Very happy to see my seniors graduating today. Going back to law school was the best decision I ever made. It’s great having something to aim for again. Life should never become monotonous or predictable. If you have something to aim for, well, the joy is not in achieving your aim but in working towards it.

The Alexandrian poet, Cavafy, commented in a poem that Homer’s Odyssey was never about reaching Ithaca so much as it was the story of a man having a goal to aim for. In other words, the goal was what blessed Odysseus with the thrilling and gruelling adventure that he undertook after sacking Troy. It is a great blessing to have an Ithaca to aim for…

“Setting out on the voyage to Ithaca
You must pray that the way be long…
Many be the summer mornings
When with what pleasure, with what delight
You enter harbours never seen before.

Do not hurry the journey at all.
Better that it should last many years;
Be quite old when you anchor at the island,
Rich with all you have gained on the way,
Not expecting Ithaca to give you riches.
Ithaca has given you your lovely journey -
Without Ithaca you would not have set out.

Ithaca has no more to give you now.
Poor though you find it, Ithaca has not cheated you.
Wise as you have become, with all your experience,
You will have understood the meaning of an Ithaca.”

Congratulations to all graduating students of  Brickfields Asia College and to my fellow friends who received Book Prizes for their academic achievements.

 

It was also a privilege to finally meet up with Dr Martin Dixon (who wrote a very reader-friendly “Land Law” textbook that I used in the previous semester) and the other law professors earlier. The lecture on International Law was helpful in clarifyng Dixon’s otherwise “annoyingly” optimistic view about the role and achievements of International Law (clearly seen in his “International Law” textbook). Studying PIL without college notes/lectures is a challenge. Thankfully, I’ve been blessed with great study partners. Also Dixon’s textbook is very helpful (although at times he sounded more like he’s talking about Land Law than about settling international disputes). It’s just that when we read how critical someone like Antonio Cassese is about the failures of the international legal regime (and to a certain extent, Wade Mansell’s very penetrating criticisms in the subject guide), it’s hard to understand how Dixon can maintain such a breezy attitude towards the international legal regime. In the lecture, he explained the “enabling role” of international law to facilitate the relations of Sovereign States to each other rather than to “control” or “compel” the States in their relations/conducts. He also concentrated on a fairer evaluation of the achievements of international law since the end of WW2 (e.g. the UN, environmental protection, global telecommunications and preservation of the Antartica).

 

 

The Law Expo was a prelude to a much larger event coming up in March 2012. If the quality of the lectures are anything like the ones earlier today, I would really encourage all law students (and even practicing lawyers) to attend. The primary focus in most of the lectures today was on the topic of “law without borders” – how legal developments should take stock of the inter-relatedness of this glo…bal world that we live in. For instance, ethical issues in Medical Law that affects how medicine is practised across the world; or the growing importance of Regional Organisations like ASEAN (that is so much more than just sporting events that everyone is cheering for right now) and how it is timely to reevaluate the successes/failures of the EU Model to plan for the future of multi-State organisations; as well as how Corporate Governance is a timely and critical issue in light of the global credit crisis. Legal studies should never be about memorisation of cases and working on past-year questions alone. Law should always engage our minds and allow us to recognise that while not a panacea for all ailments, the “law way” of thinking things through and trying to come up with a solution, a change, a betterment of societies, is one of the great achievements of civilisation.

I have decided to take up “Public International Law” as one of my modules for the Part II Finals of my LLB programme. Truth be told, this is the module that I have planned to take up even before I started with my Intermediate year. Having read the first half of the textbook by Martin Dixon, I am simultaneously intrigued by the possibilities (and the ongoing development) of international law, and frustrated by the very clear weaknesses in the present manifestation of international law – especially in the area of enforcement. Anyone who has spent time thinking about matters relating of international law will undoubtedly throw up his hands in the air in exasperation and exclaim – “There’s too much politics and too little real legal principles!“

The video above is a lecture delivered by Judge Sir Christopher Greenwood addresses just this particular problem – that of enforcement in international law. He very clearly outlined the context of international law in that it governs the legal relations between states and that its legally binding nature is by consent. More importantly, he elucidates the importance of understanding the growing reach of international law in terms of governing or regulating international affairs (despite its weaknesses and limitations).

One of the most exciting thing about studying law is the realisation that legal practitioners around the world have more in common than they originally believed. There is a natural camaraderie among lawyers because of our common legal training and appreciation of legal principles (even though it is undeniable that we do not agree on everything). In the above video, US Supreme Court Justice Stephen Breyer started by introducing very basic principles about the Rule of Law and how that is important to the development of nations. The great thing is that he didn’t give his presentation in technical language but in everyday layman language to Economics students in Berkeley Uni. I included this lecture in this post because of the emphasis that Breyer placed on the fallacies of isolationist national law development thinking and encouraged instead a liberal harmonisation of laws – ie. “pure” domestic laws with those of other jurisdictions and the international law scene.

Finally, the series of videos above featured a symposium on International Law and Justice organised by US Council on Foreign Relations. The symposium primarily addressed matters of genocide, atrocities and torture; and examined the role and capability of international law in dealing with those matters.

I’m speechless with joy after receiving my exam results. Thank you God for another miracle in my life. Thou art my joy and my strength forever. Thanks also to my wife and kids for being so supportive all the way through. I sacrificed a lot of time with family for studies throughout the year. Also happy to hear about my classmates’ results. Looking forward to joining everyone next month in our Final Year! Excelsior!

My results for the Part I (Finals) Examinations are: Tort=68 (B+), Trust=67 (B+), Evidence=64 (B+) and Land=60 (B+). I cannot ask for better marks. I’m glad that I was able to keep my promise to the Principal of the college that I will maintain my performance from my Intermediate year. In fact, my total score was one mark higher than what I got for the Intermediate exams! Once again, thanks to Mr Raja Singham of Brickfields Asia College for the scholarship that he offered me this year, not to mention the support and guidance throughout the year. Thanks also to Ms Meera and Ms Puvanes for their untiring support and encouragement. I am also very grateful for Ms Claire De Than who helped me to consolidate my learning throughout the year with her Refresher Lectures (especially on the otherwise esoteric subjects of Land Law and Trusts!).

Finally, thanks are also due to my study mates who inspire me and encouraged me throughout the year. Kudos to you guys (you know who you are). Here’s looking forward to our Final Year in Law School together – starting next month!

We may attribute it either to the Ramadan spirit that encourages generosity or it may be a consequence of the increasing political pressures from many quarters on the leadership of PM Datuk Seri Najib Razak, but over the past several days, the PM made several announcements that are greeted with cautious cheers by all quarters. I said cautious cheers because this is a PM who has promised many things in the past but the rakyat has been disappointed again and again.

The first thing was the setting up of a parliamentary select committee to look into electoral reforms. This decision to set up a bi-partisan select committee to look into allegations of unfair and dirty elections come in the heels of the Opposition MP’s memorandum to debate the issue in the House by calling the PM to answer queries on the registration of PRs as voters in the upcoming General Elections. Incidentally, the decision to set up the committee also comes as a result of increasing pressures from the worldwide media following the 9 July Bersih 2.0 rally (although the powers-that-be will never admit to that as such an admission would mean nothing less than to legitimise the Bersih 2.0 rally that it has time and again declared to be illegal!). Of course, it remains to be seen how the select committee will be constituted – although the PM’s announcement shows at least an intention that the committee be bi-partisan in its composition. Furthermore, it remains to be seen what the findings of the select committee will be and, more importantly, whether the findings and recommendations will be implemented in time for the upcoming General Elections. The last thing that we want to see is another lip-service, cosmetic attempt to booster popularity without bringing about any real changes. The current regime has shown time and again that it lacks the political will to bring about real changes and it cannot be denied that even with this announcement, the rakyat remains sceptical that the PM means business in bringing about reforms. After all, both SUHAKAM (the Human Rights watchdogs) and the Bersih 2.0 steering committee members have already submitted their lists of recommendations on electoral reform but these efforts have been largely ignored (if not openly condemned) by the ruling government since 2008.

The second thing that the PM addressed was the need to look into censorship of the media. This announcement comes in the heels of the recent foolish move by the Home Ministry to censor contents of an article by The Economist on the Bersih 2.0 rally. I say “foolish” because the uncensored article is still readily available online on the publisher’s website. In this day and age, censorship does nothing for the ruling government except to show that it has something to hide from the rakyat and that it still thinks that the rakyat can be herded like sheep. The PM mentioned that the government should look into more effective ways of engaging the media and the freeflow of information. That being the case, there was nothing said about the repeal of archaic laws such as the Sedition Act and the Printing Presses and Publication Act that have cast a shadow over free and unbiased reporting by the media. More often than not, through overt control of the media and covert threats leading to self-censorship, the freeflow of information in this country has been stifled. It is for this reason that “alternative” media news portals on the internet, along with social websites, are gaining popularity among the educated masses in this country. Time and again, we hear members of the ruling party complaining about the pervasive influence of the internet on the young in the country and that the government needs to also master the nooks-and-cranny of disseminating information via the internet. But they miss the point entirely. Just because UMNO and MCA leaders are now desperately setting up their own blogs or Facebook and Twitter accounts does not mean that the masses would even be interested in reading them. The reason is because the mainstream media is already controlled by them anyway. Which person in his right mind would want to read online media if the contents are the same as the drivel that is already reported in the mainstream media anyway? Without a concerted effort to free up the mainstream media by first repealing the archaic laws that restricts free speech, everything that the PM says about reviewing censorship of the media is nothing more than political hot air.

Finally, the one thing that I am generally happy about (though by no means entirely satisfied) is the announcement that the National Legal Aid Foundation (NLAF) will be in operation by October this year. Readers of this blog will have noticed that this is an issue that I have written about with not a small amount of passion in the past. I am happy that the efforts of activists – especially under the leadership of the former Bar Council president, Mr Ragunath Kesavan, have produced some laudable results. In February this year, the PM announced the setting up of the NLAF with an amount of RM5 million. This will go towards providing free legal aid to low income earners (ie less than RM25,000 per annum). Furthermore, legal practitioners who involve themselves with legal aid will be paid up to RM200 per day (as compared to pro bono work previously). This move will hopefully see more lawyers availing themselves with legal aid work – especially law lecturers who are eligible to practise in the country but are presently working with local universities and colleges. As mentioned, this is a right move in the right direction and should be lauded for what it is but it is still far from satisfactory. We are still far behind many countries in the world where legal aid means upholding the rights of citizens to a fair trial rather than something looked upon as an act of charity by the ruling government. The provision of RM5 million should be only a bare minimum starting amount to set the ball rolling but the goverment’s commitment to supporting and enhancing legal aid in the country should not end there. It remains to be seen how much further the present Najib Administration will go in supporting legal aid.

Relevant links:

• Cabinet to decide on details of electoral reform committee (The Sun’s report on 17 August 2011).
• Govt. to study media censorship to be in line with changing landscape (The Sun’s report on 16 August 2011).
• National Legal Aid to begin operation in Oct (The Star’s report on 15 August 2011).

We saw with our own eyes the aggressive nature of a police force “just following orders” to quash the voice of peaceful Malaysians who dared to stand up and plead for electoral reform. Electoral reform is an ongoing process even in mature democracies. Here, it is looked upon as challenging the UMNO-led hegemony that has held the nation in its grips since the 1950s. It is further painted as treasonous acts that threatened racial or religious harmony and even the sovereignty of the Crown (with some overzealous racial-zealots crying out for blood).

Up to this very minute, I am still proud to be a politically neutral Malaysian who is not a member of any political party. Partisan politics is more often self-centered and self-directed. They bring out the worst in human associations and even idealistic young men and women often find themselves getting sucked in so deep by party-loyalties that the abandon the original ideals that drove them into the public arena in the first place. It is true that I have taken part in more than one DAP fundraiser but, like I tell my cousin, I’m more often there for the amusement (and the food, let’s not forget that!) than anything else. Bersih 2.0 was a cause I supported because of its non-partisanship (something that the local spin-doctors try every hour to deny, twist and discredit). I guess, to a very large extent, I was there because of solidarity. I shared the struggles of people like Datuk Ambiga, Dr Subramaniam,  and our national laureate, A Samad Said (with whom I was proud to walk and stand together on that momentous day).

Despite the political posturing (e.g. the Home Minister’s refusal to apologise for the conduct of the police and the PM’s clownish antics following the Bersih rally at the UMNO gathering), it is clear that Bersih 2.0 has struck a chord in the hearts of normal Malaysians and even in the highest corridors of power. Now, the ruling coalition is openly affirming their commitment to free and fair elections when before, the President of MCA openly expressed his incredulity at why the people wanted to march in the first place (note: the fact that he doesn’t know speaks volumes about how attuned he is to the heart-felt cries of the rakyat). For the impact that it has on the consciousness of Malaysians, Bersih 2.0 was a resounding success.

The below is a news clipping from Bernama (read the original here) on how the higher courts are now empowered to review their own previous decisions. The court system, here as in the UK, upholds the basic principle of stare decicis (i.e. Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed“) as a foundational principle to ensure the stability of judicial decisions and the predictability factor so important to how we as lawful citizens plan our affairs to be in accordance to the law of the land. Such a system is often a balancing act between the need to uphold the stability of the law and that of adapting the law to meet the needs of particular facts and the inevitable march of progress and change. With the process of expediting court hearings, the judiciary here has also decided to give greater weight to adaptability and change rather than a rock-solid immutability. This, to many, is a welcome change as very few appellants have the means to take a case all the way up to the Federal Court before a decision can be reviewed (the clearest example of a decision that has taken about a decade before it was finally overruled was that of Adorna Properties v Boonsom Boonyanit).

PUTRAJAYA (July 18, 2011): The Federal Court’s ruling that it (the Federal Court), the appellate court and the High Court are empowered to review their own decision was adopted by the Appeals Court today. In that landmark decision, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum in his written judgment dated June 15 this year held that the three superior courts were clothed with inherent power to review its own decision to prevent injustice or an abuse of court process. However, he said, the courts, in exercising its power to review its own decision must be extremely cautious and could only do so in rare and exceptional cases. Justice Malanjum was among five judges who sat on the Federal Court panel which unanimously made the ruling in a review application brought by a former policeman, Harcharan Singh, who was sentenced to death for murder. The other judges were Court of Appeal president Tan Sri Alauddin Mohd Sheriff, Federal Court judges Datuk Hashim Yusoff and Datuk Abdull Hamid Embong and Court of Appeal judge Datuk Hasan Lah. Today, the appellate court adopted this ruling when it pronounced its decision in a case involving an Iraqi businessman who was wanted by the Australian government for alleged human trafficking. It (the appellate court) departed from its own ruling in Ishak Shaari vs Public Prosecutor and KTS News Sdn Bhd vs See Hua Realty Bhd and Anor which held that the appellate court did not have the jurisdiction to review its previous decisions. Court of Appeal judge Datin Paduka Zaleha Zahari chairing a three-man panel together with Datuk Sulaiman Daud and Datuk Balia Yusof Wali said the appellate court had the power to review. However, she said Sayed Omeid @ Ibrahim Ahmed Ismael’s case did not fall under the exceptional case which warranted a review. The panel dismissed Sayed Omeid’s application to review the previous appellate court panel’s decision to remit his extradition case back to the Kuala Lumpur Sessions Court for determination of the merits of the extradition application made against him. The Home Minister issued a directive to hold extradition proceedings against Sayed Omeid, 48, after the Malaysian government received a request from the Australian government on Sept 2 last year for his extradition. The request was made according to Article 4 of the Extradition Treaty. The treaty was signed by the governments of both countries on Nov 15, 2005 and enforced on Dec 28, 2006. On May 20 this year, the Court of Appeal allowed the prosecution’s appeal to set aside a decision of the High Court which had released and ordered Sayed Omeid’s deportation. The High Court had ordered Sayed Omeid’s release and deportation to his country of origin after allowing his application to review a ruling of the Sessions Court which dismissed his preliminary objection made at the onset of his extradition proceedings on grounds of defect in the three charges of alleged human trafficking implicated against him by the Australian government. The High Court also ordered that the extradition proceedings against Sayed Omeid be discontinued. Sayed Omeid was arrested here while holding three international passports. His other names were stated as Gunes Ekrem @ Akram Ogen @ Heider Mohsen Ehoobin @ Amir Achmad Hussainy @ Hussein Jamil Rasheed @ Albulushi Hassan Ismael @ Motamed Mon Fareed Farough. He was represented by counsel Karpal Singh during today’s hearing. – Bernama

It’s been months since I posted anything on this blog. The simple excuse is that I was buried under half a ton of law books during the exam season (that thankfully ended on 27th May 2011). The said books are now neatly piled up next to my wardrobe and I still cannot believe the fact that I actually read the entire pile in depth (and is still alive). Anyway, I took Tort, Trust, Evidence and Land this year. The good news is that I finally completed all the obligatory subjects that all law students are expected to do – so that they can carve out a minimum career as a practising lawyer. Next, I will get to move on to the subjects that I am really, really passionate about. I’m planning to take Jurisprudence, European Union Law, Public International Law and International Protection of Human Rights for the upcoming academic year. That will take me one step closer towards my dream of a career in international law/diplomacy and social activism.

The Yayasan Bantuan Guaman Kebangsaan (“YBGK”) was launched by the Prime Minister, YAB Dato’ Sri Mohd Najib b Tun Abdul Razak, on 25 Feb 2011.

