Yap Boon Hau

A Citizen's Diary

2010-04-27T18:43:00.006+08:00

While I am not a full time politician, the political movement is still at my heart. I am dismayed by the defeat of PKR in the by-election last Sunday. The result cast a serious doubt on our ability and will to build a better Malaysia.

Irrespective of the allegation of any misconduct by the winner of the by-election, the result is damning. I am concerned with the result as it appears than anything else. The result, I mean, is not the victory or defeat of any of the alliance. It is the voting trend.

What worry me the most is the dichotomy of voting patern. It appears that when the Chinese support to PR escalates, the Malay support declines enormously, not to mention that BN has recover marginally the Indian's votes.

The polar of voting patern between races is extremely unhealthy to construction of better society. Putting this into perspective, as it is, there are scums who incite racial hatred to earn political millege. The diversified support of BN and PR respectively and exclusively by Malay and Chinese provide nutrient for those pre-historical stone-age scumbags to hatch and grow.

If this polar of preference does not alter by next general election, we will see a majority government of Malay on the right of the Speaker, and a minority opposition of Chinese on the left. To aggravate the scenario, the Chinese based opposition seems to contend and confined with their wrestle with the Chinese based ruling party. The rampancy and overwhelming taking issues like Chinese schools, Chinese scholarship, Chinese temple do make (or portrait) them as Chinese party, not national party. Turning the Chinese based opposition into "Chindraft" is dire.

As a prerequisite of the intended revamp of our political landscape and structure, the majority of population, namely, the Malay must be ready. A picture of Malay as governer and Chinese as opposition would be as equal disastrous as the longevity of BN.

小皇帝日记

2010-04-08T19:52:00.002+08:00

最近，小皇帝时常表现得非常霸道，对不喜欢的东西，不是“把它打掉”，就是“捉他到balai" . 那天，在槟城度假，就有值得记录的对话。

老婆：“旸，你弄坏酒店的灯泡，uncle 不会再让你来holiday"
旸：“不要Uncle. Uncle 坏蛋。捉他去balai polis"
我：“旸，你以为你是内政部长，随便用ISA捉人”
老婆 : "旸，你最好别从政，不然你一定会滥用权力”

4岁的旸懂什么ISA, 滥用权力。。。

小皇帝日记（5）

2010-01-19T18:15:00.004+08:00

才发现，原来最后一次写小皇帝已经是年多前的事了。今年四月，小皇帝就四岁了。有时看回小时的录影，回味小皇帝一天一天长大，从学习ABC到玩积木，从看书到跳舞，发现成长就是那么奇妙。看他哭，看他笑，看他发脾气，本身就是一种享受。身为父母，我们都不想错过第一时间见证他每一项新学习。

小皇帝越大越有乃母之风，睡觉前和起床后就说个不停。最近，还学会“耍手段”，告诉我们因为他肚子饿，所以要喝他的最爱“vitagen".

和一般小男孩一样，汽车是他的最爱。其中，警察车，消防车和救伤车更是他的爱妃，每晚非抱着睡不可。

如果大马皇家警察到处受人臭骂，自少他们还有小皇帝这一个粉丝。对多数陌生人都冷漠以对的他，对警察可是热情如火。老远看到他们会吵着和他们拍照。到截稿为止，他至少有不下十张和policeman的合照，拍照后还会主动说拜拜。老婆曾经说，如果皇家警察要找公关大使，小皇帝一定是不二人选，还可以免费帮他们宣传，再把他的profile送给IGP，博个奖学金。但想想，加入警队这大染缸，到底是让他更了解从小我们就想教育他的公正，爱心，分享，还是反之呢？希望小皇帝长大前，警队改革可以成功，让我们叶家捞个IGP来做做也是光宗耀祖。

A Lawyer's Diary (5)

2009-11-12T18:41:00.003+08:00

The following are notes taken during my partner, Mr. Philip Koh's submission in reply in the case of Nizar -v- Zambry. I find it enlightening :

1. My Lords, in the absence of our leader (Tuan Haji Sulaiman) with leave of this Court it falls on me to make a reply.

Federal Court: Only one counsel?

Philip Koh : Yes, only one and I will be brief and shall definitely not exceed 6 pm, probably earlier.

INTERPRETING THE CONSTITUTION

2. In the Privy Council case from Nigeria, Adengbero v Akintola Viscount Radcliffe asked whether there is anything in the scheme of the Constitution that compels a certain way of interpreting the document. We say that in the task of Constitutional Interpretation there are three basic questions:-
WHO Interprets?
WHAT is being interpreted?
HOW is it interpreted?

3. The Learned and Honourable Attorney General and Learned Counsel for Respondent and we are on the same page in so far as the vital question that confronts us is the question of interpreting the Perak State Constitution.

4. My Lords, in answering the question I shall be referring to two major documents in our Reply: can My Lords refer to them? The Perak State Constitution and our Core Bundle Ikatan IT (P). Does Your Lordship have these two documents? The Crux of Appellant’s position is that the Constitution is to be interpreted by the Courts and NOT by any other institution however high.

IN OPEN COURT

5. I respectfully refer to Article LXIII (pg 35 of the Perak Constitution) entitled “Special Jurisdiction of the Federal Court as to Interpretation of the Laws of the Constitution.”
I refer also to Article LXIV (pg 36) Advisory Jurisdiction of the Federal Court where HRH may refer “any question as to the effect of any provision of this Constitution which has arisen or appeared to HRH likely to rise and the Federal Court shall pronounce in Open Court its opinion on any question so referred to it.”

6. I emphasise that the hearing is in OPEN COURT so that all reasons may be ventilated and decisions are not made which may give rise to speculations and conflicting accounts of what happened.

7. This is important as it shields and insulates HRH from criticism of taking over the interpretive function.

8. It is the Court which interprets and not HRH. It is neither the Menteri Besar nor even the Legislative Assembly that has the interpretive function over the constitution.
I refer again to jurisdiction of HRH to refer issues to the Federal Court under Article LXIV of the Perak Constitution.

INSULATING FROM CRITICISM

9. My Lords this will shield HRH from criticism and contestations by either side of the divide.

10. I repeat that this also insulates the HRH from the sordid business of political horse trading.

11. My Lords, as Tun Suffian observed in Malaysia there is no one institution that is Supreme. What is supreme is the Constitution. In our case here, it is the Laws of the Constitution of Perak.

DEEMING VACANT

12. We have already drawn My Lords’ attention to Articles XIX(1) and (1A) the “Vacating the Throne” provision and how it can be “deemed vacant” by operation of law in Part II of the Perak Constitution.

13. Article XIX(1) says that “If the Sovereign shall absent himself from the State for more than three consecutive calendar months ... the Sovereign shall be deemed to have vacated the throne. Article XIX (1A) provides that in that event “...He shall cease to be the Sovereign and shall be deemed to have vacated the throne.”

14. We also draw My Lords’ attention to Article XXXIV of the Perak Constitution.“If a member of the Legislative Assembly becomes disqualified for membership of the Assembly or dies, his seat shall become vacant.” Again, the text of the Perak Constitution itself provides in concise and clear language if it desires and intends that an office is to be “deemed vacated” or “SHALL become vacant.”

ABSENCE OF DEEMING PROVISION IN ARTICLE XVI(6)

15. Simple clear words that could have been introduced into Article XVI (6) if the draftsman is desirous to introduce words to such effect. Yet the Learned and Honourable Attorney General says that under Article XVI(6) the post of the MB can be deemed vacant.

16. Article XVI (6) reads: “If the Mentri Besar ceases to command the confidence of the majority of the members ... he shall tender the resignation of the Executive Council.”

