Malaysia, The Right to a Fair Trial, and Women’s Rights. The guest speakers gave more explanations and insights during the questionnaire session. The speakers enjoyed the presence and company of the students and were pleased to be able to impart some thoughts and advice to the students.

The second day of the Law Awareness Week started with exhibi-tions by various NGO’s in front of the Student Life Centre, a com-mon ground for most students in Taylor’s University to pass by. At the same time the Year 2 students were having an advocacy project on Gay Rights, where a research was conducted in order to discover the number of Malaysians that supported gay rights, and the reasoning behind it.

Later in Lecture Theatre 13 the Year 1 students had their Legal Skills Presentation, where 9 groups over the course of two days, delivered from a wide array of interesting topics ranging from In-digenous People’s Rights, Refugees’ Rights, the Death Penalty, and Freedom of Association and Assembly. The third and final day of the event continued with the exhibitions by various NGO’s in front of the Student Life Centre and the con-tinuation of the Year 1 students Legal Skills presentation. These Legal Skills presentations were judged by guests, including repre-sentatives from the various NGOs. The most outstanding group, which spoke about Refugees' Rights, was commended on their effort – they had actually visited a refugee camp, and even invited an ex-refugee to give a speech about his experience as a refugee here in Malaysia. The Year 2 students conducted a Criminal Mock Trial at 11 am in the Moot Court. The Mock Trial was designed in a way that it would be both entertaining and educational, and judging by the reaction of the students watching it, they had succeeded in both aspects. The Law Awareness Week, on all accounts, could be said to be a resounding success; hard work and determination on parts of both the Law School faculty and students paid off. On an ending note, the students of Taylor’s Law School would like to thank the fac-ulty of Taylors Law School and the guests for arranging such an overwhelming wonderful experience, which will definitely aid us in our future careers, be it legal or non-legal.

Photos courtesy of Neo H

wee Y

ong

Year 2 students in a mock trial

Panel speakers (seated) together with Taylor’s Law School lecturers and staff

The Palace of Justice & Attorney-General’s

Chambers Experience PRAVEENNA RAJENDRAN & SUGRIIVA PARAMASIVAM

administration of justice in carrying out its prosecutorial

functions.

The Attorney General (A-G) is the highest ranking public

prosecutor in Malaysia. During our visit we were exposed

to the various jurisdictions and departments within the A-

G’s chambers, such as International Law, Criminal Law

and also Sharia Law. Sharia Law is a field of law specific

only to Muslim countries, such as Malaysia, a country

with Islam as the main religion. We were invited to have

tea with the staff of all the departments within the A-G’s

Chambers, where the staffs explained the functions of

each department. It was a very interesting experience,

coupled with the joy of having tea with members of the

A-G’s Chamber.

Through this trip, we gained a hands-on experience of the

legal profession, apart from our University legal educa-

tion. Surely, we were offered a glimpse into what the legal

world would be like.

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On an ending note, we would like to thank Ms. Heama

Latha Narayanan Nair for arranging such an overwhelm-

ingly amazing trip, which has truly given us valuable

knowledge and experience. We hope to be able to partici-

pate in more trips like this and one day be the very ones

who contribute back to society.

n January 16th 2012, first and second year students

from Taylor's University’s Law School had the privi-

lege to visit the Palace of Justice and the Attorney-General’s

Chamber in Putrajaya, accompanied by our lecturers Ms

Heama Latha Narayanan Nair and Dr Jerry I-H Hsiao. The

Palace of Justice houses the Malaysian Court of Appeal and

Federal Court. Interestingly, the Palace of Justice has a net-

work of passages to separate the Judges, witnesses, public, and

the accused while leading them to the courts. This is for the

safety and security of everyone involved in a court proceed-

ing. Upon reaching the Palace of Justice, we were given a

warm welcome and a short briefing by an officer who was in-

charge of attending to us. We were then brought to the hearing

rooms of both the Federal and Appeal Courts. All of us were

looking forward to watch the proceedings. Unfortunately,

there was no proceeding on that day however we were still

brought to visit the courtroom. Without a doubt, sitting in an

actual courtroom sparked our interest in the legal profession.

We were brought for a tour around the court library where

there were classic collectibles, used textbooks, and law study

aids and outlines, all of which are useful to interpret and af-

firm various legal codes. The highlight of the library tour was

having the privilege to see the Archbold, a book much talked

of by our lecturers. In the mini museum, displays and exhibits

were focused on local history of court proceedings, which was

full of culture and traditions as seen in delicate relics that were

used.

After visiting the Palace of Justice, we had the opportunity to

visit the Attorney-General’s Chambers (AGC). The AGC

plays a pivotal role in enhancing the rule of law and strength-

ening the efficiency and integrity of Malaysia’s legal system.

It also assists the Judiciary in the fair and impartial

O

Leaving for Bangkok via a flight on the 22nd of February, the group arrived at Suvarnabhumi Airport in Bangkok at 3pm on the same day, and was immediately introduced to the tour guide known by all as ‘Uncle Kong’. The cheer-ful Thai local gave the group a brief introduction to Thai-land and its capital, Bangkok, during the journey from the airport to the Emerald Hotel where the group would be putting up for the next 4 days.

The study trip officially began the next day, with a visit to one of the biggest law firms in Thailand. The ‘Baker & McKenzie’ law firm originates from the United States. Today, it has branches all around the world, including Malaysia and the United Kingdom.