The YBGK will provide legal representation to all Malaysians (irrespective of their financial means) upon arrest, at remand hearings and when they are charged in court. The YBGK will also provided legal representation to Malaysians at the hearings stage if the accused satisfies a means test.  Lawyers who handle YBGK matters will be paid.  

The types of legal representation provided by YBGK will be introduced in stages.  In the first phase the emphasis will be on providing legal representation to persons when they are arrested. The police (as well as all other enforcement agencies) are required to inform the YBGK when they make an arrest and duty solicitors will be assigned to different police stations to meet and advice the arrested person.

The Bar Council Legal Aid Centres will work closely with YBGK to assist in its delivery of services.  The police will inform the state Legal Aid Centre (“LAC”) when an arrest takes places.  The LAC will have a daily schedule of duty solicitors and inform the duty solicitor in respect of arrests that take place at the police station to which he/she has been assigned.  The duty solicitor will go to the police station at a pre determined time and meet the persons detained there. 

The establishment of YBGK provides, for the first time, a comprehensive and sustainable legal aid programme for those ensnared in the criminal justice system. In order to make it work we require the assistance of members of the Bar.  We thus invite all Members to register to offer their services with YBGK.  Even Members who have not handled criminal cases are encouraged to sign up as training will be provided.

Please click here for the registration form and here for the rates of payment to lawyers.  To register, kindly complete and return the registration form by fax to 03-2031 6640 or by email to kamala@malaysianbar.org.my, by 10 Mar 2011 (Thursday).  For further information, please contact Kamala Thakar Singh by telephone at 03-2031 4787 or 03-2031 3003 ext 213.

Ragunath Kesavan
President
Malaysian Bar

The ongoing KPI in the Judiciary issue has taken a new turn recently. I have been writing about this issue almost since the time I began this blog. As you can read from my other posts, I am not in the least impressed with the incessant push for speedy disposal of cases by our esteemed Chief Justice, Tun Zaki. Having explained my stand in multiple postings, I’m simply repeating myself here – I am all for a more efficient case management and disposal system since “justice delayed is so often justice denied”. That being said, the chief objective of the justice system is still JUSTICE. That means that speed and expediency are not the most important factors by which the judiciary should be measured. Other more important issues such as the independence of the judiciary, transparency, quality of judgments delivered and the all-important role of the judiciary as the guardian of individual freedoms (against the tyranny of those in power) are usually downplayed and instead we get the shallow push for speeding-up justice!

On January 28, Datuk Jagjit Singh, the counsel for Darren Choy in the infamous Daphne Iking enticement case fainted in court after his application for leave was denied. Magistrate Engku Ahmad Rashidi confirmed that he received a fax the day before from the lawyer’s office requesting for an adjournment of the case as Datuk Jagjit was unwell. The lawyer still showed up on the day to request a postponement and even produced medical certificates but the magistrate denied the application. As a result, Datuk Jagjit lost consciousness and fainted in court.

When the news of this incident was made known to the public, Bar Council president Ragunath Kesavan pointedly criticised the ongoing push for KPIs with regards to speedy disposal of cases as the primary reason for the inhumane decision of the magistrate. The Malaysian public (well, at least those who pay attention to the news) agree that the magistrate should have exercised more discretion in the matter and ordered a postponement. That being the case, the CJ Tun Zaki came out in defence of Magistrate Engku Ahmad the following day – which, of course, to the Malaysian public was really a defence of his own much-vaunted stance on speedy disposal of cases. The following is the report from The Sun:

PUTRAJAYA (Feb 13, 2011): Chief Justice Tun Zaki Azmi (pix) has come out in defence of a magistrate under criticism for not allowing a case postponement as one of the counsel was ill, which resulted in the lawyer collapsing in court.

Following the Jan 28 incident where Datuk Jagjit Singh, counsel for Darren Choy in the Daphne Iking enticement case fainted in court, Zaki has asked magistrate Engku Ahmad Rashidi Engku Abdillah for an explanation.

He said according to a report submitted by Engku Ahmad on Jan 27, the magistrate received a fax from Jagjit’s office requesting that the case be adjourned as the latter was unwell.

Jagjit was present in court the following day, albeit to request for a postponement.

“This case had been postponed many times and the magistrate asked if counsel’s assistant could proceed on his behalf.

“But Jagjit insisted that he wanted to cross-examine the particular witness,” Zaki told theSun.

He said following Jagjit’s collapse, it was decided that the case be adjourned to Feb 16, when other witnesses would be called if Jagjit was still unable to proceed.

Zaki said it was unfair to accuse Engku Ahmad of being obsessed with his own KPIs and wanting to dispose of the case fast without regard to the well-being of the parties involved.

“He was picked for this case and does not have any KPIs (for fast disposal of cases).

“It is wrong to assume that any judge or magistrate who refuses to postpone cases does so to fulfill some KPI,” Zaki said. — theSun

The CJ also pointed out an extreme example of a lawyer who takes on 93 cases in a single day! This, it was submitted, was the reason for the constant adjournments and postponements of cases. In other words, blame the greedy lawyers. Now, I do not doubt the existence of many greedy lawyers in our midst but that really isn’t the central issue at all amidst the criticisms about the KPI directive. That being said, I do appreciate the CJ making clear that: “I want to dispose of cases, but judges must also maintain quality in their judgments.” Zaki also said that judges who use his efforts to clear cases or KPIs as excuses not to grant postponements although the situation may warrant it “don’t deserve to be judges“. The report below is also from The Sun:

PUTRAJAYA (Feb 13, 2011): A lawyer is attempting to “enter the record books” by handling 93 cases in a day!

Chief Justice Tun Zaki Azmi made this startling revelation to illustrate the problems the courts are experiencing in the wake of criticisms that it is not being liberal in allowing the postponement of cases.

“This lawyer complained that a magistrate in an East Coast court denied his application for a postponement.

“His reason is that he has 92 other cases to handle in that one day!” Zaki told theSun in an interview at the Palace of Justice on Friday.

“Of course he will farm out all these cases to his associates but his official complaint is that he is handling all these cases so he needs to postpone the East Coast case!”

Zaki said that while the courts struggle to settle cases, individual lawyers are also to blame for taking on too many cases and then seeking postponements as they bite off more than they can chew.

He said other stakeholders such as the prosecution and police also bear blame for frequent postponements that do not serve the interest of justice.

He said in many instances, cases are also adjourned due to some party falling sick; a family member’s illness; counsel’s wife due to give birth; change of plea by the accused; counsel has to appear before an appeal at a higher court; or a judge or magistrate has gone on leave.

“In civil cases, sometimes the parties drag on a case hoping to settle,” Zaki said, adding that this tactic is an abuse of the judicial process.

But he said, the blame is always on the courts as the courts make the order.

“The perception of the public is that for every postponement and adjournment, it is the court which makes the decision.

“When the public attends the court, they have the legitimate expectation that the case will be heard speedily, fairly and justly. When they are suddenly requested to go home and come back another day because of last-minute postponement granted by the court, their time, money and energy is wasted.”

Zaki said case postponements are a bane to the economy, where a simple calculation of RM50 per person per day for coming to court amounts to RM175,000 a day for 3,500 people. These include witnesses and family members of the parties involved.

“The country is losing something like RM13 million per year,” Zaki said.

He said in the Kuala Lumpur sessions courts (civil division) alone, 374 of 798 cases were postponed last December.

He said where medical reasons were given for postponements, in December four cases were due to counsel falling ill; one each plaintiffs and defendants; while 23 cases were postponed due to the judge obtaining sick leave.

“It seems high because in a day, the judge may be hearings several cases,” he explained.

He also said it was unfair for the judiciary to be accused as obsessed with disposing cases and judges fulfilling their KPIs rather than serving justice by refusing to adjourn cases.

“I want to dispose of cases, but judges must also maintain quality in their judgments,” Zaki said, adding that judges who use his efforts to clear cases or KPIs as excuses not to grant postponements although the situation may warrant it “don’t deserve to be judges”.

“Postponement is a judicial discretion, exercise it wisely,” he said.

Zaki said the oldest cases are almost 20 years old now and his new target is that every case will be finished off in six to nine months upon registration. — theSun

The latest turn in the drama came with the announcement that speedy disposal of cases will lead to a possible 400% hike in legal fees in Malaysia. Bar Council president Ragunath Kesavan explained that this hike in legal fees is the result of lawyers taking on additional responsibilities and that market forces too has an effect on the fees charged by legal professionals (note: at present, Malaysian lawyers charge among the lowest in this region). That being said, consumer groups, journalists and politicians collectively slammed the move to increase legal fees. The following report is from The Star:

PETALING JAYA: Consumer groups have slammed the expected 400% increase in lawyers’ fees as outrageous and fear justice will be priced beyond the means of ordinary folk.

“Only the rich will be able to afford justice if legal fees are increased by such a large quantum,” said Fomca secretary-general Muham­mad Sha’ani Abdullah.

“What is the point of having a legal system if the fees are so high that people can’t afford it anymore?” he asked.

Bar Council president Ragunath Kesavan announced on Tuesday that lawyers’ fees for court cases were expected to increase between 300% and 400% this year due to increased responsibilities.

Consumer Association of Penang president S.M. Mohamed Idris said an increase of up to 400% in lawyer fees was not acceptable.

“It is not justified that the fees have to be increased so much just because lawyers have to settle cases in three months,” he said.

Mohamed Idris suggested that more consumer tribunals be set up to reduce the burden on courts and help speed up the legal process.

“An increase of 50% in lawyer fees would be more reasonable,” said MCA Public Complaints Bureau head Datuk Michael Chong.

However, he said, people could still choose from among almost 10,000 lawyers in the country to find the most reasonable fees.

He also suggested that the Government improve access to legal aid for people who could not afford the high fees.

In response, Ragunath explained that lawyers’ fees were determined by market forces, not the Bar Council.

“I am merely stating the reality of the situation and that the fees have already started increasing,” he said.

In response to criticisms that the KPI for judiciary is directly responsibly for the hike in legal fees, CJ Tun Zaki openly denied this allegation. Read the following piece below (from The Malay Mail):

KOTA BARU: The Judicial System is not responsible for or involved in the hike in legal fees caused by the numerous new systems implemented by the court, which includes cutting down the hearing period of cases.

Chief Justice Tun Zaki Tun Azmi said improvements on the judicial system is more beneficial in terms of providing a faster and more efficient service to the public.

In a bid to expedite cases, courts have updated their administrative system to become more efficient and be more strict in case postponement so that they are not left for too long.

“We don’t want a case to be postponed too many times because it is a contributing factor to the backlog of cases. As a result, now courts no longer have a backlog of old cases,” he told reporters after a working visit to the Kota Baru Court Complex today.

Tun Zaki was commenting on Bar Council president Ragunath Kesavan’s statement that legal fees are expected to increase by up to 400 per cent and shorter case hearing periods resulted in more work for lawyers.

Therefore, Tun Zaki said he hoped faster case hearings would boost public confidence in the nation’s judicial system as well as reduce time and litigation costs.

Personally, I think the 400% hike is very extreme as well. While not discounting the reality of market forces and the increased responsibilities of pre-case consultations, case management, etc. I believe a gradual increase would be more realistic. After all, we live in a country where Legal Aid, though available, is not openly supported or promoted vigorously by the ruling government (note my previous posting on how many defendants in criminal trials are without counsel). Do I lay the blame for the legal fees hike on the KPI issue alone? I don’t think so but I do think that the KPI issue does play a part in the increase. Overall, lawyers should be discouraged from taking on more cases than they can handle and then requesting for postponement of hearings when they cannot juggle between cases. Taking on lesser cases would also mean that lawyers are more devoted to the ones that they handle – therefore, even with the price hike, clients are probably getting value for money. Of course, the situation is far more complex than that.

Another very important question that should really bother us is this – do Malaysian lawyers DESERVE such high pay? Take it from me as a law student, many of my peers in law school are taking shortcuts trying to get their law degrees as fast as possible (while learning as little as is necessary about the law and depending largely on examination tips, pre-prepared answers, and other “tricks” to pass exams). The ugly truth is this – the quality of lawyers produced (sometimes like assembly line products) yearly are declining not just in Malaysia but worldwide. I know at least a dozen graduating law students who know very little about law (oftentimes misapplying very clear legal principles that even a 1st year law student wouldn’t have trouble with) but are already planning to make “big bucks” and “live the life”! There’s one particularly irritating fellow in some of the lectures I attend that my friends and I have nicknamed “Mr. Money” because of his incessant talk about becoming a rich lawyer – this is someone who thinks that you can charge a person for murder even though the victim suffered a non-fatal assault!!!

Related Links:

• Speedy Gone Justice!
• The Rise of the “Loyar Burok”

Updated on 02-Mar-2011:

The Chief Justice, Tun Zaki, gave an interview with The Sun’s Terence Fernandez and Hemananthani Sivanandam shortly after my post above. You can read the interview entitled “Keeping Hearings On Track” online.

First of all, kudos to Terence and Hema for a very insightful interview and also for allowing the CJ to speak his mind on the issue of “speeding up justice”. Too often, we get highly opinionated postings by people online criticising the policies and decisions of the judiciary without allowing them to give their side of the story. The principle of “audi alteram partem” demands that the opposing views of all parties be allowed to be heard.

This issue of “speeding up justice” and the KPI for the judiciary has resulted in the relationship between the lawyers and judges of the country to be at an all time low – with each side criticising the other for the resultant problems. Reading the interview with the CJ, one gets the impression that he is sincerely trying to expediate the disposal of cases so as to not overburden the litigants and defendants in hearings. I do not think that anyone who knows a thing about court procedure will necessarily agree with Tun Zaki’s concerns. In fact, his tireless efforts to relieve the burdens of litigants should really be applauded.

The real issue in our country about why the judiciary is still not held up to be a praiseworthy organ of the government is that the problems plaguing the judiciary are far more than merely the issue of disposal of cases. We have yet to see the judiciary redeeming itself from the judicial-crisis of the late 1980s, for instance. Despite all the good that the judiciary does (which I hold to be very voluminous indeed), its reputation will still be stained in regards to decisions apparently favouring the ruling government in “politically-charged” cases (which makes up merely a handful of cases, to be fair). That being said, unless the judiciary purges itself from this apparent stigma of being “controlled” by the other arms of the government (chiefly, the executive branch), the public will remain cautiously distrustful of the overall justice system in this country.

Michael Sheen was tasked with portraying Tony Blair’s evolution from a young Labour upstart who gazed with wide-eyed wonder at New Democrat’s dazzling “third-way” center-left policies into a British PM who could stand on his own after his fallout with Clinton over the humanitarian disaster that was Kosovo. Blair was largely shown to be a person who cared more for human and moral issues than popularity ratings. He stood by Clinton at the beginning of the Kenneth Starr revelations as friend-to-friend despite advice from Alastair Campbell and Jonathan Powell that such a stance may be detrimental to the young PM’s career. Of course, it was during the Kosovo crisis that Tony Blair really got his opportunity to shine. He delivered the speech in Chicago the day after Clinton expressly told him about the US’s reluctance to send ground troops into Kosovo and presented what is now known as the “Blair Doctrine” of 21st century interventionist grounds.

In an ironic way, this film reminded me of “Star Wars Episode I: The Phantom Menace“. I’m not kidding. Sheen’s Tony Blair started out as the young political padawan to Quaid’s Jedi-master Bill Clinton. By the end of the film, Clinton took a long dive into the abyss after he was incessantly attacked by Sith-assassin Ken Starr. Blair then had to prove that he was more than just an acolyte and had to increase his own moral stature to exceed that of his former master. Blair’s humility slowly grew into self-assuredness – indeed, most political commentators have remarked that when Blair was intensely focused on a single-issue and being very certain of the rightness of his cause, he was at his very best not just as a politician but as a human being. This was contrasted starkly with Clinton’s arrogance and condescension. Of course, I thought that Quaid overplayed those elements and his Clinton probably came off as more menacing than the real-life Bill.

The film explored the initial agreements, similarities and mutual admiration between Clinton and Blair. Both started off trying to promote the “third-way” as the most viable and attractive alternative to right-wing (represented by US Republicans and UK Tories) and the extreme left. Their center-left ideologies drove them to attempt remaking their respective parties’ public image from “tax and spend” to moderate control and steady growth. New Labour, it must be admitted, is the UK version of Clinton’s New Democrat. Both played to the same receptive Anglo-American audience of the 1990s who gave them their much-needed support.

However, the third-way gospel turned out to be no more than another catchphrase or political by-word. It was not well-developed enough to amount to a comprehensive political-economic strategy. Neither did it have the persuasive power of a full-blown ideology. Perhaps in those pre-9/11, pre-Wall Street crash days, it was sufficient to garner support. From hindsight today, the third-way almost appear to be an unrealistic and immature political joke. Of course, the truth was, the third-way policies never got any real chance of taking off because by his second term, Bill Clinton had the political life sucked out from him (pun intended) and was nothing more than a lame duck. This was especially highlighted in the film what with the endless jeers about the President’s penis even in the EU.