17. Counsel for Respondent cannot ask this Court to “mind the gap” and supply the omission.

18. We have referred to Merdeka University case which settles how constitutions are interpreted and nothing in the cases referred to by Counsel for Respondent and the Learned and Honourable Attorney General refutes this.

19. It is our submission that TEXTUALLY and STRUCTURALLY the Perak Constitution provides the balance and equilibrium to govern the constitutional polity.

20. My Learned and Honourable Attorney General referred to his being in Amir Kahar’s case.

21. I was also privileged to be Junior Counsel in the Tun Mustapha case heard by Mr Justice Tan Chiaw Tong. It adopted the reasoning in Ningkan.

NIZAR IS DISMISSED

22. In an important passage, Tan Chiaw Tong J said that regardless of whether you used words like “revoke” or “vacate” etc., there was no power to dismiss. Neither the Learned and Honourable Attorney General nor Counsel for Respondent has refuted the reasoning of Tan J.

23. I now refer to the HRH’s Media Statement:- “Sekira YAB Dato’ Seri Ir. Mohammad Nizar bin Jamaluddin tidak meletak jawatan sebagai Menteri Besar bersama ahli-ahli MMK, maka jawatan Menteri Besar serta ahli-ahli MMK tersebut dianggap telah dikosongkan.”

24. With respect, this is tantamount to dismissal and/or deemed vacant which both TEXTUALLY and STRUCTURALLY the Perak State Constitution does not permit to be read into Article XVI(6).

25. We also note that there has not been any refutation of Mr Justice Tan Chiaw Tong’s ruling in Tun Mustapha’s case that the Interpretation Act does not apply where there is a “contrary intention”.

26. The Perak Constitution provides clearly that the Menteri Besar does not hold office at the pleasure of HRH. Therefore, although there is a constitutional power to appoint under Article XVI(2), the contrary intention that “the MB does NOT hold office at the pleasure of HRH” precludes any suggestion that HRH has the power to dismiss.

CALM AND INDEPENDENT DELIBERATION

27. By the way, it should also be noted that Mr Justice Tan in Tun Mustapha also said that the Governor should be given space to calmly and independently deliberate as to the appointment of the Governor (or MB), as intended by the Constitution.

28. This did not happen here. As we all know, the Deputy Prime Minister with his entourage was in HRH’s palace. The contemporaneous document at pg 4 of the Core Bundle also shows that at the material time there was no one identified from the BN side who could be said to command the confidence of a majority of the members of the Legislative Assembly.

29. Though it may be readily conceded that the TUANKU of Perak is more robust than the Tuan Yang Di Pertua of Sabah, this does not change the principle.

FACE THE FACTS

30. Learned Counsel for Respondent said that we have not referred to facts which are crucial in this Appeal. He suggested we were running away from them; that we dare not face the facts. My Lords, we stress that the law is just as important in this Appeal. Our appeal concerns the intricacies behind the provisions of the Perak State Constitution and also involves complex case authorities.

31. But let us now respond to the facts:-
The Counsel for Respondent and the Learned and Honourable Attorney General said that the facts demonstrate that:-
(i) MB Nizar came to HRH with knowledge that he has lost the confidence of the majority of the members of the Legislative Assembly;
(ii) it is undisputed that MB Nizar has lost the majority. Counsel for Respondent says that 28 – 27 is not a deadlock. But he forgets that Sivakumar can resign as a Speaker and an outsider can be appointed. 28 – 28. That is why BN appointed Ganesan as “Speaker”.

FACTS AND LAW

32. But what are the facts and law? It is trite law that a man’s knowledge has to be evaluated at the relevant time. From MB Nizar's view point and state of knowledge on 4th and 5th of February and not in retrospect.

33. What is that knowledge? Zainun JCA in the Court below opined that “an unenlightened MB will not go down well with the public.” MB Nizar has been described as “dishonourable”. Is he? Is that what the facts bear out?

34. Let us refer to the crucial letter dated 5th February, 2009. With My Lords’ leave, I read the contents of the letter.

35. My Lords, may I be permitted to read the letter in its entirety. Yes, My Lords, please note the reference to Article XVI(6). But also take note that the Learned and Honourable Attorney General stopped short of reading a crucial sentence i.e.:- “ini bermakna sokongan Menteri Besar itu perlu diputuskan oleh Persidangan Dewan Negeri.”. Further take note, “Patik dengan ini merafa sembah bahawa pimpinan Pakatan Rakyat sebulat suara meminta Patik untuk tidak meletak jawatan sehingga krisis perlembagaan ini diputuskan oleh Mahkamah atau Dewan Negeri Perak.” So we have contemporary documentary evidence that there is a need to go to the Dewan Negeri or the Courts to decide the issue. This is far from the Respondent’s contention that Nizar had already lost the confidence of the majority of the members of the Legislative Assembly when he approached HRH. Go to the Court: hear the yearning for justice from Courts by MB Nizar.

FACE THE LAW

36. For Respondent’s Counsel and the Learned and Honourable Attorney General, there appears to be a triumph of facts over law. We differ. We say that the law as it stands, in Nizar’s case, is triumphant over facts here. Even if we concede that the facts are against the Appellant, we submit that the law determines the scope of Article XVI(6).

37. We say that even if we assume that the facts are against MB Nizar, we, nevertheless, submit that the LAW must triumph over FACTS. Article XVI(6) does not contain the words which Counsel for Respondent and the Learned and Honourable Attorney General wants this Court to read into.

FACE THE ASSEMBLY

38. We would also refer to a letter from the Speaker, Mr Sivakumar dated 6th February 2009 which urged the convening of the Legislative Assembly, “supaya mengadakan mesyuarat Sidang Dewan Negeri Perak ... diadakan secepat mungkin.”

39. The Speaker also asked that the swearing in of Dato’ Dr Zambry be deferred “sehingga selepas mengadakan mesyuarat sidang Dewan Negeri Perak tersebut.”

40. Was MB Nizar afraid to face the Legislative Assembly as contended by the Learned and Honourable Attorney General and Counsel for the Respondent?

CONTEMPORANEOUS DOCUMENT

41. Counsel for Respondent has made much of contemporaneous documents. We submit that this document from the Speaker, being contemporaneous, demonstrates that MB Nizar has throughout requested for convening of Legislative Assembly.

42. Federal Court (Dato Haji Embong FCJ): It will be more helpful if there is an earlier letter or request.

Philip Koh: Yes My Lords, we again refer back to letter dated 5th February 2009 from MB Nizar to HRH. [See pg 14 of Core Bundle IT ( P)] “Patik dengan ini merafa sembah bahawa pimpinan Pakatan Rakyat sebulat suara meminta Patik untuk tidak meletak jawatan sehingga krisis perlembagaan ini diputuskan oleh Mahkamah atau Dewan Undangan Negeri Perak.”

FINDING OF FACT

43. My Lords, it is wrong for them to say that we are not concerned with facts. Indeed, we say that Dato Aziz J at the High Court has dealt with the facts at pgs 1193 through to 1204 of Jilid 14 / 15 of Rekod Rayuan filed by Appellant. We refer especially to pg 1204: “In the circumstance I would prefer the version by the Applicant that the request for dissolution on 4th February 2009 was made pursuant to Article XXXVI (2) of the Perak State Constitution and that the issue of loss of confidence in the State Legislative Assembly was never raised or became an issue the averment by the SLA also is not supported by contemporaneous document in the form of Exhibit PSLA-1. I am fortified in this conclusion when the SLA confirmed, under re-examination by the Learned and Honourable Attorney General, that in Exhibit PSLA-1, Article XXXVI (2) Perak State Constitution is the ground for dissolution.

