MALAYSIAN JUDICIARY WANTS COMPLETE INDEPENDENCE FROM THE EXECUTIVE

JUDICIARY’S CALL FOR COMPLETE
INDEPENDENCE FROM THE EXECUTIVE LONG OVERDUE

The Malaysian Bar fully supports Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim’s recent statement that the judiciary must be completely independent of the executive, and his call for Sessions Court judges and magistrates will come directly under the Chief Justice. This call which also included a doing away of the Judicial and Legal Services Commission was reported in all mainstream media. (see “Break for justice” (NST 22/8/2006),” CJ: Revamp needed for a fully independent judiciary” (Sun), “Independent judiciary proposed” (Star).)

Rather that reporting what was reported, I merely quote extracts from the NST report, that will highlight some of the points that were made by the CJ in the said report :-

“The judiciary is seeking complete independence from the executive.

It served notice yesterday of its intention to "influence" the Government to abolish the Legal and Judicial Services so that Sessions Court judges and magistrates will come directly under the Chief Justice.

Being under the Legal and Judicial Services, Sessions Court judges and magistrates are considered civil servants.

Although they are answerable to the Chief Justice once appointed as Sessions Court judges or magistrates, they can be transferred out of the judiciary or promoted anytime — even in the middle of a trial — by the Federal Court Registrar and the Attorney-General’s Chambers.

And as long as Sessions Court judges and magistrates were considered civil servants, Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim said, they could not be fully independent. A clear line must be drawn to indicate they were not part of the Government.

"Because for as long as you are looked upon as government servants, then you cannot be independent.

"It is part of democratic principles that we must have an independent judiciary. Without that, there will not be the rule of law," he added.”

Bar Council supports the CJ’s call
In a related report entitled, “Legal experts welcome proposal” (NST), Bar Council chairman Yeo Yang Poh said the Bar Council had long held the position that magistrates and the Sessions Court judges should be considered part of the judiciary.
Malaysian Bar has been calling for this since 2000
At the 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000, the following resolution was passed unanimously, and the resolution is laid out below for members of the Bar to appreciate and also realize that our calls do gain support and do bear fruit even if it may be a bit long in coming.

“Whereas:-

1. Today, for more than 90% of the criminal cases, the Magistrate’s Court and the Sessions Court are the courts of first instance. With regard to civil and commercial matters, the lower courts have the jurisdiction to hear disputes where the sum disputed or the value of the subject matter is not exceeding RM250,000.00.

2. The mechanisms provided in the Federal Constitution to ensure the independence of the Judiciary (i.e. judges of the High Court, Court of Appeal and Federal Court, the Chief Justice, and President of the Court of Appeal and the Chief Judges of the High Courts) does not extend to Magistrates and Sessions Court Judges.

3. For example, Magistrates are being remunerated at the scale similar to those of other civil servants with equal education qualification and length of service.

4. All members of the Judicial Services, which includes Magistrates and Sessions Court Judges, and the Legal Services come under the jurisdiction of the Judicial and Legal Service Commission (ref. Art. 138 Federal Constitution), whereby the Attorney General is a member of the said Commission. Thus, the “prosecutors” and “judges”, especially when it comes to criminal matters, come under the jurisdiction of the same Commission and this does not augur well, for “justice must not only be done but also be seen to be done”.

5. Some Magistrates have been appointed as Deputy Public Prosecutors (DPP), and some DPPs have also been appointed as Sessions Court Judges.

6. Many Magistrates appointed are fresh law graduates. The only pre-requisite for the appointment as a Magistrate or a Sessions Court Judge is that he/she must be a member of the Judicial and Legal Services (see sec. 60 & 78A of the Subordinate Courts Act 1948). There is no other qualifications requirements akin to those provided for in Article 123 of the Federal Constitution when it comes to the appointment of the judiciary.

7. As officers of the Court, lawyers have a duty to be proactive in making constructive suggestions for the improvement of the administration of justice in Malaysia.

It is hereby resolved:-
A. That the Malaysian Bar expresses concern about the lack of mechanisms and safeguards to ensure the independence of Magistrates and Sessions Court Judges in the lower courts.
B. That the Bar Council be proactive and work towards bringing about reforms in the administration of justice in the lower courts in Malaysia, having special regard to the :-
(a) qualification of Magistrates and Sessions Court Judges;
(b) introduction of Mechanisms or Safeguards to ensure greater independence of Magistrates, Sessions Court Judges and other judicial officers; and
(c) the necessity of separating the Judicial Services and the Legal Services.

