The 3-day conference has drawn to a close and overall it was a great conference I thought. The change of venue from the usual seedy-ish looking Legend to the KL Convention Centre was brilliant. The downside of attending each bi-annual conference is that work really gets in the way, and it is difficult to just clear those 3 days to attend the conference.I was roped in to do a bit of webreporting for the Malaysian Bar website as well this year. I was also played a small part in the Day 3 Organising Committee, so I was kept quite busy throughout the conference.

The conference really over-ran all its slots throughout the 3 days. I don’t think the delegates really complained as each session was highly engaging, but there must be a way to better time manage each session. This year’s conference seemed worse in that aspect than two years ago.

Some of the highlights over the 3 days. The first session I managed to attend was only the afternoon session on Day 1, on technology and the law (I hate that picture of myself!). I regret not attending the opening, especially the opening address of our Sultan of Perak. I stayed on for the other sessions and it was then time to head to the Renaissance Hotel to attend the dinner graciously hosted by our Prime Minister.

Day 2 morning was spent in the office frantically trying to fair some affidavits to be filed and served. I would be playing tour guide to some foreign delegates in the afternoon. We had extended invitations to the foreign young lawyers to take a quick tour round our new KL Court Complex as well as the Bar Council. Disappointingly, we only had 3 showing up, 2 from Singapore and 1 from Indonesia. One of the Singaporeans was a long-time friend, Laura, so it was good to catch up during the afternoon.

Bar Council library

Meet up between Malaysia’s National Young Lawyers Committee and Singapore’s Young Lawyers Committee

On 24 October 2007, a case involving an alleged exorcism headed for trial, in what is a landmark case, full of controversies and courtroom drama.Two priests, the Novena Church and seven church choir members were sued for allegedly forcing a rite of exorcism on Amutha Valli on 10 August 2004. The defence lawyers are alleging that the plaintiff has hatched up a scam for compensation of at least a quarter of a million dollars.

Amutha had gone to Novena Church to pray with her son, daughter and sworn brother. She allegedly fainted while praying.

Defence lawyers said Amutha “slithered like a snake, rattled on the grilles, and marched like a soldier on command of her sworn brother” – a sight that frightened many who were in the church at that time.

Among the issues of contention is whether her family members were the ones who said she was possessed and needed a rite of exorcism.

Amutha and her family are claiming that they did not give consent to the “exorcism” and that the priests had conducted the rite against her will.

The plaintiff also claimed she was physically abused and was traumatised after the two-and-half-hour session.

The church, on the other hand, said what it did was just a prayer, not a rite of exorcism. They had stepped in to restrain the woman as she had apparently turned violent and started strangling herself.

Today, around 1500 – 2000 lawyers showed up at the steps of the Palace of Justice in Putrajaya. We then staged a peaceful walk down to the Prime Minister’s office, to hand over a memorandum urging the government to investigate not only the revelations from the Lingam video tape, but to also investigate further the state of the judiciary and the system of judicial appointments.We started making our way down to the Palace of Justice, a building housing the appellate courts of Malaysia, at around 9.45am. I then started to get phone calls on how the police had set up road blocks on all the roads leading into Putrajaya, but they were still letting cars through.

We arrived at the road block, and we saw that the chartered coaches of the Bar ferrying the lawyers from KL to Putrajaya had been detained at the road block. The passing cars tried to ferry as many of the stranded lawyers as possible, but the majority of the lawyers were still stranded there, the negotiations between the Bar representatives and the police were not successful.

I then got another call from a friend who was already near the Palace of Justice and she anxiously asked me to call her when we got there as she was afraid of going to the Palace of Justice by herself. She said, “I’m scared. There are so many police there.”In a sad way, that is a reflection somewhat of the state of the country where we half-expect the police to turn on us.

We made our way to the steps of the Palace of Justice where the sight of hundreds of lawyers greeted me. It was heart warming to see so many members of the Bar turning up to show their support, all braving the warm weather to don their jackets and ties, some with sports shoes on.

