Man Loses Land Due To Negligence of Land Office

Dear land owners, your may not having an indefeasible title, despite you have conducted land searches and found no encumbrances. 

In a recent case Ishmael Lim bin Abdullah @ Lim Keng Chew v Pesuruhjaya Tanah Persekutuan & Pentadbir Tanah Gombak, the Court of Appeal ruled that the land owner would have to pay for his own price due to negligence committed by the land office. Subsequently, Ishmael Lim attempted to knock the door of Federal Court but failed. The Federal Court rejected his application for leave as his application failed to meet the threshold in persuading the Federal Court that his case is a good case that involving public interest.

I have no liberty to read the relevant cause papers. Subject to the crafting of grounds of appeal, I think the Federal Court has relinquished a good opportunity to make ruling on some important legal principles, leaving the Court of Appeal's judgment as a dangerous precedent in the context of land law especially the question of indefeasible title in Ishmael Lim's case.

Brief Facts of the Case

The First Land Owner ("A") - Transferor

The Second Land Owner ("B") - Transferee

The Third Land Owner ("C") - Son of Transferee

1973, Gombak Land Office issued a notice of acquisition to A, informed him that the government acquired his land for the purpose to construct a military college. A was aware of the proposed acquisition, compensation had been deposited into court at that time.

1975, A transferred the land to B, to which consideration not specified in the judgment. The transfer went through.

1986, the land was realienated by the state government and land office had issued a new title to Pesuruhjaya Tanah Persekutuan, for the purpose to construct the military college.

1992, C inherited the land from B. The transfer of the land managed to go through despite the realienation.

Thereafter, Gombak Land Office issued notice to evict C from the land as the land office claimed that the land had been acquired previously. C tried to claim the current market value of the land amounted to RM1.5 million but failed. According to Court of Appeal, the offer made in 1975 is still valid. As such, C only can get approximately RM6,000 as compensation, instead of RM1.5 million.

What the Court said?

In short, the failure of Gombak Land Office to endorse/register the acquisition would not affect the acquisition, as the Court of Appeal ruled that it was just a mere formality to do so. 

So, if state government acquires your land, and yet the land office fails to endorse a memorial in your title, it is irrelevant. The land could have been sold to many purchasers, but you could still loses your land. 

Due to the omission of land office in endorsing the acquisition in the title, land search would not reflect the memorial of acquisition. You could be purchasing an encumbered land without knowing the encumbrance at the expense of the land office's default.

Brief Analysis

The Court of Appeal addressed the effect of the Notice of Acquisition at the first instance rather than the procurement of indefeasible title of a bona fide purchaser. According to Court of Appeal, the cut off time is quite clear and simple. Once the Notice of Acquisition had been issued, the land owner will no longer holding a good title. This explains why B could not acquired an indefeasible title from A.

This is what I believe. I think the rationale in deciding the endorsement of the acquisition in the title is a mere formality is largely motivated by public policy consideration. Whilst I agree that any land could be acquired by the state government under National Land Code subject to adequate compensation, Ishmael Lim should not be made liable for the mistake done by the land office. I also agree that it is now useless to rely on land search solely.

It would be wise to trace back to the previous transfer records and/or owners in order to secure the defeasibility of the title, should any prospective purchaser wishes to purchase a land.

In my point of view, strictly speaking, the Court of Appeal appeared to be wrong in deciding the requirement to endorse the acquisition of memorial is just a mere formality. It could be used as a tool to abuse the land owners.

In a further note, it must be pointed out that the Federal Court should not reject the leave application as the case involved important legal principles to be addressed by the apex court in the land. The issue of whether the requirement to endorse the acquisition memorial in the title deed is a mere formality or a compulsion remains to be addressed by the apex court, in which to no avail at this moment.

