Mediator

Congratulations to our Partner, Mr Yip Huen Weng, who recently received accreditation from the Singapore Mediation Centre (SMC) and the Malaysian Mediation Centre (MMC). 

Mr Yip is now an accredited and registered Mediator for both SMC and MMC.

Fallacies Spun by Critics of the Bar : by Loyarburok

Taken from Loyarburok.com :-

http://www.loyarburok.com/2012/05/22/fallacies-bar/

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This response is jointly endorsed by Edmund Bon, Fahri Azzat, Janet Chai, K Shanmuga,Mahaletchumy Balakrishnan, Marcus van Geyzel, Seira Sacha Abu Bakar, and Sharmila Sekaran.

The Bar Council and the Malaysian Bar (“the Bar”) have been criticised recently as being pro-Opposition. This is because of the Bar’s press statements and its Extraordinary General Meeting resolution regarding the police brutality shown at the Bersih 3.0 sit-down rally. The common theme adopted by critics of the Bar is that the Bar was not fair, or even-handed, as the Bar were more critical of the police than it was of the other parties involved.

Some of the more popular criticisms were summarised in Roger Tan’s article “Unswayed by fear or favour” which was also published in The Sunday Star on 20 May 2012. In summary, he says the following:

1. The Bar in condemning the police brutality must be equally aggressive in its condemnation against the protestors who “behaved like rioters and anarchists”.
2. The Bar had prejudged the issues by passing the resolution because by doing so “the Bar had already come to a conclusion that all those acts listed therein had been committed by the police”.
3. The Bar should have demanded an apology from Dato’ Seri Anwar Ibrahim because “it was his men who were reportedly the ones who removed the barrier” which was “the trigger point”.

This statement is written immediately in response to Roger Tan’s article, but also addresses others who have been critical of the Bar on this issue. We intend to address the second criticism first, then the third and first criticisms. Our reason for this will become apparent as our reply develops.

The Bar did not prejudge the issues

In his second criticism, Roger says that the Bar should only pass the resolution condemning police brutality after a finding has been made by an independent body such as SUHAKAM. However, SUHAKAM relies on the evidence of witnesses, and often conducts a hearing several months after the event. The Bar based its stance and resolution on the observations of 80 lawyers who formed a team of observers of events during Bersih 3.0. The purpose of assembling and mobilising this monitoring team was precisely so that the Bar would be able to rely on their eyewitness accounts, and not those of friends, media, the police, or post-event photos or videos. The observations of the monitoring team were recorded and compiled within hours on the day itself, and thereafter fine-tuned and completed. We have no reason to doubt the credibility and observations of the team, and neither have we heard of substantiated allegations about them.

Aside from the Bar monitoring team and its report, since that day many other eyewitness accounts have emerged, including photos and videos that speak for themselves. Significantly, on this occasion, even media members were not spared. We even had the embarrassing incident where Al-Jazeera’s reporter Harry Fawcett had to report via Skype from his iPad as his team’s video camera was smashed by police while they were recording police brutality against protestors.

Most importantly, many previous SUHAKAM inquiries – the 5 November 2001 Kesas Highway Incident, the 17 June 2003 Kundasang Incident, the 28 May 2006 KLCC Incident, the 27 May 2008 Persiaran Bandar Mahkota Cheras 1 Incident, the 9 July 2011 Bersih 2.0 Incident – found that there was excessive use of force by the police, and evidence of police brutality. Numerous complaints by victims led to the said inquiries, the findings of which thereafter vindicated the complaints leading to damning conclusions about police conduct. These many reports do not just show isolated instances of police brutality: Bersih 3.0 was not a one-off. There is a pattern of regular use of excessive force and brutality in violation of human rights by the Royal Malaysian Police Force. Despite these many reports by SUHAKAM, and despite the findings of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police, the police have not made any serious attempts to school themselves in the prevention of human rights violations.

Regrettably, Roger is sceptical of the 80 monitors appointed by the Bar Council because they are not named, as he “would certainly like to know their political inclinations” to satisfy himself that they “were independent-minded in their conclusions”. Firstly, five widely-respected senior members of the Bar, who were a part of a “roving” team of monitors, were named and had their observations separately documented: Christopher Leong (Vice President of the Malaysian Bar), Steven Thiru (Treasurer of the Bar Council), Dato’ Ramachelvam Manimuthu, Ramdas Tikamdas, and Roger Chan Weng Keng. Apparently it is not enough that lawyers of this calibre verify and endorse the report.

