JPA Acted Ultra Vires

Previously I had mentioned the importance on equipping ourselves with some basic knowledge and understanding of the Federal Constitution (Perlembagaan Persekutuan). Undeniably Mr. Zainal Abidin A'ala, the former Selayang Municipal Council (Majlis Perbandaran Selayang-MPS) President (Yang Di-Pertua) which has been transferred by Putrajaya within 24 hours to INTAN the cold storage, could be the next desperate person that shaking his heads while flipping through his newly bought Federal Constitution.

The question is simple but yet difficult to define and interpret:

"Does Public Services Department (JPA) has the jurisdiction to transfer a local authority officials?"

First we must refer to the supreme law of the land - the Federal Constitution.

(A) The Federal Constitution

--> (i) Article 132(1) of Federal Constitution spells:-

"132. (1) For the purposes of this Constitution, the public services are:

(a) the armed forces;
(b) the judicial and legal service;
(c) the general public service of the Federation;
(d) the police force;
(e) (Repealed);
(f) the joint public services mentioned in Article 133;
(g) the public service of each State; and
(h) the education service."

--> (ii) Article 132(2) continues:-

"(2) Except as otherwise expressly provided by this Constitution, the qualifications for appointment and conditions of service of persons in the public services other than those mentioned in paragraph (g) of Clause (1) may be regulated by federal law and, subject to the provisions of any such law, by the Yang di-Pertuan Agong; and the qualifications for appointment and conditions of service of persons in the public service of any State may be regulated by State law and, subject to the provisions of any such law, by the Ruler or Yang di- Pertua Negeri of that State."

The Constitution has literally interprets the management of state public services are within the jurisdiction and power of respective State Government, meaning the State may exercise its power to appoint, promote, transfer or retrench any local council officials as provided by Article 132(2), subject to State Law and law enacted by State Ruler (Raja) or Yang Di-Pertua Negeri.

Thus, if according to the Constitution, the removal of Zainal Abidin from MPS to INTAN by JPA was ultra vires (beyond the powers). Hence, the jurisdiction of JPA should be examined.

(B) Jabatan Perkhidmatan Awam v Suruhanjaya Perkhidmatan Awam

--> (i) JPA - Public Services Department

JPA formally was known as Establishment Office of Malaysia. It carried the name of Federal Establishment Office resulted from the merging of Malayan Establishment Office, Service Branch of the Chief Secretary's Office and Establishment Division, Federal Treasury before Merdeka.

Thus, JPA is a government agency / department under the Prime Minister's Department which merely assists the Federal Government pertaining to the public service human resource management. In short, JPA has the authority to manage the federal public servants but not the states. In this context I am referring to the public servants that service in the federal department. One of the example could be the Jabatan Belia dan Sukan Gombak, which it is a federal department but allocated locally.

The argument can be extended by saying JPA is actually not incorporated under any law. You may notice all the rulings issued by the JPA is "Pekeliling Awam" (substantially). Thus, any policy (or even law) enacted by the relevant department / ministry could not contravene to the Federal Constitution otherwise it would be null and void.

--> (ii) SPA - Suruhanjaya Perkhidmatan Awam

SPA is a Constitution creature created under Article 139 of the Constitution. Other than the Auditor-General, the SPA's jurisdiction covers all bodies of public services and also public servants. No doubt that SPA has power to manage the public services, which including public servants provided under Article 144 of Constitution. Going further, we should examine whether Constitution provides any power to the SPA for state public servants.

Article 139(2) and (3) state the jurisdiction of SPA including the power of managing public services in states, other than Melaka and Penang. (It is too lengthy anyway)

In short, I don't see any articles in Constitution or federal laws granting authority to the JPA regarding to this matter.

It is getting lengthy and I try to keep it short and simple.

(C) Employment Contract

From my point of view, the validity of transferring Zainal Abidin must also be considered from agreement framework, if any. I have limited access to the appointment of Zainal Abidin as YDP MPS at 2011, thus I have to make a hypothetical assumption here.

--> (i) Zainal Abidin was "loaned" from the Federal Government to MPS

If this were the scenario, unfortunately this former YDP unable to protest much on it but to accept the cold atmosphere at INTAN.

--> (ii) Zainal Abidin's contract was with the State Government

Clearly and undeniably, JPA has acted ultra vires.

We have had noticed and aware of the risk for letting political interference drive the administration of public services in this circumstance, regardless of federal or states. Therefore, it is crucial and vital for the voters to know how the federal and state government should act, and nevertheless voice out the concerns and exercise the right through a ballot box (and maybe a protest) - (power of democracy could be exercised through ballot box and street protest).

Kick Start With Youth Parliament

I believe there are number of you are unaware of the existence of Youth Parliament in United Kingdom, a parliamentary democracy system which our country should look forward and nevertheless to take a lead in enhancing the democracy education policy among the youth.

UK Youth Parliament is just like a real Parliamentary system, a system which involving a campaigning and voting process. In order to become an eligible Member of Youth Parliament (MYP), he must be a resident of UK and aged between 11 and 18 years old. The voters are also the same category of youth as specified herein.

The MYPs have the opportunity to sit in the House of Commons (in our context it is refer to the "Dewan Rakyat") to debate issues that relate to the youth society across the UK, including Scotland, Northern Ireland and Wales. The constituency is divided according to the number of Local Education Authority (LEA). Each LEA represents a Youth Parliament Constituency.

There are over 250 MYPs in UK presently.

Since the Youth Parliament is given mandate by the UK government in terms of legality and legitimacy, the MYPs do enjoyed certain privileges as the "real MPs". During the term of office the MYP which represent his own constituency will have opportunities to meet the MP and discuss any issues or campaigns in relation to the constituency.

The most powerful feature of the Youth Parliament is the House of Commons Debate. The MYPs will sit in the House of Commons and debate 4 issues which will be voted by the youth through ballot box and additional 1 issue which is reserved for the Youth Parliament to decide on. Such broad system could ensure the participation of the youth within the country.