Speaking of the EU, Blair was also portrayed as someone who literally squeezed his way into the good books of an increasingly isolationist US by appealing to the “special relationship” once enjoyed by the US and the UK. He did that by being the “bridge” between the US and the EU – neither of which trusted or even understood the other. Blair, supposedly, understood both. With the Europeans, he proclaimed that he was one as well – by speaking impeccable French in EU meetings despite his personal distaste for the uncouth Jacques Chirac. With the Americans, Blair was “more than just a colleague but a friend” – even quoting from the Book of Ruth to prove that: “Whither thou goest, I will go; whither thou lodgest, I will lodge. Thy people shall be my people and thy God shall be my God.” Those words were actually said by Harry Hopkins to Winston Churchill and brought the latter to tears. Here, Blair used the same words to reaffirm his support and friendship with a disgraced American President who very much needed that “pick-me-up” from the young Lochinvar.

Interestingly, the film was so obsessed with promoting the young Blair that Clinton’s own contributions to end the Kosovo crisis was downplayed. The truth was, the Kosovo crisis ended because of the American and Russian pact to withdraw support from Slobodan Milosevic. When Boris Yeltsin turned his back on his former ally, Milosevic had no choice but to relent. Furthermore, it was the Serbian people themselves who later ousted the dictator Milosevic. In the film version, Tony Blair was a messianic figure celebrated as the man who saved Kosovo. He was seen delivering his speech in Chicago and speaking directly to the media as though it was Lincoln delivering the Gettysburg Address. He was seen in Kosovo with the refugees and his name was hailed by them as the deliverer.

As a film, such historical inaccuracies worked. Not so much in reality. That being the case, it is arguable that the film’s version was what was deeply rooted in the real Tony Blair’s mind. So convinced was he about the moral rightness of his cause in Kosovo that he later pursued his joint-cause with Bush in Iraq with the same moral fervour and righteous passion. Of course, the film ended with Bush sworn in as the new President and introducing Tony Blair as a friend. The Clintons stayed over with the Blairs on the night the Supreme Court ruled that Bush trumped Gore. Bill gave Blair some parting advice and told him again to choose to play his cards wisely. The final scene of the film – actually, real media footage showing the real Bush and the real Blair (grinning like an idiot) was evidence that Blair had chosen his course. He would uphold the “special relationship” of the US/UK and he would push for Anglo-American policies to solve the ills of the world – especially after 9/11. That resulted in driving the world into the dregs of war in Afghanistan and Iraq.

All that was left out from the film – although they were in the first draft of the screenplay. In the end, the film was a showcase piece for Blair’s 1st term as the British Premier and he was every bit the promising young Lochinvar then. From hindsight, it was very disappointing that his 2nd term went the way that it did where he was seen as nothing more than Bush’s lapdog and the PM who dragged an unwilling UK into the Iraq War.

The international community was exhilarated and shocked by more Wikileaks of private cables between heads of states and the man responsible, Julian Assange, is variously hailed as a saint, V (from V For Vendetta) and a troublemaker of the worst sort.

On the national front, we see progress on the much-awaited Whistleblowers Bill and the former Selangor Menteri Besar, Khir Toyo, was finally charged. While some sectors have decried that these moves were politically motivated in view of possible snap polls in the near future, the rest of us are happy that some positive moves are taken in this beloved nation of ours.

The UK, on the other hand, is facing the furore of protesting students who are enraged over the fees hike issue. Over the last week, even Prince Charles and Lady Camilla were not spared. On the local front, about 4,000 marched in protest on the Selangor Water Issue and they were accosted by the police.

The Privileges Committee in Parliament also announced possible action against Datuk Seri Anwar Ibrahim for uttering statements linking the PM to Apco and that the latter was responsible for the “1Malaysia” campaigns that was nothing more than a recycled (aborted) “One Israel” campaign. Many MPs were dissatisfied with the way that the Privileges Committee conducted their “investigations” as apparently no witnesses were called and Anwar was not even given a chance to defend himself! It is one thing to allege that the courts have been used as instruments for political assassinations but should the highest law-making body (i.e. Parliament) is also behaving in such an unseemly manner as alleged by the disgruntled MPs, then we have a long way to go before seeing the Malaysian Legislative elevated to the status of a First World Legislative.

That being the case, what was most shocking to me was the announcement yesterday that plea bargaining will be implemented in Malaysian Courts in order to expedite criminal trials. Now, plea bargaining is not a new thing. It has been practised here between prosecution and defence lawyers for decades. What is new is that the practice will now be on a statutory footing (Criminal Procedure Code (Amendment) Act 2010 under the 172C and 172D of the Pre-Trial Processes of Chapter XVIIIA) and be made into an important and formal trial procedure in criminal cases.

Many countries and jurisdictions practise plea bargaining procedures (usually with safeguards to prevent abuses that may lead to miscarriages of justice). Plea bargaining is very widely practised in the US as a substitute to full jury trials. However, the prosecutor’s recommendations are taken as only advisory by the courts who retain the final say on sentencing. A somewhat similar stance is taken by the Canadian courts. In the UK, following the controversial amendments to criminal procedures in the 1980s, plea bargaining is still retained (despite public criticisms) but often practised with care.

Timothy Lynch of Cato Institute have written a scathing criticism of the practice of plea bargaining in the US. His main points were that the practice severely infringes the accused’s rights to full jury trials (which are becoming a rarity in the US because up to 98% of criminal trials are dealt with by involving some form of plea bargaining). Seeing that the right to trial by jury is a constitutional right, the practice of plea bargaining is criticised for being unconstitutional.

Jury trials have long been abolished in Malaysia. Some opposition MPs have been trying to bring back jury trials for years without success. Therefore, the criticisms about the practice in the US may not be so applicable in Malaysia. If anything, our problems are even worse! I have written at length in this blog previously about the eroding confidence of the public towards the judiciary and how the present heads of the judiciary are more concerned over speeding up trials rather than regaining the confidence of the public. This announcement that plea bargaining will be implemented on a larger scale will probably be seen as another straw on the camel’s back – whether or not it is the last straw remains to be seen. The public is dissatisfied that the accused in most criminal trials are unrepresented. The public is still demanding an answer over the increase in the numbers of people who die under detention in prisons and correctional institutions. The public is still skeptical over the procedures of the police. The public is also losing confidence over the impartiality and independence of the judiciary. Amidst such negative public sentiments towards the justice system, is this a good time to introduce plea bargaining as a formal procedure in criminal trials?

Furthermore, what is the ground for doing so – merely to speed up trials? From the reports, it appears that even mandatory sentences can be reduced. The questions that any intelligent and educated person should ask is whether this will lead to more miscarriages of justice – and subsequently more deaths in detention? Will an innocent person, intimidated by the police and prosecutor, be forced to choose to plead guilty to a lighter offence and serve a lighter sentence? Will genuinely guilty criminals be let off on a lighter sentence simply because they have done the public (and chiefly, the courts) a service by not wasting too much time asserting his rights to get a full trial?

The Malaysian Bar applauds the move to formalise plea bargaining because it will give the accused an additional option in that he/she will be more confident of pleading guilty to offences that he/she is charged with. In other words, the plea bargain procedure is seen as an incentive to securing guilty pleas. That is undeniably true from a procedural perspective. However, with the present situation where 98% of accused persons in criminal trials do not even have legal representation, plea bargaining may be used as a convenient instrument to secure even more easy convictions.

Related Links:

• Courts to implement plea bargaining, pre-trial conferences soon (The Malay Mail)
• Plea bargain will help courts, accused (The Malaysian Bar)
• The Case Against Plea Bargaining (by Timothy Lynch)
• Plea Bargaining – Encyclopedia of Everyday Law
• Plea Bargain – Wikipedia

Firstly, some numbers. Approximately 98% of suspects in criminal cases tried in Malaysia are without any form of legal representation. The numbers do not lie. What they do is that they expose the nice-sounding “1Malaysia: People First Performance Now” slogan being peddled by the present government to be an outright lie. Access to justice and the right to have legal representation are among the most basic rights of an individual that guarantees his protection and dignity. It also exposes the present administration for their low commitment to upholding the rule of law in the country. The latest issue of Aliran also clearly demonstrates that people who die in custody and/or fall victims to alleged brutalities by “law enforcement” officials are at an all time high.

The heartbreaking thing is that while all these things should plague our collective consciences as a nation, most people are unaware of them. The people who are saying or doing something about them are the educated and/or socially aware (who are usually also legally trained). The rest of the masses are still more concerned about the only issue in the country that seem to matter – RACE (if the recent speeches in the Umno General Assembly is any indication, it’s that the ruling party is moving way backward rather than forward with their racial rhetoric and policies).

That being the case, it is very inspiring that several of our young legal practitioners are actively trying to make a difference by promoting Legal Aid services and reaching out to the community through the Project Outreach service that chiefly offers free legal advice to everyone. Legal Aid is not a new thing in Malaysia as it has been available for 30 years already. Furthermore, the Jabatan Bantuan Guaman is also available for the public. The problem, as most other problems are in Malaysia, is that Malaysians remain grossly unaware of the very existence of their rights to employ such means when they are brought forward before a tribunal and/or detained under police custody.

I was very happy to join the official launch of Project Outreach on Saturday morning (23 Oct 2010) at Brickfields Asia College. This is a very worthwhile project that should be heartily supported by the Malaysian Bar, social activists and the general public. The volunteers are tired of sitting around complaining about the general state of affairs in the country and are actively going around educating people on their rights, giving free legal advice and creating general awareness among the public that legal aid is available for those who cannot afford to hire their own lawyers to represent them.

The speeches by Mr. Kenneth Seet, Mr. Ravin Singh and, of course, Mr. Ragunath Kesavan (President of the Malaysian Bar) were very passionate and inspiring. I’m also very proud to be part of a law college that actively supports this cause and must applaud Mr. Raja Singham of BAC for allowing the use of the BAC premises for Project Outreach (1st floor, Wisma Koponas Brickfields – every Sunday). My hope is that this effort will cause a rippling effect and serves as a launchpad for something greater in the near future.

The Bible tells us: “Do not despise the day of small things. Men will rejoice when they see the plumb line in the hand of Zerubbabel.” (Zechariah 4:10) Everything great and meaningful starts off in a small, almost unnoticeable manner.

In closing, I would only begin to believe that the government is serious about putting the people’s interests first when we see 1Malaysia Legal Aid Clinics set up all over the country like the way they are setting up the more politically attractive 1Malaysia Clinics that offer healthcare to the community at RM1. A nation that does not actively uphold the rule of law, human dignity and intrisic freedoms and rights will not go far. Up to this point, the impression one gets from Ministers and politicians is that they are willing do pay lip service to these matters while doing little to actively pursue them.

Related news:

• Legal Aid lawyers and volunteers denied right to educate community
• Arrests of 4 lawyers plainly wrong

How the Law of Tort and the neighbour principle (first devised by Lord Atkin in Donoghue v Stevenson) have developed and are being applied – from “snail in ginger beer bottle”, we now have the novel case of “cockroach leg in spaghetti”. The case is the infamous Goh Sze Ching v Pizza Hut Restaurants Sdn Bhd case in Malaysia and the facts can be found from the news report below (taken from NST Online). Here’s hoping that Tort Law in Malaysia really does have a deterrent effect and that foodsellers (who rightly owe a duty of care to consumers) will go the extra mile to prevent body parts from cockroaches or other insects from being mixed in as an additional ingredient in the food they sell!

Sessions Court judge Syafeera Mohd Said said yesterday that Goh Sze Ching had proved her case that the defendant Pizza Hut Restaurants Sdn Bhd was liable for the incident.

Syafeera awarded Goh RM5,000 in general damages, RM50,000 in exemplary damages, RM5,219 in costs and eight per cent interest.

Goh, 28, and her friend had gone to the Pizza Hut outlet in Subang Parade shopping complex in Subang Jaya about 5.30pm on Sept 26, 2007.

In her statement of claim filed last year, Goh said she was eating the spaghetti when she found an “object” in the food. After looking at it carefully with her friend, she claimed that the object was a leg of a cockroach.

Goh, represented by N. Ganesaraja, said she became sick in the restaurant and complained to the outlet’s store manager.

As a result of the incident, Goh claimed she underwent pain and suffering as she vomited and had diarrhoea.

A private hospital doctor was among the three witnesses who gave evidence for the plaintiff.

The defendant, represented by Jagjit Kaur, contended that the disputable object in the food was a piece of fried onion.

However, the defendant’s area manager Carol Ching Fee Yin admitted that there were three outlets that had a encountered cockroach problem.

From the University of London International site:

Following extensive consultation and debate, we are adopting a new name to describe our programmes. The University of London International Programmes responds to feedback that told us we need a clear, simple and inclusive name that describes what we offer our 50,000 students in 180 countries.

These programmes are developed through a unique collaboration between the Colleges of the University and the University of London International Academy (our new name for the central academic body of the University).

All of us at the University of London are very proud of what the External System stands for and has achieved, but we also know that the name has become dated for our student body, now 50,000 worldwide. That’s why we’re changing.

In the future all our materials will carry the name University of London International Programmes. The name University of London International Academy, the central academic body that collaborates with the Colleges of the University to offer these programmes, will mainly be used internally.

This remarkable collaboration works because the Colleges of the University contribute deep subject matter expertise and therefore lead on curriculum, assessment and the development of learning resources as well as in certain cases playing significant roles in supporting independent teaching institutions and promoting the programmes. The University of London International Academy leads on managing the student life-cycle and with quality matters, for which it is responsible to the Collegiate Council and the Board of Trustees. Our new names help us to explain this more clearly.

Regardless of the name change, we continue to have exactly the same commitment to offering worldwide access to the opportunity of a life-changing education of an international standard, as we have done since 1858.

To save costs and minimise waste, we’re making a gradual change from our old name through our normal annual cycle of updating materials. So, you will see both the old and new names around for a while.

I just paid up my Continuing Registration Fees yesterday by bank draft (together with two other coursemates). Speaking of that, my coursemates have been bugging me endlessly with questions on what the University will be sending us as well as what textbooks or reference books to start reading. Go read this PDF file (2010 Book List) to get all your answers.

MacKenzie’s and Phillips’ “Textbook On Land Law” is possibly the best introductory text to the essential elements of Land Law in England and Wales. This should be your first book on Land Law in order to acquaint yourself to the unique elements of the subject before proceeding further to more in-depth and critical texts. MacKenzie and Phillips arranged their contents as follows:

PART I: INTRODUCTION
1. Estates and Interests in Land

PART II: ACQUISITION OF ESTATES IN LAND
2. Buying a House
3. The Contract
4. Unregistered Land
5. Registered Land
6. Acquisition of an Estate by Adverse Possession

PART III: LEGAL ESTATES
7. The Freehold Estate
8. The Leasehold Estate
9. Obligations of Landlord and Tenant
10. Enforcement of Leasehold Covenants
11. Remedies for Breach of Leasehold Covenants
12. Commonhold

PART IV: TRUSTS AND PROPRIETARY ESTOPPEL
13. Trusts – an Introduction
14. Co-ownership
15. Trusts of Land
16. Settled Land Act Settlements
17. Perpetuities and Accumulations
18. Resulting and Constructive Trusts
19. Proprietary Estoppel

PART V: LICENCES
20. Nature of a Licence
21. Enforcement of a Licence

PART VI: THIRD PARTY RIGHTS
22. Mortgages
23. Easements and Profits a Prendre
24. Covenants Relating to Freehold Land

PART VII: IN CONCLUSION
25. The Family Home
26. What is Land?

The arrangement of topics has some obvious advantages, as any Land Law lecturer or student can readily appreciate. Part I introduces the reader to the definitions of estates and interests – as well as carefully define the differences between a fee simple absolute in possession and a term-of-years absolute in possession, or the all-important ramifications and scopes of legal interests vs equitable interests.

Following that, the authors take us on a tour of the steps to purchase a property and a look at the contractual requirements (formal and substantive), before examining the issue of land charges (with Unregistered land) and the visibility of legal interests/rights in Registered land. What is ironic is that Land Law studies are usually grossly imbalanced – i.e. students spend an inordinate amount of time memorising the law governing Unregistered land although this probably constitute less than 10% of all land conveyancing activities in practice in England and Wales.

The subsequent chapters examine in greater detail the concept of estates and rights introduced earlier – with special focus on the more recent concept of co-ownership. Most law students (like myself) study Equity and Trusts together with Land Law – and, in truth, the two subjects are inseparable. MacKenzie and Phillips clearly understand this fact and therefore do not devote unnecessary verbiage to examine the Law of Trusts in detail. That being the case, they provide a useful introduction to the equitable principles that govern the Law of Trusts in general.

Finally, what is most unique about this book is that the authors leave the definition of Land to the very last chapter. Indeed, most lecturers do not even define what Land is in university courses! It is simply taken for granted that students understand what land is all about. Truth be told, the legal definition of Land is possibly the most technical aspect of the entire course and the authors wisely shift it all the way to the end so as to not set up an obstacle before the reader from the onset. After completing the first 25 chapters, the reader is more equipped to grapple with the technical definition of Land.

Another attraction of the book is how the authors concocted a fictional community filled with fictional characters who own/sell/rent/lease/transfer/convey properties. The reader sometimes feel like the book is a SimCity guidebook more than a serious law textbook. But then, us law students need to learn to be more relaxed and laidback sometimes, don’t you agree?

All in all, the book is a quick read and should readily acquaint the beginning student with the essential principles and elements of Land Law. From there, one should proceed to the meatier books such as Gray & Gray’s “Elements of Land Law” or Martin Dixon’s “Modern Land Law“:

Finally received my LLB. Intermediate Exam results yesterday. It took hours to retrieve the results and the server kept crashing.