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UNFORGETTABLE BANGKOK SUGRIIVA PARAMASIVAM

aylor’s Law School has, for the past 2 years, been

organizing study trips to other countries. The pur-

pose of these trips is to expose the students to the legal sys-

tems of countries besides Malaysia and the United King-

dom. This is a great feat, as most law colleges and universi-

ties only have local visits to the parliament and courts

within the country. Thanks to the dedication of Dr. Markus

Petsche, one of the lecturers in Taylor’s Law School, in or-

ganizing the study trips, Taylor’s law students now have an

opportunity to gain first-hand experience of the legal work-

ings of countries around the world by actually stepping into

that country, and not just read off a text book.

Last year, Taylor’s Law School organized a study trip to

Manila, Philippines. The trip was a success, with a large

number of students participating in the trip.

This year however, the destination set was Bangkok, Thai-

land and judging by the number of students alone, this trip

was to be the largest Taylor’s Law School had seen thus far.

A total of 40 students had participated, consisting of both

Year 1 and Year 2 law students, along with three lecturers to

accompany and monitor the trip.

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Students were given talks by practicing lawyers in the

firm on how the legal system works in Thailand. They

were also briefed on the necessary skills required by a

good lawyer, skills that were required if one wishes to

practice in ‘Baker & McKenzie’. “I definitely learnt a

few things from the talk. The ways in which the law-

yers in Baker & McKenzie look at cases are com-

pletely different. A fresh perspective for us,” says

Year 2 law student Medina Torabally when asked

about her opinion on the talk. The best word to de-

scribe the law firm would be, as Year 1 law student

Syed Zaid Rahim puts it, “Impressive.”

The group then set their destination to

the Central Intellectual Property and In-

ternational Trade Court of Thailand,

where they had received a pleasant wel-

coming speech by one of the judges for

that court. The group was introduced to

the structure of the court, and was even

allowed a peek at the courtrooms inside. The court

was not a small one, but rather it was an enormous

maze of offices, hallways and courtrooms. Students

were thrilled to see such magnificent architectural de-

signs. After this visit, the group called it a day, and

headed back to the hotel to rest.

On the 3rd day, the group headed to Chulalongkorn

University, one of the most prestigious universities in

Thailand. There, the group was welcomed by the Law

Faculty of the university. A tour of the campus was

given, and the students were indeed amazed at how

well developed the Law Faculty was. It had three

floors in the library dedicated to Law books and jour-

nals alone, along with a large moot court

After visiting Chulalongkorn University, the stu-

dents visited a few other cultural sites in order to

discover the culture and history of Thailand that

helped shape the Thai legal system. These places

included the aptly named Grand Palace, where

buildings, gold and bejeweled, still stand marvel-

ously despite being centuries old.

This magnificent site, steep in history, is where

the monarch once resided, and one of its current

functions is for official ceremonial occasions.

This place also houses the Royal Court and the

administrative seat of the Thai Government.

“THE MOST MEMORABLE EXPERIENCE

IN THEIR LIFE”

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“STEP OUT AND BROADEN YOUR

HORIZONS, IT IS

DEFINITELY WORTH IT.”

On the final day of the trip, the group headed to the

Chaophraya River for a cruise. The boat ride led to

Wat Arun, another historic monument located in

Bangkok.

During the flight back home to Malaysia, It was

clear based on the expression of the students’ faces

on the way back home that they were tired, but

nevertheless the students agreed that they had the

most memorable experience in their life learning

about the legal system of Thailand, a land rich in

culture and history. “I’ll definitely remember it for

the rest of my life,” says Year 2 law student Larissa

Ann Louis. To future law students in Taylor’s Law

School, take the advice of your senior, and join the

Law School’s study trips. Step out and broaden

your horizons, it is definitely worth it.

Lexicon Editorial Committee

Staff Advisor

Harcharan Singh Ujagar Singh

Editors Ebbie Amana Wong

Nicole Jo Pereira Praveenna Rajendran

Nelson Kiu Kwong Dieng

Reporters Sugriiva A/L Paramasivam

Praveenna Rajendran Kessie Dulthummon Syahida Samsuddin Ebbie Amana Wong

Design and Layout

Ooi Hui Ying Ebbie Amana Wong

Photography

Sugriiva A/L Paramasivam

About the Lexicon

The Lexicon intends to provide the students of Taylor’s Law School with an avenue for legal discourse so as to enhance critical thinking and analysis. It accepts and reviews articles as well as case notes on le-gal issues which are of current interest. Law school events are also being reported in this legal newsletter as a record of the activities that the students have participated and organised throughout the semester.

Contact Details

Lexicon is a publication by the students of Taylor’s Law School. For further information or enquiries please contact the Lexicon Editorial Committee at:

lec.thelexicon@gmail.com

TAYLOR’S LAW SCHOOL, TAYLOR’S UNIVERSITY,

LAKESIDE CAMPUS

No. 1 Jalan Taylor’s , 47500 Subang Jaya, Selangor Darul Ehsan,

MALAYSIA. Tel: 03-56362641 Fax: 03-56345209

The views expressed by the contributors are not necessarily those of the Editors or Taylor’s Law School. Whilst every effort has been made to ensure that the information contained in this journal is correct, the Editors cannot accept any responsibility for any errors or omissions, or for any consequences resulting therefrom.

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