The numbers in the crowd soon surged past the 1000 mark and more and more of us congregated on the steps.

I will be attending the walk tomorrow. It should be a quiet and uneventful march from the Palace of Justice to the Prime Minister’s office. It should take about half an hour, and most of us have no idea how many will turn up. I hear of some large groups of lawyers proudly stating that they will be there at the Palace of Justice, while I hear of other lawyers or even whole firms not attending.Tomorrow’s march is intended to be quiet display of the Bar’s desire that not only must the truth of the Lingam video tape be dealt with through a Royal Commission of Inquiry, but the Royal Commission must also look into the state of our judiciary and restore the public’s confidence in the judiciary.

In contrast to the defensive posturing adopted by the government initially, the Deputy Prime Minister has now announced on the eve of the march that a 3-man panel has been set up to investigate the tape. Perhaps the pressure from the Bar and other opposition parties had some part to play in this decision, I don’t know.

But it does not detract from the urgency and the importance of the march. This 3-man panel is still insufficient to deal with the larger issue of the possible rot and corruption plaguing the judiciary.

Do walk with us tomorrow.

On Wednesday, a video was released which seems to reveal senior lawyer VK Lingam on a phone conversation sometime in 2002, and he seemed to be on the phone with the current Chief Justice of Malaysia (the head of the judiciary) Tun Ahmad Fairuz fixing the appointment of ‘friendly’ judges.

I attended the fourth and final session of Siri Pemikiran Kritis II (Critical Thinking Series II) last night at the Bar Council Auditorium. It involved a youth roundtable discussion on the topic New Voices and New Visions for Malaysia, with the panel of speakers generally issuing a clarion call to all Malaysians to actively participate in bringing about a change in this country.Siri Pemikiran Kritis II is a joint project between the National Young Lawyers Committee and Youth4Change after the highly successful first edition last year. The theme of this year’s series is “Rethinking Malaysia in Commemoration of 50 Years of Independence.”

The session was moderated by Fahri Azzat, and he introduced our panel of speakers:

1. Nik Nazmi Nik Ahmad, prominent blogger and special aide to Anwar Ibrahim;

2. Richard Wee, representing the National Young Lawyers Committee of the Bar Council;

3. Marzuki Mohamad, Head of Research Bureau for the Angkatan Belia Islam Malaysia (ABIM); and

4. Tricia Yeoh, a Senior Analyst of Centre for Public Policy Studies (CPPS).

(i) Nik Nazmi

Nik started off the session by stating as a matter of fact that after 50 years of independence, little has changed. We started off as a society consisting of different races and with little interaction, and at Merdeka, we came to a consensus; we made a choice to instead have a multi-racial and multi-religious society. However, after the euphoria of Merdeka, the tension erupted into May the 13th.

“… the NEP became a mere perpetuation of power by the same ruling elite.”

The implementation of the New Economic Policy (NEP) became a mere perpetuation of power by the same ruling elite. A positive effect of the NEP was the creation of a Malay middle-class. However, the NEP had done little to assist the poor, and merely benefited the politically connected Malays. Nik came out strongly to state that the political elite in this country had hijacked the NEP and wielded the NEP to enrich themselves whilst marginalising the poorer Malays.

Ultimately, Nik explained that we had a choice. We should choose to be politically aware. We should exercise our right to register and vote. The key is for all of us to participate as Malaysians and to see the problems within this country as a problem for all Malaysians, not just a problem for a particular race to deal with.

(ii) Richard Wee

Richard took a legal perspective to the topic at hand. He embarked on a time-travelling expedition, where he planned to take the audience 50 years into the past, to examine legal issues gripping the country then, then fast forward to the present with the changes in the legal landscape, and finally his hopes 50 years from now, when Malaysia celebrates 100 years of Independence.