Proposer: Mr Charles Hector, Seconders: En. Amin Hafiz
Ms Mary Manickam (This Motion was unanimously carried)”

Just bringing the Session Court Judges and Magistrates under the Judiciary is not sufficient…

It is important that it also be extended to the Senior Assistant Registrars(SARs), Deputy Registrars and the Registrars as well. There is also a need to put into place mechanisms and safeguards; like that we now have for Judges, for these judicial officers.

There is also a need to look into the selection process of judicial officers. It is absurd today that we have some young graduate sitting as SARs of the High Court making decisions that may lead to judgment for the Plaintiff or the striking out of the suit for some reason or another. One wonders why we have things like monetary jurisdictions and other jurisdictions for Magistrate Courts, Session Courts and the High Courts at all.

There was thinking at one time that we should not have a person of less than 5 years standing sitting as a Magistrate or in any other judicial position. This would be a good thing, realizing that in Malaysia, we still treat our university students as “school students” who are expected to just learn and not get involved in affairs of the “rakyat”, politics or the State. University students are not even allowed to “sympathize”, let alone mingle with politicians (especially those not in the ruling coalition) and/or even the trade unionists.

Hence, it would be best that some years of working experience outside the artificially controlled environment created by the Universities and Universities Colleges Act (UUCA) and the other Acts that covers private colleges would be good.

There must be no discrimination based on years of standing with regard to lawyers, but for persons who shall be sitting in a judicial capacity, there must be a certain number of working years experience. We need possibly some sort of judicial appointment commission who will be looking also at the appointment of judicial officers.

If we still do want to get fresh graduates appointed as judicial officers, then maybe they should be appointed as SARs and DRs but their role must be reviewed. Maybe SARs and DRs must just be there to assist Judges, in doing the necessary research work and not sitting and hearing interlocutory applications save for those that will not have the effect of giving final judgment and/or dismissing a suit.

Court Police

There may be a need to create a new body of “court police”, who is separate and independent of our normal police. This “court police” would be under the judiciary and should be wearing a different kind of uniform. This would be in the public interest.

Now, a person is arrested by the police, interrogated and sometimes “tortured” by the police. He is then brought before a Magistrate within 24 hours, and standing round and beside the Magistrate the suspect sees the same police (the same uniform), and naturally, he is scared to even complain about any failings and/or “torture” by the police during his arrest and detention to the Magistrate.

In court, after he is charged, every time he comes day to court in a criminal case, he sees the same police (same uniform) sitting and recording in court, leading him in and out of his court lock-up, and that too may put “fear” into some accused persons from disclosing what some other police persons had done to him which may be relevant to ensure that justice is done. There is thus a need for a court police.

Likewise, we must also be thinking of getting all court staffs under the judiciary, and separate from the executive.

All these and other things are important in ensuring not just an independent judiciary – but also a public perception of an independent judiciary.


Charles Hector
23rd August 2006
Petaling Jaya

MALAYSIAN BAR’S CREDIBILITY INTACT AFTER EGM

The Malaysian Bar made it most clear that it is against all those provisions in the Legal Profession (Amendment) Bill 2006 that would undermine the rule of law, including that provision that specifically removed the right to judicial review. This, once and for all, clarifies the misconception that the Malaysian Bar was totally in support of LPA(Amendment) Bill 2006. The Bar only gives its full endorsement for the provisions in the said Bill that that called for the repeal of the restrictions placed on young lawyers of less than 7 years standing section 46A(1)(a) and the reduction of the quorum under section 67.

About 3,400 lawyers turned up for the Extraordinary General Meeting of the Malaysian Bar that was held at the Dewan Lee San Choon, Kuala Lumpur at 3.00pm on Friday (18/8/2006). Heavy rain and the Friday lunch-break traffic jams did not stop lawyers from coming and achieving the onerous quorum of about 2,500 (being 1/5th of total number of members of the Bar) by about 3.20pm. Quorum had to be achieved latest by 3.30pm for an EGM.