Ishmael Lim lost his land on 3 expenses:-

To conclude, I would think that the Gombak Land Office bears 3 counts of charges:-

i. Gombak land office failed and/or omitted to endorse the memorial of acquisition in the title, rendering land search useless at all material time to discover any encumbrances; 

ii. Gombak land office inadvertently allowed the transfer from A to B to be went through, despite the existence of the Notice of Acquisition; and

iii. Gombak land office inadvertently allowed the transfer from B to C to be went through, despite the realienation by state government and issuance of new title.

Unless and until the relevant section of Land Acquisition Act is amended, Ishmael Lim's case would stand as authority for the time being. 

Further, the Selangor State Government should step in to redress Ishmael Lim. In view that the military college would not be erected on his land anymore, the state government should at least provide adequate compensation to Ishmael Lim. Justice must be done.    

See You There, Sedition Act!

Here is some recollection of facts and figures that you need, or might interested to know about our Sedition Act 1948.

Originating Process

Interestingly, the Sedition Act was passed by our colonial master on 1948 to combat communist insurgency. In essence, it was never debated in Malaysia's Parliament and received royal assent from Yang Di-Pertuan Agong. 

Be that as it may, this ancient legislation is still haunting the people's fundamental human rights guaranteed by our highest law in the land, the Federal Constitution - Article 10: Freedom of Speech.

Limitation on Freedom of Speech

Article 10(1)(a) of the Federal Constitution provides, everyone citizen has the right to freedom of speech and expression, but subject to limitation and restriction that could be set by the Parliament via enacted legislation.

The charge launched by the prosecution against UM academician, Dr. Azmi Sharom raised one constitutionality question, where his defence counsel Gobind Singh challenged the Act's constitutionality by arguing the Act is unconstitutional as it was not passed by the Parliament. Therefore, the Sedition Act could not be used against freedom of speech.

The position may stands, but I think the judiciary could award a wide definition on "Enacted by Parliament". Sedition Act was a product from Law Reform Commission. The prosecution argued that by virtue of Article 162 of the Federal Constitution, the Sedition Act could be saved and remained in force until it is repealed by the authority, simply because Article 162 could save pre-Merdeka enacted law.

However, Gobind Singh raised the Act was unconstitutional at the first instance, thus it would not be saved by Article 162. And this question is now lies in the hands of High Court.

Essence of Sedition Act

Skipping the hassles in understanding the wordings, the Sedition Act negates one's mens rea (intention) to commit crime, ie to produce seditious words or acts. Quite similar to our existing Dangerous Drugs Act where for trafficking offence under S39B, the accused is deemed by the law to have intention on the trafficking unless and until he disprove it. This is essentially against the spirit of golden rule in criminal laws, where one is innocent until proven guilty and the prosecution remains a legal duty to prove beyond reasonable doubt.

If you are charged under the Sedition Act, it could be termed as a strict liability. The prosecution would only have to show you have committed the crime, ie uttered the seditious words and tantamount to seditious in the eyes of the court.

Therefore, the court is applying a subjective test in determining whether the accused had uttered seditious words. Subjective test means, the court will see the seditious word(s) in isolation, then will look into the paragraph, then finally will read the statement/article as a whole. Simply speaking, if the judge think this word so uttered is seditious, then it is seditious, vice versa.

How Prosecution Utilised the Act?

Fearly speaking, the prosecution need not to prove one's intention in uttering the seditious words, as I have repeated above. Further, when the prosecution in charging one under the Sedition Act, he does not have to prove the tendency part. In other words, like Dr. Azmi Sharom's case, the prosecution did not point out the tendency part which is 'seditious'. In fact, they do not have to do so. The Court in Mat Suhaimi v PP and Fan Yew Teng v PP have affirmed the same.

It is a 'free charge'. No intention need to be proven, no particular word need to be shown; the moment you uttered any word that came close the the wide definition of 'seditious tendency', you got caught.

I am not against restriction in limiting freedom of speech, and I also agree and respect that it can be limited to certain extent, as spell out in the Federal Constitution. But nonetheless, the wide definition of 'seditious tendency' had seriously and violently defeated the criminal justice system. It can meant to be limited but must with higher degree of tolerance and respect towards the rules of law.