All in all, I’m glad that I passed. My results are: Criminal Law (63 = Grade B+),  Public Law (58 = Grade B), Common Law Reasoning and Institutions (66 = Grade B+) and Contract Law (71 = Grade A). I was hoping for a better grade for Public Law as it was my strongest subject but I ended up getting the best grades for my weakest one – Contract! Haha! But I can’t complain. The Public Law paper was an especially difficult one and (so far as I know) many people did not even manage to get through.

I’m thankful for the support of my family and friends. Also, a special thanks to my lecturers: Mr Raja Singham (for his guidance on study methods and how to tackle examination questions), Ms Puvanes (who taught me to take the whole thing seriously in the first place), Ms Meera (for her endless encouragement) and Mr Rabinder Singh (who continues to inspire me with his deep passion for the legal profession and the teaching profession).

Most of all, I’m grateful to God for leading me thus far by His grace and mercy. Soli Deo Gloria.

A day after my previous entry on the Chief Justice’s laudatory remarks on speedy disposal of cases, The Sun newspaper carried a long extract from his speech entitled “Whither Judicial Activism?“. Many of the points raised in the CJ’s speech are well-known to law-students and legal-practitioners. In essence, he brought up the “dangers” of judges becoming too activist-minded and creative in their interpretation of Parliamentary statutes.

“Activist judges are looked up by some lawyers, particularly academicians and law students because in their view this is a form of development of the law. It is also for them to analyse and discuss. Which law student has not heard of Lord Denning? He was popular because of the decisions, sometimes controversial, that he decided. While it may be good and necessary in some instances, in my opinion it can be a dangerous weapon in the hands of a too activist judge.”

While the CJ did say that judicial creativity in statutory interpretation may be good and necessary in some instances – he mentioned the famous Donoghue v Stevenson ruling by Lord Atkins and the “High Trees” case by Lord Denning as examples towards the end of his speech – the sum total of the CJ’s speech, it is submitted, was largely slanted towards warning the judiciary against challenging the words of statutes as enacted by Parliament. He even went so far as to warn judges against relying on persuasive precedents of other Commonwealth nations such as the UK and Australia.

“We in Malaysia are influenced to a very large extent by the decisions of the House of Lords and the Judicial Committee of Privy Council, which consists of the same Law Lords who sit in the House of Lords. As I mentioned earlier, these Law Lords would tend to carry their thinking in the House of Lords to the Privy Council. Who are they sitting a few thousand miles from the countries from where the appeal originate, and perhaps not even knowing where those countries are geographically located, much less their surroundings and culture. Yet we in our country apply so much weight to their decisions, not only because we are bound by them but because of our training in England we are unconsciously influenced by their thinking as well. We also look at the decisions of other Commonwealth countries, but hardly of the United States and Canada. Why is this so? Is it only because the US Constitution is so different? Why are we more inclined to read Indian, Australian and New Zealand cases then that of Canada? In some very few instances we have had occasions to look at Canadian cases. But in general we do not refer to their cases. Is it because generally, the basis of their laws is different from ours? For example, in company law, almost all of the leading Commonwealth countries to the east of England follow the same principles. You may be asking what have these to do with judicial activism? Perhaps as part of development of our laws, and indirectly judicial activism, we should be ready to look beyond the Commonwealth countries.”

The truth of the matter is that Malaysian lawyers and judges look towards the Commonwealth countries for non-binding but highly persuasive precedents because of the commonality of our “English Common Law” heritage. The Canadian courts have combined features of the Common Law and Continental Civil Law (particularly in Quebec although the Civil Law system is also very influential in private law all throughout Canada) and practise vastly different rules of statutory interpretation. Interestingly, Canadian judges, due to their Civil Law codes of practice, tend to be even more creative and “activist” in their interpretation of statutes as Civil Law judges play a more central role in court proceedings compared to the “umpire-styled” judges of our Common Law courts.

The CJ’s speech ended on a rather inconclusive note:

“After all as French had said judicial activism is “an ill defined concept”. I cannot agree with him more. I have no views one way or the other and as can be seen my paper is merely to provoke thoughts.”

Personally, as a Law Student, I find that his speech was not very thought-provoking at all. In fact, it was simply another case of “stating the obvious” while leaving out any mention of the “elephant in the room” because of the controversial nature of the “elephant” in question. As Law Students, we were all brought to understand that judicial creativity in statutory interpretation may have adverse effects on the development of the law as the law becomes uncertain and the judges may be seen to be “political” in their decisions. Furthermore, in the case of the UK, the reality of not having a written constitution means that Westminster Parliament is supreme. Therefore, judges should not overstep their boundaries by questioning any Act of Parliament (Pickin v Britist Railway Board, Edinburgh & Dalkeith Railway v Wauchope). In other words, the courts may not question the validity of Acts of Parliament and this is known as the Enrolled Bill Rule.

“… All that a Court of Justice can do is look to the Parliamentary roll; if from that it should appear that a Bill has passed both Houses and received the Royal Assent, no Court of Justice can enquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both Houses.” – Lord Campbell in Edinburgh & Dalkeith Railway v Wauchope (1842)

Even with the passing of the European Communities Act 1972 and the Human Rights Act 1998, the UK courts have not deviated from the above rule by declaring any Act of Parliament to be null and void. The ECA 1972 simply allow the courts to disapply an Act should it be in conflict with EC laws. The HRA 1998, on the other hand, actually gives judges more leeway in interpreting primary and secondary legislations to give effect to the protection of rights (specifically s. 2 and s. 3 HRA 1998). However, they may not declare any primary legislation to be null and void – the furthest that judges are allowed to go is to declare that the Act is “incompatible” with human rights (s. 4 HRA 1998).

That being said, the Malaysian system does not theoretically uphold Parliamentary Sovereignty. Theoretically, the Malaysian system is one of Constitutional Sovereignty because of the existence of our Federal Constitution. In other words, should Parliament pass an Act that conflicts with the rights of citizens as enshrined within the Federal Constitution, the judges are duty-bound to declare such an Act to be null and void. Therefore, in practice, should the wordings on an Act be not sufficiently clear (that is they contain ambiguities that, if interpreted literally, may lead to injustice, absurdity or hardship), judges should look into the Constitutional principles that govern the nation and not be afraid to put forth an interpretation that may be contrary to the literal meaning of the Act. Judges who do so will inevitably be criticised for being an “activist” judge but as I mentioned in the previous entry, the judiciary’s primary concern should be upholding justice and ensuring that domestic law is developed justly. The CJ, in his speech, brought up the recent example of the Federal Court doing just such a thing by reversing the erroneous “Adorna Properties” decision. However, anyone who reads his speech will be quick to note that the CJ simply hasn’t said enough about the inherrent role of the courts in protecting the civil liberties of the citizens and in upholding the rule of law in the country – the rule of law, in this case, being a far higher ideal than even the wordings of statutes passed by the democratically elected Parliament (refer to the words of Lord Hailsham on the dangers of an “elected dictatorship” clothing unjust laws with the cloak of legitimacy during his speech in 1976).

Lastly, it must be remembered that Malaysian no longer allows jury trials. In other words, judges are the final adjudicators in disputes between individual and/or individuals and the government. It has been said that one of the strengths of jury trial is, in fact, the freedom of the “12 good men and true” to return “perverse” verdicts that are expressly against the wordings or even intentions of the legislature. Judges, on the other hand, do not have the freedom to return a “perverse” verdict as they have to follow the legislation more strictly. To give a speech calling for Malaysian judges to be even more conservative in interpreting legislation and to steer clear of the dangers of “judicial activism” may not be the most timely or relevant message to either the judiciary or the public at large – especially in this day and age where the people’s perception of the judiciary is at an all time low following the 1988 judicial crisis, the Anwar trial and several other “politically-charged” cases.

I was greeted by some sunny news on the Malaysian Courts this morning when I got my morning papers. It seems that many countries are congratulating our judges for their efficient case-disposal procedures introduced a little over a year ago. Chief Justice Tun Zaki was even invited to speak in several other countries on how to improve their case management policies in order to expediently clear the backlog of cases that the courts of nearly all countries are plagued with.

In the UK, the Woolf Reforms went a long way towards improving case management but it still received some stinging criticisms from the always acerbic Michael Zander. Many of the points raised by Tun Zaki were also addressed by Lord Woolf in his proposals. Among them were avoiding frivolous litigation, fully utilising court working hours, applying judiciously the practice of adjournments, ending court boycotts and adopting alternative dispute redress mechanisms. As legal practitioners or law students, we should applaud any attempts by our judiciary to smoothen the court process as well as to hear cases in a more efficient and speedy manner. However, while it is not questioned that most of the more straightforward cases are dealt with justly and professionally by the Malaysian judiciary (something that we should all be thankful for), it remains a fact that the judiciary has not successfully regained the prestige and confidence that it once enjoyed before the judicial crisis of 1988. In other words, dealing with the backlog of cases speedily is to be applauded but the chief goal of the judiciary is still to uphold the cause of justice and not that of speed.

Tun Zaki mentioned that a judge from the Madras High Court in India managed to single-handedly dispose off 53,000 cases in the four years he held office which was an average of 1,300 cases a month. Now, there is no doubt that such a record proves that the judge mentioned was very hardworking and probably went the extra mile to clear off the backlog of cases in the Indian High Court. The question before us is still whether he upheld the cause of justice. Some more cynical readers would even respond to such a statement about hearing and disposing 53,000 cases with a “so what?” if it cannot be shown that in a majority of the cases, the cause of justice was uncompromisingly upheld. The below are some useful links on this issue:

• CJ: Case Disposal Ways Very Effective (The Sun)
• The Woolf Reforms
• Zander on Woolf (New Law Journal)
• The Judiciary in Malaysia and Postmortem of the 1988 Judicial Crisis
• The Malaysian Judiciary: Erosion of Confidence (a research paper by Wu Min Aun)

Wu’s research paper (published in the Australian Journal of Asian Law Vol 1, No 2 (1999)) was an especially important piece that should be carefully read. In the paper, the author concluded that “The judiciary has never really recovered from the executive assault of the late 1980s. Indeed, public confidence in its ability to discharge its duties impartially has continued to deteriorate.” Before embarking on a self-congratulatory trip that we are disposing with cases speedily, perhaps our judges would do better to regain public confidence by exerting its independence and impartiality. That being the case, the horizon does not really look promising as the entire justice system does not just include the courts but also the A-G, the Malaysian Bar, independent legal practitioners and the police. It does not look like we are regaining public confidence very soon if we read in our morning papers news such as:

• Court says ‘no’ to having DPP, Mohd Saiful testify (NST)
• Note sheds light on Teoh’s final hours (The Sun)

The first piece of news above concerned the court’s decision to disallow the call that a DPP who was alleged to be having an affair with the key witness, Mohd. Saiful, in Anwar’s sodomy case to give her testimony in response to the allegations. Even Mohd. Saiful need not testify in response to the allegations despite the fact that should the allegations be proven to be true, it opens up a whole can of worms that he may be privy to a lot of materials in the prosecution’s files that may aid him in his case against Anwar Ibrahim. The arguments presented against lawyer Karpal Singh’s call that the two must testify was that it would “delay the case”. Karpal strongly rebutted, “We are not delaying this trial and this trial has been delayed mainly due to misbehaviour of this DPP who committed a serious offence under the Syariah Law. What kind credibility has this man got?” That being said, the court still ruled out Anwar’s application to call the two to testify in response to the allegations. At the time of posting, the court is considering whether the charges against Anwar will be dropped following the allegations against the prosecution. It is reported that the decision will be delivered next Monday.

The second piece of news concerned the presentation of a note from the late Teoh Beng Hock’s slingbag that sheds further light on how the deceased ended up dead at Plaza Masalam. This is another episode in the much publicised “Teoh Beng Hock Inquest” involving the MACC, the Malaysian Government and the Opposition State Government. Apparently the note was known to the A-G since October last year but it was never presented to the court until two days ago! Ragunath Kesavan, the President of the Malaysian Bar Council, is reiterating the call for a Royal Commission of Enquiry on the death of Teoh Beng Hock as the year-long inquest has futher eroded the public’s confidence in the criminal justice system. In his press release, Mr Kesavan wrote: “Over one year after Teoh Beng Hock’s untimely demise, public confidence in the investigation and prosecution of the case remains low, and the credibility of the Malaysian criminal justice system is still very much in doubt.  The Malaysian Bar calls on all parties in the case, particularly the prosecution, to do their utmost to ensure that not only justice is done, but it is seen to be done.” (Press Release is available online)

I first heard this recording of “This Is The Moment” by The Moody Blues way back in the “Gloryland” album that was the official record for the 1994 Fifa World Cup. It’s one of my wife’s favourite songs as well. I played this for her the day before her final exams in 1998 so she can still remember it very well. Hope you like it as much as we do.

I’m bored out of my wits waiting for my examination results. The semester break is simply too long and I can’t wait to get back into my “study-mode”. It’s rumoured that the results may be out in August so I’m keeping my fingers crossed.

As you can see, I have not been updating this blog regularly since the end of my examinations in May. Over the past two months, I have been busy with work and family. The most important turn of events is that my family is now attending St. Andrews Presbyterian Church in KL. I’ve also started a new blog to record my thoughts on Christian theology and worship (link to the new blog).

Singapore was in the news again recently. Mr. Alan Shadrake, the author of the book, “Once A Jolly Hangman“, was arrested by the Singapore police on 16 July 2010. He is now out on bail but is now allowed to leave the island state pending the completion of investigations on the charges brought against him:- namely, criminal defamation and other offences. The good news is that Shadrake’s book is widely available in Malaysian bookstores. This is probably another example of the widely alleged “rule-by-law” that the Singapore PAP government is famous for.

The sad news is that the Malaysian government seems to have been bitten by the same bug. The collection of political cartoons entitled “1 Funny Malaysia” has also been banned recently. The publishing house is seeking a judicial review of the Home Minister’s decision to ban the book (as well as the other collection entitled “Perak Darul Kartun“). These collections were widely circulated before the ban. I’ve personally read through the “1 Funny Malaysia” book several times and laughed out loud each time. Perhaps the decision to ban the book is reflective of the insecurities of the present government. As long as draconian legislations such as the ISA, the Printing Presses and Publications Act 1984, etc. are still unrepealed, it is unlikely that we will see a mature Malaysia that boldly expresses its views.

The fact is that censorship always defeats its own purpose, for it creates, in the end, the kind of society that is incapable of exercising real discretion.  ~Henry Steele Commager

I took the pics on my notebook camera. Sorry for the poor quality. Anyway, I think that I have way too many comicbooks and action figures…

From L to R: Rocky, Ethan

Ethan likes Martian Manhunter action figures and “The Brave & The Bold” cartoons. Took him out during the weekends. He had three crab claws for dinner and a pair of roasted chicken wings. He can be melancholic at times but he’s extremely talkative when he’s in the mood.

We got Rocky some time last year. My wife’s colleague gave him to us. What he doesn’t know is that he’s actually a father already. He fathered a puppy with some stray dog some time before he was given to us. He likes going to the park and lying down on puddles of cold water.

Note: The above photograph was taken by my cousin Jason two weeks ago. He was back from Australia to visit my grandma. Check out his work on Jason Lau Photography.

Truth is, if you want to know what the world is like, there’s nothing better than studying theology. Tells you about God and Man and Sin and Salvation and all that.

If you want to know what the world should be like (from a social, liberal and humanistic perspective), there’s nothing better than a course in Law (check out the UOL LLB programme here).

But if you really want to know how the world is actually being run, you must read Misha Glenny’s book, “McMafia – Seriously Organised Crime“. It’s been called the “Fast Food Nation” of the global criminal network. Despite the colourful cover (see below), it is actually a very serious book on a very serious subject written by a very serious journalist/historian who is an expert on Eastern Europe. Glenny chronicles how the fall of Communism led to the creation of the global criminal syndicate. Furthermore, he explained how criminal organisations, instead of being the bane to society that they obviously are, are also very much valued by governments of the world! In fact, the so-called promise of a “brave new world” that globalisation supposedly ushered in is actually the “shadow economy” empowered by the criminal organisations and designed to bleed the rest of the world dry while making the rich richer.

Everywhere I go, I see cokeheads reading Thomas Friedman. Some even openly believe in the free-markets, free-communication and globalisation-gospel that the man is preaching. In fact, Friedman is the chief prophet for the Chicago-style capitalist school who is tirelessly popularising the globalisation-gospel to the older generation who are grappling with the fact that their kids are growing up in an age of social-networking sites and I-Pads. The younger generation does not need his gospel. The younger generation are all instantly baptised into the church of the global-electronic-church that not just promises but actually delivers them the New Jerusalem of deregulated economies, uncensored porn and the addiction of being “connected” into the hive mind engendered by Facebook, YouTube, Twitter, Blogger and Wikipedia.

The problem is, like all Utopian promises, the reality is far more sinister. For every new technology promising to usher us into the world where things are more efficient, faster and cooler, there are dozens who fall victim to phishing scams, Facebook-induced date-rape and murder, cybercrime and hacking, cyberterrorism and all sorts of religious/cultic mumbo-jumbo.