The Requisition
The EGM was called following a handing over of requisition notice to the Bar Council signed by 130 lawyers that was handed over to the Bar Council at about 12-30pm on Monday, 31/7/2006. This was done in response to unhappiness about some of the provisions to the Legal Profession (Amendment) Bill 2006, which surfaced sometime around 4/7/2006, which was rushed through the Dewan Rakyat, and was passed by Dewan Negara just shortly before the requisition notice was handed over.
For the sake of completeness, the said requisition notice that contained the objects for calling of a EGM read as follows:-

“We, the undersigned members of the Malaysian Bar hereby requisition a General Meeting of the Malaysian Bar with the object of: -

a) Calling for the immediate removal of and withdrawal from consideration of those provisions of the Legal Profession (Amendment) Bill 2006, which is presently before the Dewan Negara, which in relation to advocates and solicitors’ disciplinary proceedings oust judicial review, limits the right of appeal, curtails the advocates and solicitors’ right to be heard, imposes secrecy the proceedings of the Disciplinary Board and Committee, enables the Board to make restitution orders against the advocate and solicitor, and breaches the advocates and solicitors right against self–incrimination. The said provisions are those between clauses 18 and 33 of the Bill.
b) Calling upon the Bar Council to oppose vigorously and without compromise all legislations which in any way prejudice the principles of natural justice and fairness”

How and why the requisition notice was filed, from my perspective, could be seen from an earlier article of mine entitled “130 lawyers requisition for a General Meeting of the Bar”. The idea for the requisition came from me and N. Surendran, and the drafting was done by us together with Chew Swee Yoke. Annou Xavier in an earlier posting in a yahoo group did also suggest a requisition. I state this point to dispel suggestions by some that this was all an initiative from some “opposing factions to those who lead the bar today” or from some “enemies” of the Bar (not really knowing what that means). Those who signed the requisition were individual concerned lawyers not just from the Klang Valley, but also from far off JB and Penang.

The Motion that became a Resolution of the Malaysian Bar
At the 18/8/2006, the motion that was proposed by Raja Aziz Addruse and seconded by Dato Param Cumaraswamy, was passed with an overwhelming majority as it was as is stated below

Noting that the Legal Profession (Amendment) Bill, 2006, has been passed by the Dewan Rakyat and Dewan Negara very recently and is awaiting the Royal Assent and Gazette Notification to bring the amendments into force:

Further noting that members of the Bar were not consulted on the several wide ranging amendments contained in the Bill and did not, therefore, have an opportunity to give their views or to be heard on those amendments.

And noting further that save for the repeal of the restriction on the election to the Bar Council and the Bar Committees of any advocate and solicitor of less than seven years standing under Section 46A(1)(a) and the reduction of the quorum under Sections 67 (both of which have the full support of members of the Bar), the amendments have far reaching implications affecting members over disciplinary measures and procedures and, in removing the right of judicial review of any decision or order of the Disciplinary Board, would undermine the rule of law which the Bar has consistently upheld and promoted.

The Malaysian Bar hereby resolves as follows:
(1) that the Bar Council request the appropriate authorities in the Government to bring into force immediately only those amendments referred to above as having the full support of the Malaysian Bar, but to put on hold for the time being the other amendments;
(2) the Bar Council set up an adhoc committee consisting of not more than seven senior members of the Malaysian Bar to carry out in depth study of the implications of the amendments on the Malaysian Bar and the legal profession, and, for that purpose to receive and consider such representations as may be made to it on the amendments;
(3) that the adhoc committee advise the Bar Council within six weeks as to which of the amendments should or should not be brought into force;
(4) that the Bar Council thereafter recommend to the competent authorities accordingly.


There were some proposals for amendment, but the proposer chose not to make any amendments and the motion as it was became a Resolution of the Malaysian Bar on 18/8/2006.

How the EGM proceeded
Some had come expecting that there would be heated debates between supporters and opponets of the motion, but the mood of the House was an overwhelming support for the motion and a desire to vote and be done with it as soon as possible. This was because Yang Poh, after the proposers had presented the Motion, said that the Bar Council after a special meeting yesterday had decided that they had no problems with the motion.

Further, debates for and against the proposed amendment Bill as it is had been going on in the yahoo groups and the Bar websites over the past few weeks. Malaysian bar Webmaster (MBW) was also very fair to all parties, and later even took the trouble of sending the various opinions expressed to members through e-mail.

Some of those who expressed support for the LPA(Amendment) Bill 2006 as it and supported the Bar Council’s expressed total support included Tuan Haji Sulaiman Abdullah, Latheefa Koya, Sivarasa Rasiah, Tommy Thomas, Lim Chee Wee, Nahendran Navaratnam, Lawrence Teh, Roger Tan, Edmund Bon, Yeoh Yang Poh and Ragunath Kesavan.