More importantly, what does one’s political inclination have to do with stating a fact about whether Malaysian citizens were assaulted and battered by the police, and whether there was excessive use of force in accordance with international human rights standards?

Whilst Roger Tan has left the Bar Council, it is unfair to assume that the Bar Council would not have trained these monitors properly bearing in mind this is not the first assembly monitoring mission dispatched by the Council. His flippant remarks greatly disparage those members of the Bar who volunteered to serve on the monitoring team, implying as it does that they would allow their personal prejudice to influence their professional duties. It is part of our job as lawyers to put aside our personal prejudice in order to advance the cause of justice.

Rather conveniently, whilst casting these aspersions on others, Roger himself does not reveal his strong affiliations to a particular political party. Employing Roger’s logic, one wonders, perhaps, whether commentators in The Star for example should also be required to divulge their political affiliations and leanings before their opinion pieces are published. But we will not venture into the realm of the fallacy of argumentum ad hominem to discredit the views of others, as Roger disappointingly has.

Roger’s comments suggest that we should not immediately make conclusions even if we see a group of uniformed policemen beating up an unarmed citizen who lies helpless on the ground because there were extenuating circumstances. And even if numerous members of the Bar, members of the public and journalists documented such incidents of brutality. The fact is, the police are supposed to treat each person they arrest as if they are innocent until proven guilty. The police should only use reasonable force in arresting someone. If they have to resort to force, they should only use force that is proportionate to the threat faced, and only enough to ensure the person’s arrest.

Roger cites the example of the Bar postponing its EGM with regards to the VK Lingam video clip scandal while it waited for the Royal Commission of Inquiry to complete its task. Roger however seems to overlook the fact that the video clip sparked the groundbreaking Walk for Justice in September 2007 which saw about 2,000 lawyers marching to the PM’s office. The other difference with that example is that with Bersih 3.0, the Bar monitoring team saw police brutality with their own eyes, and not through a video clip. It is obvious that this is not a comparable precedent.

What is this obsession with Anwar Ibrahim?

In his third criticism, Roger insists that the Bar should similarly demand an apology from Dato’ Seri Anwar because he was reported to have instigated the removal of the barrier. But Roger must understand that one must distinguish between credible first-hand reports by Bar monitors, and accusations by obviously partisan members of Barisan Nasional and its media.

This is where Roger shows an obvious inconsistency – whilst saying that the eyewitness accounts of the Bar’s monitoring team is insufficient to be relied upon, he says that the Bar should demand an apology from Dato’ Seri Anwar for an incident that no one on the Bar’s monitoring team witnessed. Despite the many eye witness blog entries, photos and videos, there has been no compelling evidence either way to show who removed the barriers, or whether their removal was facilitated by the police, public, or Opposition members. On what basis is Roger suggesting that the Bar demand an apology from Dato’ Seri Anwar?

Let us for one moment set aside the question whether the Court order prohibiting entry into Dataran Merdeka was unnecessary, wrong in law and unconstitutional. Let us also assume the barriers in question were covered by the Court order. Even assuming that the order was validly executed by the police, did it necessitate the extreme use of non-lethal force to arrest and disperse the small group of people who breached the barrier? Bearing in mind that the Bar’s resolution was on police misconduct, and not about who removed the barrier, it is even more disconcerting that Roger implies that the police may excessively and disproportionally tear-gas and beat the innocent just to get at those who did breach the barrier.

The Bar need not have condemned the protestors

Finally, Roger develops the basis of the criticism that the Bar is not “independent” by stating the Bar failed to condemn with equal vigour lay members of the public who he says acted “like rioters and anarchists”. Many labour under the misapprehension that to be “independent” an organisation must always be even handed and restrained in one’s remarks. But that is a fallacy. And it is an even greater fallacy when it concerns injustice.