Maybe theology does hold the answer after all. For all of our highest human achievements, they are inevitably tainted by our all-too-human sinfulness. We continue creating our substitute Edens for the real one that our parents have lost. In the original Garden, a snake crept in. In our substitute Edens, we live in perfect harmony with the snakes that we invite in. The original snake said to our original mother, “You shall be like unto the gods…” Our generation have wholeheartedly embraced and consumed the Apple and proclaimed, “We shall be gods…”

I finally completed my final paper yesterday (Contract Law). That was the last of the four  papers that I sat for over the past two weeks for my LLB. Intermediate Examinations (the other three were Criminal Law, Public Law and Common Law Reasoning & Institutions). I am largely satisfied with the work that I have done in preparation for the examinations over the past 9-10 months. As for the actual papers, the questions for Public Law were a little unexpected (to put it mildly – I know many of my classmates cried their eyes out after leaving the exam-hall). Other than that, we were all pretty ok with the other 3 papers. The only pressure we faced was the time we had to answer each question – about 40 minutes for a 4-6 page answer. Only thing left to do now is to let my brain take a vacation. Seriously. I mean to be totally “lawless” in my thinking for a while… at least until the results are out and I enter Part I of my Finals!

While I was busy preparing for my examinations and getting totally sick of the same chicken-chops at the local YMCA (where I study with my friends), great changes were afoot in the country and worldwide. I could not really read or comment on any of them as my mind was constantly on legal nonsense like the doctrine of promissory estoppel, crime=actus reus+mens rea+lack of a valid defence, separation of powers, Dicey’s three postulates on the rule of law, the Police and Criminal Evidence Act 1984, etc. etc. Anyway, the most significant news in the UK was the appointment of David Cameron as the new PM. That was followed by the reinstatement of the DPM office now occupied by Nick Clegg and the criticisms surrounding the “male and pale” Cameron-Clegg Cabinet.

On the local front, perhaps the most significant news is the Sibu by-election win by DAP. It was a totally unexpected win and therefore, so much the sweeter after the loss in Hulu Selangor some weeks back. The PM came out commenting in a silly way and blaming the BN loss of Sibu to the “urban” factor infecting East Malaysia. This perfectly reflects the mindset of the ultra-Conservative government that has been at the helm of the country for 53 years – keep the people dependent, dumb and perpetually conditioned by a Third-World “rural” mindset and they will continue supporting you until Kingdom Come! There were also criticisms about how the “Allah” issue was exploited to the max by the Opposition in Sibu. That’s funny! The Opposition did not cause the “Allah” issue. The previous and present Home Ministers did. Another mark of how government ministers do not want to change, are totally opposed to carrying out the people’s will and yet refuses to accept legitimate criticisms.

The tragic police shooting of 14-year old Aminulrasyid also raised some eyebrows and led to some very public spats between politicians, NGOs and the police. At one point, the disgruntled IGP even threatened to remove all police officers from the streets should people continue to criticise their enforcement policies! 

It is interesting that even after alleged misconduct by MACC and the police in the Teoh Beng Hock, Kugan and now Aminul’s case, Parliament is still not seriously considering stricter laws to ensure due process and procedural regulations for law enforcement officials.

Other comedic updates include the resignation of Wangsa Maju MP Wee Choo Keong, the conviction of Bung Mokhtar for illegal polygamy, and the Federal Court decision to allow extended hours interrogation by the MACC. These recent developments seem to point to the fact that the country is committed to its Third World mentality while trying to con itself into believing that it is progressing. The government is desperately trying to win back support by brandishing its report card (economy grew by 10%) and the MCA is again playing the “education” card to try to please the myopic Chinese electorate who are also moving away from the silly bread-and-butter issues of the past and getting more of a national perspective on things. It will be interesting and fun to observe what happens next…

This means that Labour will get first shot at trying to stay in power by forming a coalition with Nick Clegg’s Lib Dems. In this case, Clegg becomes the kingmaker in deciding whose bed he decides to sleep in. Check out the chart below to see an analysis of what can happen within the next several weeks:

[Original chart at: http://news.bbc.co.uk/2/hi/uk_news/politics/election_2010/8660699.stm]

It appears that the Labour Government is facing a series of new woes slightyly more than a week to the elections. In the UK, PM Gordon Brown is obviously the least favourite in the estimation of many after his two less-than-stellar performances in public debates with the other two PM-in-waiting David Cameron and the surprising star-of-the-day, Nick Clegg. The very public debates themselves are unusual as UK Elections usually are not personality contests like those in the US. Many are looking at Clegg as the British Obama – the underdog to provide a breath of fresh air after more than 13 years of Labour Government, financial woes and two unpopular wars.

Interestingly, Tony Blair was very much in the position that Nick Clegg is in now back in 1996-7. He was the promising young knight with the big grin and bigger promises. Fast forward 13 years and he’s not even welcomed here in Malaysia. As I type this, Mr. Blair is in Malaysia to give a series of lectures on success and achievements. At the same time, thousands of folks here are getting ready to greet with him with slippers!

I was at the Criminalising War Conference in Kuala Lumpur some months back and during the conference, a Britist citizen who had been living in Malaysia over the past 15 years spoke up of his shame of having Blair as the PM of his home country when conversing with Malaysian friends. The gentleman even put forth a question to the Malaysian Ambassador to the UN about why Blair was invited to address UPM students some time back. The Ambassador was caught off-guard by the question and explained that it was a decision by the university board themselves. At the same time, the Ambassador turned and got a nod from our former PM Tun Dr. Mahathir, and explained that Malaysia will no longer invite Blair back to speak in any capacity. With that, the crowd of hundreds responded with a thundering ovation.

Several weeks ago, I was at Borders and there were giant posters put up announcing Blair’s speech at the present success conference. I was shocked. Apparently, the views of the Criminalising War Conference did not reflect the overall view of all Malaysians – many of whom still uphold Tony Blair as a paragon of success. The Perdana Global Peace Conference (founded by Tun Dr. Mahathir) is, of course, very vocal in its protests against this visit by Blair – followed by the Kwong Siew Association (whose most prominent member is the controversial Matthias Chang, adviser to Tun Dr. Mahathir) and Perkasa (whose opinions, admittedly, are not popular among a large number of Malaysians anyway). On this note, I would stand with the protesters. The entire purpose of the Criminalising War Conference was to try the leaders who are propagating self-serving wars. While acknowledging that we are not likely to see them convicted for their “war crimes” in our times, we can at least do our part by ostracising them and refusing to associate with them – specifically the Bush-Blair coalition of war-mongers. The last thing that we should do is to invite him as the honourary speaker to share his “words of wisdom” on success and achievements!

Finally, while all this drama is going on in my country, Blair’s party is facing the worst challenge in its 13 years in power. Even as I write this, the senior Conservative leader, Kenneth Clarke, is already in talks about a forming coalition government following the results of the upcoming election, that many predict will result in a hung parliament. Blair’s successor (and sometimes rival) Gordon Brown is facing insurmountable odds against David Cameron’s onslaught and Nick Clegg’s rising popularity – while vowing to fight for his life to secure a majority in order to continue to stay in power. If this is not the twilight of the Labour Government, what is?

Gordon Brown has announced that the Elections will be held on 6 May 2010 – exactly 5 days before my LLB examinations! Many predict that the results from the polls will be a hung parliament with no party having a clear majority. It appears that while the Labour Party is plagued with scandals ranging from the Iraq War to MP’s expenses claims and the recent blow delivered by Stephen Fry’s cash-for-lobbying revelations, UK isn’t too enamoured by David Cameron’s party so much that they’d vote for a return to Tory (Conservative) government. Perhaps the spectre of Thatcherism-Majorism still looms large in our collective consciousness for the UK people to believe that Cameron will be able to lead the UK in this new decade of the 21st century. It almost feels like choosing between the fire or the frying pan – you’ll end up getting burnt either way.

6 May 2010 is also Tony Blair’s 57th birthday. It would be one hell of a birthday gift should it also be the day that the “New Labour Government” began by him in mid-1997 finally comes to an end. I look back at the past 13 years and all I see are missed opportunities. Blair’s (and, for that matter Brown’s) government held so much promise when they took on the reins of power in 1997. From a constitutional law perspective, we saw wide-ranging reforms such as the passing of the Human Rights Act 1998, the “Devolution” Acts (Scotland Act 1998, Northern Ireland Act 1998 and Government of Wales Act 1998), the House of Lords Act 1999, and the Constitutional Reform Act 2005, from the very start of New Labour. Problem was, politics is usually more than just academic analysis of constitutional theories. Depending on your personal perspectives, it can be far simpler (after all, it is only about human nature and frailties) or far more complex (after all, it is about human nature and frailties).

I picked up Anthony Seldon’s book on Blair yesterday from Borders. Reading it in-between my working hours, I could only wish that the real Blair was half as charming as Seldon made him out to be. Now, Seldon is an old hand at biography writing, having written previous bios of Mrs. Thatcher and Mr. Major as well. The problem is, he is a writer first and a critic second. At times, the charming prose gets the better of him and we are presented with a Blair that is so charming you wonder why so many people are today using his name as a swear-word! That being the case, it must be noted that even Seldon has recently did a bit of an about-turn in his views on Blair – particularly after his realisation that Blair is really an arrogant bastard and not quite the promising charming-rogue, Lancelot-like figure that he portrayed Blair to be in the book. Read this article by Seldon himself on Blair’s change – perhaps it wasn’t that Blair had changed. Perhaps Seldon, like the rest of us, really wanted Blair to be what we envisioned and hoped that he is. On one hand, it’s perhaps unfair to expect so much from a mere man (Obama is possibly also feeling the weight of expectations after his first year in office). On the other hand, the expectations were engendered by the man himself. His New Labour was built on his own image as the man who promised a break from the Old Britain – in the same way, Obama promised “Change We Can Believe In” although never clearly defining what “change” really means. Seldon is perhaps right to say that Blair is possibly the last UK Prime Minister to have so much influence on the world-at-large. Brown, as we know, was kept busy with damage control in domestic affairs after the not-entirely-gracious exit of the much-criticised Blair. It is possible that should Cameron be the new PM, he’d probably spend the bulk of his time on domestic affairs – chiefly, the failing UK economy. In fact, it is the economy that is at the centre of voters’ attention in the days and hours leading up to 6 May 2010. With the failure of New Labour, it is perhaps time that UK voters stop looking for a leader with “promise” and start looking for someone who can actually deliver the goods. But politics being what it is, populist manifestos will probably win the day after all…

This is possibly the best rendition of the popular tango piece ever.

I attended the DAP Fundraiser Chinese New Year Dinner at The Summit, USJ last night. It was a very well-attended event boasting of more than 1,000 enthusiastic and generous guests. The highlights of the night (aside from the glorious food) were the speeches by DAP icons and YBs Lim Kit Siang, Tunku Abdul Aziz, Gobind Singh Deo, Teresa Kok, Ean Yong Hian Wah and our very own Hannah Yeoh.

YB Hannah Yeoh presented her “report card” to the residents of USJ showcasing her relentless efforts to serve the community over the past two years since winning the ADUN post in the historic March 8, 2008 elections. She really has to be the most hardworking and people-centered ADUN that we have ever seen. For that she has our utmost respect and support. YB Teresa Kok was right in saying that the Subang Jaya folks voted in a new ADUN but got an “angel” instead. I thank God for her self-sacrificial and tireless efforts to improve the conditions in Subang Jaya and serving the people here with such genuine love. In this day of endless politicking and self-serving corporatism, Hannah is truly a breath of fresh air and a reminder that genuinely good souls still exist. [Click here to read her blog entries.]

In addition to that, my wife and I registered (for the first time) to be voters. We have not voted before but the recent turns of events in the nation have compelled us to put in our two-cents in the upcoming general elections. If this signifies anything, it’s that even politically apathetic folks like us are “waking up” to the call to be part of something greater and contributing to change in our beloved nation. The present government really has a lot to be afraid of if even supposedly politically apathetic folks like us are reacting now. Recent events in the course of our nation’s life have compelled us to say that “enough is enough” – it’s time for a regime change after half a century in power. It’s time for a new day for Malaysia.

I was away back in my wife’s hometown for much of the Lunar New Year holidays. It was a much-needed getaway from all the noise and political bickerings taking place in the Capital. Back in the hometown, I was cut off from practically everything – no internet connections, no newspapers in sight, no law textbooks, nothing but time with family, TV variety shows and food! It’s a wonder in the 21st century that you can still find a place in this country where people are totally oblivious to the goings-on in the legal and political realms. In a way, the people back home are so blissfully unaware as their attentions are somewhat focused on the happenings in some deserted island down south where a new casino just opened for business…

Anyway, I came back on the 4th day of the Lunar New Year to a world that hasn’t changed much – except for even more heated political in-fightings and legal tussles involving people in high places. Spent the past two days buried in my Criminal Law textbooks while trying to keep out the noise of the political bickerings around me.

Speaking of Criminal Law, apparently the UK Law Lords are proposing to decriminalise assisted suicide (on compassionate grounds) in the UK. The way that they are going about it is a legal milestone as they are bypassing Parliament altogether! Realising the sensitivities (social, moral and religious) surrounding the always controversial topic of euthanasia, it is unlikely that the present Parliament will involve itself in trying to legislate on it (during an election year, no less!).

The present law on assisted suicide is guided by the Suicide Act 1961 whereby a person who aids and abets another to commit suicide will be liable up to 14 years imprisonment. This is not to be confused with the law guiding suicide pacts where the aider himself also seek to end his own life. Euthanasia or mercy-killing of any sort, up to this moment, is still illegal in the UK. This has led many to end their lives in Switzerland instead.

It remains to be seen what the new reforms to decriminalise assisted suicide will be. According to The Telegraph, the guidelines will be published next week.

My questions on this legislative exercise (with relation to the Constitutional arrangement in the UK) are as follows:

• How do the Law Lords actually “legislate” behind Parliament’s backs?
• Won’t this attempt be a violation (not just a departure) from Separation of Powers as Law Lords legislating is far more than mere judicial law-making in Common Law?
• How will this attempted legislative exercise be able to set aside the Suicide Act 1961 – which prescribes the max. 14 years imprisonment for attempted suicide? Can such a legislative act actually “repeal” or annul a Parliamentary Statute? And if it does, what effect will this have on the traditional Diceyan doctrine of Parliamentary (Legislative) Sovereignty? 
• Will such a legislative exercise have the effect of secondary legislation – standing alongside Statute unless impliedly/expressly repealed by a future Act? But then, if the courts exist to enforce the “latest will of Parliament”, as is traditionally held, isn’t the “latest will of Parliament” that which was enshrined in the 1961 Suicide Act? After all, Parliament did not see fit to repeal the provisions of that Act!

Updated (27 Feb 2010): The issue on decriminalising assisted suicide was hotly debated over the past week. I wasn’t able to pay very much attention to the ongoing debates owing to my own struggles with family and financial troubles over the past several days that left me totally drained, if not intellectually dead. Thankfully, the Guardian has collected the ongoing debates in an archival list (check it out here). In the local press, the only coverage was a tiny cutout piece on Gordon Brown misinterpreting the entire purpose of the guidelines, thinking that health services and doctors are obligated to assist in suicides; and that the rights and safety of ailing patients will be threatened by the legislative exercise.

Here’s wishing everyone a Happy Chinese New Year. Despite the unhappiness in the news daily, I’m looking forward to some great times with my family this weekend. Will be leaving the city tomorrow for some much needed rest and “distance” from the political power-plays plaguing the nation.

The much awaited decision from the Federal Court on the application of Nizar Jamaluddin following the Court of Appeals’ overturning the decision of the High Court previously is announced earlier today. At the time of writing, the Federal Court judges are still reading out their decisions. The highest court of the land made an unprecedented announcement favouring Zambry Abd Kadir as the Menteri Besar of the Perak State, much to the dismay of many who were expecting a different judgment.

Like many others, I am still in a state of shock and unable to compose my thoughts properly on the issue at hand as yet. Some are already calling this a black day for justice in Malaysia seeing as how this decision appear to favour the practice of having “frogs” jumping from one political party to become “friendly” to another party. To a certain extent, perhaps this is to be expected. The New Straits Times already carried feature articles on Zambry over the weekend publicly lauding the man’s “achievements” throughout the one year that he held onto the reins of power as the Perak MB (while mentioning nothing about the shameful way he came to hold the reins of power in the first place). That our media is prejudiced is open knowledge to the world. Perhaps that was why we were hoping for something better from the courts?

From a constitutional law perspective, this is another example of the courts being dragged into the political arena. It is never something desirable when the neutrality of the courts are open to questioning by the public when they deliver such a decision. All in all, it goes to show that even in a country or state with written constitutions, uncertainties still prevail. All in all, the issue about who the rightful MB is should have never been one to be decided by the courts (after all, judges themselves are unelected public figures). In a democratic country, this issue would have been best handled by resorting to the polls and allowing the electorate to pick their favoured leader.

The media is highlighting the fact that many people in the State of Perak are now shifting their allegiances towards Zambry and BN. A simple sampling of the opinions of people in the local coffee-shops would prove this claim to be a lie. All in all, the powers-that-be can only hold onto the reins of power while avoiding being accountable to the electorate for another year or so before the next General Elections come around. We will see then whether or not the mandate will be given to the BN to continue holding sway in the Silver State.

Updated (10 Feb 2010): I just posted a comment on Datuk Seri Nizar’s blog a minute ago. Would like to paste it here as well. The comment is a brief summary of what my friends and I thought about the issues surrounding the Perak Exco:

Dear DS Nizar,

My friends and I are students from a local law school. We attended the “Whither The Constitution?” forum that you spoke in several weeks ago together. After the FC decision was released yesterday, we were not surprised – but no less saddened by it nevertheless.