Those who were against included Chew Swee Yoke, GK Ganesan, T Kuhanandan, Francis Soh, Richard Wee, B. Lobo, Shanmuga Kanesalingam, N.Surendran, Melisa Ram and Charles Hector (myself). Stephen Tan Ban Cheng opposed the proposed amendments, but he opposed to the mode of objection – i.e. the requisitioning of General Meeting. All in all it was an interesting pre-EGM debate, with occasional side tracking into issues like mode, styles of expression and a bit of personal “attacks”. This, I believe, led to members coming to EGM generally aware of and having considered the various arguments ready to vote.

How times have changed? The availability of Malaysian Bar’s website, e-mail, yahoo-groups and SMSs had allowed this pre-EGM debate to happen. Gone maybe are the days of the long and heated debates at General Meetings – and if persons do repeat arguments in the General Meeting, the run the risk of ‘angering’ some (nope – possibly the majority). It is time that those who are not familiar with the manner of communication in this ICT age, to start learning about the internet, e-mails and computers.

We Must Be Consistent On Our Stands
I was shocked and most disturbed to see a document entitled “Statement from the Requisitionists” which was signed off as “The Requisitionists to the EGM” which was included Circular No.41/2206 (The booklet prepared by the Bar Council for the EGM). I, being one of the requisitionists, had no knowledge, was never consulted or had no say about this statement. I never gave anyone the mandate or the authority to use my name or the word “requisionists”. I have not given any person the authority or the mandate to act on my behalf. Likewise, in the case of the majority of the 130 requisitionists. It is very wrong for any person or group of persons, even if they be “requisitionists”, to do things, make statements or make representations on behalf of the “EGM Requisitionists” or “Requisitionists” when they have not even consulted and/or got the mandate from the 130 named requisitionists.

Remember, that one of our strongest criticisms of the Bar Council was their failure to consult with the membership on the LPA Amendments – and this criticism was directed against the lawfully elected members of the Bar Council. You do not go out there and criticize others for lack of accountability and failing to consult and then go and do the same (or even worse) by making statements and doing things allegedly on behalf of the EGM Requisitionists when it was either done individually or with the approval of a small number only. The proper thing to do would be just put your name and/or names of those who supported a statement or an action, and not give the false impression of representing all 130 lawyers who signed the requisition notice. The statement in the EGM handout, says that it was a statement by GK Ganesan, and if that is so, it was the statement of GK only. One never makes claims of representing others without prior approval and consultations.

Not Enough to Voice Objections and then Vote in Support or Abstain
Rhina Bhar, a Senator, stated that she stood up and spoke against the amending Bill in the Senate, and even went on to state that there were a lot of Senators that supported her. What was embarrassing was the fact that she (and/or these other Senators) did not vote against the Bill and Rhina, herself, walked out and did not even vote or abstain – and this indicates the sad and embarrassing state of affairs with our Senators. You vote according to your conscience – not in accordance with what the party you belong wants. MPs and Senators often forget that they are representing the rakyat – not their party or the government.

Do not run to court to stop members of the Bar discussing an issue
DP Vijandran, spoke well on rules of meeting. But is he not the same person who was seen to be in support of Rajasegaran, our infamous member of the Bar, who saw fit to go to court for an injunction to prevent members of the Bar from holding a General Meeting to discuss issues of serious concern. The proper way of doing things is by allowing the members of the Bar to discuss, debate, deliberate and come to a position – even if the question is whether we should be discussing a particular matter or not. By going to court, Rajasegaran violated Malaysian Bar members’ right of expression, opinion., consultation, debate and the right to finally come to a collective decision as we did today (18/8/2006). I hope that lawyer Rajasegaran will also reconsider his decision of asking us, the Bar, to pays cost. I hope he repents and abandons his struggle to prevent members of the Bar from discussing certain matters. Every human person must have the right and freedom to express, discuss and take a position especially when it is a matter that is connected justice and human rights.

Should we have not tried to keep the debate within the Bar for this issue?
The act of some members going to the media with the articles and letters, rather than keeping it within the Bar on this issue which affects our credibility as champions for the cause of justice, is also criticized. We have our own Malaysian Bar Website, with a MBW who is rather open and does not resort to censorship unreasonably – use this. There is also the forum post – and also 2 independent lawyers yahoo groups. This was an issue where we were campaigning for the heart and minds of the members of the Bar – and we should do so preferable within the legal fraternity first. This taking to the mass media was done in this instance both by some supporters and opponents to the amendments.