44. Earlier, when our leading Counsel Tuan Haji Sulaiman submitted there was authority for Federal Court to overrule a Court of Appeal finding of fact as against the High Court, the case of Asean Papermills was referred to. We hereby hand over the case authority for ease of reference to the Court. Refer to the passage that if the Court of Appeal drew wrong inferences from the chain of evidence, the Federal Court may overrule the decision of the Court of Appeal.

NO POWER TO DISMISS

45. My Lords, I further say the Learned Counsel for Respondent and the Learned and Honourable Attorney General have not refuted our arguments on Historical and Original Intent as exhibited by the Reid Report and the Draft Constitution whereby there was an express power of dismissal conferred on HRH. This was clearly omitted in Article XVI(6) of the Perak Constitution.

46. Unless we can be of further assistance, I would like to thank My Lords for hearing us and also like to thank my learned friend, Dato Cecil Abraham and the Learned and Honourable Attorney General, Datuk Ghani Patil for assisting the court to come to the right conclusion in this important case.

老公日记 (4)

2009-09-12T21:44:00.000+08:00

老婆时常说我没有情趣。情趣是什么？除了发音和笔画，我无法了解它的内涵。太主观，太模糊，反正什么使女人开心，就是情趣。对十八岁女人，一起去看演唱会是情趣，对二十八岁女人来说，浪漫晚餐是情趣。对三十四岁，ntv7 品牌经历，一个有三岁儿子的女人呢? 这比如何解决次贷风暴还难。
那天老婆生日，我到书店想买一张像样的生日卡。千挑万选后，找到一张有点深度，但又不太肉麻的卡。拿到收银处，我的天，RM25 !!!! 简直是daylight robbery !!!! 他妈的几句话，加上recycle 卡，竟然那么贵。当收银机显示出“25”时，简直是天人交战，要很cheap 的拿回卡，再选过比较便宜的？还是硬着头皮掏出25元。在那数秒中，为了维护律师形象，避免改次上电视时，收银员跟他家人说，"看，就是这位律师，cheap 到买25元的卡给老婆都不舍得”，忍痛买了。我的形象至少值25元吧。
回去和老婆投诉，老婆道：“你怎么那么笨，不看价钱就买，抵死”。

inquest

2009-08-12T23:33:00.002+08:00

InquestA coroner’s inquiry, or inquest, is the term used in England for proceeding to discover the cause of death. In Malaysia, the similar procedure is provided in our Criminal Procedure Code ("CPC") at Chapter 32. The procedure is called “Inquiry of Death”. The Chapter comprises comprehensive code of conduct and procedure to be adopted when death occurs in suspicious circumstances. The police officer not below the rank of sergeant shall make an investigation and draw up a report of the apparent cause of death. Having completed the report, the police in charge of the police district shall forthwith forward such report to the Magistrate within the local limits of whose jurisdiction the body of the deceased was found. If the Magistrate is not satisfied with the cause of death so reported, he SHALL proceed to hold an inquiry, except when there is prosecution against a person connected to the death. Hence, it is the Magistrate statutory duty to hold an inquiry, if he disagrees with the cause of death reported by the police. His primary duty is to inquire into when, where, how the deceased came by his death and whether any person is criminally concerned in his death. It must be stressed that cause of death as defined in s. 328 of CPC is not confined to apparent cause of death. It also include all matter necessary to enable an opinion to be formed as to the manner in which the deceased came by his death, and as to whether his death resulted in any way from any unlawful act.Since the announcement by the government to hold an inquiry of death of Teo Beng Hock, much controversy has arisen especially concerning the power of the Magistrate in an “Inquiry of Death” and the role played by him. Arguments have been put forth that the Magistrate in an inquiry of death has very limited power comparing with the Commission of Inquiry constituted under the Commission of Inquiry Act 1950, or more commonly called “Royal Commission”.An inquiry of death is not a trial (see Public Porsecutor v Seeralan [1985] 2 MLJ 30). In a trial, the Magistrate by convention take a passive role by holding the balance ring between the conflicting parties, although he too has power to question the witnesses. The Magistrate in an inquiry is not a judicial officer to make finding on the right of a party by reliance on the evidence presented by the Prosecutor and defence counsel. He is not passing judgment against anyone. He is the investigation officer. The process being an inquisitorial process (R v South London Coroner; ex parte Thompson [1982] 126 SJ 625), the Magistrate is expected to be inquisitive. The prosecuting officer is usually present in the inquest, but not to prosecute anyone but to assist the court with the examination of witnesses for the purpose of giving evidence. The Magistrate's finding after inquiry is mere opinion, and is not binding. Swinfen Eady MR remarked in Bird v Keep [1918] 2 KB 692 at 698, 699: “The coroner’s inquisition is not like a judgment in rem. Nothing is done which is conclusive upon any person affected by it…An inquiry before a coroner is merely in the nature of a preliminary investigation. It is not of any binding force… I am of opinion that the result of an investigation conducted by the coroner, however valuable for certain purposes, cannot in law be treated as prima facie evidence against any person of the facts found by the jury”.A Magistrate holding an inquiry of death has all the powers which he would have in holding an inquiry into an offence (see Section 335(1) of CPC). This would include power provided in Section 425 of the Criminal Procedure Code : “Any Court may at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case”. The plain reading of this section is this : it is imperative for a Magistrate to summon any person who may assist the Court to reach a just decision. In fact, the Magistrate fails in his duty if he does not summon an important witness. The Magistrate holding an inquiry of death does not have any lesser power then a “Royal Commission” to summon relevant witnesses.The Magistrate may also order a medical officer to examine the body to discover the cause of death, whether or not a post-mortem examination has been made. He may proceed to view the body. The whole of the proceeding shall be open to public, unless for any special ground of public policy or expediency he may exclude public access.As stated above, an inquiry of death is not a trial to determine the right of the party. Hence, the Magistrate is not required to follow strict procedural and evidential rule as in a trial. Sometimes, the Magistrate may even take into account hearsay evidence to support his finding (See Re Loh Kah Kheng [1990] 2 MLJ 126). For instance, if the Magistrate came about information which is confidential or privilege, he can, notwithstanding the confidentiality, required the information to be supplied to him for personal consumption. This was held by Mohamed Dzaiddin to be correct approach in Re Loh Kah Kheng [1990] 2 MLJ 126.In addition, like the Royal Commission, the Magistrate holding an inquiry of death may also punish a person for contempt of court (see Public Porsecutor v Seeralan [1985] 2 MLJ 30).Usually, the deceased representative would attend the inquiry for watching brief. A counsel attending for watching brief has no right to address the Court or examine the witnesses without permission. Nevertheless, the Magistrate may allow the counsel to participate in the inquiry if the participation would assist in the finding. This is particularly desirable in relation to counsel retained by the deceased family. The Supreme Court in Public Porsecutor v Seeralan [1985] 2 MLJ 30 remarked “a defence counsel present at an inquest is not there to defend anyone, but only to look after the interests of those who engage him. Whilst he has no right to speak as of right, this right seldom becomes an issue because the court normally gives such indulgence whenever it is asked….”. This is not much different from an inquiry held under the Commission of Inquiry Act, where the panel usually allow the interested parties to hold watching brief and cross-examine the material witnesses.What if the finding is not satisfactory? An inquest is subject to judicial revision by the High Court. This is provided in Section 341A of the CPC. The object of a revision is to examine and ascertain the correctness, legality and/or propriety of any finding. In the case of Re Derek Selby, Deceased, [1971] 2 MLJ 277, the deceased’s wife was unsatisfied with the finding of the learned Magistrate, filed a petition for revision to the High Court. The High Court quashed the decision of the finding of the Magistrate of “suicide” with open verdict. There are many cases where the records or finding of Magistrate in an inquest was called up for revision by the High Court Judge (see for instance Re Loh Kah Kheng [1990] 2 MLJ 126, Public Prosecutor v Shanmugam & Ors [2002] 6 MLJ 562). Besides subject to High Court’s revisionary power, the Public Prosecutor may also direct the Magistrate to reopen the inquiry and make further investigation. In this respect, an inquiry of death is subject to better check and balance. It is not only subject to scrutiny of the Public Prosecutor, the Magistrate’s finding may also be revised by the High Court, either upon the High Court’s own motion or petition of the deceased’s family. Nevertheless, the “finding” of Royal Commission” is not subject to any revision or challenge by any other authority. This is quite clear from the High Court’s refusal to entertain judicial review sought by VK Lingam to quash the finding of the Royal Commission in their inquiry into the “Lingam Tape” scandal.Both the Magistrate conducting an inquiry of death and the Panel appointed by Yang Dipertuan Agong pursuant to Commission of Inquiry Act 1950 have all the necessary power to conduct a proper and efficient inquiry. It is a fallacy to argue that Magistrate is quite incompetent in law to conduct the inquiry. The only difference between these two bodies, perhaps, is the impression of highly independent character of the Royal Commission. Now that the Magistrate is armed with tool and tooth, he must demonstrate his ability to find the truth. I fear the atmosphere created by the public opinion that the Magistrate is lacking in power to conduct an inquiry would impede the inquiry. If the public is taking the course that the Magistrate does not have sufficient power to find the truth, the Magistrate may be swayed by treating the inquiry like a trial (where he act passively), but not a real inquiry (where he act actively). He may choose not to exercise the power he has, deliberately or unintentionally, as that seems to fit the public’s opinion. At least the public would excuse him for inherent lack of power, not his incompetence. The public taking such wrongful course does not serve justice for Teo. What the public need to do is to recognize that the Magistrate has all the necessary power to properly and effectively conduct an inquiry. The public is watching closely how the Magistrate is to exercise his power. Any dereliction of duty will not escape the public scrutiny. Any failure to summons material witness or superfacial examination of material witness will not be excused. If the truth is not out, it is the quality of the Magistrate in questioned, but not the lack of power conferred upon him.
Posted by Yap Boon Hau at 12:19 AM