Further to that, there are numerous advantages arise from such system and nevertheless could crystallize the demands of the youth society into a focused atmosphere, if our country taking into consideration in implementing it:-

a) Enhancing Participatory Democracy

In Malaysia we have to be at least 21 years old and/or above to exercise our right through the ballot box, as provided under Article 119 Federal Constitution. In short, a Youth Parliament system would enable and empower the "underage" youth to enjoy a voting right. Going further, the youth will be getting a vital participation within the country's democracy system.

b) Sharpening Sensitivity on National Issues

A reflection from the UK Youth Parliament system has shown us the youth would need to identify and vote for the issues to be carried right to the House of Commons by the MYPs. Voters are one of the sources of democracy power and certainly they will vote for those issues in which are relate to them personally and even to the country. Thus, the youth will be "trained" in an indirect method under such system to identify those important issues and possibly takes further step to undertake personal research.

c) Creating Greater Constitutionalism

Despite the fact that the UK does not has a codified Constitution, we should be glad and proud to have a set of codified supreme law of the land to govern our country, instead of keep pointing all conflicts to the parliamentary supremacy. A well developed Youth Parliament system will create better awareness of  Constitutionalism among the youth, regardless of the secular-islamic issue that has been politicized by the politicians, as an example. The youth will get to know further on how the separation of powers function governed under the Constitution, including the legislator (parliament) role and its power when they participate within this context.

It is worth to note the Ministry of Youth and Sports has actually initiated the implementation of youth parliament this year (2012) and the first sitting trial has took place in Palace of Golden Horses, Seri Kembangan. Although the members were selected based on self-registration or recommendation by political parties or NGOs, I wouldn't comment much on it due to its fresh starting but the government would need to give more mandate to the youth parliament but not use it as a tool for own propaganda.

A healthy nation democracy system could kick start with a youth parliament, where all the participants are the prospective voters and country leaders sooner or later. Let the youth learn how to in charge of their own country's democracy and I hope we could transform from representative democracy into direct participatory democracy someday!

Nuclear Nude Our Future

Again, several thousands of Japanese nuclear protesters have gathered at several locations in Japan to denounce the restart of nuclear reactors recently. 

Strength of a natural disaster is unpredictable, and never can be underestimated. 11 March 2011's earthquake which has caused a series of big waves to hit Fukushima, and this has inflicted the most serious nuclear plant crisis after the Chernobyl disaster in 1986, Russia.

Brief explanation on how the nuclear reactor was melting down:

The tsunami following the earthquake flooded the nuclear plant's generator and caused failure thereafter, it has cut off the electricity supply circulated in the plant. Thus, the water pumps in the plant ceased to operate and failed to circulate coolant water through a nuclear reactor to prevent it from melting down. 

As the pumps stopped, the reactors overheated and to keep it simple, the rod was melted. A chemical reaction responded in the process and produced explosive hydrogen gas. As far as the explosions concerned, the atmospheric venting of radioactive gasses.

Government to initiate nuclear power plant:

Before the ruling government expressed their intention in implementing nuclear power plant in Malaysia as a substitution energy source in the future, it was known that government has pushed for the implementation secretly. According to some media sources, the government has preliminary identified several locations to build the nuclear power plant.

Although the government has announced they are still undertaking a depth study and research into the implementation, however the people must be cautious and be alerted into any further considerations. We should urge the government to make all information public and be accessed to the people. Transparency and freedom of information must takes place in this context.

Lessons to learn from Fukushima incident and the US's Sandy Hurricane:

It is well known that Japan and US are well equipped with nuclear expertise and knowledge on how to manage, operate and maintain the nuclear reactors, which have contributed greatly in generating electricity to the cities. The main cause was the natural disaster in which has inflicted a chain of incidents - that could not be prevented and react immediately.

The freakstorm Sandy has affected numerous nuclear plants in US, leaving incomparable destruction. The flood water has flooded Oyster Creek nuclear facilities and the meltdown was imminent at that point of time. Residents were forcefully to be evacuated to rescue camps to prevent unnecessary life damages. 

Yes or No:

Malaysia does not have any severe natural disaster such as earthquake, hurricane or volcano. It can be predicted that less chances the nuclear plants could be damaged due to natural disasters in Malaysia, with a comparison to other countries. The possibility and probability are much more lower.

Despite proper and serious depth researches to be carried out to study the possibility of implementing nuclear plants, the government should actually treat the ground's objection with a serious manner. The Fukushima incident shown us severe damages could be done to the nuclear plants and critical consequences can occurred although there is a team of expertise which has developed the infrastructure prior to the disaster. 

Possibility of natural disaster:

We could not deny any possibility of any natural disasters which has yet or possible to hit Malaysia in the future, in view of serious global warming and ridiculous climate changes happened all over the world. We have yet to know Tsunami prior to the Indonesia's incident, and we have forgotten the consequences of having nuclear plant until Fukushima took the lead.

The Japan cabinet has told the public that they will study any possibility to explore substitute energy sources other than nuclear generators. The objection from the grounds is taken in this preliminary stage despite the government still has strong intention to re-operate the nuclear reactors.

A piece of thought to our government:

Realistically, I am strongly against the implementation of nuclear plants. We may recruit excellent and brilliant expertise and skilled workers, but we unable to defend it from any natural disasters based on previous and current lessons. 

After all, the managing of the nuclear plants is strongly questionable and this would be the main concerns of all people if it were be implemented. 

A Happy "Family Law" Case

A happy "family law" case marked another milestone for the Chiam's family as the mother and son both called to the bar on the same day.

More details can be found here: Family Trio Who Are All About Law

What an impressive family. Both the mother and son helped each other throughout the chambering process, which it is rarely can happen.

However, the mother, Phoon has commented on the legal profession. She mentioned that the legal profession is a Noble profession, which has the capacity and opportunity to help the poor and underprivileged.

