A trial is going on. Lawyers from both sides cross swords. The stakes are high. In the name of justice, they battle it out, only for one side to emerge victorious. The loser did his best to protect his client’s interest, only to find a bullet right through his temples a week later. Sound familiar?

In today’s modern and complex society, where rule of law is expected to be adhered to, lawyers are facing threats and assaults more than ever before. Clients whose best interest they serve are biting back. Others with vested interest in a case threaten lawyers to get their way with things. As agents of justice, lawyers are being compromised. The murder of Datuk SP Annamalai in 2007 and N. Selvamani in 2006 are just two of the many incidents that illustrate this problem.

The Malaysian Bar Council, in response to the matter, is in the midst of setting up a special committee to ensure protection for lawyers against such vile attacks. Selangor Bar chairperson Rajpal Singh had been appointed to see through the setting up of this committee by March 2009. Currently at the preliminary stage, the function of the committee includes holding dialogues and forums with the police and raising awareness amongst lawyers on the issue.

With all due respect, such committee cannot provide “real” protection to lawyers. Lawyers are truly protected in the compound of courts with the presence of policemen. Apart from that, once they are off court limits, they are on their own. That is the underlying point. Policemen cannot be there for you all the time. To expect them to accord the total 12,777 lawyers in Malaysia with extra care and attention would be impractical.

Nevertheless, one way in which the committee can safeguard lawyers better is to establish better links with the police. Set up a complaints bureau within the committee. Threatened lawyers who have lodged a police report can forward such report and complaint to the bureau for following up purposes. The objective here is for the committee to act as a ‘check and balance’ task force to ensure prompt action is taken by the police on the reports made. This must be distinguished from the viewpoint of giving lawyers preferential treatment. It is not. Every citizen has a right to have the police protect him or her. In this case, the committee ensures that such protection, in the form of investigation and so forth, is given to its members upon making the police report. A case in point, the death of a murdered Israeli lawyer, David Haham on June 2008 could have been prevented if the police took his complaints of imminent threats seriously, rather than ignoring it totally. This is where the committee can step in to prevent such ‘ignorance’.

Lawyers themselves must also realise that they can contribute to their own predicament. Unethical and unprofessional conduct, giving empty promises, charging unreasonable fees, lack of communication skills (to the extent of provoking the client) and so forth can lead to unnecessary problems. The committee can play a role by ensuring Bar members adhere strictly to their professional conduct. Forums, seminar, dialogues and continuous education on legal ethics organized by the committee can play a major role to raise awareness and alertness amongst lawyers. The disciplinary board of the Bar can also liaise with the committee for such purposes.

Further, workshops can be organized by the committee to equip lawyers with know-how in dealing with dangerous situations. Simulations can be used to prepare lawyers for real life situations. Security systems in legal firms and safety measurements and guidelines can also be promoted via these workshops. Organizing self defence classes is also an alternative which the committee can ponder upon.

The setting up of a special committee to protect lawyers is not new. In Canada, the Lawyers’ Rights Watch Canada (LRWC) promotes the implementation and enforcement of designed international standards to protect the independence and security of human rights lawyers around the world. They campaign for lawyers whose rights, freedoms or independence are threatened as a result of their human rights advocacy. LRWC is also an NGO in Special Consultative Status with the Economic and Social Council of the United Nations. However, this committee is specifically on human rights lawyers per se, whilst the Bar Council’s proposed committee goes across the board. Nevertheless, the LRWC can provide a template and reference point to smooth out teething problems in the establishment of the committee.

The idea of setting up a special committee is apt and timely. The problem faced by Malaysia is still relatively small compared to countries like Sri Lanka and Bangladesh where the legal profession faces possible extinction due to lack of regard for the rule of law. Lawyers are scorned upon and assassinated since the 1980s for various reasons.

Let us hope that such tragedy shall never reach our shores.