4 comments:
林猷荃 said...
1. There is one article in Merdekareview explaining the difference between our Death Inquiry and English Coroner's court. You may want to comment on that.2. I think have point out one important difference between Death Inquiry and RCI ie the review by High Court. May I ask, is the High Court BOUND to review if there is an application by aggrived party? Or is there a discretion. If one High Court Judge refuse to review, can the party try another Judge, and another one and another one till one that is willing to review?3.You mentioned both in the article and NTV7 interview main difference between Death Inquiry and RCI is public perception that RCI is constituted by more qualified and independent members. Relatively speaking, isn't this not mere perception, but also a matter of fact based on the way the member is appointed?4.Even if the difference is only a matter of public perception, isn't this sufficient to tip the balance over to favour RCI to investigate Teoh's death now that this case has caused serious crisis of confidence in the system?5.May I know who can decide which Magistrate to conduct the Death Inquiry? Under the Subordinate Court Act 1948, each Magistrate (Court) has designated territorial jurisdiction conferred by the Yang Dipertuan Agong. Does this mean the Shah Alam Magistrate Court will have to conduct the Death Inquiry?6.You expressed your worry that the Magistrate may fail to appreciate his power in a Death Inquiry. I think it is important to avoid that. May I suggest you to write in one of the English paper on this to serve as a reminder to all including the Magistrate concerned?7.You also mentioned you are worried current public view that Magistrate is incompetent to investigate Teoh's death, may become a self fulfilling prophecy. You may have a point. However, from anothre angle, can we not say that such public pressure may have an opposite effect? I mean to say that when the Magistrate concerned know that his every move will be subjected to public scrutiny, he may want to be extra careful and understand well his power before going into the Death Inquiry? Of course, if there is any behind the scene hanky panky, whether there is public pressure or otherwise, it will not affect the outcome.Hope you can answer my querry, FOC.
28/7/09 10:43 AM
Yap Boon Hau said...
1. is the High Court BOUND to review? Chapter XXX1 confer a discretionary power to revive. HC may refuse. However, he must exercise his discretion judiciary having regards to the circumstances of the case. If one High Court Judge refuses to review, then no other Judge’s should, this is to preserve consistency in decision. It is noted that the HC Judge has very wide power in revision, including, order further inquiry, receive additional evidence and vary the decision of Magistrate.2.Public perception : perception of independence and actual independence are distinct. The process of appointment in RC is to satisfy the public perception of independence, and true, in view of its appointment, most of RC are independent. That does not deprive a lower rank officer (like Magistrate) from acting independently. See in Anwar Ibrahim 2nd sodomy trial, a Sessions Court Judge was brave enough to dismiss the certificate of transfer signed by her boss (AG), but unfortunately, overturned by HC and COA. That is why Anwar wants his case to stay in Sessions Court Judge, not with the High Court Judge who supposed to be more independent then the Sessions Court in terms of legal protection given to the later. Similarly, in Nizar v Zambry, a High Court Judge gave a celebrated ruling, while the Court of Appeal overturned it.3.Public perception is sufficient to tip the balance over to favour RCI to investigate : I haven’t expressed my view on this. I intended to but after AG published his view, I decided not to as I don’t want to be seen licking up. My view is : it is not an option to have RC to investigate the cause of Teo’s death. It touches the legality issue. S. 2 of Commission of Inquiry Act 1950 provides 4 circumstances to direct RC inquiry : conduct of public officer, management of public service, management of public service not solely maintained by state fund and public welfare. The cause of Teo’s death, despite much of public’s concern and interest, does not fall under any of the purpose under which a RC can properly and legally constituted to investigate. If I am asked to draft the “terms of reference” to RC with regard to Teo’s death, I can only ask the RC to investigate “whether Teo’s death is contributed by any public officer” in order to make the inquiry intra-vires. However, I must confess that this reference does not answer the wider question of “what is the cause of death of Teo”. If the question is answered negatively, then, there is still questions of how his death comes about, whether any other person (other than public servant) involved in causing his death. The question would still have to be answered by Inquiry of Death. 4.Who can decide which Magistrate to conduct the Death Inquiry? I think the Chief Registrar of Federal Court. 5. Is the Shah Alam Magistrate Court will have to conduct the Death Inquiry? Yes. 6. To write in one of the English paper? That was my plan, but since then, there have been many publications about that, I doubt my writing would contribute further to better understanding.7. Public pressure may have an opposite effect? It may be true, what I was trying to convey is : “hey duke, you have all the powers to do proper investigation, don’t just sit there acting like copying machine. Be inquisitive. This is our expectation”. This would place the right pressure on him, rather then : “hey duke, you are just a toothless tiger, and low rank officer, and since you (or other Magistrate) haven’t done a good job previously, I don’t expect you doing a good one now.” (which is what the public opinion now). 8. hanky panky? Nothing we can do until the next GE. Thanks to intelligence and mental-provoking questions.
28/7/09 12:28 PM
林猷荃 said...
I think your point no.3 ie on S2 of the Commision of Inquiry Act 1950 finally convinced me on why Death of Inquiry is legally more appropriate. I do not see such argument in Chinese paper and online media. You mentioned there is a lot of writings in English paper, but I seldom read those. Maybe someone has indeed mentioned it.But I still feel that the gravity of the issue warrants something more than an ordinary Inquiry of Death. Perhaps the term of reference should investigate whether any public official act has directly and indirectly contributed to Teoh's death. At the same time Death of Inquiry still goes on simultaneously to look at cause of death whether due to public official act or otherwise. Not sure such overlap is appropriate. By the way, I referred to some historical material on the Warren Commision on the Investigation on The Assasination of President John F Kennedy. It I have not understood erroneously, US president can simply set up a commission of inquiry without authority from any statute. The both Houses merely pass a resolution to allow the comission to compel attendance of witness and production of evidence. I wonder whether this is because the check by the Legislature is very effective they are not worried the Executive also has very wide powers generally. I suppose Malaysian PM has no such power. Just an idea, if our Parliament can pass a statue (Teoh Beng Huat Act 2009) to set up a specific commission with enough power to ascertain the various issues surrounding Teoh's death, this may be the ideal way to deal with the issue. But then, politically, this is impossible.
28/7/09 4:34 PM
李晓蕙 said...
Yap Boon Hau, do Malaysians a favor by publishing your writtings in our local papers, both in mandarin and english papers. (but you may need to simplify it and only focus on those points which have not been mentioned so far)
29/7/09 8:01 PM