The Malaysian Bar has appealed to all lawyers and pupils-in-chamber and even public to walk for justice and freedom on this 16 October 2014 at Padang Merbok. 

#MansuhAktaHasutan

#Walk4Justice&Freedom

See you there! 

    

The Seductive Sedition Act

The pressing of charges on Sedition Act 1948 recently had shown the shadow of another draconian law which had been abolished - The Internal Security Act (ISA). 

The then Home Minister told the public that the government arrested a journalist and Teresa Kok (Seputeh MP) under ISA was based on protection offered to them. However, the much debatable Sedition Act is now being utilised to persecute the opposition, and even academician.

Yesterday, an associate law professor from University Malaya, Azmi Sharom was charged under S4(1)(b) of the Sedition Act with S4(1)(c) as alternative charge. Both charges carry a jail term up to three years or maximum RM5,000 or both upon conviction.

(picture taken from Malaysian Insider)

What amounts to Seditious?

Under the said Act, "Seditious" means any act or speech or word or publication qualifies as having "Seditious Tendency".

"Seditious Tendency" is given a wide interpretation under the Act. It covers, inter-alia, to bring hatred or contempt or to excite disaffection against any Ruler or any against government, and also to promote feelings of ill will and hostility between different races or classes of the population in Malaysia.

This could explain why the government may press charges on a student who had "liked" a facebook page entitled "I Love Israel", as the liking act amounted to an act in promoting feelings of ill will among the muslims in Malaysia.

Prosecuting the opposition appears not extraordinary in our political phenomena. However, charging an academician from a well established public higher learning institution is the first time. I have taken the opportunity to read the statements uttered by Prof Azmi Sharom that allegedly seditious enough to promote hatred in the country. 

Prof Azmi Sharom had made the statements below, which had been published in an online news portal's article, entitled "Take Perak Crisis Route For Speedy End To Selangor Impasse, Pakatan Told", when he commented on the perak constitutional crisis after the 308 general election as an constitutional expert.

“You don’t want a repeat of that, where a secret meeting took place,” the University of Malaya lecturer said, referring to the Perak crisis.

“I think what happened in Perak was legally wrong. The best thing to do is do it as legally and transparently as possible.”

Personally, I believe the seditious content lies on the words "where a secret meeting took place", and possibly "I think what happened in Perak was legally wrong." It should be noted that the prosecution did not read out the seditious statements in the court room.

To understand the factor that motivated the prosecution, we should at least understand how Prof Azmi Sharom came to such comment. "A secret meeting took place" essentially refers to a private, or I would rather call it an [Informal Meeting] between the 31 BN/pro-BN assemblyman led by PM and the late HRH Sultan Perak Azlan Shah, after 3 Pakatan ADUN from Perak State Assembly quit PKR and DAP and thereafter pledged their support to Barisan Nasional.

The questions raised in and outside the court room were whether the then Pakatan MB Nizar Jamaluddin would have to lead the executive council (EXCO) to resign after the late HRH refused to dissolve the State Assembly in accordance to the Perak Constitution, and also whether the late HRH possessed executive power to remove Nizar as MB Perak without a vote of no-confidence being moved in the state assembly. I strongly believe this was the "secret meeting" referred by Prof Azmi Sharom.

I adhere to the Attorney General's absolute discretion to initiate prosecution enshrined under the Federal Constitution. However, selective prosecution matters now. We have not seen other extremists like Ridhuan Tee or Ibrahim Ali being charged under the Sedition Act for the time being. Nonetheless, the iron claw of Sedition Act even slipped into learning institution and attack the academic freedom. 

Government officials said, it is now a matter for the court to decide, which in turn the judiciary must shows faith and courage in defending the pillars of rule of law, by acting as guardian of the people. 

True enough, I have not seen how seditious are the academic criticisms made by Prof Azmi Sharom. I agree that the state has liberty to charge anyone as she deems fit and proper, notwithstanding it could be seen as a political move in doing so. However, under major circumstances, the people and civil society will press for a change, resulting in a serious political consequence. 

