Putik Lada : Malaysia, Our Unique Home!

*featured in The Star's Putik Lada on 14th April 2011

TO over 20 million people, Malaysia is home. In this home, we have beautiful beaches, exotic islands and gorgeous landscape.

Our country is blessed with natural beauty.

If we wish to have a beautiful holiday on a beautiful island, we have Langkawi, Pangkor, Tioman and Sipadan, among others.

If we wish to scale the highlands of the country, Mount Kinabalu is waiting for us to conquer.

Taman Negara awaits the adventurous ones to come hike and camp.

We have our own casinos like those at Vegas. We have beautiful towers as well as the tallest twin towers, in Kuala Lumpur.

From Penang to Johor Baru; from Kota Kinabalu to Kuching, we find beautiful colonial and old buildings built by our forefathers.

Food is special in Malaysia.

The mix of all the races in the country makes our own “rojak” when it comes to food.

And yes, we all love our Malaysian food. When we go abroad, we will always miss our food.

If a foreign friend asks for an honest description of our country, the above will probably be what you will tell the friend.

However, since the friend requested an “honest description” of our country, we cannot stop at just culture, food and nature.

We ought to inform the friend of our system and people, too.

This is where our discussions may vary and change.

We ought to inform our foreign friend that in Malaysia, politics and the system of administration are big issues.

Almost every day, news on these topics will be reported.

To the foreigner reading such news, it would appear that while we are united in our love for our food and our natural beauty, we are, however, not united on many issues in this country.

This is of course normal, as no country in the world has a population entirely united in all views.

A real concern of Malaysians today is not just the difference in views, but rather, the attempts by certain groups in Malaysia to divide the people and instigate a clash.

We see people who constantly attack and bully others.

Talk-down or fiery comments are made without responsibility and care for the feelings of the other person.

It is fine if people cannot agree, but it is another thing to speak in confrontational and intimidating tones.

While people may be free to speak, as they have freedom of speech, this freedom comes with responsibility and accountability.

It is odd that while our Prime Minister strives for a united country via his 1Malaysia concept, there are people who choose to divide the country with their divisive views.

Back to this “honest description” to the foreign friend.

A description of our country would also not be complete without detailing our love for sports.

Thousands will watch a local football match, and our world-class badminton and squash champions.

When we meet, other than politics, sports is certainly one subject Malaysians love to discuss.

We have our own Formula 1 team.

It hasn’t won a race yet, and it does spend quite a large chunk of money (some from taxpayers), but the fact is we have our own Formula 1 team. We ought to inform our foreign friend of the many sports facilities we have in Malaysia.

Some are not well maintained, but the fact is, we have those facilities. Perhaps in time we will improve on the maintenance aspect.

Our great infrastructure must also be mentioned – the highways, the airports and the trains that traverse all over peninsular Malaysia.

Of course our roads have many potholes, our luggage sometimes get lost at our airports and our trains sometimes break down, especially the LRT in Kuala Lumpur; but the fact remains, we have these facilities.

The foreign friend would also be happy to know that Malaysia does not have volcanic mountains; our country is not sitting on nearby tectonic plates which may cause earthquakes or tsunamis. In this sense we are truly a blessed country.

Any advice or comment to the foreign friend is also incomplete without the story of the people.

Malaysians are patient and forgiving people.

We will hear illogical comments from people claiming authority, or even Members of Parliament making silly comments.

But time has shown that Malaysians will always forgive these comments and sometimes re-elect the very same Members of Parliament who made those silly comments.

Malaysians are also calm people. When facing racist and absolutely bewildering comments, we remain calm and steady.

We do have some protests and demonstrations but these are regularly extinguished by our police force.

But Malaysians, above all else, will always be Malaysian.

We can take a Malaysian out of Malaysia, but we can never take Malaysia out of a Malaysian.

We will always love our food, we will always enjoy our country’s beauty and we will always hope our sportsmen/women will win the next world championship.

The above will probably be an honest description of our country to any foreign friend who wishes to visit us or to migrate here.

> The writer is chairman of the National Young Lawyers Committee of the Bar Council. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visitwww.malaysianbar.org.my

Will written for remuneration, ought to be done by Lawyers

The proposed motion by RWY lawyers was passed unanimously at the recent Malaysian Bar AGM. 

The logic of the Motion is this:-

Lawyers in Malaysia are covered by the Professional Indemnity Insurance (PII). If we are negligent, you can sue us, and if you win; the Insurance will pay you. 

On the other hand, non-lawyer Will-writers are not covered by PII. 

Apparently the Malaysian Bar is aware of complaints by Lawyers that they have received poorly drafted Wills to file Probate or Letters of Administration. Most of the time the beneficiary of the Will, is not even aware that the Will is poorly drafted. And the nature of the Will is such, that we will only know the Will is bad; after the creator is dead; as only when the creator dies, will the Will come into effect and come into attention. 

Most people; after executing a Will; thinks that they are safe, and will not check the Will. So it is too late, by the time we find out that the Will is bad. 

Of cos, RWY is not at all suggesting that lawyers will always get the Will right. In fact lawyers have made mistakes too. But the probability of a Lawyer making mistakes are far lesser than a non-legal Will writer due to the nature of the legal work. 

In addition, (as stated above) we have PII. That way, if the Will is defective, can that defect is caused by a Lawyer, then the beneficiary can sue the Lawyer and get damages via the PII.