In fact, I am in opinion that a lawyer must has the passion and further undertakes to help the needy in this society. Rewards, or the earning is relatively important but the hand would need to be lend to those in need.

Since a lawyer can be the guardian of justice, nevertheless a lawyer would have to take up the social responsibility in any means, or in any capacity which he/she affords to.

(Photo taken from The Star)

There is always a question of justice.

A normal citizen without law knowledge would say justice could be reached in the judiciary system.

How about lawyers? Is damages or money compensation a kind of justice?

I met numerous lawyers, and certainly they can't affirm on that.

When there is injustice occurs then there will only justice available to be achieved.

Sincerely, congratulations to the Chiam's family, and hope the newly admitted advocates & solicitors, the mother, Phoon (56 years old) and the son, Chiam (25 years old) could hold tight to their pledge.

“要稳定，不要乱”的奥巴马连任？

2008年11月4日，奥巴马成功以365张选举人票入住美国白宫，成为美国史上第一位黑人总统，也是第一位非裔美国总统。奥巴马当时的“Change”竞选主轴无疑获得众多美国青年的青睐，也意味前朝政府的施政不当，必须以“换”来改变国家当时的状况。

2012年11月7日，奥巴马在对手罗姆尼的强烈对抗下，宣布以303张选举人票（至截稿为止）再次蝉联总统一职。显然这一次是一场异常激励的宣战，单是宣传费用就已突破10亿美元，令人乍舌。

许多政治立场较亲，或亲现任国阵政府的拥戴者，都在奥巴马“连任”后纷纷发表自己的感言，说美国选民“要稳定，不要乱”，因此拒绝“换”。这实在令我丈八金刚摸不着头脑。

把奥巴马“连任”的情况套在我国政治局势的瓶口下，首先我们必须先瞧一瞧奥巴马当选总统前后的经过。

第43任总统是由共和党籍的布什担任，他的任期是从2001年1月20日至2009年1月20日（政权移交日），身披共和党战袍的身份担任了为期9年的美国总统。

尔后，奥巴马是以民主党派的身份就任第44任总统。4年在朝后的今天，选民再次赋予多4年的服务机会。

简单来说，两位总统都是以不同党派的身份入住白宫，因此这是政党轮替，是一个奉行民主制（虽然民主制有很多种）国家的健康政治氛围，更是一个值得被推崇的制度。

再把目标聚焦在我国本身。

国阵政府自国父宣布独立后都是“连任”政府，从未在任何一场大选中移交和卸下政权，这就是最大的分别之处。

奥巴马才当了4年的总统，就好比如当初台湾的马英九总统从不同党派的陈水篇接任总统一职后，也成功寻求蝉联一样。这次的“不换”牵带着政党轮替的味道，因为要推行一个国策并不是一朝一夕之事。美国选民再赋予奥巴马4年的执政机会，无论在情在理上都显得很公道。

反之，马来西亚国阵政府执政了50多年，在情在理上若未能有效改善国内种种的不良现象，都必须被更换。那些不良现象不必多说，都是大家看到的事实（虽然有时事实未必是完全正确）。

那些说美国选民拒绝“换”的人也许没想到奥巴马担任总统的前后经过，因为这是已经过一番政党轮替，而可惜马来西亚则不是。

不是美国选民不要Ubah，而是他们在4年前已经Ubah了；我们呢？

Story of a Joker

This is an update following my last article on how the Developer tried to exploit and deprive the rights of strata building purchasers.

Link: Know Your Right As A Strata Building Purchaser

Further to that, my condominium has finally formed the ever first Joint Management Body ("JMB") last Saturday after numerous obstacles and difficulties. Instead of hoping the twelve men committee to lead the managing office, all residents should be united and co-operate with them for the sake of community.

There is something I wish to highlight after the formation of JMB, which I think it is a common phenomena, but I have encounter it with a very offensive manner, and I counter it with a very polite and serious way. I shall elaborate the story further.

Prior to the formation of JMB, we (the residents) is in a heat with the developer due to the developer tried to defer the first Annual General Meeting despite vacant possession has been delivered to the purchasers near to one year. There was a resident, I would name him Mr. A here (to prevent unnecessary libel or defamation, lol), who has shown brilliant and courageous comments right to the developer.

The first impression to him - a hero that enlighten us, fearless when scolding the developer's representative. He did not participated in the election and thus he is not part of the JMB's team.

However, right after the formation of JMB, he proposed a rewarding scheme to the JMB Committee via our common e-group. Basically, he laid down how many months maintenance fees to be waived according to respective position ie 4 months for President, 3 months for Secretary, etc.

Hence, your very first logical thinking will dominate your ignorant mind and told you that it is inappropriate to make such suggestion after the AGM. Since I am not part of the JMB thus I took a silent stand. As expected, many residents and committees expressed different views, to justify their views on accepting or rejecting the proposed plan.

This is a nonsensical proposal due to its legitimacy. What I meant is the so called "proposal" should not take place in any discussion in any means because such proposal or resolution could only can be passed in the AGM and/or EGM.

The story extended:-

I received email this morning from Mr. A about his superb and distinctive views. He challenged those who rejected the proposal to be part of the committee (so we would know the tiring job and efforts contributed by the committee).

Further, he mentioned in a questionable manner that "what kind of followers we want to be if we believe in god?", "does our god poor?". I couldn't express his opinion entirely but I managed to catch his gist roughly.

I felt so insulted to read the "god" part and I immediately directed an email in the e-group to justify my rejection on his brilliant proposal. I am glad that other residents and committees backing me up. In the end, Mr. A changed his "rewarding" to "token appreciation". Regardless of any wording he uses it would be illegitimate and inflicting sensitivity among the residents. In short, it is a threat to the newly formed JMB and would affect their reputation and duties.

Sometimes life is fill with colors and obstacles. My instinct told me, chill and be relaxed with this kind of joker. Life is so short and we must be glad that they made our life become interesting and worth to be treasured.

What a joker!