The authority seems have gone into a berserk state to utilise the Act. Instead, it is seductive enough to behave so.  

I would be more prepared to see, how the judiciary going to react with these malicious and selective prosecution initiated under an extremely old statute left by the colonial master, where the primary purpose was to combat communist insurgents at that time.

Similar with ISA, the Sedition Act has become a seductive tool for the government to prevent academician from purportedly inciting people to rebel against them, which is wrong. Law must cause justice to be done and seen to be done. Any old laws must be amended to fit and suit the current society progressive development.

The Sedition Act must go now. #MansuhAktaHasutan   

"Khalid-icised" The Lawyers

From Khalid's refusal to step down, initiate legal proceeding against online media, The Malaysian Insider to sacking 5 State EXCO from holding office, the arena has now moved to politicising lawyers by launching baseless personal remark against professionalism of a member of the Bar.

Edmund Bon Tai Soon and New Sin Yew who have represented the independent Menteri Besar Tan Sri Khalid Ibrahim were accused by two politician lawyers, N. Surendran and Latheefa Koya on assaulting freedom of press, after both Bon and New have accepted the brief from TSKI to sue The Malaysian Insider. According to TSKI's claim, Malaysian Insider has uttered defamatory articles/statements against TSKI, including but not limited to the issues of Kidex, revision of MB & EXCO's allowance, etc.

(Picture taken from Malaysiakini)

YB N. Surendran and Latheefa Koya being part and parcel of PKR, criticised Bon and New incompetent and unprincipled in taking the brief, simply because TSKI has been sacked by PKR and no longer a person that the party like anymore. Following such line of argument, due to TSKI's stubbornness to abide by the party's instruction, he is now a bad guy. And lawyers shouldn't help a bad guy.

Both YB Surendran and Latheefa are practising advocates & solicitors. Though they are politician lawyers, they should appreciate the cab-rank rule better than anyone else. 

Rule 2 of Legal Profession (Practice & Etiquette) Rules 1978 observes, an advocate & solicitor shall accept brief except in justifiable circumstances. This is also known as the Cab-Rank Rule. Cab-Rank Rule is a shorthand of professional obligation to accept brief upon instruction of client regardless of any personal dislike.

It is like a cabbie waiting for customer in a taxi waiting station. He cannot refuse to carry passenger except in limited circumstances. 

Likewise, being an advocate & solicitor, professionalism remains, perception aside. I see no cogent reasons why Bon and New should not accept TSKI's brief, merely because TSKI refused to follow PKR's leadership and caused the chaos among the Pakatan Rakyat as well as "malfunctioned" the state government. If Bon and New refused the brief by observing own political agenda and perception - that TSKI is wrong in not stepping down as MB, then they are lack of professionalism.

Put the defamatory suit aside first.

December 2012, a 23 year old student was brutally gang-raped by 6 people and died much later. The Indian Bar then refused to represent the accused, due to the serious gravity of the alleged crime, but also because the solicitors faced hostility when acting for them. To then, the Bar Council (India) urged the Indian Bar to end its refusal as everyone will be presumed innocent until proven guilty, including the 6 gang-rape accused. 

To put further, the presence of an advocate & solicitor is to defend the system. Clients come and go, but system would not vanish. Democracy cannot survive if lawyers who provide legal assistance can be simply condemned and intimidated into boycotting a person's right to be represented because of public criticism.

Emotional, political perception and morality must be differentiated from professional conduct. Read the scenario properly. TSKI gives instruction, lawyers accept the brief and file suit on behalf. Who is the client? TSKI. If you want to allege assault on freedom of press, point your finger to the client but not the lawyers.

This is where political belief overrides professional practice and pride. 

Khalid-icised the lawyers would not uphold own political visions, but personal attack do. 

Know your target well before pulling the trigger.