A Lawyer's Diary (4)

2008-11-11T01:34:00.003+08:00

LOCAL GOVERNMENT ELECTION : REINSTATEMENT WITHOUT AMENDING LOCAL GOVERNMENT ACT 1976 THROUGH PARLIAMENT

INTRODUCTION

Much has been said and argued about the reinstatement of the local government election (“LG Election”). In fact, reinstatement of LG Election formed part of the manifesto of opposition in the 12th General Election. The very fundamental movement towards a matured democratic society must start with an LG Election. Without which, there cannot be true democracy.

This article is not written to analyze the effectiveness/efficiency of elected local authority than the appointed local authority. Rather, to provide some thought as to the alternatives available to those States which differ from the Federal Government in respect of LG Election. To put in another words, the purpose of this writing is to seek solution available to the State Governments (quite clearly the State Government under Pakatan Rakyat) who wish to hold LG Election, but feel constrained by the Federal Law and Federal Government, where the latter prefers local authority members to be selected.

Now I may sound naïve to assume that there is genuine intention of the Pakatan Rakyat State Governments to move for LG Election. Nevertheless, without such naïve presumption, it serves me no purpose of writing this article.

LOCAL GOVERNMENT ELECTION – LAWS THAT PERMITS AND PROHIBITS

From historical perspective, there was a legislation called Local Government Election Act 1960 (“LG Election Act”), authorizing LG Election. Section 5A of the LG Election Act provides :

“Notwithstanding anything to the contrary contained in the provisions of any written law which relates to Local Councils in force in any State, the State Authority may, after consultation with the Election Commission in respect of the boundaries of the local area and the number of Councillors to be elected to the Local Council having jurisdiction in such area, by order published in the Gazette of the State direct that the whole or a majority of the members of a Local Council shall be elected under this Act”

Subsequently, the Parliament deemed fit to enact the Local Government Act 1976 (“LG Act”) comprises of the provision affecting the LG Election in Section 15(1), which reads :

“Notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect”.

It is accepted that the Federal Law ceases to have effect when it is expressly repealed by another Federal Law. In this case, the Parliament appears not to label their intention to stop LG Election by repealing the LG Election Act, as the Parliament did not include LG Election Act as lists of repealed law in the Second Schedule of LG Act pursuant to Section 166 of the same. However, by introduction of Section 15(1), Section 5A of LG Election Act became inconsistent with Section 15(1).

So, there arises a question whether Section 5A of LG Election Act has been repealed by “implication”. Repeal by implication is not unprecedented, and certainly not ruled out by Courts as unconstitutional. Nevertheless, there is always presumption against repeal by implication. The rationale is simple : the legislator is presumed to know the existing law, so when enacting a new law without providing repeal of old law, it gives out an intention not to repeal the existing legislation. In this case, Section 166 of LG Act provides for list of repealed acts/enactment, but LG Election Act was omitted. What is the proper interpretation of these provisions?

Quite clearly, these two provisions (Section 5A of LG Election Act and Section 15(1) of LG Act) cannot stand together. They contradict each others. In my view, this is a classic case where the Court would apply the principle of repeal by implication to strike down one of them. So, under this principle, the later supersedes the earlier. In the words of the Indian Supreme Court, the expression of “notwithstanding anything to the contrary contained in any written law” is a simple way of doing away the effect of pre-existing inconsistent law. The LG Election Act appears to have been enacted in 1960 where the LG Act was in 1976. Hence, LG Act prevails, and the operating law is Section 15(1) of LG Act which PROHIBITS LG Election.

The State Assembly is authorized by the Federal Constitution to enact law relating to local government. This is provided in Ninth Schedule, List (II), paragraph 4(a), including, of course, the local government election to its office bearers.

However, the Parliament may, in certain matters, and for the purpose only of ensuring uniformity of law and policy, make laws with respect thereto. According to Article 76 of the Federal Constitution, these matters include local government, which necessarily include local government election too.

The law made under this list shall be considered as Federal law but not State law. The State Assembly is limited by Article 75 of the Federal Constitution which provides :

“If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.”

It is therefore without doubt that the Federal legislation has power to make law pertaining local government election, and the State Assembly does not have power to repeal or amend it. The State Assembly too cannot make law that is inconsistent with the Federal law. The interim conclusion at this stage of analysis is that : in view of Section 15(1) of LG Act, the State Assembly cannot make law, despite so authorized by the Ninth Schedule, to “reinstate” LG Election. This conclusion of course is premised on the assumption of constitutionality of Section 15(1), which is the subject of my next discussion.

LEGAL SOLUTION (1) : CONSTITUTIONALITY OF S. 15(1)

Let me recap my conclusion above so as not to give impression of confusion and inconsistency. The incontrovertible conclusion of “the Federal legislation has power to make law pertaining local government election” does not necessarily means “the Federal legislation has power to make law to deprive local government election.”

Article 113(4) of the Federal Constitution provides :

“Federal or State law may authorise the Election Commission to conduct elections other than those referred to in Clause (1).”

Article 113(1) expressly confer power to either the Federal legislative body or State legislative body to command the Election Commission to conduct “other election” by way of Act of Parliament, or Enactment of a State. In my view, the words “elections other than those referred to in Clause (1)” encompass the LG Election.

The intention of this provision is clear : both Federal and State are conferred power to conduct LG Election through the Election Commission. Such power, in so far as the States are concerned, is vested by the Supreme law of the land.
It is my argument, Section 15(1) of LG Act, by declaring ceasation of all law relating to LG Election, has the effect of depriving the State legislature to make law to conduct the LG Election. Not only Section 15(1) of LG Act repealed implicitly the Federal Law authorizing LG Election, it prevents the State Assembly from making law within their express purview. It renders a constitutional power conferred by Federal Constitution ineffective.

It is provided in Article 4(1) of the Federal Constitution that

“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”

The Supremacy of Constitution has been repeatedly upheld in all the Courts of modern societies, and recognised as sanctity of law. Thus, the inconsistency between Section 15(1) of LG Act and Article 113(4) should be resolved in favour of Article 113(4). Section 15(1) of LG Act, in my view, should be declared unconstitutional.

Section 15(1) of LG Act cannot be saved by its constitutional backing in Article 76. Article 76 is an enabling provision or power conferring provision, namely to provide power to the Federal legislation to make law that regulate local government, including local government election. So, there should not be any dispute if the Federal legislation makes law to regulate local government election by setting out the procedure and rules applicable throughout the Peninsular. Article 76 only serves to protect Federal law, like LG Election Act from being struck down for unconstitutional for transgression the State List. The conferring of power to regulate a matter cannot be taken to include conferring power to repeal or deprive the other legislative authorities’ power to make law pertaining the same, particularly when it is confronted with the express provision on specific matter in Article 113(4).