A courageous stand
Haji Sulaiman Abdullah demonstrated great courage and character when he stood up to oppose the motion, knowing very well that the overwhelming majority were not with him. It was sad that he never really got the opportunity to present his points uninterrupted. We really must always give especially the minority an opportunity to have their say.

It was sad that “points of order” and “procedure” took so mush unnecessary time – we must get down to the merits – i.e. a debate on the real issues – and not get caught up on issues like whether to count the supporters first or the dissenters first. We really did spend way too much time on this

The Government and not the Bar to be blamed for the defects in the Bill
From the Star Report(18/8/2006), Nazri Aziz looks like wanting to push all the blame on to the Bar Council when he was quoted saying “We have made the amendment based on the recommendation of the Bar Council…” Any conscious Malaysian would know that it was a government Bill, and thankfully Khutubul Zaman did clarify what the government means by “consultation” and how at the end of the day, it is may be things that were not agreed to or recommended by the Bar. He talked about the Bar’s experience with the Arbitration Act, and how now we have to study this Act to make further recommendations to get things right. The government gave us the opportunity to be heard but at the end of the day the government decides – and even the final version of the Bill is just shown to a few with conditions of “secrecy”, etc.

Debate the point & not discredit the maker
In the debates, we are still getting distracted and seem to be attacking the maker rather than the points made itself. This is the kind of trend which would make new contributors of opinions fearful of sharing their viewpoints – and that is not good.

On issues, it is also important for one to make a stand – and there were a few who just behaved like politicians and avoided making any real stand on the issue itself. Do not be bothered by popularity polls, chances of winning elections, being seen to be loyal to ‘friends’ and other irrelevant matters – take stands based on principles and values.

Lawyers’ decision MUST be based on principles and not self-interest
Even if these kind of provisions were in an Act of Parliament concerning doctors or engineers or accountants, I would like to believe that lawyers would have been just as strong and in great numbers based on principles.

Some say lawyers came out because it was their “rice-bowl” or their “livelihood” that were being affected – and these are so “self-centred” sounding reasons. I want to believe that we did primarily come out that Friday afternoon for the EGM because these were provisions that went against the rule of law, principles of natural justice and fairness.

What Now?
It is important the Bar President comes out very clearly to state that the Malaysian Bar only supports provisions about quorum and concerning section 46A, and nothing else.

The full resolution (including the preambles) must be made known to all lawyers and the Malaysian public. The Bar’s stance must be clarified, more so since what was perceived by the public before this was that the Bar accepted and supported the whole of the LPA(Amendment) Bill 2006.

I hope that when the committee is set-up, proper consultations be done and members are provided with the final report of the committee before it is handed over to the Bar Council, and that the Bar Council will also provide every version of their final recommendations for feedback before handing it over to the relevant authority.

It is also my opinion that we should be looking at the whole Disciplinary Procedure, and not just confine ourselves to what is mentioned only in the amending Bill 2006.

It is also hope that the Bar Council do keep members informed not just about this matter and other matters on a more regular basis through the website and e-mail, at the very least.

This resolution, and all past resolutions of the Bar are very important as it determines how the Bar Council should act. It is sad that even on the website now, resolutions of some years like 2003 and 2004 are missing. Hope this could be remedied soonest.

We have to learn from our past, and move on not to repeat past errors. The Malaysian Bar must always be diligent and never again be found failing to defend the rule of law, principles of natural justice and upholding the cause of justice without fear or favour.

Charles Hector
19th August 2006
Petaling Jaya

Draconian 2006 amendments to the Legal Profession Act

Summary of the draconian 2006 amendments to the LPA
Contributed by B. Lobo
Tuesday, 15 August 2006, 13:25

The 2006 amendments to the Legal Profession Act 1976 (the LPA) (“the amendments”) purport to provide for the following:-

1. Gist of the 2006 Amendments

To remove all procedural and substantive safeguards in the Common Law against abuse of power by an administrative inferior tribunal like the Disciplinary Board ("DB") on disciplinary matters pertaining to the livelihood of all Advocates & Solicitors (“A & S”) under a cloak of secrecy.

2. The Regulated Legal Profession

The legal profession is already the most highly regulated profession in Malaysia. We have statutorily recognised “misconduct” (see section 94(3) of the LPA) for even breaches of rules of practice and etiquette or “otherwise”, for breach of any “direction or ruling”. An example of the latter is the rule relating to a mere telephone call from an A & S to another A & S.