雪州大臣风波：严重的法律后果

雪州撤换大臣风波越演越烈，从实权领袖安华于午夜召开记者会宣布大臣替代人选到现在，卡立似乎不愿就范，导致民联伊斯兰党内部开明与保守派的分裂加剧，以及民联三党内异中求同的合作关系也蒙受波及。按照目前的局势看来，决定权并不是落在即将于8月10日召开中委会会议的伊斯兰党手中，而是卡立一人本身。

因此，我们必须对我国奉行的君主立宪制拥有一些法律概念。

西敏寺国会制（Westminster Parliamentary System）

我国引用的国会立法制源自于英国西敏寺，即国会本身被归分成三大部分，分别为最高元首，下议院与上议院。其次，我国各州的立法议会，即州议会也沿用相同的制度。因此，在州立法会内，州苏丹的角色可以在一定的程度上与国会内的最高元首相提并论。

在西敏寺制度底下，或正确来说，君主立宪制底下，最高元首/州苏丹并不能直接干预三权分立，特别以行政权为主。但是，我国的联邦宪法/州宪法却无异的为最高元首/州苏丹赋予特定的权力，而其中包括如何钦点首相/州务大臣。

雪州风波

首先，我们必须明白的是，马来西亚不奉行总统选举制，因此我国的首相/州务大臣是在政党/政治联盟于选举中获得最多席位而被推举的人选，尔后可向最高元首/州苏丹表明他（即他所代表的政党/政治联盟）获得人民的委托并成功赢取多数席位，进而可宣誓成为首相/州务大臣。而这也表示，首相/州务大臣是在政党/政治联盟的内部同意下被推举的。

从民主的角度来看，首相/州务大臣是绝对可以被所委托的政党/政治联盟撤换而不得有异议。因此，公正党在宣布决定撤换卡立的时候，卡立不得不走。这绝对是一个政治决定，也符合我国奉行的民主制。

翻阅雪州宪法，第53（6）条文如是表示，倘若卡立已不再获得多数州立法议员的支持，除非州苏丹在卡立的要求下同意解散州议会，否则卡立必须总辞。（英文为he shall tender the resignation of the State Executive Council）。按照第53（6）条文直译，卡立必须带领州行政议会（State EXCO）呈辞。

然而，纵然雪州宪法如是表示，但是该州宪法却没有具体的阐明该如何推选出新的州务大臣。因此，雪州宪法第51条文阐明，州苏丹必须依据宪法规定的要求委任州务大臣，其中包括他必须是一名马来人以及信奉伊斯兰教。当然，第53（2）（a）条文也阐明州苏丹在委任一名州务大臣之际，该人选必须获得多数州立法议员的支持。

（一）卡立主动呈辞

如上述表示，卡立是关键性人物，倘若卡立主动呈辞，这将能有效的解决所有风波。而民联三党推举的人选也将能成为雪州第二任民联大臣。

（二）解散州立法议会

这项决定可以引起百般涟漪，而又以霹雳州当年宪政危机相似。如果州苏丹同意解散州议会是好，相反的，倘若雪州苏丹和已驾崩的前霹雳州苏丹般的拒绝解散州议会，那么这将引发新一轮的州宪政危机，情况则恰恰与霹雳州相似，因为州苏丹拒绝解散州议会可被诠释为干预三权分立，支持派也可辩驳这是州宪法赋予苏丹的权力。

虽然霹雳州宪政危机已让我们有案例可循，但这将可能引发新一轮的司法拉锯战，届时且看联邦法院的裁决。

（三）不信任动议

不信任动议是民主制下的其中一项重要武器，虽然公正党相关人士连日内炮轰卡立，但相信安华必须等待伊斯兰党的中委会会议后才能决定是否该发动不信任动议的策略，逼使卡立下台。

（四）卡立遭公正党开除

这也是一个变化多端的选项。如果公正党真的采取开除行动，卡立可以循例要求召开州议会并提呈信任动议。如果伊斯兰党与巫统联手（如之前媒体报导），那么卡立是有可能成为一名联合州政府的州务大臣。虽然可能性不大，但还是存在的。