Police brutality is a violation of a human right. A violation of any human right is manifest injustice. Police brutality per se is an injustice. The presence of police brutality has tainted the Royal Malaysian Police as surely as a drop of blood stains a uniform. An injustice perpetrated by even one from an institution set up to serve the cause of justice deserves the harshest condemnation. There cannot be any restraint in condemning abuse of power. As a police force meant to be independent and professional, the Royal Malaysian Police are kept to higher standards than lay members of the public. So the Bar cannot be swayed by fear or favour; it cannot be hesitant or even handed in condemning an injustice that is police brutality. Here is an Executive institution that is well-funded and well-staffed with wide powers taking action against unarmed people. It is State against the individual person, and the Bar stands – must stand – for the latter.

What Roger and many who adopt this line of criticism fail to explain is how the condemnation of police brutality amounts to an endorsement of the Opposition. This criticism reveals more of their own political prejudice than that of the Bar. Their criticism strongly suggests a belief that criticism of the police is the equivalent of criticism against the political party in government. Their criticism also reveals that they are the sort who think that perception is reality.

It is only those who are so immersed and drenched in politics that adopt such a worldview. The Bar’s criticism and the facts it relies on are an inconvenience to their perception. Ultimately these popular criticisms against the Bar are not borne of logic or facts, but a need to feel good.

There is one further reason why we would not have voted for a resolution that condemned those members of the public who turned violent. The fact is that most thinking Malaysians who have access to the alternative media – and therefore do not rely solely on the bare faced propaganda of our mainstream print and broadcast media – are not convinced that these so called “rioters” are as blameworthy as the police.

The police put razor wire across our City roads turning Kuala Lumpur into a war zone before any violence had ensued. The police obtained a totally unnecessary Court order prohibiting entry for four days into Dataran Merdeka, without any notice or opportunity to the organisers of Bersih 3.0 to present their case despite ample time for them to do this. Then, when the disturbance started, it was the police who shot tear gas behind and in front of retreating protestors so that they were boxed in rather than allowed to disperse. Who ordered the closure of the nearby LRT stations so as to prevent people from dispersing? Who ordered the destruction of cameras belonging to journalists, and the reported censorship of Al Jazeera and the BBC? What justified the four hours of continued attacks on people who were already dispersing or having dinner? All this done against fellow Malaysians, who until the very end had taken part in an almost perfect rally.

As pointed out by Roger, the Bar’s resolution did expressly state that the Bar is concerned with and does not countenance acts of violence by rally participants, and are concerned by reports that police barriers were breached. In our view, that says enough. We did not hear any suggestions made at the EGM to amend the resolution. All the dissenters at the EGM agreed in principle that they were against police brutality. What more needs to be said really, seeing as the police were already actively identifying and hunting down those whom they say committed offences during the rally? The police had even stated that they would conduct a house-to-house search for these individuals. Compare this with the lack of action in identifying, let alone condemning and punishing, the police officers who committed violations of duty and human rights.

The Bar’s resolution was proper

The Bar was entitled and correct to issue the statements it did, and to pass the resolution it did. The resolution is fair in all the circumstances and was carefully worded throughout. The facts that it had gathered itself through the Bar’s own members were set forth frankly and properly, and the urgent action that was needed due to the unprecedented police brutality seen on that day was set out in an appropriate and immediate manner.

We are proud to have supported the Bar’s resolution and have no qualms about the Bar’s continued independence. We believe the vast majority of the Bar are totally in support of the resolution, and the comments against the resolution are the isolated voices of a few in the wilderness given undue prominence by propaganda organisations posing as the mass media.

It is telling that Roger states that “removing the barrier was the trigger point” and adds that it is “common sense” that “whoever first raises his hand against the other is the most blameworthy”. Words do not suffice to describe the disingenuous nature of the suggestion that the removal of the barrier is even remotely comparable to the brutal actions of the police. In any case, there have been no reports of barriers being “breached” in front of the Bar Council, on Leboh Pasar Besar – yet even then, water cannons and tear gas were fired there. Roger fails to acknowledge the clear reality that police reaction was not localised to Dataran Merdeka or to the participants there, and that other than at the Jalan Raja / Tun Perak junction, it was the police who struck first.

The actions of some members of the police force on that day were incidences of injustice that were so blatant that it should be impossible for anyone who purports to stand up for justice to remain silent. We have already seen concerted efforts – by the ruling coalition, the police, and those who are too politically-partisan to distinguish clear acts of injustice from their political posturing – to distract from the injustice highlighted by the Bar’s resolution by attacking the Bar and casting aspersions on those who are doing no more than reporting what they saw with their own eyes.