So in the unfortunate event that the Will is wrongly drafted by a Lawyer; and that Lawyer is successfully sued for negligence; the beneficiary of the Will may be able to gain some compensation from the PII Insurance. 

The Motion reads:-

Proposed motion calling upon the Government of Malaysia to regulate the will writing enterprises/agencies in Malaysia
(Proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, dated 3 Mar 2011)
Preamble:-

Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;

Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;

Recognising the current practise where Will Writers may not be necessarily legally trained.

The Motion

The Malaysian Bar calls for the abolishment of section 38(2) of the Legal Profession Act 1976, effectively disallowing unauthorised persons, as defined in the Legal Profession Act 1976, to drafts wills for remuneration.

*The motion, as amended, was unanimously carried.

Regulate Will Writing Industry

This is a proposed motion to be tabled at the 65th Malaysian Bar AGM on 12th March 2011.

Proposed Motion calling upon the Government of Malaysia to regulate the Will Writing Enterprises in Malaysia.  

Preamble:-

Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;

Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;

Recognising the current practise where Will Writers may not be necessarily legally trained.

The Motion:-

The Malaysian Bar calls upon the Government of Malaysia to effectively regulate the Will Writing Industry in Malaysia.

The Malaysian Bar calls upon the Government of Malaysia to impose a rule that a Will Writer ought to have Legal Qualification, as a minimal standard;

Alternatively the Malaysian Bar suggests that the Government of Malaysia conduct Trainings and Courses leading to a Diploma or Certificate in Will Writing, which may be held at our Institutions of Higher Learning; to train the current and future Will Writers.

                 Dated : 3rd March 2011 

RWY on Radio : BFM - Rights of an Arrested Person

Right of Any Person To Legal Counsel (Part 4)

This is the final part for this subject matter. (click here for Part 1; Part 2 & Part 3) Does a person who is not arrested; but called by Police or any other relevant authority to assist a criminal investigation; has a right to have a lawyer beside the person during the interview with the said authority?

In this final part, we look at the Malaysian Position. We have perused the situation in UK, USA & Australia thus far, and we we find in Malaysia; the law is silent on this issue.

We have Section 28A of the Criminal Procedure Code (Act 593) [“CPC”] but that provision relates to an arrested person's rights NOT the right of any person who was invited by the relevant authority to assist an investigation.

Logically, although the CPC is silent on this area the right to a solicitor should be extended to any person, not just an arrested person. It would be odd to find a person who is arrested & a suspect has more rights than a person not arrested.

If we refer to Article 5(3) of the Federal Constitution of Malaysia [“FC”]; we shall find that it states

“where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice”.

In the case of Trans Huu Tho & Ors v. PP and Another Case [2009] 3 CLJ 102; David Wong Dak Wah J finds that the omission to inform the accused of the right to appoint legal practitioner as outlined in the Article 5(3) of the FC gives grounds to set aside the proceeding as there may be miscarriage of justice. The Honourable Judge states the following:-

“What we have here is this. Every accused person has both a constitutional and statutory right to be defended by counsel of his or her choice. I have in the case of Hock Huat Chan SdnBhd v. Assan Mohammad & Others [2008] 4 CLJ 512 stated that constitutional rights must be guarded zealously by the courts and in the context of this case it is my view that the applicants, as accuseds, should have been told by the learned magistrate that they are entitled to legal representation and if they so wish the court will adjourn the matter for them to engage counsel to act for them. My reason for such requirement is simple. If the constitutional right to engage counsel is to have any meaning, the accuseds must be informed of this right. I have said on previous occasions that the court and the law cannot presume that citizens of this country, let alone foreign citizens, know their rights. The reality is that most do not know and unless they are informed of these rights, they are meaningless rights. … This issue depends on the court's finding whether this failure to inform has resulted in a miscarriage of justice in the circumstances of this case. … Accordingly it is my view that, because of the omissions mentioned above, it would be unsafe to accept the plea of guilty of the accuseds and hence I set aside the whole proceedings …”

The importance of informing the accused of their right to appoint lawyer in their proceedings in this case; illustrates how important it is for the accused or “any person” to be allowed for the appointment of lawyer in custodial situation by police officer or official person given power to detain and question. As such, the presence of a lawyer is crucial to ensure that the possibility of miscarriage of justice does not occur in the due process of law.

We would submit that though the law is silent on this issue, but the liberty of an innocent person must always prevail and therefore any person arrested or otherwise ought to have access to legal representation when dealing with Police or other relevant authority.

(thanks to Sarah Kambali & Yip Xiaoheng with the research & write up on this topic)

Right of Any Person To Legal Counsel (Part 3)

This is the 3rd part of this series (click here for Part 1, and here for Part 2). RWY continue to do a comparison study on how other countries approach the rights of a person (not arrested) called to help the Police or relevant authorities.

We look at Australia this time around:-

AUSTRALIA

In Australia, in particular at New South Wales [“NSW”], a similar code to the Code of

Practice C of the PACE 1984 was enacted to improve the accountability of the NSW Police service to the community it serves.

The Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence), entails such practice.

At page 44 of the Code, it is the duty of the police to treat people who are voluntarily at a police station to help with an investigation with no less consideration than those in custody.

Person voluntarily assisting should be offered refreshments at appropriate times, entitled to obtain legal advice, communicate with anyone outside the station or leave at any time.

A fourth (& final) part of this series of discussion will be posted soon.