LEGAL SOLUTION (2) : EXEMPTION BY GAZETTE

If the State authority does not wish to engage with the Federal on legal battle, which in any event, uncertain as to it outcome, a practical approach may be found in LG Act itself.

Section 1(4) of the LG Act provides :

“The State Authority may, notwithstanding the provisions of subsection (2), by notification in the Gazette exempt any area within any local authority area from all or any of the provisions of the Act or from any by-laws.”

So, Section 15(1) of the LG Act is not absolute and permanent. The Act itself permits exemption of its operation by Gazette. In this respect, perhaps Section 1(4) is the better option. At the risk of being inconsistency, an argument can in fact be advanced that if we read Section 1(4) and 15(1) of LG Act together, there is nothing unconstitutional about Section 15(1) because after all, the State authority is still empowered to suspend operation of Section 15(1) of LG Act in the event they GENUINELY wish to reinstate LG Election. In such situation, Section 15(1) posed no prohibition to LG Election.

So now left the question of political will on the part of Pakatan Rakyat which is tested by time.

A Citizen Diary

2008-09-12T00:00:00.003+08:00

He who gives hope is a leader
He who scatches the future is a leader
He who brings dream to reality is a leader
He who dare to speak aloud the taboo is a leader

Who is he?

A Lawyer's Diary (3)

2008-06-10T20:07:00.000+08:00

I haven't been writing for a while. Rather, when I write, I find pleasure of writing about my son. Today, there is some complexity and confusion in my emotion. I am furious and yet relieved after reading of Justice Ian Chin's disclosure in open court.

"Perversion of justice". This is what I always read in judgments of English judges, those guadians of justice, when they condemn litigant's contemptous conduct. In no less harshness, our pre-Mahathir era judges, had repeatedly shown their disgust agaisnt executive interference. They displayed no tolerence to any attempt of interference of their independent exercise of judicial power. The legal practise of that time carried with it proud and dignity, so I heard from my fellow senior member of the Bar. You lose a case because of that case, not the judge.

The executive 30 years ago appreciate independence of judiciary is a pillar of our country. No matter how dissatisified they were to a decision, they accepted it with respect. "With respect", the words we lawyers always use when we try to differ from a judge's opinion. Then come a goreng pisang boy who then became our Prime Minister, who obviously did not understand the words "with respect". Rules of law stood in his path to realise his vision. He removed it. Independence of judiciary hinders his dictatorship. He crashed it. So here and now we have the New Malaysia. Are we in progress or regress?

Now lets await his defence, which I have no doubt would be a laughing stalk. His is immaterial. What is material is a charge. Let him face the Court which once he tried to destroy, and let the Court proves by convicting its destroyer that it has reborn.

Suddenly, I remember an English monarch called James I. How similar their fate be?

小皇帝日记(4)

2008-04-02T13:22:00.000+08:00

最近，小皇帝又学会了许多话。

那天，他躺着看电视，我突闻小冬瓜在喃喃自语。细听，原来在背：“人之初，性本善。。。人不学，不知义。。。”。原来，我们把“三字经”当催眠曲，每晚念几遍，日久有功，竟也背的有板有眼。但我们常笑他说华语好像鬼佬，五音不全。

又，那天，听说他又吵出街，姨丈用英语说：Ｃａｎ　ｙｏｕ　Ｗａｉｔ？小皇帝竟回答　：Ｃａｎｎｏｔ　Ｗａｉｔ．　

小皇帝不只学了很多话，骗人的技巧也大把。那天，睡觉时间了，他要我把球一粒一粒丢进Ｐｌａｙ　Ｔａｂｌｅ洞里玩，结果我对他说，“好了，爸爸和你玩最后３０次，你数到３０下后一定要回房间睡觉。Ｏｋａｙ？”，小皇帝答　：“Ｏｋａｙ”。结果，当我开始把球一粒一粒丢进洞里时，他竟然闭口不数。

老公日记（3）

2007-12-21T19:44:00.000+08:00

我不懂女人为什么总爱看戏时，把戏里的爱情情节搬到现实来，还必须发生在她身上，更要命的是，她要你回答如果你是男主角，你会怎么做。这时，你不只不能专心看戏，还要用心思考问题。回答前要揣测女人想听的答案，答案又要中听，但又不作假，还要一发既中，又可断后路防追兵。考验男人的机智，观察力，诚实，可靠等等IQ和EQ素养，莫过此招。答中者王，答错者寇，男人不经此役，不长其智。

拖字诀曾经很管用。就说“剧情紧张，呆会再谈”，然后乘机绞尽脑汁，积极寻找灵感，还可以静观剧情发展，同时观察女人对剧情反映，有时还会柳暗花明又一春。但可恶的科技，把男人的一线生机也剥夺了。自从家里有了Astro Max 后，面对“剧情紧张，呆会再谈”时，老婆只要轻轻一按pause，拖字诀就会无所遁形。

对策（1）：先看报纸，了解剧情后，预先演练可能发问的问题，此为知己知彼也。但我可没那么多闲情，所以此为下策。
对策（2）：看到了可能会引发问题的环节时，按Fast Forward, 此为以其人之道。或，借尿遁，在厕所里呆到"问题剧情”完结。出来后，千万不能问，刚才的剧情发展，否则功亏一簋。此为中策。
对策（3）：万试皆灵标准答案，“我不会让这件事情发生的”。此为釜底抽薪，贵为上策。

但我与老婆已是“老夫老妻”，甜言蜜语骗女人的招数已懒得使用。有时，政客也不是一无是处，至少，“我不回应假设性问题”在此时显得多有智慧。

老公日记（2）

2007-12-21T19:14:00.000+08:00

我和老婆最爱斗嘴。可能我们都是用嘴巴讨饭吃的人，斗起嘴来可说是各有胜负。上一篇写了一些我占老婆便宜的斗嘴史，这次该写写老婆占上风得例子了

我的广东话有福建腔，而老婆的广东话却是字正腔圆。有时我们必须以广东话交流串谋来“搞定”儿子，有出错的地方，老婆便会得理不饶人。有一次，我抱着小皇帝，老婆小声以广东话问他睡了没，我以广东话答：“mei fan la. Dui gan seng go HAN YAN gam dai" (意指：没睡，眼睛还整棵杏仁那么大). 老婆耳利，马上说：“hai HANG YAN，ng hai HAN YAN, lei jiao hai HAN YAN” 意指：是杏仁（HANG YAN) 不是闲人（HAN YAN), 你才是闲人。

又，老婆爱整洁，而我对整洁水平的标准和老婆有一段距离。有一次，我对小皇帝教育道：“蟑螂是一种昆虫，他喜欢生活在肮脏的地方，所以你不可以碰蟑螂”，老婆回头对我说：“你得和他再说清楚，只说蟑螂喜欢住在肮脏的地方，他会错把你当蟑螂”。

小皇帝日记（3）

2007-12-21T12:35:00.000+08:00

今天想写写小皇帝的花名。爸爸，妈妈，外婆，外公，公公和婆婆各自都给了小皇帝花名。

丑八怪：我和老婆最喜欢用这个花名。“丑”字是反义词。身为父母，总会觉得自己的孩子最可爱。可是，总觉得不断称赞自己孩子可爱有点“爱现”。老婆也有一些古怪的理论，说常叫孩子“可爱”，孩子会变丑。所以，我们常称小皇帝“丑八怪”。

大吃公：小皇帝的胃口大得惊人. 平时一大碗成人分得粥可以在15分钟吃光。20个月大的他，晚上喝了8安士的奶，15分钟后又吵喝奶。奶粉钱不知花了多少。好在他一点也不像他老豆，吃了不长肉。每隔一星期带他回家时，总觉得他越来越重，可以支撑抱他的时间越来越短。