The Bar must continue to fight for those who cannot speak up for themselves, and whose rights are oppressed by the might of the State. That is our duty, and one that we hope members of the Bar will continue to discharge without fear or favour.

Edmund Bon, Fahri Azzat, Janet Chai, K Shanmuga, Mahaletchumy Balakrishnan, Marcus van Geyzel, Seira Sacha Abu Bakar, and Sharmila Sekaran.

Unswayed by fear or favour : by Roger Tan

Taken from the blog of Roger Tan :-

http://www.rogertan.com/2012/05/unswayed-by-fear-or-favour.html

As much as we do not like the judiciary to be perceived as pro-government, we also do not want the Bar to be perceived as pro-opposition.

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ON May 11, the Malaysian Bar passed a motion containing 12 resolutions related to the April 28 Bersih 3.0 public assembly by an overwhelming majority. The decision of the House with 939 votes in favour and 16 against is to be respected. The argument that it is not representative of the 14,000-member Bar has no basis whatsoever as Section 66 of the Legal Profession Act, 1976 (LPA) is clear, that is, a motion is carried if a majority votes in favour of it.

With that above overriding principle in mind, let me, however, put on record the reasons, whether rightly or wrongly, why I could not support the motion.

First and foremost, it must be acknowledged that Resolution (12) was amended to include, inter alia, that (1) the Bar is concerned by and does not countenance any acts of violence in a public rally and that such action by participants is not an appropriate response to the police; and (2) the Bar is equally concerned by reports that certain persons had crossed through the police barriers to Dataran Merdeka.

But this is a complete opposite of the language used to condemn police brutality and the manner in which the assembly was handled by the police on that day. I felt that merely expressing concern against the other law breakers is not strong enough. The Bar, in my view, must be seen in the forefront in upholding the rule of law regardless of whether they were police or protesters who had broken the law. If the Bar wanted to inveigh and condemn police brutality, the Bar must also do likewise against actions of those protesters who had behaved more like rioters and anarchists in assaulting policemen and jumping on and damaging police vehicles.

Secondly, I did not want the Bar to prejudge the issues. The way Resolution (1) was worded, it appears that the Bar had already come to a conclusion that all those acts listed therein had been committed by the police. On the other hand, Resolution (12) was worded very carefully to state that the breach of police barriers was based on reports.

As lawyers, we are trained that even if we have witnessed someone shoot another person, it does not mean the former is automatically guilty of murder. There could be other extenuating factors that require further investigation.

It is true that a report had been compiled by 80 monitors from the Bar. However, the final report was only e-mailed to the members the night before and this gives rise to that allegation that it has been tailor-made to support the motion. The identities of the 80 monitors were also not stated. I, for one, would certainly like to know their political inclinations and read, for example, their postings and views expressed on the social media on Bersih to satisfy myself that they were independent-minded in their conclusions, uninfluenced by whatever political or social beliefs they may have.

This is imperative because we have been asked to make a conclusion based on our monitors' report. If so, it is axiomatic that we can be accused of being both a prosecutor and a judge at the same time simply because three of our members were allegedly assaulted by police.

If we have advised others not to react in anger, we too must be seen to be refraining from it as we are supposed to uphold the cause of justice without regard to our own interests or that of our members, uninfluenced by fear or favour. It is for this main reason that I would prefer to await the findings of an independent body such as Suhakam before we come to a judgment on this issue. Like many others, I would certainly like to know why some policemen and protesters had reacted in the way they did after a full independent investigation. Monitoring is not an investigation, but an observation.

I remember four years ago the Bar Council actually postponed the Bar's extraordinary general meeting fixed on Oct 6, 2007, to discuss the infamous V.K. Lingam video clip because we wanted the Royal Commission of Inquiry to complete its task first. We did this notwithstanding that the whole world knew that it was Datuk V.K. Lingam in the video clip albeit the latter said it looked like him and sounded like him but it was not him. Hence, a precedent is there.

Thirdly, I had also proposed in the meeting that Datuk Seri Anwar Ibrahim should also apologise because it was his men who were reportedly the ones who removed the barrier. To me, removing the barrier was the trigger point. Of course, there is no excuse if the police had responded disproportionately to the act of infracting the court order not to enter Dataran Merdeka. However, it is common sense that in any quarrel, whoever first raises his hand against the other is often the most blameworthy. In this case, if the barrier had not been removed, we could have witnessed the largest peaceful public assembly in the history of our nation, and both political divides can claim equal credit for it.