While I do not question the validity of the FC decision (in the face of legality), I feel that the issue has been unduely narrowed down to only the construction of Article XVI(6) of the State Constitution. What is in question is the supposed validity of the “confidence” enjoyed by BN with no official coalition whatsoever formed with the 3 who jumped ship – does the law recognise the supposed undefined political allegiance of the phrase “friendly to BN”?

All in all, while a referral to the courts to settle disputes is a laudable practice – in contrast to violent revolutions, this matter of who should be the MB or who should make up the State Exco is one that is best handed back to the electorate. The ultimate mandate to govern should never have been decided by the courts but democratically by the people of the Silver State. That the judiciary was dragged into this was, at best, unfortunate. Whatever decision the FC released would still open them to accusations of partiality or political bias.

Here’s hoping that Malaysians will be more aware of constitutional issues and will stand up for what is right after this incident. You will have our continued support for standing by the rule of law and the principles of democracy that, while not exactly strictly observed at the moment, are yet to be normative doctrines that govern all and sundry in our beloved nation.

All the best.

Related News Postings:

• Federal Court: Zambry is rightful MB (The Sun)
• Pakatan gives up, to work with BN in Perak (The Malaysian Insider)
• Zambry is the lawful MB, Federal Court agrees (Malaysia Today)

Note: Just read a sample of the comments on the sites above to see the large public displeasure over the Federal Court’s decision. The Malaysian Judiciary is treading in very dangerous waters and fast losing all semblace of neutrality or credibility, in the public’s view.

Updated (11 Feb 2010): Watch the following video and weep.

Only total fools will be celebrating the decision of the Federal Court on 9 Feb 2010. The FC has set a very dangerous precedent leading to more uncertainties in the local constitutional situation. But apparently that is a small price to pay for the ruling government as long as they can hold unto the reins of power in the Silver State.

As of October last year, the UK Supreme Court has been finally set up in the Middlesex Guildhall building opposite Parliament. This is resulted from the reforms initiated by the Constitutional Reform Act 2005 that was designed to give greater effect to the doctrine of separation of powers. While the law lords have traditionally sat in the House of Lords (as Parliamentarians) while serving in their official judicial duties as members of the Judicial Committee of the House of Lords, it was considered to be a greater support of the separation between the legislative and judicial functions by having them removed – or more accurately, relocated to the new Supreme Court. This, of course, is not without its problems. Firstly, the Upper House has now (forever?) lost the contributions of the former law lords who were much needed in the area of scrutinising legislation and Bills. Secondly, it is somewhat odd that UK even has a Supreme Court seeing that it does not even have a writte (codified) constitution. In most countries with a Supreme Court (e.g. US), its primary function is to adjudicate over cases of constitutional importance – obviously with reference to an umbrella constitution that is supreme over all citizens and public bodies. In the UK, parliament remains the supreme legislative body that is (theoretically, at least) answerable to no written code – although in practice, there are conventions and private rulings of both Houses that govern parliamentary conduct and policies. The question, to put it simply, is this: what does the Supreme Court adjudicate over? Is it simply a new name for an old function – i.e. the highest appellate court of the land, as previously in the Judicial Committee of the House of Lords? Is so, why call it the Supreme Court? I believe you see the conundrum. While the physical removal of the law lords to this new court does give effect to separation of power, the UK’s version of separation of powers is problematic because of the clear imbalance between the three organs of state – with Parliament being superior (and Parliament being largely controlled by the executive in what Bagehot referred to as the “effective secret” of UK’s democracy – or less optimistically, the “elective dictatorship” as described by Lord Hailsham). In other words, the judiciary is the “weakest” limb. With the setting up of the Supreme Court, does it also mean that the judiciary will be put on more level grounds with the executive and legislative limbs to more ably adjudicate over matters of “high policy” (previously disallowed under the concept of non-justiciability following the famous GCHQ case – Council for Civil Service Unions v Minister for the Civil Service (1985))?

With all of the above questions left unanswered, the Supreme Court is in fact creating new problems. As of 1 October 2009, 11 judges have been sworned in to the Supreme Court. They are:  Lord Kerr of Tonaghmore 61, Lord Mance 66, Lady Hale 62, Lord Walker of Gestingthorpe 71, Lord Brown of Eaton-under-Heywood 72, Lord Collins of Mapesbury 68, Lord Clarke of Stone-cum Ebony 66. Front row: Lord Hope of Craighead 71, Lord Rodger of Earlsferry 65, Lord Phillips of Worth Matravers 71, Lord Saville of Newdigate 73 (see pic above). Within the next few weeks, the 12th justice for the Supreme Court will be appointed. Traditionally, law lords were appointed from experienced judges of the Court of Appeal or High Court. With the setting up of the Judicial Appointments Commission and the Supreme Court, this has changed. The previous “shrouded in secrecy” methods of appointing judges can now be contrasted with the open bickerings with reference to applications by experienced lawyers and academics for the position. Times Online termed the situation “Supreme ambition, jealousy and outrage” in the Supreme Court! Jonathan Sumption, QC, was initially a favourite candidate for the position of the 12th justice but the result is that he was not even shortlisted. Sumption was said to have a brain the size of a planet and was described as among the top barristers alive in the UK. He has since withdrawn his application and is contented to remain a barrister. A lot of political and judicial bickerings involving all the way to Jack Straw led to Sumption’s withdrawal but he has since refused to comment further on the matter. This is making the whole “reforms” of the judiciary (particularly, the appointments of judges) look like a total sham.

My opinion on the matter is simple. As with other things in the UK, change takes time. It is ironic that while priding itself for its innovation and strive to “move-with-the-times”, 21st century Brits are still very strongly traditional in their ways. The old dictum “if it ain’t broke, why fix it” more often than not, describe the British mindset. For those calling for reforms, it is obvious that something at least has already been “broken” and that’s why it needs fixing! However, it is clear that traditional ways and customs die hard. We shall see how further reforms and (hopefully) progress in the organisation, structure, functions and powers of the Supreme Court will be undertaken in time.

Here’s another one – David Challice talks about the constitution and tells us why this is such a “serious” matter:

Former PM Tony Blair was finally called before the Chilcot Inquiry on Friday (29 Jan 2010). He displayed his masterful “lawyerly” skills at stonewalling and evading the real questions. In fact, most spectators were dissatisfied with how little “grilling” Blair was put under with some noting that even a junior lawyer would have grilled him with more penetrating questions rather than allow him to sway the proceedings to his advantage – even eulogising his own unmoveable stance on removing Saddam “the monster” Hussein! Thankfully the public remains unimpressed and unconvinced by his sleight-of-hand. Many saw his unrepentant and unapologetic stance on the Iraq War as further evidence of his arrogance and adamant refusal to face up to the truth that he dragged the nation into an unpopular war in order to be “Bush’s poodle”.

Would this arrogant display by the former PM be another nail in the coffin that is the Labour Party leading up to the elections?

[Watch the "Live" video over at the Telegraph site]

Updated (8 Feb 2010): Deborah Orr (The Guardian) says the Chilcot Inquiry is a total waste of time, money and energy. The only thing that it clearly did was to demonstrate that Tony Blair’s ability to believe what he wants to is unquenchable. Meanwhile, the Archbishop of Canterbury chided Tony Blair for being a “Raskolnikov” (from Dostoevsky’s “Crime & Punishment”) in his self-denial and warned that the same denial will end up eating him up inside. Personally, I think the Archbishop is giving Blair too much credit – he’s still assuming that Blair has a conscience within!

The case of Frances Inglis’ killing of her 22 year old brain-damaged son is forcing law-makers in the UK to take another look at the mandatory sentencing for murder. Murder in the UK carries the mandatory sentence of life-imprisonment. The offence is still a common law offence following Coke CJ‘s definition – i.e., unlawful killing of a human being in any realm under the Queen’s Peace with malice aforethought, and the death of the victim occurs within a year and a day. The final part of that definition has been dropped following the Law Reform (Year And A Day Rule) Act 1996 whereby no limit is placed upon the time of death occuring after the initial act that led to that consequence (however, for deaths occurring 3 years after the initial violence, the A-G’s approval is required for prosecution). “With malice aforethought” has been more clearly refined following R v Moloney to mean either having an intention to kill or an intention to cause grievous bodily harm upon the victim.

The difference between murder and manslaughter is ultimately in the mental element of the accused (mens rea) whereby the former is with malice aforethought and the latter is without malice aforethought. The former carries the mandatory life-imprisonment sentence whereas the latter allows the courts greater discretion in sentencing (maximum life-imprisonment). As the mens rea for murder only contains the element of “intention”, it is a specific intent crime. In other words, simply proving that the perpetrator was reckless is not enough to return a conviction. The accused must intentionally have caused the victim’s death in order to be convicted for murder.

In the case of Frances Inglis, she intentionally killed her 22 year old brain-damaged son thereby satisfying the requirements for a conviction of murder. As mentioned previously, the sentencing is mandatory – meaning that the hands of the judges are tied. Her motive was to simply end the suffering of her son but motive is really irrelevant in this as once the prosecution proves both the actus reus (unlawful killing of a human being) and the mens rea (with intention to kill), that is sufficient to obtain a conviction of murder.

The controversy is the mandatory part of the sentencing that opens a whole can of worms regarding the whole underlying purpose of the UK penal system. If the prison term is simply to prevent Frances Inglis from further endangering society, that is entirely irrelevant as she is no danger to anyone else. In other words, there must be a distinction made between a mother trying to prevent her own son from further suffering and the acts of a sadistic serial killer! Or is the penal system really vindictive, in that we are still upholding the age-old “an eye for an eye” rule? How would a life-imprisonment sentence (the highest sentence in the UK following the abolishing of the death penalty) be seen as reformatory? Of course, some may even argue that the law has a normative or educative purpose in that it is simply sending out a message to society-at-large that murder (regardless of motive) is wrong under all circumstances. What makes this problematic is that the courts seem to have less problems with medical omissions resulting in the death of patients who are beyond rescue (ref: Airedale NHS Trust v Bland). The courts actually make a distinction between positive acts (conscious and voluntary movement of muscles) resulting in death and negative acts/omissions resulting in death (as in Bland). It is perhaps such legal gymnastics that make the criminal courts especially odious to the man on the street who really does not see the “finer” points of distinction between a deliberate refusal to feed the patient and a deliberate injection of heroin if both were carried out with the objective of ending the patient’s life.

There has been calls to reform the law of murder in the UK – with the possibility of adopting a version of the US system allowing for more discretion in the courts’ disposal of the accused (i.e. first degree murder, second degree murder, manslaughter, etc.). However, up to this point, the efforts were unsuccessful. Perhaps with the Frances Inglis case, it is about time that Parliament take another look at the calls for reform.

Read the accounts of the case on the Telegraph and further comments on George Pitcher’s blog (whose comments I strongly disagree with, if you must know!). In addition, you may also download the Law Commission’s calls for reforms in the mandatory sentencing for murder from the UK Parliament site here. Lastly, check out Deborah Orr’s comments on the Guardian site where she compares the Frances Inglis case with the Munir Hussain one (in the latter, Hussain was acquitted because his act was deemed to be one of self defence).

Updated on 1 Feb 2010: Latest polls show that 4 in 5 say that relatives should be allowed to assist in the death of terminally ill patients. This may lead to the UK finally adopting laws allowing euthanasia in certain situations. Famed fantasists Terry Pratchett is due to deliver a lecture on this subject calling for the creation of “death tribunals”. [Read the Telegraph article here]

The facts of the Adorna Properties case are very well known but if you want to read more about it and the rectification by the Federal Court, please refer to the following online reports:

• The Star Online – Federal Court reverses its decision in landmark land case
• The Malaysian Bar – Adorna Properties decision obviously and blatantly erroneous, declares the Federal Court

With this decision, the nation is holding out some hope that we are witnessing the beginning of efforts to reform and improve the judiciary that is more than cosmetic (e.g. the previous KPI “speedy disposal” proposal).

On another note, Malaysia is again panned by the Human Rights Watch in its 612-page report released yesterday. The report claimed that the government is all about rhetoric rather than taking any real action to ensure that fundamental rights of citizens and migrants in the country are protected. It clearly pointed out that the present government is more concerned about “staying in power” rather than protecting individual rights – in other words, it is concerned about survival even at the expense of trampling under foot the rights of individuals. Read about all this on The Star Online. Perhaps they should also note that this is really “business as usual“ here in Bolehland. After all, old habits die hard – especially if the same party has been holding onto the reins of power for more than half a century!

Finally, according to the latest report by the Telegraph, Gordon Brown claims that he is ready to face the Chilcot Inquiry into the Iraq War because he has “nothing to hide“. His statement comes as no surprise as it has become politically expedient for him to go before the inquiry amidst the backlash generated after it was previously announced that he would be called before the inquiry only after the election later this year. Tony Blair, it is reported, will also go before the inquiry next week. By saying that he has “nothing to hide“, could Brown really be implying that the skeletons are simply buried so deep that the Chilcot Inquiry may not be able to sniff them out?

Metro Tabernacle Church in Desa Melawati, the Assumption Church in Jalan Templer and the Life Chapel in Section 17 (PJ) were all attacked yesterday. Metro Tabernacle Church was left in ruins as a result of the petrol bombs thrown by the arsonists. The attacks on the other two churches were unsuccessful.

Will the Rule of Law prevail? The PM, Home Minister and IGP have separately issued statements to the effect that these dastardly acts will not be tolerated and that all efforts will be made to prevent further occurences of such heinous attacks. More is at stake than just the credibility of the PM’s “1Malaysia” slogans. The ball is now in the court of the government to ensure that the Rule of Law is upheld by not showing any favouritism or selective prosecution, that religious sentiments not be further stoked for political gains, and that proper respect for the judiciary be emphasized. Aside from the obvious offence of criminal damage by arson, the attacks on the churches also amount to contempt for court as the government had already filed an appeal against the High Court decision and also successfully obtained a stay of execution on the said decision pending the appeal.

The Malaysian High Court has finally decided on the issue of the usage of the word “Allah” in Christian publications. This long awaited decision, it appears, will have long-standing significance not just in Malaysia but also in other countries in this region on the constitutional rights of citizens to practise their religion without censorship or control – not to mention freedom of speech. This is indeed good news – coming just one day before 2010. The Home Ministry, it appears, will be appealing against this decision – as some folks are already speaking out against the judgment saying that it will stir racial and religious tensions. The question is, should the courts then avoid taking difficult or controversial steps in order to uphold constitutional rights and/or the fundamental freedoms of individuals?

Read more about this decision at The Star Online or The Malaysian Bar website. The Malaysian Insider noted that celebrations in response to the decision was somewhat “cautious” as the Court of Appeal may well reverse this decision in the future and/or the High Court judges may be “transferred” away from the bench. All in all, here’s hoping that the Rule of Law prevails in this country over the arbitrary and self-serving wishes of the few.

On that note, here’s wishing everyone a happy and blessed 2010 ahead…

I can’t believe how fast this year went by. I started off this year with a new career as a freelance teacher and ended the year as a law student. Also, 2010 feels like the beginning of a new decade – although technically, the 2nd decade of the 21st century doesn’t really begin until 2011. However, I think many other people share my feelings because we officially started our “millennium” celebrations (along with all the accompanying dread thereof) on January 1st, 2000!

We also had a great Christmas this year. You see, I never received Christmas presents as a kid but for this year, we received a pug dog (named Rocky), tons of chocolates and even an original Scrabble set from friends and colleagues. My wife and I also picked up several hardcovers. Kids got lots of toys. Other than that, we also got to watch “Sherlock Holmes” for free! We also got to visit my youngest sister on Christma day. She just gave birth to a baby girl about a week before Christmas. On Sunday, my family went out on a one-day camping trip.

I’m still on my year-end break. Will be going back to work on December 31st. Kids will be starting school next Monday (January 4th). In the meantime, I’m working my way through my Criminal Law study guides, textbooks and casebooks. Spent the whole of yesterday alone studying homicide, assault and battery – along with the specific defences (to murder) of provocation, diminished responsibility, suicide pacts and infanticide. Reading up on automatism and insanity today. The 12th edition of the classic Smith & Hogan Criminal Law (rev. by David Ormerod) along with the Textbook on Criminal Law (by Michael J. Allen) are my primary texts on the subject. The student guide and study pack supplied by the University of London are also very helpful – not to mention the lecture notes supplied by my college. I’m thankful for the way the lecturer keeps me on my toes with her extremely logical and thorough manner in analysing the issues. The lecture notes supplied by her are also very helpful in dividing up the topics – to be supplemented by further reading and research. Will also be working on the Criminal Law assignment (a Christmas “present” from my lecturer!) tomorrow morning…

Exam timetables are out.

What can I say? Gotta start hitting the books again…

In the meantime, have a Blessed Christmas, everyone…

It is very disheartening to read about the latest news surrounding the Chilcot Inquiry into the UK’s involvement in the Iraq War. Apparently PM Gordon Brown will not be called to face the inquiry until after the elections in 2010 so as not to tarnish his image further in the minds of the electorate. The reason given for this decision is that the Chilcot Inquiry is non-partisan and refused to be manipulated to benefit any political parties. The correct question that should be asked is this: shouldn’t the people in UK be given an opportunity to review the PM and his ministers before the elections in order to make up their own minds whether or not to trust this government for another 5 years?