Your Responsibility To Know The Constitution

Ironically, I discovered Malaysians don't know what is Constitution, even though our Supreme Law of the land can be found in a printed form, unlike the UK's uncodified version.

I attended many Constitution / Human Rights workshop, seminars and sharing sessions, and I met many interesting people in which they are from different social category in this society. When they were asked about the understanding of Constitution, funny but sad enough to acknowledge that, the education of the Constitution is a failure.

"Apa ni? Boleh makan kah?"

"Constitution? Is it something like Bersih?"

"Oh Perlembagaan tu maksudnya Raja kan?"

"Oh this is Rukun Negara!" (obviously he is referring to Keluhuran Perlembagaan)

A short article could not express a detailed explanation on the Constitution as it is the most basic but supreme law of the land. Basically, Constitution confers and divided the powers from top to toe, from Yang Di-Pertuan Agung to the people. It created many creatures such as the Government (Executive), the Court (Judiciary), the Parliament (Legislator), Attorney-General, and etc. It governs the operations of this federation and distinguish the powers between the federal and states.

Thus, why it is important to know the Constitution?

The answer is short and simple, your rights are governed under the Constitution! Your rights to life, sleep, movement, speech and even rights to eat chicken rice, are housed under every articles laid down in the Constitution.

I am not going to write lengthy and boring essay but I would use some questions to lead your mind to the supreme Constitution:-

a) Do you actually know that your Malaysian nationality is not granted by issuing an IC to you? It is actually the Constitution says so! - Article 14

b) As a Peninsular citizen, do you know Sabah & Sarawak state government have the power (discretionary) from blocking your access into the states?

c) Do you know you can't be detained for more than 24 hours unless you are remanded?

d) Do you know that your fundamental liberties (including right to eat chicken rice) can be taken away if the Constitution be amended with 2/3 majority in the House? (Parliament)

e) Is Malaysia an Islamic or secular state? (to me it is not important to know)

Anyhow, the Bar Council Constitutional Law Committee is active in promoting Constitution to everyone and anyone. Do not think the Constitution is only for lawyers and law students.

Start from today. Equipping yourself with some knowledge on the Constitution. Well if the book is maybe too thick for you, alternatively you may choose to download the Rakyat Guide prepared by the Constitutional Law Committee in an understandable and simple manner, for the benefits of all.

There will be more workshops coming on for the MyConsti campaign run by the Committee. It is absolutely free and conducted by some humor and interesting (young & handsome/pretty) practicing lawyers. Something you wish not to miss out.

I will be sharing more info from time to time!

**
A video on the Constitutional Peasant (watch the citizen and the King, funny enough!)
Credit to Bar Council Constitutional Law Committee for sharing this video.

年轻律师的辛酸

俗语曰：“女怕嫁错郎，男怕入错行”。但我们却说：“行行皆能出状元”。那到底有没有入错行这一回事？还是其实你只要有恒心与决心，任何一个行业都有出头地的一天。

许多人（父母）提倡专业资格，金钱观念为上，难听一点就是利字当头。其实他们并没有错，活在这世界里没有钱真的是寸步难行，更别说娶妻养家。因此，父母们都尽量发掘孩子的各方潜能，以在将来成龙成凤，考上一个专业资格课程，晋身律师，工程师，医生等职场，光宗耀祖。

我无法为其他行业点评，但法律界方面确实能以一个年轻人的观点发表一些意见。

（以下所提及的数据皆取自一篇命名为：“Unattractive Legal Profession”的文章，刊登于2012年10月27日的星报专栏内）

隶属于律师公会的全国年轻律师委员会（National Young Lawyers Committee）于2011年末进行了一项调查，主要针对国内年轻律师的福利，工作薪水与就业环境等作出了解。

根据调查显示，一名刚宣誓（called to the Bar）的年轻律师，他在巴生谷（Klang Valley）（“他”在这里没男女之分）的薪水介于RM3,000至RM3,500；那些在巴生谷以外的薪金水平则介于RM2,000至RM2,500，谨能足够一般的生活消费。

再深入了解，一名浦入行的年轻律师，他的工作时间平均一星期介于51至60小时，平均一天须工作12小时（朝九晚九）。数据也显示，被接受访问的年轻律师们皆必须在周末上班，无可幸免。

以上数据也意味着：

巴生谷：以平均年薪RM39,000（月薪平均RM3,250）除以一年2860小时（一星期平均55小时）的工作时间，一名第一年的年轻律师的时薪才RM13.64。

非巴生谷：以平均年薪RM27,000（月薪平均RM2,250）除以一年2860小时（一星期平均55小时）的工作时间，一名第一年的年轻律师的时薪才RM9.44。

点评：

许多人一定认为年轻律师们必须经得起考验与磨练，以后方能发光发热，因此现在承受的煎熬必定会得到可观的成就。事实上，有哪一个行业不是必须这样的呢？

每个人对法律系的看法不一。有者认为是一门异常辛苦的科系，闻其名如见鬼般，坦言说修读法律系的都是非凡人才。有些人则认为他与其他较专业的科系一样，都必须比其他“非专业”科系付出稍为多一点的努力。

我们必须了解，法律知识也许人人皆知，因为知识随手可得；但是，律师作为一名被赋予特定权力的一群人士，他能代表客户上法庭争取权益，捍卫正义，是其他专业资格所办不到的。再说，产业买卖，离婚手续，民事刑事诉讼等都必须经过律师的处理。

司法界有它一套的运作方法，其所运用的词汇和方式也只有行内人知道和了解。

该文章也提到，心中那股成为律师的热诚（passion）非常重要，因为它将会在与薪水高低的水平挣扎时，扮演了一定的角色。

以前有人说，律师是正义的守护者。但事到如今，再加上我对这行的一些了解后，我会认为它是“律师，可以是正义的守护者”。纵然在这显示社会里，我们必须养家糊口，为三餐温饱；但“律师”就是有他天生赋予的权力和无法说明的使命。我始终认为成为一名律师，那股passion非常重要，那股助人的心必须时时刻刻保持。

-----------------------------------

文章：Unattractive Legal Profession

The Myth of Secularism

It is rare for me to comment on this debatable issue. Although the heat point never stop, nevertheless our politicians are still love to open fire by contending Malaysia is an Islamic country, and vice versa.