We were brought back to pre-1957, where Richard presented four interesting cases decided in the 1950s. Just to highlight two of them, the first was Re Lai Teng Fong Deceased [1950] 1 MLJ 34, which involved the deceased’s 5 widows finding out that the deceased had 5 widows, and the Court had to determine whether one of the widows was a wife previously, or a concubine. The case of Re Maria Huberdina Hertogh [1951]1 MLJ 64 involved a Dutchman leaving his female baby with a Malay lady as he had to go off to war, and when he returned, they were involved in a custody battle for the now 13 year-old girl. The 13 year-old girl had also been married off in the midst of the litigation proceedings, and at the Court of Appeal, all 3 judges did allow the Dutchman to have custody of his child, but all 3 judges gave different reasons for their judgment.

“..it boiled down to a group of people bullying another group of people.”

We then leaped forward a few decades where Richard then explained how the former regime, led by one man, created the 1988 Constitutional Crisis. The case of Adorna Properties decided in 2000 left people in fear of their properties being transferred out under their noses. Richard then commented that the Lina Joy case now reflects what is happening to Malaysia. Richard’s view was that it boiled down to a group of people bullying another group of people. This is despite the clear wording of Article 11 of our Federal Constitution.

Richard’s hope for the future was for three things: first that our Constitution will still be there 50 years from now, that political parties based on racial lines will all get dissolved, and that finally, there will be a greater level of transparency in this country.

(iii) Marzuki Mohamed

Marzuki’s speech centered on the contestation between communalism and individualism, and how this struggle has always been present over the last 50 years.

In recent years, Marzuki explained, we have seen the proliferation of a brand of New Politics, which is a shift away from the more communal and authoritarian, to an emphasis on the non-communal and democratic system. Political parties such as UMNO still heavily emphasise on communalism, which places the interest of the community above the interests of the individual, while Non-Governmental Organisations promote a more non-communalism view, which stresses on the importance of individual self-reliance and liberty.

“…the ideological contestation between communalism and individualism…”

Marzuki also observed that there has also been a shift from views based on ethnicity to one which is based more on religion. Communal views are no longer so much based on the same ethnicity, but more of from the same religion. Religion would continue to become the main marker for the future.

He was of the view that our country has become more democratic with a greater sense of distributive justice. Another example of the progress was that in the 1980s, there were no Public Services Department’s (PSD) scholarships available for non-Malays, however that has changed with PSD scholarships being given out to non-Malays as well. Both sides of the political spectrum do have a certain degree of agreement on issues such as constitutionalism and the rule of law.

(iv) Tricia Yeoh

Tricia’s topic centred on the fact that despite Malaysia being 50 years old, Malaysia acts more like a confused 20 year old adolescent.

She started off with idiosyncratic examples in our country, which a mature society should not have. The first type of inconsistency, she dubbed the historical type, was the common position taken in Article 8 of our Constitution, our Vision 2020 and our Rukunegara; the idea of equality for all and the advancement of national unity. In contrast however, our various Malaysia Plans continue to focus on an increase in Bumiputra participation and the maintenance of race-based quotas. Treasury policies continue to favour Bumiputra Government Link Companies (GLC).

A second type of inconsistency is through the idiosyncratic implementation of national policies. For instance, Malaysia aims to liberalise international trade, however, there is no level playing field for foreign companies to invest their capital in Malaysia. Further, the inability to compromise on issues had severely dampened the US-Malaysia FTA talks.

As stated by Tricia, these inconsistencies cannot now be dismissed as ‘teething problems’ and that things have to change after 50 years of independence. We must discard archaic policies and implement new ones based on today’s needs. Tricia then called out for the Government to exorcise the ghosts of our past, for instance the events of 1969 need to be discussed and closure was needed. Old wounds must be opened up in order for them to heal completely, and we can then get rid of our historical baggage.

“…discard archaic policies and implement new ones based on today’s needs.”

Next, we need to get rid of false suspicions. We cannot allow issues on race and religion be used as convenient tools by politicians. Finally, we must get rid of categories and not place people into checkboxes.