• Times Online: ‘Gordon Brown spared from testifying to Chilcot inquiry until after election’
• BBC News: ‘Gordon Brown to face Iraq inquiry – after election’

My Constitutional Law lecturer commented just the other day that Lord Judge’s ancestors, by their choice of a surname, exhibited great foresight. Lord Igor Judge is now the new head of the judiciary in the UK. With the Constitutional Reform Act 2005 redefining the roles, powers and limitations of the office of Lord Chancellor, most of the original powers in that office has now been transferred effectively to the Lord Chief Justice. Lord Igor Judge spoke to BBC’s Law In Action on many problems with the UK legal system.

Law in Action speaks to Lord Igor Judge, who gives his first interview since taking up the post last year.

The head of the judiciary in England and Wales has defended the right of judges to impose short-term sentences.

“The purpose of sentencing is the reduction of crime, the protection and safety of the public from the consequences of crime… My view is that a short sentence is sometimes appropriate.”

Overcrowding

And what does he say to those critics who claim such sentences do not reform inmates and contribute to the serious overcrowding in prisons?

“I do not think that we can organise sentencing policy on the basis that it is our role to reduce the prison population.”

Serious offences

Lord Judge is concerned about the growth of so-called ‘out of court disposals’.

This system deals with offences without the offender going to court and includes fixed penalty notices, on the spot fines and conditional cautions.

“I believe that there are parts of the country where really serious offences [any assault which produces any injury] are dealt with without going to court, and that should not happen.”

The jury’s out

Perhaps the most controversial of his judgements so far has been the decision to give the go-ahead to the first non-jury trial.

Lord Judge is a passionate advocate of the jury system, but is also a pragmatist.

“Those who say that no price is too much are overlooking that you have to choose between hospitals and schools and armour for our troops in Afghanistan, and all the other demands on public money.”

Justice at a price

Turning to the civil justice system, Lord Judge says there is a “very serious problem” in the way that civil justice is developing in England and Wales.

He fears denying people access to justice because of cost could lead to civil disorder and violence.

It is “not acceptable”, he says, if some people can not afford to go to court.

‘Mayhem’

“It is one of the reasons why we are part of society; that society should provide us with a place in which to resolve our disputes.”

“The alternative is mayhem. You end up with peace being broken and you end up with crime being committed, crimes of violence.”

[Original source: BBC Law In Action]

Law in Action gets a unique insight into Sir Ken Macdonald’s time as Director of Public Prosecutions for England and Wales.

His tenure was served in intense, febrile times as government policy focused on tackling terrorism.

He tells the programme how this resulted in too much legislation and on more than one occasion brought him into conflict with government.

7/7 bombings

The DPP was ultimately responsible for the prosecution of terrorism in the aftermath of the July bombings in London in 2005.

He says his reaction to the events on that day surprised him. He felt “a peculiar sense of responsibility” that he could have done something to stop the bombings.

“The guilt felt by people in the top jobs led to a danger that people will overreact, which some governments across the western world did”.

Speaking out

Sir Ken differed from his predecessors because he felt it was right as head of the Crown Prosecution Service, to speak out when he disagreed with government policy.

One of those he came into conflict with was the then Home Secretary David Blunkett.

Mr. Blunkett says “the DPP should have a voice but Sir Ken’s privileged position of being able to express himself more clearly inside the system could have been used more effectively.”

42 days

The former DPP speaks about his opposition to the government’s proposals to hold terror suspects for 42 days without charge.

This was a flagship policy for the government and was pushed hard by the Home Secretary at the time Jacqui Smith.

Sir Ken says that he couldn’t agree with the idea saying it was “undermining of civil liberties”.

Parliament should ‘back off’

He says that a need to be seen to be doing something fuelled a lot of the government’s criminal and terror legislation during his time as DPP.

He says that there has been far too much legislation and believes the next parliament could do well to “back off, calm down, and leave criminal justice alone for a while”.

‘Great tragedy’

He is unrepentant about his decisions in the case of Jean Charles de Menezes who was mistakenly shot at Stockwell tube station in the days after the July 7th bombings.

He says that there was no way he could prosecute individual police officers in that case.

“Sometimes great tragedies take place in which there is no criminal culpability and it’s not the job of prosecutors to start inventing it”.

Meeting the families

Finally he speaks about his day to day role. He tells the story of meeting families to explain his decisions in particular that of Simon Murden another man shot dead by police this time in Humberside.

He says in that case he over-ruled his CPS team and decided there was not a case for prosecuting any police officers in that case.

What a Christmas gift! The ginormous box of books from the University of London finally arrived yesterday. There were more than a dozen textbooks and study guides inside. I got the box unnaturally late. You see, for some reasons, the powers-that-be got the bank draft sent by my college on 2-Nov-2009 mixed up. This resulted in a delay in the despatch of the box to me and about half-a-dozen other students. All in all, I’m just glad to get the box just before Christmas. That way, I can spend my Christmas holidays diving into the legal goodies in these scary-thick textbooks!

I’m checking out the London (External) Student Portal/VLE now. Will write more after Christmas – once I’ve processed through the lot of stuff that I just received…

I was invited to a special screening of “Sherlock Holmes” (starring Robert Downey Jr. and Jude Law) yesterday evening – courtesy of MixFM. Much to my chagrin, the villain in the Guy Ritchie directed film, Lord Blackwood (played by Mark Strong) plotted to wipe out the lords in the House of Lords in Parliament. What followed was a smashing action movie with Downey doing his tongue-in-cheek version of the brilliant Holmes and Jude Law in a very subdued role as the voice-of-reason Dr. Watson. The plot was a little too similar to Alan Moore’s “From Hell” – what with the occultic connections and serial murders culminating in a plot involving powerful people in high places. Throw in “V For Vendetta” and you even get a plot to destroy the House of Lords in Parliament as a bonus. All in all, it was a thoroughly enjoyable romp – though not quite as what Arthur Conan Doyle may have envisioned. My wife and kids absolutely loved the film and were already screaming for the BluRay DVD upon stepping out of the theatre. As for me, I’m looking forward to the inevitable sequel when Professor Moriarty finally steps out of the shadows…

Anyway, as I was saying, the villain in the film tried to destroy the House of Lords. Truth is, his elaborate plots to take over Parliament by using cyanide gas on the dissenting lords in the august house was nothing compared to what the House of Commons did over the past 100 years to diminish the House of Lords. Historically, the House of Lords was the more powerful house in Westminster Parliament. Two civil wars later, the House of Commons overtook the Lords in power and influence (or at least, we are led to believe it to be so).

The first open challenge to the powers of the Lords came with the passing of the Parliamentary Act 1911 which severely limited the veto powers (limited to only two years) of the Lords to any bill proposed by the Commons. Furthermore, they were denied any right to challenge “money bills” proposed by the Commons. With the Parliamentary Act 1949 (finally passed after the two-year veto by the Lords, obviously), their veto powers were reduced to only one year. 

Following the devastating blows dealt to the Lords in the above Parliamentary Acts, Parliament passed two more Acts that further curtailed the powers of hereditary lords who inherited their peerage from their ancestors. The Life Peerages Act 1958 allowed the appointment of a new class of peers who could sit and vote  in the House of Lords. Unlike hereditary peers, these appointed life peers could not pass on their peerages to their descendants. The Peerage Act 1963 allowed hereditary peers to relinquish their peerages and seek election in order to join the House of Commons! By this, it was doubtless which was the more powerful House in Parliament.

Further reforms were brought about by the Labour Government that came into power in 1997. This led to the passing of two more Acts of great significance.

The first of these Acts was the House of Lords Acts 1999. This Act is said to sound the death knell to the tradition of hereditary peers. The Act left only 92 hereditary peers in the House (to be removed later by further reforms). The Act decreased the membership of the House from 1,330 (October 1999) to 669 (March 2000). As another result of the Act, the majority of the Lords were now life peers.

After that, Parliament called for further reforms of the constitutional standing of the three organs of state to give effect to a clearer separation of powers. This resulted in the redefinition of the role of the Lord Chancellor as well as the abolishment of the Appellate Committee of the House of Lords from Parliament with the passing of the Constitutional Reform Act 2005. Although the Appellate Committee of the House of Lords is abolished, the currently serving Law Lords keep their judicial role in the new Supreme Court. Newly appointed members of the Court will not take the peerage and will be called Justices of the Supreme Court. The Lord Chief Justice replaces the Lord Chancellor as head of the English judiciary.

The new Supreme Court sits in a separate building from the Houses of Parliament where the House of Lords formerly performed its judicial functions. After a lengthy survey of suitable sites, including Somerset House, it was decided that the location for the new court would be Middlesex Guildhall, in Parliament Square, Westminster, which was formerly a Crown court building. Lord Foster was chosen to make the necessary alterations. The building reopened as the Supreme Court in 2009.

References:

• Full text of the House of Lords Act 1999.
• Full text of the Constitutional Reform Act 2005 as is amended and in force today in the UK.

Having commented on the adoption of corporate-business practices by megachurches yesterday, I now turn to how the Malaysian Judiciary has also declared their adoption of like practices. The problem with the reliance on statistical indications of performance, whether in the number of worshippers in a church or the number of cases disposed of by the courts is that statistics really tell us only one side of the story. In the area of churches, the number of worshippers is no indication of the spiritual maturity of the church. As for the judiciary, there is no indication whatsoever that a judge who holds the record number of cases disposed is truly in the business of dispensing justice professionally. In other words, numbers may tell us a lot in terms of quantity but almost nothing in terms of quality. While numbers may have worked for the sales and production sectors, do we want to adopt the same measurements and standards for the legal system or the church?

In The Sun today is a very well-written article by G. Mahendran entitled “Justice Hurried Is Justice Buried“. It is also available online at the Malaysian Bar website. It is a very sad day in Malaysia should the judges who are supposed to be the paragon of professionalism, stability, impartiality and good-sense are instead urged to behave like competitive salespeople chasing after numbers. Aside from the damage done to the credibility of the Malaysian Judiciary, the adoption of the KPI system of ensuring speedy disposal of cases may, in fact, result in miscarriages of justice – especially if speed is valued more than the proper attention paid to justice. Justice, above all, must remain the highest priority of the judiciary. That the government is adopting KPI in order to revamp its many ministries is no reason why the courts must adopt the same. Delivering of well-reasoned judgments is time-consuming and requires far more complex processes than getting passports out in 2 hours! More than anything, the judiciary is supposed to be the most independent of the three organs of government – when compared to the executive and the legislature. Why then should the judiciary even attempt to follow certain less-than-admirable practices of government ministries when it should instead be setting standards by which the other departments emulate?

In conclusion, while there is truth in the saying that “justice delayed is justice denied” – i.e. the judicial process should be efficient both for the sake of doing justice to both claimants and defendants as well as saving legal time and costs in the process, throughout the hundreds of years of the history of legal practice, it has never sought to adopt speedy delivery in the place of doing right by the law and the principles of natural justice. The popular saying that justice must not only be done but must be seen to be done is very apt in our present situation. Can justice be “seen” to be done when criminal cases involving the death penalty are disposed with over 3 or 4 hearings (in order to meet the KPI standards of 60 criminal cases per year)? Over the centuries, highly complex cases, both civil and criminal, have been brought to the courts. Not once have the judiciary proposed speedy disposal over well-reasoned and well-thought judgments. More often than not, judges are constantly aware of the gravity of the burden placed upon them on both a legal and moral sense in delivering their decisions. It is for this reason that A V Dicey’s third postulate for the rule of law confidently propounds that the courts are the best guardians of citizens’ rights. Can this still be true when the courts start behaving like water-dispensing machines in handling out decisions?

The most recent crises involving Christians in Malaysia were (1) the much-publicised case involving the Home Minister disallowing The Herald to use the title “Allah” for God and (2) the financial scandal rocking the infamous Calvary Church. In the former, we see both Christians and non-Christians (chiefly lawyers and crusaders for human rights and freedom of speech) speaking out against the Home Minister’s ban of the word “Allah” as it is used in Christian publications. In the latter, we see that the words and acts of professing churchmen have resulted in bringing a stain on the good name of Christianity in Malaysia.

The Calvary Church crisis was brought to national attention in The Star – Metro on 18-Nov-2009. The article is available to be read online. The article reported on how the Truth, Transparency and Good Governance Group (TTG) group is calling upon the Senior Pastor – Rev. Tan Sri Prince Guneratnam to account for alleged mismanagement of funds by himself and his Board of Deacons (BOD). The TTG is made up of members of Calvary Church itself. A lot of the issues were centered on the exorbitant costs involved in the building of the futuristic, spaceship-like Calvary Convention Centre in Bukit Jalil (see artist rendition above) as well as monetary claims by church leaders (refer to the clip below).

Not dissimilar to the Corinthian Church of the first century, the two groups of churchmen are resorting to settling their dispute in the court of law. For more on the progress (or regress) of this unpleasant episode, visit Calvary Today. This episode, if not handled properly, may go down in history as the Malaysian church’s equivalent of the infamous scandal involving The PTL Club that rocked evangelicalism in the United States.

Truth be told, this scandal came as no surprise to me – what with mega-churches adopting corporate-business strategies more and more in managing their affairs. During the mid-1990s, I attended Calvary Church for several months and found that the church had always employed very smooth and strategic methods in their weekly services, gospel rallies and the grand Christmas celebrations annually. More and more churches in Malaysia are adopting the same formula of big buildings, big music and big events in order to ensure the continued growth of their congregations. Crude as the saying may be, even in the realm of church-building, “if you build it, they will come“. In response to the allegations of mismanagement of church monies, the leadership of Calvary Church actually employed the service of online marketing firms to protect the “Calvary” brand from being further tarnished by the whistle-blowers. When has the mountain on which the Blessed Lord was crucified been made into a “brand”?

What is worrying is that the crisis afflicting Calvary Church may not be an isolated case as more and more churches are adopting the same corporate-business strategies. A Baptist church that I used to attend has been totally usurped by the corporate-type figures within upon the commencement of their own building of a “convention-centre”-styled sanctuary. The decisions of the present leadership included discontinuing the services of their two senior pastors. When I attended a one-day Bible Conference in a local church (also in the megachurch mold) earlier this year, I shivered as the senior pastor boasted to the visiting Bible teacher about the “success” attained by the church with their grand new sanctuary over the past 10 years. The famous Bible teacher visited the church 10 years ago when the congregation used to worship in a rented factory block. The senior pastor, obviously proud of his brand new “convention-centre”-styled sanctuary, spread his hands out inviting the Bible teacher to see for himself the success of the church.

The folly of the original disciples who pointed to Jesus the glories of the Second Temple is still with us today. The folly of Nebuchadnezzar glorifying himself in the great architectural wonders of Babylon is still with us today. Do we need to be reminded again by our Lord that in that Day, not one stone will be left on top of another (Matthew 24:1-2)? Or do we need to be driven into the fields like insane beasts before we repent of our materialism and self-glory, as what befell Nebuchadnezzar (Daniel 4)? Have we not learnt that it is faith and obedience that our Lord seeks? Have we not learnt that He who did not spare the First and Second Temples (destroyed in 586 B.C. and 70 A.D. respectively) will think nothing of our “convention-centre”-styled sanctuaries should we not be faithful and obedient to Him? How long must it be until we realise that “the LORD does not look at the things man looks at. Man looks at the outward appearance, but the LORD looks at the heart” (1 Samuel 16:7b)?

I am not gloating at the crisis befalling Calvary Church. More than anything, when Christians err, the whole body suffers collectively. What I am professing, however, is a return to Biblically-based leadership – that church leaders be appointed not on their charisma or personality but on their character, personal godliness and fear of the Lord. Furthermore, avoid all forms of building projects. Without building projects, churches will not be focusing on fund-raising activities. Without the existence of large amounts of money, corporate-”wolves” in the congregation would not even be interested in usurping leadership roles and supplanting pastors. Let the Lord provide for the needs (not the lavish desires and personal ambitions) of each congregation and their members. The tragedy is that nearly every church that I visit have some form of “building fund offering” and some plans involving purchase of land for the construction of church buildings. This is not surprising. It’s far easier to build buildings than to build saints. The former can be accomplished with fund-raising and shrewd negotiations. The latter lies solely in the hands of the Spirit of God, who we must ever approach in faith and submissive obedience.

The Apostle Paul put it best when he wrote:

For we are God’s fellow workers; you are God’s field, God’s building. By the grace God has given me, I laid a foundation as an expert builder, and someone else is building on it. But each one should be careful how he builds. For no one can lay any foundation other than the one already laid, which is Jesus Christ. If any man builds on this foundation using gold, silver, costly stones, wood, hay or straw, his work will be shown for what it is, because the Day will bring it to light. It will be revealed with fire, and the fire will test the quality of each man’s work. If what he has built survives, he will receive his reward. If it is burned up, he will suffer loss; he himself will be saved, but only as one escaping through the flames. (1 Corinthians 3:9-15)

I attended the public forum “Whither The Constitution: Lessons To Be Learnt From The Perak Crisis” at the PJ Civic Centre with several of my college mates last Wednesday. We were there because of two reasons – (1) we wanted to witness firsthand how the concepts of constitutional sovereignty, rule of law and separation of powers are applied in a real (non-theoretical) and local situation, and (2) we are all excited to hear the speakers give their views on the Perak Constitutional Crisis.