The de facto law minister Dato' Seri Nazri again pointed out that Malaysia is not a secular state. However, the question as to whether Malaysia is an Islamic state is left unanswered. Yes we may agree that the rakyat is (or probably) deeply concerns with this question. Thus, despite the fact that the myth has became another battlefield for the Barisan and Pakatan, we should fairly get to know our country's current practice pertaining to this issue, a topic which I will return to.

Deputy Prime Minister has urged the society not to argue on this "Islamic-Secular State" issue. He further commented that it is vital for the administration to administer the Constitution in government's routine. Fairly speaking I agree with DPM that one should look into the practice of Constitutionalism but DPM has had the question to be evaded, wisely.

Different people has different standard of morality and humanity principles. We might have capitalism or Marxism in faith. However, I strongly opined that we should uphold the most vital and approachable "Constitutionalism", without any hesitation. In any means, Constitution is the supreme law of the land that no one and no any law can above it. 

Article 4(1)
This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Having said that, the awareness of Constitutionalism is apparently weak. More importantly, our fundamental liberties are governed under the Constitution and frankly speaking we have  no reason to reject the responsibility to understand it.

On other fronts, secularism should be explained in advance before further comments took place. To put it simple, secularism means a state without any religious institution attached to it. It is a principle of separation that the state is free from any religious rule and teachings. It may further be asserted that it is a right to freedom from governmental imposition of religion upon the people.

The de facto law minister contended that our Constitution is not applying the word "secular", expressly or impliedly. In the mean time, Article 3(1) stated that Islam is the official religion in this Federation and it is further explained that the state has the duty to "protect, defend and promote" Islam. It is indisputable that Islam is the official religion of Malaysia and regardless of any races and religious beliefs, that everyone and anyone has a duty to respect and obey it.

To my point of view, we should look into the intention of the Constitution frame makers, or the draftsmen. However it is worth and ironically to point out that our Constitution was drafted by a country which do not has a codified constitution.

Let me extract several points from the Reid Commission Report:

i.) Observance of “the religion of Malaysia shall be Islam” shall not impose any disability of non-muslim natives professing and practicing their religions

ii.) Shall not imply that the State is not a secular state 

And also the White Paper suggested that:

i.) Declaration that Islam is religion of Federation does not affect present position as a secular state

The documents and evidences shown by the DAP Ipoh Timur MP, Lim Kit Siang may strengthen the argument of secularism further. 

Thus, upon and until this stage, I would rather to comment that it is irrelevant whether Malaysia is a secular or Islamic state, provided always Constitutionalism supersede the others in the first place. A pure politicians' topic does not, and need not attract any interests at this juncture.

We should "constitutionalize" our daily life and have it into practice. The judicial attitude should be widen by referring to the Constitution frequently, in particularly connecting to the issues of personal liberties and religious beliefs (for non-muslim). 

Last but not least, the sovereign should have not amended the Constitution at their own will, which is based on political driven solely. The 1988 Constitutional Crisis has marked the dark sight in the Mahathir's administration milestone that this precedent should not being repeated anymore in the future.

Humanises Drug Offence

Finally the amendment on mandatory death sentencing has came to the spotlight. The de facto law minister Dato' Seri Nazri has openly said that the government is now prepare to review the inhumane law pertaining to S39B(2) Dangerous Drug Acts 1952, particularly.

39B
 (1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—
(a) traffic in a dangerous drug;
(b) offer to traffic in a dangerous drug; or
(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death.

The decision to replace the mandatory death sentencing with maximum imprisonment 30 years as said by the de facto law minister should be welcomed greatly. This courageous step should be read with our Article 2 of Constitution further, which is the "Right to Life".

There are several school of thoughts, opinions and criticisms raised after Dato' Seri Nazri and Attorney General commented on the possibility to repeal the section.

Certain clarifications should have taken place upon this stage:-

(1) the public would have thought there is NO MORE death sentencing for drug carriers (which also called the donkeys). However, according to AG, they are in the midst of reviewing the MANDATORY death penalty. In other word, they are considering to impose some discretion to the judiciary on whether to execute the drug offenders with death sentencing.

(2) abolishing death sentencing could lead to increment of drug cases, which I think this is not true at all. I don't see any reducing on drug offender cases due to the practice of imposing mandatory death sentencing. The current sentencing are not discouraging the drug carriers from challenging the authority.

Under current law, the judges' hand are tied and they are in no position to impose alternative sentencing other than mandatory death penalty. The fact is, the drug carriers could be innocent and they were just a tool to be fooled by the syndicates. I have seen (or have been told) a number of mental disability donkey cases to  import or export the drugs, and nevertheless they were hanged on the platform in the end. From here, I took a stand that the judges could consider to exercise their discretion on not imposing death penalty, in the event that the section has been repealed by the government.

Human rights could be another field of discussion. Although our Article 2 of Constitution is not being weighted and interpreted nicely by the judiciary, nevertheless the execution of human life to an end is considered unjust under the Universal Declaration of Human Rights. In short, no one can take away another's life.

If the government prepare to do so, undeniably it is a progress move towards a more democratic, just and fair legal system. I would rather to suggest life imprisonment to be implemented for medium level drug offenders, or higher. This could ensure justice would be more well served.

The end of a life is irreversible, and justice can nevertheless being tempered with mercy and second chance.

Forum on Police Brutality & Killings, 26 Sept (Wed)

Who’s accountable? When will it all stop?