大尿公：小皇帝不只食量惊人，“尿量”也同样惊人。而尿片的价钱和尿的价值总是成反比。我常说，白花花的钞票都给他拿来包尿了。

一包米：这是小皇帝的舅舅给他取的花名。小皇帝十来公斤的体重对他舅舅来说等于“一包米”。

鸡屁股：这是小皇帝外婆的杰作。小皇帝小时总爱嘟起嘴巴，犹如鸡屁股长在嘴上。

小皇帝最烦人的时候是睡觉时间。老婆要他睡，他偏不睡。我们要闪电战，他就和我们玩持久战。我们有时扮猫来吓他，骗他说猫来咬不睡觉的bb。每一次，老婆扮猫叫，我就得配合，告诉他猫来了。有一次，老婆又扮猫叫，我趁机一箭双雕揶揄老婆说：“aiyo 爸爸看见猫来了，这只母猫好肥好大只，爸爸从来没见过这么大只的猫，好可怕，yang-yang 还不快睡觉”。老婆又不能否认有猫，气得干瞪眼。相信小皇帝也怕肥猫，乖乖闭上眼睛。我真不明白，猫有什么可怕的。

A Laywer's Diary (2)

2007-12-17T17:09:00.000+08:00

Justice Richard Malanjum CJ of Sabah & Sarawak in PP v Kok Wah Kuan pronounced the function and role of constitution, courts and law (which many might have forgotten or choose to forget) so succintly that any additional words by me would be repugnant. I therefore quote in verbatim as my reminder :

"....[37] At any rate I am unable to accede to the proposition that with the amendment of art. 121(1) of the Federal Constitution (the amendment) the Courts in Malaysia can only function in accordance with what have been assigned to them by federal laws. Accepting such proposition is contrary to the democratic system of government wherein the courts form the third branch of the government and they function to ensure that there is 'check and balance' in the system including the crucial duty to dispense justice according to law for those who come before them.

[38] The amendment which states that "the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law" should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution. I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.

[39] It must be remembered that the courts, especially the Superior Courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature. In the performance of their function they perform a myriad of roles and interpret and enforce a myriad of laws. Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons:

(i) The amendment seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever "may be conferred by or under federal law". The words "federal law" are defined in art. 160(2) as follows:

Federal law means:

(a) any existing law relating to a matter with respect to which Parliament has power to make laws, being a law continued in operation under Part XIII; and

(b) any Act of Parliament;

(ii) The courts cannot obviously be confined to "federal law". Their role is to be servants of the law as a whole. Law as a whole in this country is defined in art. 160(2) to include "written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof". Further, "written law" is defined in art. 160(2) to include "this Constitution and the Constitution of any State". It is obvious, therefore, despite the amendment, the courts have to remain involved in the interpretation and enforcement of all laws that operate in this country, including the Federal Constitution, State Constitutions and any other source of law recognized by our legal system. The jurisdiction and powers of the courts cannot be confined to federal law.

(iii) Moreover, the Federal Constitution is superior to federal law. The amendment cannot be said to have taken away the powers of the courts to examine issues of constitutionality. In my view it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions. Along with arts. 4(1), 162(6), 128(1) and 128(2), there is the judicial oath in the Sixth Schedule "to preserve, protect and defend (the) Constitution".

(iv) With respect I do not think the amendment should be read to destroy the courts' common law powers. In art. 160(2) the term "law" includes "common law". This means that, despite the amendment, the common law powers of the courts are intact. (See: Ngan Tuck Seng v. Ngan Yin Groundnut Factory Sdn Bhd [1999] 3 CLJ 26). The inherent powers are a separate and distinct source of jurisdiction. They are independent of any enabling statute passed by the legislature. On Malaysia Day when the High Courts came into existence by virtue of art. 121, "they came invested with a reserve fund of powers necessary to fulfill their function as Superior Courts of Malaysia". Similar sentiments were expressed in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147.

(v) The amendment in my view cannot prevent the courts from interpreting the law creatively. It is now universally recognized that the role of a judge is not simply to discover what is already existing. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out where the light of 'judicial precedent fades and flicker and extract from there some raw materials with which to fashion a signpost to guide the law'. When rules run out, as they often do, a judge has to rely on principles, doctrines and standards to assist in the decision. When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways of adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.

(vi) Statutes enacted in one age have to be applied in a time frame of problems of another age. A present time-frame interpretation to a past time framed statute invariably involves a judge having to consider the circumstances of the past to the present. He has to cause the statute to 'leapfrog' decades or centuries in order to apply it to the necessities of the times.

(vii) Further, in interpreting constitutional provisions, a judge cannot afford to be too literal. He is justified in giving effect to what is implicit in the basic law and to crystallize what is inherent. His task is creative and not passive. This is necessary to enable the constitutional provisions to be the guardian of people's rights and the source of their freedom. (See: Dewan Undangan Negeri Kelantan & Anor. v. Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia & Anor [1988] 1 CLJ 11; [1988] 1 CLJ (Rep) 197).

(viii) Though there is much truth in the traditionalist assertion that the primary function of the courts is to faithfully interpret and apply laws framed by the elected legislatures, there are, nevertheless, a host of circumstances in which the role of a judge is not just to deliver what is already there. The role is constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law. It extends to direct or indirect law making in the following ways:

1. Formulating original precedents

Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule on point. In such situations a judge relies on the customs and traditions of the land and on standards, doctrines and principles of justice that are embedded in the life of the community to lay down an "original precedent" to assist the court. Admittedly, this fashioning of a new precedent is an infrequent occurrence but its impact on legal growth is considerable;

2. Overruling earlier precedents

Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the authority of law. The overruling may be retrospective or prospective. In either case a new principle is contributed to the legal system and a new direction is forged;

3. Constitutional review

Under arts. 4(1) and 128 of the Federal Constitution, the Superior Courts of this country have the power to review the validity of legislative and executive actions by reference to norms of the basic law. If a legislative measure is found by the court to be unconstitutional, the court has a number of choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The court may declare the statute null and void ab-initio or only from the date of the ruling. For instance in Dato' Yap Peng v. PP [1987] 2 MLJ 31 the Supreme Court invalidated s. 418A of the Criminal Procedure Code prospectively.

Questions of constitutionality are fraught with political and policy considerations and decisions thereon can influence the course of legal and political development. For example in Faridah Begum v. Sultan Ahmad Shah [1996] 2 CLJ 159 the majority held that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to suits brought by foreigners.

Article 162(6) of the Federal Constitution allows judges to modify pre-Merdeka laws in order to make such laws conform to the Constitution. Modification is without doubt a legislative task.

4. Statutory interpretation

In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive task is, by its very nature, so creative that it is indistinguishable from law-making. "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." (per the American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted that a judge is bound by the intention of the legislature, it must be noted that such an intention is not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond the statute to seek a solution to the problem at hand. (See: Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 CLJ 313). A judge may scrutinise preambles, headings and extraneous materials like explanatory statements that accompany Bills and parliamentary debates to help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a statute or on the Interpretation Act 1948/1967 to decipher the intention of the legislature. Or he may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes a judge's attention is drawn to foreign legislation and related precedents. He may declare the overseas statute to be in pari materia with local legislation and, therefore, relevant to the case. Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the local context without aid of foreign decisions.

When the enacted law leads to undesirable or unjust results, a judge may be persuaded to add moral or public policy shades to the issue in order to do justice.

One could also note, for instance, the "public interest" interpretation of art. 5(3) of the Federal Constitution in Ooi Ah Phua v. Officer-In-Charge Criminal Investigation, Kedah/Perlis [1975] 1 LNS 117 in which the court held that the constitutional right to legal representation can be postponed pending police investigation. In Teoh Eng Huat v. Kadhi Pasir Mas [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 the "wider interest of the nation" prevailed over a minor's right to religion guaranteed by art. 11. In Hajjah Halimatussaadiah v. Public Services Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467 the court subjected a public servant's claim of a religious right to wear purdah at the workplace to the need to maintain "discipline in the service".