当然，也许许多人不知的是，假如雪州陷入社会动荡，中央政府是有权力介入并接管州政府，而戒严也可是其中一项后果最严重的选项。

（照片取自辣手新闻网）

卡立从安华召开的记者会后已明确的表明，他并不是不同意下台，而是一切必须按照法律程序进行。要一州之长下台也不是一朝一夕的事。直至截稿为止，媒体在卡立出席一项法庭案件审讯后报导，卡立仍希望所有撤换大臣的事务能按照原有的次序和法律进行安排。

一切且看卡立，这句话一点也没错。

日落洞之虎：卡巴星

阔别抒写部落已有一段时间，这次选择以介绍一本书籍作为开端，它是Tiger of Jelutong, Karpal Singh。作者是Tim Donoghue，一名因机缘巧合而结识了这名日落洞之虎的新西兰媒体工作者。

相信令许多在政坛和法律界的人士感到惊讶和伤心的是，卡巴星于2014年4月17日从吉隆坡驱车前往北部时因一起致命车祸而不幸丧命，陪伴他的还有一直默默在他身边服务的好朋友，Michael。这本书籍也因此成了其中一本记载卡巴星生前在法律与司法界所作出的贡献和点滴，内容主要围绕在卡巴星处理过的案件，包括那些曾经在1950年内安法令（Internal Security Act 1950）（已被现任首相废除）底下被逮捕的人士。

卡巴星生前家境贫困，只身前往新加坡就读法律系已展现出其卓越的敏锐度，更因发动与参与学生联合会而在李光耀的指示下遭大学停学。大学毕业后，卡巴星回马并在亚罗士打的一间律师事务所实习后，开始执业生涯。其间，卡巴星在实习完毕后，在欲向高庭申请宣誓成为律师之际更遭到一位资深律师的反对，原因为害怕卡巴星在将来会比他更出色。然而，高庭法官Justice Ong Hock Sim在聆听卡巴星的陈词后命令卡巴星宣誓成为律师。

卡巴星在执业的生涯初段为马来西亚的法律作出了巨大的贡献，包括为那些在内安法令低下被检察署提控的人士，分别有共产党党羽嫌犯和拥有枪械的人士担当起辩护的角色。

也许你会质疑为何一名律师会为犯罪人士辩护，因为法律存在的其中一个意义就是要惩罚罪犯，特别是在那个时候的共产党党羽。作为一名法律体系维护者，律师的辩护工作主要在于维护司法公正，而不是绞尽脑汁如何替嫌犯洗脱嫌疑。当然，在维护司法体系的当儿，律师铁定会从多方角度出发，包括质疑和挑战法令的合法性，执法当局是否有按照法律程序行事等。通常也可称技术性胜诉。

书籍其中一部令人感觉到津津有味的是，卡巴星在处理一名在内安法令底下被提控的嫌犯之际，虽然Essential (Security Cases) Regulations 1975的其中一条条文阐明嫌犯不可上诉至英国蓲密法院（Privy Council-共和联邦体制下最高上诉法院，现已被马来西亚Courts of Judicature Act撤除），但卡巴星却成功从联邦法院取得上诉准令，并将案件带至伦敦蓲密法院，促成他成为其中一名拥有在英国蓲密法院辩护案件经验的律师。

卡巴星了解到，虽然他获得英国蓲密法院众法官们的支持，以致推翻了联邦法院的裁决（意即嫌犯不被处死），但时任的联邦政府却能轻易的在国会内通过法案推翻蓲密法院的裁决。于是，卡巴星认为在法庭内并不能最有效的维护法律公正，因此才展开了他在行动党的政治生涯，通过社会运动与政治动力进行改革。当中包括联合英国与国际社运组织推动废除死刑与恶法运动。

若要详细阅读其余内容，可前往各大书局或现在正于KL Convention Centre举行的书展购买。

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