Date: 26 September 2012 (Wednesday)

Time: 8:00pm – 10:00pm

Venue: Pusat Rakyat LoyarBurok

3-4 (Tingkat 4), Jalan Bangsar Utama 3

Bangsar Utama, 59000

Kuala Lumpur

Panel of Speakers

 

Phil Robertson

Deputy Asia Director, Human Rights Watch

N.Surendran

Co-founder & Adviser, Lawyers for Liberty

Nalini Elumalai

Executive Director, Suara Rakyat Malaysia (SUARAM)

Over the last decade, hundreds of people have died in police custody and shooting but yet there is little accountability, transparency or any real investigations by the authorities responsible, namely the courts, police, Attorney-General’s Chambers and hospitals which provided medical assistance or conducted post-mortems.

Despite the obvious seriousness of any extra judicial killings, these important state institutions in most, if not all of these cases, chose to downplay, ignore, cover up or even make outrageous claims over these deaths – causing these institutions to lose credibility and public confidence.

The Government absolutely refused to set up the Independent Police Complaints and Misconduct Commission (IPCMC) and continuously and blindly supported the police irrespective of whatever crimes, wrongdoings and abuses they have perpetrated.

No amount of police public relations exercise, rebranding, tweeting and face booking can restore public confidence in the police. Listen to the speakers discussing who’s accountable and when will it all stop.

For more information, please contact:

Eric Paulsen –             017-6768 106      ; epaulsenzero@yahoo.com

Afiq M Noor – 010-3666 434; afiqmnoor@gmail.com

 www.lawyersforliberty.org

---------------------------------------------

Forum Awam

Keganasan & Pembunuhan Polis
Siapa bertanggungjawab? Bila ianya akan berakhir?
Tarikh : 26 September 2012 (Rabu)
Masa: 8:00 ptg– 10:00 ptg
Tempat: Pusat Rakyat LoyarBurok
3-4 (Tingkat 4), Jalan Bangsar Utama 3
Bangsar Utama, 59000
Kuala Lumpur

Panelis
Phil Robertson
Timbalan Pengarah (Bahagian Asia), Human Rights Watch
N.Surendran
Pengasas Bersama & Penasihat, Lawyers for Liberty
Nalini Elumalai
Pengarah Eksekutif, Suara Rakyat Malaysia (SUARAM)

Lebih sedekad yang lalu, beratus-ratus orang telah mati dalam tahanan polis dan ditembakmati tetapi sehingga sekarang masih belum ada akauntabiliti, ketelusan atau apa-apasiasatan sebenar yang dijalankan oleh pihak berkuasa yang bertanggungjawab, sepertimahkamah, polis, Jabatan Peguam Negara dan hospital sewaktu memberikan bantuanperubatan atau menjalankan bedah siasat.

Walaupun jelas serius, pembunuhan yang tidak mengikut lunas undang-undang ini masihdidiamkan oleh badan-badan penting yang memilih untuk meremehkan, mengabaikandan menutup salahlaku ini dan selanjutnya menyebabkan institusi-institusi penting ini hilangkredibiliti dan keyakinan awam.

Kerajaan benar-benar enggan untuk menubuhkan Suruhanjaya Bebas bagi MenyiasatAduan dan Salahlaku Polis (IPCMC) dan secara berterusan dan membuta tulimemberikan sokongan kepada polis tanpa mengira jenayah, salah laku dan penyelewenganyang telah dilakukan oleh mereka.

Dengan pelbagai program perhubungan awam, penjenamaan semula, penggunaan twitterdan facebook masih tidak dapat  mengembalikan dan memulihkan keyakinan orang ramaiterhadap polis. Para panelis akan membincangkan siapa yang bertanggungjawab danbilakah ianya akan berakhir.

Untuk maklumat lanjut sila hubungi:
Eric Paulsen -             017-6768 106      ; epaulsenzero@yahoo.com
Afiq M Noor – 010-3666 434; afiqmnoor@gmail.com

www.lawyersforliberty.org

一些不是法律的事

当初修读法律，以为法律是很神圣的教条，它能度一切苦厄，解决这个地球上任何纠纷。其实，这世界上，还有一些不是法律的事。人们喜欢称它为灰色地带，或者是法律漏洞；其实对我来说，这很简单，它只是一件法律不能解决的事。

令我有这个领悟来自由某网友推荐的女性朋友，我称她为A小姐。A小姐面临人生抉择，需要一些法律上的咨询与协助。我自认在网络上也算是活跃分子，虽然不是什么法律专才但既然网友转介的就姑且听听A小姐有什么法律事务需要帮忙。

A小姐遇上生命中的男人，我称他为B先生。A小姐告诉我他被B先生蒙骗，在怀有了B先生的骨肉后才发现原来是有妇之夫。A小姐询问是否可以有什么法律途径向B先生追讨赡养费或赔偿，重点是她怀孕，她说被B先生欺骗，以致不采取任何防范措施，事因不知B先生的家庭背景。

这类故事，那刹时刻还真赚人热泪的。这也是为什么我拒绝修读家庭法（Family Law）的其中一个原因；而那原因是I can't leave my heart at home when I do Family Law。古语曰：清官难审家庭事。更何况，我不是清官，也不懂处理家庭事。于是，我便向资深的同事协助询问。

可惜的是，我国并没有任何一条法律可以协助这位A小姐。严格来说，Happy过后，后果自负。双方的情投意合，以及间中的任何亲密关系，是出自由双方的诚心。虽然这诚心被不实的诚信污染，但法律也不能提供任何协助。

有些事情，虽然我们知道不正义，但是守护正义的法律却失责，无从发挥。

Married Women and Children (Maintenance Act) 1950 第3（2）条文表示：

“If any person neglects or refuses to maintain an illegitimate child of his which is unable to maintain itself, a court, upon due proof thereof, may order such person to make such monthly allowance, as to the court seems reasonable”

因此，在孩子未出世前，A小姐仍然承担一切费用和照顾孩子的责任。倘若她要依据以上所述条文向B先生进行追讨赡养费，必须等孩子出世后方能这么做。这是一项赌博，是高风险投资，如果B先生在孩子出世后：-

（一）宣告破产；
（二）不能被寻找（广东话叫走佬 / 著草）；
（三）经济状况陷入危机；

这些因素，都极可能导致追讨赡养费失败的原因。所以，称它为赌博一点也不为怪。

原来，法律精神都可以被玩弄至赌博形式，法律条文是何等的深不可测。

我谨以证严法师的静思语与这位A小姐，B先生和各位朋友共勉之：

有人點燈求光明，其實真正的光明，在我們心裡。  

The Batang Kali Massacre – Battle Continues

My article being published on LoyarBurok : www.loyarburok.com

Link: http://www.loyarburok.com/2012/09/07/batang-kali-massacre-%E2%80%93-battle-continues/

A reminder to all of the tragedy at Batang Kali, and how we continue to remember those lives unjustly taken.