Upon our arrival, we were informed that one of the key speakers, Prof. Kevin Tan from NUS, had been barred from speaking that evening. The reason given for this prohibition was that he did not have a “work permit”! He was told to apply for clearance from the Malaysian Professional Centre (Ikhtis a) before he is allowed to speak at the event. The event was only for one evening and it would take 7 days before his application was approved! In other words, the “powers-that-be” did not want him contributing his two-cents on the Perak Constitutional Crisis in case he offered some dissenting views that may threaten our oh-so-fragile democracy. (Visit Temasek Review for more on this incident.) Kevin Tan’s comments on the issue are available online at Loyar Burok. You can read them all online. It’s funny that the “powers-that-be” are still under the illusion that free-speech can be restricted in this day and age!

My friends and I were very impressed by how the legitimately elected Perak MB Mohd Nizar Jamaluddin (who had since become “jobless”) spoke his mind eloquently, passionately and fervently. We await with bated breath, along with Nizar, the pending decision of the Federal Court on the Perak Crisis.

The next speaker was the much-respected Prof. Shad Saleem Faruqi. He gave a very objective evaluation on points of law in reference to the actions and decisions of the Sultan of Perak, the Pakatan Rakyat coalition, the former Speaker of the State Assembly, the 3 detractors, the BN, as well as the police and the civil servants in Perak. What was so valuable in Faruqi’s speech was that is was very apolitical and unbiased. He carefully examined the issues and pointed out the rights and wrongs committed by both sides of the rival parties/coalitions.

The final speaker of the night (standing in for Prof. Kevin Tan) was Lawyer Tommy Thomas, who is also acting as counsel for Nizar. His speech was the direct opposite to that of Prof. Faruqi’s – but in a good way! While the prof. was erudite and objective, Tommy was impassioned and fiery. His speech goes to show that matters of law are often matters of the heart as much as matters of the mind. In this case, it is especially true because constitutional law concerns the rights of citizens (the electorate) and the boundaries set on those that are put in power to avoid abuses and arbitrariness.

In the end, despite the differences of opinions between the speakers (as well as the audience), everyone present was in full agreement over several key points:

1. While the Federal Court is presently deliberating over the Perak issue, everyone feels that in this case the judiciary has been dragged into the realm of politics. In a democracy (and to uphold the separation of powers), this is not exactly a healthy thing. The best solution to the Perak problem is to return the decision to the electorate in order to determine the mandate to rule the State.
2. While people on both sides of the fence are emotional and/or angry about how the crisis has escalated to this point, we should be thankful that there hasn’t been any overtly violent episodes. That both sides are turning to the courts to settle matters (though that may not be the most appropriate method, as mentioned above) is no doubt a sign that Malaysians are mature enough to look into peaceful ways to settle disputes.
3. Interest in constitutional and legal issues are at an all-time high. More efforts should be taken to educate the general public on the provisions in both our Federal Constitution as well as the individual State Constitutions. The present situation that we are in is a far cry from the Mahathir years where most folks do not even dare to openly debate political or constitutional matters.

Provocation is a specific defence against the charge of murder. It is only to be raised when prima facie for the crime of murder is made out – i.e. the prosecution is able to prove beyond a reasonable doubt (Woolmington v DPP (1935)) that the defendant (D) had committed the actus reus of unlawfully killing a human being with the mens rea of intention to either kill the human being or to cause grievous bodily harm. The burden of proof remains with the prosecution that D was not provoked when the act of homicide was carried out (Cascoe (1970)). A defence of provocation, if successful, will reduce the charge from murder to that of manslaughter (i.e. voluntary manslaughter) that carries a sentence of maximum life imprisonment.

The defence of provocation was originally a defence under common law (Duffy (1949)), but has since been modified by s. 3 of the Homicide Act 1957, which provides:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enought to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

At common law (Duffy (1949)), it was decided that provocation must come from an act coming from the victim towards the accused that resulted in a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind. This has been redefined by the Act above.

In Doughty (1986), it was held that words (in this case, the baby’s incessant crying) can be construed as amounting to provocation. Also, the provocation may emanate from third parties other than the victim (Davies (1975)) or be directed towards third parties other than the accused (Pearson (1992)). What is crucial is that there must be evidence showing that D was provoked to lose his self-control. In the event that such evidence exist, the defence of provocation must be left to the jury.

The test for whether D was provoked when he performed the homicidal act is a two-limbed test:

1. The subjective question whether D was provoked to lose his self control; and
2. The objective question whether a reasonable man would have been provoked to lose his self-control and do as he did.

In Richens (1993), it was held that loss of self-control did not need to be “complete” to the extent that the accused did not know what he was doing. It is sufficient that he may not have been able to restrain himself from doing what he did.

In Ibrams (1981), it was held that while there may be a history of provocative words or acts, if at the time of killing, D was not provoked to lose his self-control, he cannot rely on past provocation. This was affirmed in Thornton (1992) and Ahluwalia (1992). The court sought to distinguish between acts of killing resulting from a loss of self-control and those that  come from a calculated desire for revenge (Duffy (1949)).

In other words, what is needed is that there must be a sudden and temporary loss of self-control that resulted in the act of killing. The courts deem that should a “cooling-off” period exist between the initial provocation and the act of killing that follows, provocation will be negatived. In Ahluwalia (1992), D  killed her husband after a prolonged period of domestic violence by him. It was argued that the cumulative provocation resulted in a “slow-burn” where D loses self-control only after a prolonged period of provocation by the deceased. The Court of Appeal, in a much criticised decision, did not allow for such “slow-burn” cases and stated that the law on provocation should only be amended by Parliament (see below for more on this).

Furthermore, it was held in Johnson (1989), that the fact the accused induced the  provocative conduct does not preclude him from seeking to raise the defence of provocation. The court disagreed with the Privy Council’s decision in Edwards (1973) and stated that s. 3 of the Homicide Act 1957 required that where there is evidence of provocation, the issue must be left to the jury, regardless of whether the provocation was originally induced by D himself. Again, what matters was a sudden and temporary loss of self-control as a result of provocation. The jury must take everything into account regardless of whether it was a predictable result of the accused’s own conduct.

Having said that, the defence of provocation will only be successful should it pass the objective test as well – i.e. the reasonable man in the same circumstances as the accused will also have been provoked and acted as the accused did. The purpose of this objective test by the reasonable man is to set a standard of self-control against which D’s actions are to be measured. The problem faced by the courts is how is the “fictional” reasonable man to be construed – i.e. should any of the mental or physical characteristics of the accused be endowed upon the reasonable man?

In Bedder (1952), the court took a strictly objective stance in that none of the peculiar characteristics of D should be allowed the reasonable man. In this case, D was provoked because the victim taunted him for his sexual impotence. Lord Simonds stated that to endow the reasonable man with any such peculiar characteristics of the accused was to make nonsense of the objectivity of the test.

This strict objectivity presents several problems. When the jury is directed to take into account everything that may give rise to provocation, the unavoidable question is that a person with a particular characteristic (e.g. a sexually impotent man in Bedder), mental impairment or youthfulness (Camplin (1978)) may be particularly sensitive to certain provocative acts or words.

Lord Diplock proposed in Camplin (1978) that the age, sex and any other characteristics of the accused that may affect the gravity of the provocation be attributed to the reasonable man for consideration. This was affirmed by Lord Goff in Morhall (1996) who allowed that D’s glue-sniffing be allowed as a characteristic as it was this particular addiction that was subjected to insults.

Following Camplin and Morhall, the question then arises whether all the mental characterictics of the accused should also be attributed to the reasonable man. This question led to many confusing and controversial decisions as can be seen in Newell (1980) with the accused’s alcoholism; in Ahluwalia (1992) and Thornton (No. 2) (1996) with the accused’s battered wife syndrome; in Dryden (1995) with the accused’s obsession over his property; in Humphreys (1995) with the accused’s abnormal immaturity and attention-seeking by wrist slashing; and in Luc Thiet Thuan (1996) by the accused’s brain damage and proneness to explosive acts. Decisions to allow mental characteristics in certain cases and to disallow in others resulted in the law on provocation becoming an utter confusion. The courts’ decisions effectively blurred the distinctions between provocation (age and sex – i.e. external characteristics) and diminished responsibility (mental or psychiatric characteristics).

The House of Lords was again confronted with this problem in Smith (Morgan) (2003). Their lordships, by a majority decision of 3-to-2, affirmed Camplin and reiterated that the characteristics attributable to the reasonable man not just in considering the gravity of the provocation but also the standard of self-control should be expanded to include not just the age and sex of the accused but also any relevant mental characteristics  moving towards the provocation. Following Smith, the jury when  considering provocation objectively must also take into account any condition from which the accused suffered which impaired his ability to exercise self-control.

The problem was amplified by the Privy Council’s dissenting decision in A-G for Jersey v Holley (2005). The Privy Council in that case comprised nine serving Lords of Appeal in Ordinary and, by a majority of 6-to-3, followed Luc Thiet Thuan stating that mental characteristics should be disallowed for the jury’s consideration. It was held that only age and sex were relevant to be applied to the objective standard of the reasonable man.

The decision in Holley led to other complications beyond the already complicated issues surrounding the law on provocation. This was because decisions of the Privy Council were not binding precedents in the courts of England and Wales; and thus could not overrule the House of Lords’ decision in Smith. However, the Court of Appeal affirmed Holley in James and Karimi (2006) by stating that the principal of law on provocation was to be found in the decision of the Privy Council because the majority in Holley comprised half of the appellate committee of the House of Lords and thus any further appeal to the House of Lords would be a foregone conclusion by that reason.

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It came to my attention yesterday that upon the enactment of s. 54 of the Coroners and Justice Act 2009, the law on provocation is again amended. The law as it stands now on partial defences to murder (loss of control) is as follows:

54 Partial defence to murder: loss of control

(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—

(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,

(b) the loss of self-control had a qualifying trigger, and

(c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.

(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.

(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.

(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.

The explanatory notes supplied by the House of Lords read as follows:

Clause 44: Partial defence to murder: loss of control324.     The common law partial defence to murder of provocation is supplemented by section 3 of the 1957 Act. It provides that a defendant who would otherwise be guilty of murder will be guilty of manslaughter instead if he or she was provoked by things said or done (or both) to lose self-control, and in the opinion of the jury the provocation was enough to make a reasonable person do as the defendant did.

325.     Clause 46 abolishes the common law partial defence of provocation (section 3 of the 1957 Act and section 7 of the Criminal Justice Act (Northern Ireland) 1966 are, accordingly, also repealed). Clause 44 replaces the common law with a new partial defence to murder for circumstances where the killing resulted from a loss of self-control attributable to a “qualifying trigger”, as defined.

326.     Clause 44 sets out the criteria which need to be met in order for the new partial defence of loss of self-control to be successful.

327.     Subsection (1) lists those as:

a)     the killing was a result of the defendant’s loss of self-control,

b)          the loss of self-control had a qualifying trigger (which is defined in clause 45), and

c)          a person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the circumstances of the defendant might have acted in the same or similar way to the defendant.

328.     Subsection (2) clarifies that the loss of control described in subsection (1) need not be sudden. Under the existing common law partial defence of provocation, the courts have held that the loss of self-control must be sudden. Case law has developed over time to the effect that the partial defence might still apply though where there was a delay between the provocative incident and the killing. The length of time between the incident and the killing does however affect whether there is sufficient evidence of a loss of self-control for the judge to leave the issue to the jury, and how readily a jury accepts that the defendant had indeed lost his or her self-control at the time of the killing. Although subsection (2) in the new partial defence makes clear that it is not a requirement for the new partial defence that the loss of self control be sudden, it will remain open, as at present, for the judge (in deciding whether to leave the defence to the jury) and the jury (in determining whether the killing did in fact result from a loss of self-control and whether the other aspects of the partial defence are satisfied) to take into account any delay between a relevant incident and the killing.

329.     Subsection (3) supplements subsection (1)(c) by clarifying that the reference to the defendant’s circumstances in that subsection means all of those circumstances except those that are only relevant to the defendant’s general level of tolerance and self restraint. Thus, a defendant’s history of abuse at the hands of the victim could be taken into account in deciding whether an ordinary person might have acted as the defendant did, whereas the defendant’s generally short temper could not. Consequently, when applying the test in subsection (1)(c) the jury will consider whether a person of an ordinary level of tolerance and self-restraint to be expected from someone of the defendant’s sex and age and in the defendant’s specific circumstances (in the sense described earlier in this paragraph) might have acted as the defendant did.

330.     Subsection (4) ensures that those acting in a considered desire for revenge cannot rely on the partial defence, even if they lose self-control as a result of a qualifying trigger.

331.     Subsection (5) clarifies where the burden of proof lies in murder cases where the partial defence is raised. If sufficient evidence of the partial defence is raised, the burden of disproving the defence beyond reasonable doubt rests with the prosecution. It is supplemented by subsection (6) which confirms that for the purposes of subsection (5) the evidence will be sufficient where a jury, properly directed, could reasonably conclude that the partial defence might apply. It will be a matter of law, and therefore for a judge to decide, whether sufficient evidence has been raised to leave the partial defence to the jury. This differs from the position with the existing partial defence of provocation where, if there is evidence that a person was provoked to lose his or her self-control, the judge is required by section 3 of the 1957 Act to leave the partial defence to the jury even where no jury could reasonably conclude that a reasonable person would have reacted as the defendant did. Where there is sufficient evidence for the issue to be considered by the jury, the burden will be on the prosecution to disprove it. This is the same burden of proof as other defences, including self-defence.

332.     Subsection (7) sets out that, when the defence is successful, the defendant will be guilty of manslaughter instead of murder.

333.     Subsection (8) provides that even if one party to a killing is found not guilty of murder on the grounds of the partial defence of loss of self control, other parties may still be found guilty of murder (for example, if they acted without losing self control).

Clause 45: Meaning of “qualifying trigger”

334.     Clause 45 defines the term “qualifying trigger” for the loss of self-control in clause 44(1).

335.     Subsections (2) to (5) set out that the qualifying triggers for a loss of self-control can be where the loss of self-control was attributable to a fear of serious violence, to things done or said or to a combination of both.

336.     Subsection (3) deals with cases where the defendant lost self-control because of his or her fear of serious violence from the victim. As in the complete defence of self-defence, this will be a subjective test and the defendant will need to show that he or she lost self control because of a genuine fear of serious violence, whether or not the fear was in fact reasonable. The fear of serious violence needs to be in respect of violence against the defendant or against another identified person. For example, the fear of serious violence could be in respect of a child or other relative of the defendant, but it could not be against an unidentified group of people (for example a political group).

337.     Subsection (4) sets out when things said or done can amount to a qualifying trigger for the loss of self-control. The things said or done must amount to circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged. Whether a sense of being seriously wronged is justifiable will be an objective question for a jury to determine (assuming that there is sufficient evidence for the defence to be left to the jury).

338.     Subsection (4), therefore, has the effect of narrowing the circumstances in which a partial defence is available where a person loses self-control in response to words or actions alone. The example that the Law Commission identified where the partial defence might apply would be a case where a parent arrives home to find his or her child has just been raped, and in response the parent loses self-control and kills the offender as he tries to escape.

339.     Subsection (5) allows the loss of self-control to be triggered by a combination of a fear of serious violence and things done or said which constitute circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged.

340.     Subsection (6) makes further provision in relation to determining whether a loss of self-control has a qualifying trigger:

• Subsection (6)(a) provides that, when the defendant’s fear of serious violence was caused by something that the defendant incited for the purpose of providing an excuse to use violence, it is to be disregarded. The effect is that, in such a situation, the person would not be able to claim a partial defence based on his or her fear of serious violence.

• Subsection (6)(b) provides that, when the defendant’s sense of being seriously wronged by something done or said relates to something that the defendant incited for the purpose of providing an excuse to use violence, it is to be disregarded. The effect is that, in such a situation, the person would not be able to claim a partial defence based on the relevant things done or said.

• Subsection (6)(c) has the effect that, in determining whether a loss of self-control has a qualifying trigger, the fact that something done or said amounted to sexual infidelity (on the part of the victim or anyone else) is not justifiable. The effect is that, if a person kills another because they have been unfaithful, he or she will not be able to claim the partial defence.

Clause 46: Abolition of common law defence of provocation

341.     Clause 46 abolishes the common law defence of provocation, and consequently repeals section 3 of the Homicide Act 1957 and the equivalent Northern Ireland provision, namely section 7 of the Criminal Justice Act (Northern Ireland) 1966. Section 3 supplemented the common law principles relating to provocation by providing that the issue of whether the provocation was enough to make a reasonable person do as the defendant did should be left to be determined by the jury. This has been interpreted as meaning that a judge must leave the partial defence to the jury even where the evidence is such that no jury properly directed could reasonably conclude that the defendant was acting reasonably. This is in contrast to the common law position that existed prior to the Homicide Act 1957, where the judge was not required to leave the issue to the jury in such circumstances.

Welcome to Espinasse Was Deaf.

I’m a first year law student who is having the time of my life learning up archaic cases and grappling with legal principles.

This blog is where I post up anything related to my law studies and generally anything related to legal matters that strike my fancy.

If you must know, the blog is named after the infamous 18th century law reporter, Isaac Espinasse, of whom Lord Denning said, “It is said that he only heard half of what went on and reported the other half.” Thankfully, Law Reporting is a lot more reliable today. All in all, I felt that naming this blog after the half-deaf recorder is appropriate to my present half-baked understanding of the law…