(v) Discussion

This ended the talks by the speakers and what followed was a brief discussion among the speakers on the issues raised that evening. In reply to Richard’s query regarding whether Malaysia had truly progressed and how the NEP is abused by the elite to advance their interests, Marzuki replied that perhaps it was a case of viewing whether the glass was half empty or half full. Marzuki explained that there has been progress in that the Government had become more liberal and laws being changed to cater for the different ethnicities. Undoubtedly however, there have been stricter laws enacted for instance the amendments to the Penal Code to deal with terrorism.

Questions were opened up to the floor, and a potentially controversial question was then posed to the speakers: whether Islamic law should become the supreme law to other laws. Nik answered that one ought to go beyond labels. In 1957, the country had come to a consensus to guarantee freedom and liberties and therefore, there was no conflict in the status quo. Marzuki was more explicit in stating that Islamic law derives its power and authority from the Constitution and therefore there was no issue.

With that, the session and this year’s SPK II drew to a close. The packed audience in the Bar Council Auditorium was a testament to how the present generation wishes to participate in the development of Malaysia for the next 50 years and beyond.

It looks like the UK’s Bar Standards Boards will be rejecting the move towards deferral of the Call to the Bar.In a report on its provisional conclusions, the Board has concluded that “deferring call to the Bar until after pupillage would not be an appropriate response to the risk which it is intended to address.”

On the other hand, “the Board considers that deferring call would itself cause significant harm – in particular by making the process by which the degree of “barrister” is awarded less fair and transparent, and by deterring non-UK students from qualifying as English barristers, with the cultural, academic and economic benefits to the public interest which this brings.”

A final decision of the Board will be announced sometime in July.

The history regarding the deferral of Call has gone back decades, where there were calls to only allow a person to be Called to the UK Bar, and hence be awarded the title Barrister-at-law, after the completion of 6 months of pupilage. This is in contrast the the present system, and how I got Called to the UK Bar, where all that was required was the successful completion of the Bar Vocational Course (BVC), and you would then be able to be Called.

In the years 2004 and 2005, the move towards a deferral to Call started to gain momentum. A significant side-effect of deferral of Call until after the completion the pupilage, was that it would deprive hundreds of foreign students from being able to get Called to the Bar in their own jurisdiction. In Malaysia, our Legal Profession Act continues to recognise the title Barrister-at-Law, and it exempts a lawyer with the Barrister-at-Law qualification from having to sit for the CLP exam.

Many Malaysian students were therefore left in limbo at whether they could still sit for the BVC. Pupilage positions are extremely difficult to come by, especially if you are a foreign student. So the thought of having to sit for the BVC, and having no guarantee of securing pupilage, would have deterred a majority of Malaysians from sitting for the BVC.

I await confirmation of the rejection of the deferral of Call, but I have always been a staunch supporter of the BVC, and I feel that BVC graduates are a real asset to the Malaysian Bar in general.

I fully enjoyed my 3 years of academic study of the law during my LLB. But during my BVC year, it really opened up my eyes to what the practice of law really entailed. It was no longer studying and understanding academic concepts, or grasping basic principles such as offer, acceptance, and consideration, but the BVC involved learning how to conduct a conference with a client, standing on your feet to conduct cross-examination or to make submissions to the Judge, or drafting opinions to advise clients.

Some people may criticize the BVC for being too general, and it not really giving specific enough training to prepare the BVC graduate for real-life practice. I however, feel the generality of the BVC imparted very transferrable skills on me, which I now apply on an everyday basis in a different jurisdiction from the UK. I still adopt the basic style of my submissions from my BVC days in my present practice. The basic concepts I gleamed from examination-in-chief and cross-examination continue to be highly relevant in the trials conducted here. Just the other day, when having a phone conversation with a client, I was still drawing on my conference skills I learnt.

So I can’t recommend the BVC enough if any of you have the opportunity to study the course.

Let me trace out the problems which have plagued the new Jalan Duta Court.