Youngsters dislike history. To be frank, we don’t bother with “his-story” because we have nothing to do with it. However, some historic injustices which do not often surface have to be revealed, especially when it involves the relationship between Great Britain and Her Majesty’s previous colony – our beloved Malaysia. (In case you have forgotten secondary school history lessons, Malaysia formerly was known as “the Federation of Malaya”.)

This story begins with a group of 24 unarmed Batang Kali (located at Ulu Yam) male villagers who were shot dead by the Second Battalion of the Scot Guards. They were deployed to the said village to combat an insurgency and threat of communism at that point in time. Scot Guards were under the command and control of the British Army, who claimed that the twenty-four innocent men were part of the communists or bandits, and as such were subjected to cruel and deliberate execution at the will of the Scot Guards.

Up till this stage of the story, I try to KISS. (Keep It Short & Simple)

The resulting widows and fatherless children sought help from the Chinese Consular-General to communicate the unlawful killings to the British Government. The outcome of this was two uncompleted investigations,  with the British Government never once hesitating to maintain its initial account of events, regardless of repeated waves of petitions, demonstrations and even an official meeting with Her Majesty’s High Commissioner at Jalan Ampang. The victims’ families demanded for a genuine apology, and urged the British Government to admit to the true facts of history.

Despite the extreme cost of legal services to be carried out and the potential claims to be made by UK’s Treasury Solicitor, the claimants were encouraged by the British Ministers’ attempts to evade legal responsibility for the killings by arguing that the Selangor Sultan was the one who commanded the troops. Thus, with the aid of Bindmans LLP and legal aid from the UK, the claimants filed for a judicial review of the British Government’s position on the unlawful killings.

This made me recall my first subject I learned in law – UK’s Public Law (formerly known as Constitutional and Administrative Law). I learnt numerous human rights cases, from lower courts up to the European Court of Human Rights at Strasbourg. I understood the importance of and respected the spirit of the Human Rights Act 1998.

But today, I received a disappointing judgement from the Queens Bench Division’s President – Sir John Thomas – and Mr Justice Treacy.  Truth is, we have lost the battle. The Court refused to carry out a full inquiry on the massacre. However on a brighter note, it may be said that our efforts paid off in the sense that the Court acknowledged and admitted certain key facts, which overturned the untruthful allegations made by the Ministers. The twenty-four men were neither communists nor bandits. Although the Court gave the red light to establishing a public inquiry, the Judges decisively found the British Government to be responsible for the deaths.

Human rights is not an abstract end-product; it is a spirit and legal morale to be upheld by everyone. I learnt that one of the victims was found beheaded, and felt much sympathy towards his family. It is noted that the British Government apologized for the Bloody Sunday incident, but not for Batang Kali. Although the Court rejected the claimants’ application on technical grounds, they were never deprived of alternatives as the Court of Appeal would be the next option.

This is the first time Malaysians challenged a court case without any help from the government.

And the battle will be continued.

P.S. The author is attached with the victims’ families’ legal representative – Messrs Halim Hong & Quek.

反稀土-政策与民意的较量

估想不到，反莱纳斯运动会有今天的局面。当第一批稀土原料抵达关丹港口时，整个局势的发展届时预计将一发不可收拾。从2008年反内安法令游行至最近的Bersih 3.0，反稀土运动组织所发起的人墙将可能是国内最大的民间组织运动。

政府在面对人民那浪潮般的反对声中丝毫不妥协，仍然以足够的安全评估机制和废物管理系统的理由继续让莱纳斯运作。这一点，以被原子能局所发出的临时营运准证（Temporary Operating License）而证实。

作为一个平民百姓，我们不了解到底在提炼稀土时所释放出的放射性物质将会对人体有什么伤害，我们只知道它是辐射性有害物质。但同时间，我们更加不了解，为什么政府依然选择忽视民怨，我行我素的沉醉在倒数稀土原料抵达关口的日子。

其实，这一点都不难了解。

执政政府的角色就是鉴定，拟定与执行国家政策，其中包括发展国家经济利益，通过各行各业提升国家的竞争力与生产力，以及从中抽取税收以建设国家设施。这是最简单的说法。一旦民意与政策背道而驰，就相似莱纳斯那样，我们不禁要去多加思考，为何政府要这么做。

我就以一段男女关系来做出一个简单的比喻。

政府所决定的决策，就好像一个一家之主做了某些家庭决定，那另外一半必须遵照和跟随。如果伴侣反对那个一家之主的决定，就会显得那个大男人的一家之主无地自容。说穿了，就是没脸。可能你会认为这很肤浅，可是这是实实在在的说法。

倘若政府轻易就范，就会显得一个强大的政权失去形象，弱不禁风的模样显露无遗，也会让人民觉得这政权很容易被欺负。作为一个拥有无数专业人士和头脑精明的领导层，故不会不知民心所变将影响在位政权。可是，我们的政府却选择了另一边。

基于种种的利益挂钩与那不可输的强霸心理，这种作风将导致反稀土民心越演越烈。政治的词汇运用实在是很美妙，制造就业机会，稀土重工业将发展我国等，这些词汇也切切实实地摆出了一幅执政政权的强大气势，但不得不否认，一个政权就必须拥有这样的前瞻性远见。

可惜，这远见，被民意侵蚀着。

做人不可忘本；做政府的，也别忘了，您现在高高在上的政权，是来自民心。

我虽看不懂那些稀土化验报告，但我可以斩钉截铁的说，这股挡在关丹港口的人墙，将会覆盖那高高在上的政权。

Janji Di Third Party

It is our 55 years. A long journey that consists of our great grandparents, grandparents, parents, us and even our children. Together we remember every steps being made by our ancestors, from fighting for the country's independence and gave birth to us.