The LPA presumes that an A & S is guilty of misconduct or improper conduct until proven otherwise by him. The reverse of the burden of proof. An example is sect 116 which provides for a written agreement with client on contentious business. However, although section 117(3) provides that fees under the said Agreement can be subject to taxation, section 118 provides that the client can still go to the High Court to question “…the validity or effect of…any such agreement…” and the Court can declare the agreement void.

Even if the client had paid all monies under the agreement within 12 months of payment the client can go to Court to “re-open” the agreement and order taxation [sect 118(5)]. Further examples of these one-sided provisions abound – an example is section 120 relating to a client changing an A & S and ignoring the agreement for “…default, negligence, improper delay or other conduct…”

3. The Position of the Bar Council as expressed at the Forum on the Amendments held on 5-8-06

Our relevant members of the Bar Council in breach of their duty under section 57(c) of the LPA to consult all A & S, has secretly pushed through amendments to the provision for disciplinary proceedings in the LPA together with the approved (by the general body) amendments regarding the quorum and capacity to hold office for an A & S below 7 years.

That our representatives in the Bar Council had sold our rights without any initiative by the Government was clear from the discussions at the forum on the amendments held in the Bar Council premises on 5/8/06.

The Draconian Amendments

4. The Subtle Draconian Provisions

(a) Section 76(2) of the LPA is amended to give secrecy to all proceedings of inter alia the Disciplinary Board (“DB”). The principle in Jerald Allen Gomez v Shencourt Sdn bhd (Majlis Peguam, intervenor) (2006) 2 MLJ 343 has been abolished by this Amendment.

(b) Section 93(3) of the LPA is amended to provide for an A & S whether or not he is 90 years old (and probably senile) to be appointed to the very powerful post of chairman of the DB. The extent of this man’s power can be seen on a cursory reading of the L.P (Disciplinary Proceedings) (IT & DC) Rules 1994 – in particular Rules 6(5), 18 and 31.

Further, on any matter which creates a likelihood of bias or otherwise, the sole judge of that question (whether or not to recuse himself from a DB deliberation) is the person himself. The principle in Malaysian Bar v Dato’ Kanagalingam a/l Velupillai (2004) 4 MLJ 153 has been abolished by the amendments. In other words, the Chairman or the Bar Council representative have become the prosecutor judge and Jury in matters before the DB.

(c) Section 100(1) of the LPA is amended by removing the words “forthwith”. It is established fact that at present the DB takes about 1½ years to process a complaint under Section 100(1) despite the “forthwith” provision currently in the Act. Herein lies the bottleneck for the delay. One can imagine the consequences of the removal of that word in the Amendments.

It is especially serious when there is no time limit or limitation period for the complaint – not even a 6 year time limit. The absence of such time limits appears to conflict with the Bar Council Ruling on the period files must be kept before they are destroyed.

Under the amendments only when there is “merit” in the complaint can the DB deal with the complaint “forthwith”. But this is not mandatory anymore. It is discretionary by use of the word “may”. It appears that the “public interest” set out by the Supreme (Federal) Court in Majlis Peguam Malaysia & Ors v Au Kong Weng , Joseph (1993) 2 MLJ 57 i.e. that complaints against an A & S must be speedily resolved in the public interest has been legislatively overruled by the amendments! The amendments to Section 100 and 103A of the LPA reflect a tendency to support the current lackadaisical conduct of the DB. However, the Disciplinary Committee ("DC") is treated differently. The almighty members of the DB escape. It is the ordinary members of the DC who are required to comply with processing the referred complaint “expeditiously” (new Section 103B).

5. The express Draconian Provisions

(a) The (new) Section 103D is a classical draconian provision. Even after a DC has inquired into and made a finding (after spending time and money of all the parties) the DB can still:-

(i) ignore the finding and make any other order; or

(ii) mete out a greater punishment than that recommended by the DC.

The current provision that the DB may disagree with the DC and make any other order in “…exceptional cases…” to impose a greater punishment [sect 103D(1)(b)] is already harsh and unjust. Removing “…exceptional cases…” is a classical draconian provision bordering on a “Spanish Inquisition”, in breach of all notions of fair play and justice. It appears to be contrary to Articles 7(2) and 8(2) of the Federal Constitution – the supreme law.