A judge is not required to view a statute in isolation. He is free to view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards that operate in a democratic society. (See: Kesultanan Pahang v. Sathask Realty Sdn. Bhd. [1998] 2 CLJ 559). He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified because "law" in art. 160(2) is defined broadly to include written law, common law and custom and usage having the force of law.

5. Operation of doctrine of binding precedent

The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist.

Though a superior court is generally reluctant to disregard its own precedents, it does have the power "to refuse to follow" its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a binding decision through a host of indirect techniques.

6. Application of doctrine of ultra vires

Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity.

Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort, contrasting judicial responses are possible. The court may interpret them literally and give judicial sanction to absolute powers.

Alternatively the court may read into the enabling law implied limits and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise unlimited powers. (See: R v. Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be viewed objectively. Purposive interpretation may be preferred over literal interpretation. (See: Public Prosecutor v. Sihabduin bin Haji Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82).

When procedural violations are alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory. Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.

7. Import of rules of natural justice

Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up and dried and vary from situation to situation. Judges have wide discretion in determining when they apply and to what extent.

[40] Hence, it is reasonable to emphasize that the amendment should not be construed or viewed as having emasculated the courts in this country to mere automaton and servile agents of a federal Act of Parliament...."

A Lawyer's Diary (1)

2007-12-10T18:30:00.000+08:00

Edmond is merely my acquaintance. Though we only greet each other by just raising our hands when we meet each other in court, I find so strongly against his arrest that I was prepared to set aside my works and attended court to lend my support . So are other lawyers, NGOs, and political figures.

I have not met the other detainees, yet I compliment their bravery, determination and commitment towards building a better nation, even at the expense of their personal liberty.

Their efforts always make me think : I am not prepared to sacrify to the extent they do. Yet the very minimal an individual like me should do is to lend unreserved support to a course that is dear to one's heart and fullfil one's conscience. This country needs no more civil activist leaders, it needs followers. It is the intergration of activist leaders and its followers that has the force to transform their aspiration to reality.

I saw other lawyers, plenty of them, all stayed at the foyer of the 2nd lagest court of justice in the world, awaiting to be notified as to which court they ought to storm into. The irony I felt was, within the vacinity of this 2nd lagest court of justice, a great injustice was about to perpetriate. An unbelieveable persecution through unfettered unchecked power of prosecution was to happened. After reading the charge, the AG was opposing the detainees' bail applications. After the Judge granted the bail, and the counsel proceeded to argue on the terms to be attached to the bail. The AG requested the Judge to impose an unprecedented (so he admitted that he had no precedent in support) that the accused do obey an order of Public Officer. I am glad the judge saw the nonsensical in this proposition and did not allow it. Imagine if it was so imposed, the detainee would no longer be able to exercise : (a) his constitutional rights to attend peaceful gathering; (b) his statutory duties as counsel members to protect Bar's property from unlawful invasion. A signal is therefore sent : Mr. Edmond and other detainees better be good boys (and girls) during this period (until they are acquitted), for otherwise, I would not be surprised if the Government would apply to revoke the bail, on account that they have repeatedly committing the charged offence. Even if this is not done, what would happen if these accused attend another gathering? they would be arrested, and charged again, and this time, AG has stronger reason to oppose bail. These activist leaders would be lock-up, and kept out of reach of rakyat.

Consitutional rights are doomed. Tyrant smiling his way. How can I convince myself to believe the good always prevail?

I told an Indian friend of mine, our parents' generation has condoned crime committed to civil liberty, and resulted the birth of tyrant. It is the do of people. Now is the time for our generation to undo a wrong, so that my son's generation would be proud to declare that his daddy's generation has done the needful to secure a save, secure and free nation for them.

小皇帝日记（2）

2007-12-04T17:07:00.000+08:00

那天在车里，小皇帝如往常，总爱跳上跳下。我不让他跳。结果，他龙颜大怒，挥手打了我。我也不是好惹的, 打了他手阪，装很生气的样子，骂了他一顿，然后不理睬他。相信他也知道我很生气，乖乖的坐着不动了。偶尔还会偷偷望望我的样子。当然，做戏要做全套，我依然不理睬他。下车后，我对他说：“爸爸生气，不抱你”，然后以广东话（相信他听不懂），和老婆串通，由老婆抱他，对他说：“你看，爸爸很生气，因为你打他, 快快kiss kiss 爸爸，say sorry”。小皇帝似乎很懂事，快快的kiss了我。我便装“宽宏大量”对他笑笑，告诫他以后不可以。下来几天，他在怎么发脾气，都不会打我了。

老婆说：“我们好坏，做戏骗自己的儿子”。

老公日记(1)

2007-12-04T16:55:00.000+08:00

自从有了小皇帝后, 老婆与我的话题总是围绕在小皇帝. 比如 : 小皇帝今天学了什么, 作了什么, 吃了什么, 有没有大便, 等等. 有时甚至学小皇帝的语言. 如 : "黑黑", "oi-oi" (睡觉）。小皇帝爱用脚尖走路，我们偶尔也学学"殿下"的“龙步”。甚至连长大后该上那间幼稚园, 小学, 中学, 都有了概念. 我们甚至讨论过可不可以娶回教徒.

自从小皇帝加入我们的生活后，大小事务都必须以他为中心。旅行时的时间表必须符合殿下的睡觉时间。虽是如此，我俩也乐在其中。无论如何，我们还是决定，今年年尾，我们到曼谷度个只有30岁以上才可参与的度假. 小皇帝, 乖乖呆在姨婆家吧.

有一次, 老婆问我, 她可不可以把重心都放在我和小皇帝身上, 我断然说不可以. 老婆吃惊的看着我, 等我解释. 我说 : "当然不可以, 你体重会压到我们". 又有一次, 老婆腰酸, 埋怨道 : "我的腰会不会断掉?" 我说 : "放心吧, 这么粗, 断不了" . 老婆常埋怨我少送花, 我的解释是 : "你们女人最怕变态男人献宝, 这花也是植物的生殖器, 你们又趋之若鹜".

所以, 老婆常说, 她不懂为什么会嫁给一个完全不懂浪漫的人, 还为我生了个丑八怪. 我回答道 : " 浪漫是花花公子骗女人的本事, 我不是花花公子, 所以不会浪漫" . 懂逻辑的人, 我这话有逻辑漏洞吗?

小皇帝日记（1）

2007-11-30T18:51:00.000+08:00

听老婆说，最近，小皇帝总学她姨婆说话，如：“小靖扫地”，“Mommy 那里" ，“Mommy做工”等等。

小皇帝最喜欢的游戏是：爸爸躲在沙发后喊他的名字，然后突然跳出来，对着他说："ooi..."。他会笑道见牙不见眼。他称这游戏着 “yang-yang ooi" 。

老婆对小皇帝的“时间表”管得分外严格。晚上十点一定要睡觉。贪玩时，他会有多多借口。如：“nien nien”（奶），“ng-ng”(大便)，“规”（要我们读“弟子规”）， “ah to” (看电视)。有时，同样的借口可以用两三次。上个礼拜，我们一家人到普吉岛去，在还没有睡觉前，给了一大瓶的奶。喝了奶但又不想睡觉的小皇帝，不出十分钟，又说“nien nien”. 我们大声对他说：“才刚喝奶，你骗人”，发现理由牵强时，他顾左右而言他，喊着要玩“灯”。

开张

2007-11-30T18:33:00.000+08:00

本店刚刚开张, 欢迎光临.