I have to admit that it is an unhealthy administration for a ruling coalition that has ruled for 55 years. The development is an undeniable result paper throughout the period. We treasured the parties' political leaders' efforts. A lot of Janji has been given and for sure not all promises can be fulfilled and achieved.

In view of our current political atmosphere, especially certain politicians fooling the people around with sensitive issues and unsound government policies pairing with some enactment of threatening legislation, it is always a dream for all Malaysian to shape a well legislated country.

The Prime Minister's effort to repeal certain legislation such as ISA should be credited. However, the amendment of S114A Evidence Act 1950 and other community issues such as cyanide in Bukit Koman, etc has yet to be resolved. Janji ditepati becomes janji di third party, never can be fulfilled.

Despite the aforementioned worrying issues, the proposed nuclear reactor is the most important issue to be tackled with as far as I concerns. I am not objecting the development of nuclear as it carries weight in generating new source of energy to the country but against the controlling, monitoring and maintaining system.  I have said before that although there ain't any natural disaster in this fortune country but we can't deny such disaster may exist some day. The question is are we really prepare for this?

More promises made to be exchanged with votes and hopes from the people.

The government hates assembly (regardless of permitted or illegal), but the people learnt and grew from the democracy process. The youngsters are the pillars of the country. They would have to understand the true democracy spirit and the development of the country. Yes they know what car is Datuk Lee Chong Wei using, and yes they know how many members in Girls Generation and what is Gangnam style. For the sake of the country, the democracy not only about casting vote into ballot box and shout for the election candidates that you favour for. Democracy is far beyond than that.

Empowerment of youths should steps into the main stream of the country's political agenda.

All the best to those who will attend tonight's Janji Demokrasi assembly. Know your rights if you being detained by the authority unfortunately.

Together in this meaningful 55 birthday's night, let's pray for a better Malaysia. Regardless of the ruling coalition, we demand Janji Di Third Party to be replaced with Janji Really Boleh Ditepati.

Happy Merdeka!

p/s: my 2010 Merdeka wishes : http://marcustan88.blogspot.com/2010/08/blog-post_30.html

Know Your Rights As A Strata Building Purchaser

Condominiums / Serviced Apartments is not a fresh property in our country anymore. Getting a landed property in Klang Valley is almost a tough task for most of the fresh graduates. Thus, purchasing a condominium is an alternative and affordable way to build a very own's nest. It is crucial to know your rights as a purchaser for strata title's property.

I am not going to discuss on the purchasing process but rather to focus on the formation of Joint Management Body after the Developer has delivered the vacant possession to the purchasers (means after you "received the key") in view I came across this interesting issue recently.

First and foremost I thank god for granting me some fortunes on purchasing the property that located nearby Klang Valley (because the project was under 10% discount). Following that you would need to know who will manage the property and what is their responsibility.

Section 4 & 5 Building and Common Property (Maintenance and Management) Act 2007 (Act 663) and Order stating:-

S4(1)(b): "Where a building or land intended for subdivision into parcels has been completed,  on or after the commencement of this Act, a Joint Management Body shall be established consisting of the developer and the purchasers upon the convening of the first meeting not later than twelve months from the date of delivery vacant possession of the parcels to the purchasers".

Thus, S4(1)(b) means the JMB need to be formed within 1 year after the purchasers received the key from developer.

S5(5): "Any developer who fails to comply with subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding three months or to both".

Thus, S5(5) means if developer fails to call for the first meeting within the said 1 year, it is a criminal offence if they found guilty. (Don't play play)

After several provisions being quoted, the main Question is why I need to know this and why I must request the developer to call for the 1st JMB meeting?

The answer is same with your personal tax being "surrendered" to the Lembaga Hasil Dalam Negeri (yeah I know the tax is never being given willingly). In short, the purchasers form the JMB, the JMB will take over the developer's duty to maintain the common property and the maintenance fee + sinking fund account. You manage back your own money!

If any developer tries to provide numerous reasons to defer the meeting, stay calm, gather other purchasers and hand in a letter by quoting the aforementioned provisions politely. (tell them don't play play need to go to jail)

It is common scenario that the maintenance fee and sinking fund account being misused or fraud could be happened (well in this case I am not saying my developer). Thus it is vital to take back the authority from the developer and monitor your property's account with commitment promised and transparency provided. It is a collective duty for all the purchasers to maintain the property.

As far as I concerns, my developer is trying to defer the 1st JMB meeting by seeking our consent. You may confuse until this stage. Let me clarify further.

My condominium is divided into three phases (obviously is Phase 1, 2 & 3). The developer delivered the vacant possession to Phase 1 purchasers last year, and to Phase 2 purchasers this year. According to the Act, they need to call for the meeting this year. However, the developer requested to wait for the Phase 2 purchasers to join in.

Chaos occurred. Should you agree to the deferment? The best option would be seeking the opinions from other purchasers and reach to a decision collectively. Remember by lodging a complaint to the Commissioner of Building (COB) may lead unwanted problematic scenarios to the developer. They are responsible and being questionable by the COB. We must take note that there are no provisions in the Act for the COB to allow the requisition of developer to defer the meeting. Further, the discretion of the COB to do so is not stated clearly.

To conclude, if you discover there is some potential fraud or misusing of management fee account by the developer (normally they will appoint a managing agent), do not hesitate to gather the voices and powers from other purchasers and defend your rights (as well as your money)!