(b) The (new) section 103E is another classical draconian provision. It provides for right of appeal only against a final decision of the DB to:-

(i) the complainant [under the new sect 100(5)]

(ii) the A & S [under the new sect 100(8), & (9)]

(iii) the A & S (under the new sect 103D)

This has in fact overruled the principle in Malaysian Bar v Dato’ Kanagalingam a/l Velupillai (2004) 4 MLJ 153 by the Federal Court.

(c) Another extremely draconian provision is the new section 103E(2). It is an “ouster section”. It purports to outlaw judicial review. The draftsman of this provision is obviously unaware of the Constitutional importance of judicial review (by the judiciary) of administrative law decisions of the Executive including inferior tribunals like the DB. A reading of a sample of cases as follows will give an education on this important area:-

(i) Malayan Banking Bhd v Association of Bank Officers, Peninsular Malaysia & Anor. (1988) 3 MLJ 204 ;

(ii) Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers’ Union (1995) 2 MLJ 317 ; cited with approval in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama–sama Serbaguna Sungai Gelugor dengan Tanggungan (1999) 3 MLJ 1

We have heard that the “appeal” provision in the amendments is adequate to protect the A & S. This attitude again displays complete ignorance of trite law principles on the differences between an appeal and judicial review. These are:-

Appeal vs. Judicial Review

(i) An appeal is always statutory and can be restricted to “final” decisions (as is the case under the Amendments) mentioned in sub para 5(b) above. It is a continuation of the legal process of the DB.

(ii) Judicial review is not statutory but is an original common law remedy reflected in the Courts of Judicature Act 1964 (section 25 thereof). It has its origins in the Common Law even prior to Malaysia Day in 1963! Section 25 speaks of “powers” and not “disabilities”.

(iii) An appeal relates to the merits of the decision by the DB whereas judicial review relates to the decision-making process of the DB.

(iv) This being so, in an appeal no affidavit evidence is usually allowed and the materials available on appeal are restricted (see Rule 4 of the Appeal Rules made under the LPA). However, in judicial review, Rule 4 is irrelevant and matters such as substantive and procedural defects; irrelevant matters; irrational decision; bias (the ultra vires concept); qualification of members of the DB (Quo Warranto) are relevant. Further, a breach of Sect 94(3) (on misconduct) of the LPA by members of the DB qua A & S can be canvassed. If this provision is not available, who is to “police” the policeman? Only the High Court can.

(v) In an appeal, resort to the broad remedies (declaration, injunction, mandamus, prohibition, etc) available in judicial review under Order 53 Rules of the High Court 1980 (“RHC”) is not available.

(vi) The recent introduction of important procedural tools like Discovery and Interrogatories available under Order 53 RHC in judicial review is not heard of in an appeal. Again, the “secrecy” provisions of the amendments rears its ugly head in an indirect form.

(vii) Because of dicta such as in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprises Sdn Bhd (1979) 1 MLJ 135 on dictatorship “… Unfettered discretion is a contradiction in terms…Every legal power must have legal limits, otherwise there is dictatorship…” and Minister of Labour, Malaysia v Lie Seng Fatt (1990) 2 MLJ 9 on arbitrariness, i.e. “..unfettered discretion is another name for arbitrariness..”, the Common Law had long ago introduced the Parliamentary presumption in construing ouster sections. The Courts presume that the ouster section was not meant by Parliament for inferior tribunals like the DB to act in excess of jurisdiction. The rationale is in Prof Jain’s Book “Administrative Law in Malaysia & Singapore” 3rd Ed, pg 783 “…it is against the fundamental concept of justice to prevent the Court from protecting citizens’ rights by deciding whether an administrative action is valid or invalid…”.

Are the representatives of the Bar Council dealing with these amendments to be classified as contributing to the erosion of this “fundamental concept of justice”?

(viii) The result of all this will be that an A & S, being what he is by training, will mount constitutional challenges to the decisions of the DB sheltered by sect 103E(2. The Law Reports are replete with cases successfully mounted by parties on the ouster section 33B of the Industrial Relations Act 1967. Prof Jain in his book aforementioned has therefore said “…no finality clause (ouster section) is regarded (by the Courts) as excluding certiorari on grounds of jurisdictional error…” (words in bracket are supplied).