I know what is written above can be painful for some members of the Bar to read. But it is certainly not an attempt to divide the Bar, but to strengthen it. Neither did anyone expect the motion to be defeated because it was proposed by the Bar Council; otherwise the entire Bar Council would have to resign if the motion had not been carried. As the 12 resolutions were packaged into a motion, members were also not able to vote on each resolution individually.

As a former Council member, I am more than concerned if the Bar is not seen to be bi-partisan in upholding the rule of law. It is sad if the public is led to think that the Bar is fine with those who break the laws that they think are unjust. To my mind, with an established parliamentary democracy, whoever tries without full justification to emulate Martin Luther King or Mahatma Gandhi in times and situations different from theirs can best be likened to be practising politics of demagoguery.

Now that Deputy Prime Minister Tan Sri Muhyiddin Yassin has spoken, I would agree with him that the Bar has to eliminate the perception that it is monopolised by the opposition. This perception that the Bar is against the government has been there for quite some time. I remember in the Walk for Justice on Sept 26, 2007, some members had expressed concern that politicians who were not lawyers had been allowed to take part too. Similarly, I threatened to boycott the Dinner for Justice held on April 17, 2008, to honour the six judges implicated in the 1988 judicial crisis because the organisers had initially wanted only Pakatan leaders (to the specific exclusion of leaders of the Barisan Nasional component parties) to be invited to the event.

This was unacceptable to me because the event was jointly organised by the Bar and the Bar must be seen to be apolitical. That is why we even have a Malay keris on the Bar's logo, apparently drawn by a MARA law student in a logo drawing competition held in the early 1980s, and we have no problem with it.

In fact, the reaction to establish a law academy is not new. In November 1991, the then President of the Muslim Lawyers Association, Zaid Ibrahim, had wanted the Bar Council to dissolve itself or its members quit en masse if it could not accept and respect Tun Hamid Omar as the Lord President. Zaid added that the government should seriously consider establishing an alternative Malaysian Law Academy that could work with the judiciary if the Bar was not able to end its feud with Tun Hamid.

It is hoped that in their moments of anger, both leaders of the Bar and government will be guided by the wise words of former prime minister Tun Hussein Onn who described the role of the Bar as follows: "It is the duty of the legal profession to uphold the cause of justice without fear or favour. To effectively discharge this role, the profession must remain independent and be seen to be so. The Bar has a duty to speak up on matters of public interest affecting citizens' rights and comment on proposed legislation affecting such rights. In doing so, the Bar must be constructive and must conduct itself with decorum. The government must appreciate the role of the Bar and be respectful of its comments - even when it differs with the professions views."

It follows that as much as we do not like the judiciary to be perceived as pro-government, others also would not like it if the Bar is perceived as pro-opposition. As former Lord President Tun Mohamed Suffian said: "The two essentials of the rule of the law are the independence of the Bar and the independence of the judiciary."

Woe betide the day if an individual or a body of persons is capable of controlling and influencing the head of the judiciary or the head of the Bar!

On a positive note, I am confident that the current President of the Bar, Lim Chee Wee, both a close friend and a former colleague, will be mindful of this and take kindly to my above observations made out of my love for the Bar.

*Roger Tan is a senior member of the Bar

Making a Claim under the CIPA Act 2012

We had in an earlier posting commented about the CIPA Bill, and made observations on the claim process of that Law. 

Some comparative studies with other Jurisdictions would be a good guide on how to make claims. 

We draw a link to the website of Messrs Evershed, an International Law firm based in UK. Their website has provided an insight of how the UK version of CIPA works vis' a vis the claim process. 

See these links :-

https://www.eversheds.com/documents/services/construction/adjudication-construction-disputes-malaysia.pdf

http://www.eversheds.com/documents/services/construction/Construction-Adjudicationcap.pdf

Singapore/Malaysia Bench/Bar Games Series

RWY's lawyer, Ezhan Mohammad was part of the victorious Malaysian Bar team in the Volleyball Competition of the annual Games series between Malaysia and Singapore' Bench and Bar.

The Games was held at Kuching, and after many months of training, Ezhan played a vital role in ensuring victory for our Malaysian Team.

Congrats Ezhan!