(ix) That even senior members of the DB are unaware of these principles on judicial review is evident by the citation at the forum on 5-8-06 by Mr Mah Weng Kwai (in consultation with Ms Ambiga of Tetuan Choong & Co & Ors v Lembaga Tatatertib Peguam-peguam (2004) 1 CLJ 574. That case is not a judicial review case. The dicta from there is therefore irrelevant to justify an ouster section like sect 103E(2). Here is a case of “…blind reference to authority…” per E. Abdoolcader in JP Berthelsen’s case (1987) 1 MLJ 134.

6. Retrospective Legislation

The new sect 103G appears to be hasty. It displays the haste of the people behind the amendments to give the DB unbridled power. That new sect 103G (the first limb thereof) is contrary to Article 7 of the Federal Constitution and Section 30(1) of the Interpretation Acts 1948 and 1967.

7. The Solution

(a) It has been suggested that since Amendment Bill is already passed by Parliament, opponents of the draconian provisions should persuade the Minister to exercise his powers under sect 1(2) of the LPA to delay the operational dates of the aforementioned draconian provisions – especially those set out in paragraphs 4 to 6 above.

(b) However, advocates of “fiat accompli” position (since the Bill is already passed) say that sect 1(2) cannot be used in respect of amending Acts. The answer is a big ‘NO’ : See sections 34 & 35 of the Interpretation Acts 1948 and 1967. Those sections provide that in construing the principal act, the amending act should be treated as part of the principal act and construed together.

Drug trafficking: actual delivery, handover price must be proven

Drug trafficking: actual delivery, handover price must be proven
Tuesday, 15 August 2006, 17:15
©Bernama

PUTRAJAYA, Aug 15 (Bernama) -- The prosecution in a drug trafficking case will now have to prove the essential element of actual delivery of the drug with the physical handing over of the price in exchange, the Court of Appeal said.

The court, in a written judgement made available Tuesday, held that a mere agreement to buy or sell drugs is not an act of trafficking within Section 39B(1)(a) of the Dangerous Drugs Act 1952.

Applying the strict construction approach, Section 2 of the Act does not employ the expression of "agreement to sell" or "agreement to buy" to fall within the definition of trafficking, the court ruled.

The Appeal Court, led by Justice Datuk Gopal Sri Ram, delivered the judgment yesterday in allowing the appeal by contract worker Saari Jusoh who was sentenced to death by the High Court in 1995 for trafficking.

The court set aside the death sentence and substituted it with 20 years' imprisonment and 12 strokes of the rotan.

Saari was charged with trafficking 3,686 grammes of cannabis at a money changer's booth at Jalan Tun Abdul Razak in Johor Baharu at about 11.45pm on Sept 8, 1991.

He has been in prison since Sept 8, 1991.

Justice Sri Ram, in his written judgement said the transaction of trafficking must have been completed.

"With respect, a "buying" transaction is not complete when an offer is made and accepted. In such a case, all that has happened is that an agreement to sell has been concluded. And that is something that the Act does not encompass in the Section 2 definition of trafficking.

"Anything short of this is insufficient on instant facts as it would admit a more lenient, a more flexible approach to the construction of a penal statute. And that is impermissible.

"Doing negotiations for a sale also does not amount to the offence of trafficking under Section 39B(1)(a)," said the judge.

Saari was arrested in an ambush by police officers on the day when he was supposed to sell the drugs to a police detective who acted as an agent provocateur.

At a meeting between Saari and the agent, an agreement was reached that he would sell and the agent would buy four kilogrammes of cannabis for a sum of RM6,000.

On the agreed day, Saari went to the meeting point, carrying a plastic bag and stopped at a money changer's shop where he placed the bag on the floor.

He then went to meet the agent and asked him to pick up the bag. The agent made a pre-arranged signal and police officers ambushed the scene and arrested Saari.

Justice Sri Ram, in his judgement said the crucial question in this case was whether there had been a sale of the drug by the appellant to the agent.

"We are satisfied that the evidence of the prosecution put at its highest merely established an agreement to sell the drug but not an actual selling of that drug."

He said that a completed transaction did not take place because the trap was sprung too early.

"It follows from what we have said that the conviction for trafficking cannot stand. However, there is abundant evidence that the appellant had actual possession of the drug.

"In these circumstances, we have no alternative but to quash the conviction under Section 39B (1) and substitute it with a conviction under Section 12 read with Section 39A (2) of the Act," he said.

Saari was represented by counsels Karpal Singh and Gobind Singh Deo, while Deputy Public Prosecutor Wong Chiang Kiat appeared for the government.