PRESS RELEASE

Communication Cluster III

(non official – for media information only)

Arusha, 18 December 2008

Protais Zigiranyirazo Sentenced to 20 Years Imprisonment

Trial Chamber III composed of Judges Inés Mónica Weinberg de Roca, Khalida Rachid Khan and Lee Gacuiga Muthoga, on Thursday 18 December 2008, convicted Protais Zigiranyirazo of genocide and extermination as a crime against humanity and sentenced him to 20 years imprisonment. Credit was given to him for time spent in prison.

The Trial Chamber however acquitted him of conspiracy to commit genocide, complicity in genocide and murder as a crime against humanity. The Chamber found that the Prosecution failed to prove that Protais Zigiranyirazo conspired with officials, at various meetings, to plan or facilitate attacks on the Tutsi population. Likewise, the Prosecution failed to prove any criminal responsibility for alleged involvement in the Interahamwe, or in killings on Rurunga Hill. Furthermore, the Prosecution failed to prove that he was responsible for the murder of the three gendarmes or of Stanislas Sinibagiwe.

However, the Trial Chamber found that Zigiranyirazo, also known as “Mr. Z”, whose younger sister was married to the late President Habyarimana, was guilty of having participated in a joint criminal enterprise with the common purpose of committing genocide and extermination of Tutsi at Kesho hill, as well as aiding and abetting genocide at the Kiyovu roadblock.

The Prosecution alleged that he had attended a number of meetings with various military and government officials and other influential persons in order to plan and facilitate attacks on the Tutsi population. It accused him of using his power and influence, and as a member of the “Akazu”, the former President’s inner circle, to plan, order and instigate genocide, adding that his influence extended de facto to security officials, in particular the presidential guard, Interahamwe militias, MRND/CDR party leaders, government officials and local residents in Gisenyi and Kigali prefectures.

The defence denied all the allegations against the accused and argued that he was never in any conspiracy. It added that he and his family were hiding when many of the massacres occurred in Gisenyi prefecture.

Zigiranyirazo was born on 2 February 1938 in Giciye commune, Gisenyi prefecture, Rwanda. He served as préfet of Kibuye in 1973 and as préfet of Ruhengeri from 1974 to 1989. He was arrested in Belgium on 26 July 2001 and transferred to the Tribunal on 3 October 2001. The trial commenced on 3 October 2005 and closed on 29 May 2008.

Protais Zigiranyirazo was assisted by John Philpot (Canada) and Peter Zaduk (Canada) while the Prosecution was led by Wallace Kapaya assisted by Charity Kagwi-Ndungu, Iskandar Ismail, Brian Wallace, Iain Morley, Slyver Ntukamazina, Gina Butler and Jane Mukangira.

Bagosora, Ntabakuze and Nsengiyumva given life sentences;
Kabiligi acquitted

Trial Chamber I today rendered judgement in the “Military I” case involving four senior officers of the Rwandan army in 1994: Colonel Théoneste Bagosora, Director of Cabinet in the Rwandan Ministry of Defence; General Gratien Kabiligi, head of the military operations bureau (G-3) of the army general staff; Major Aloys Ntabakuze, commander of the Para Commando Battalion; and Colonel Anatole Nsengiyumva, commander of the Operational Sector of Gisenyi.

It sentenced Bagosora, Ntabakuze and Nsengiyumva to life imprisonment for genocide, crimes against humanity and war crimes based on their role in crimes committed in Rwanda. The Chamber acquitted Kabiligi of all charges against him and ordered his release. It also acquitted each of the Accused of conspiring to commit genocide before 7 April 1994.

The Chamber found that, in the first days after the death of President Habyarimana on 6 April 1994, Bagosora was the highest authority in the Rwandan Ministry of Defence with authority over the Rwandan military. He was considered responsible for the killing, on 7 April, of Prime Minister Agathe Uwilingiyimana, Joseph Kavaruganda, the President of the Constitutional Court, as well as Frédéric Nzamurambaho, Landoald Ndasingwa and Faustin Rucogoza, who were opposition party officials and government ministers. He was found guilty in connection with the killing of ten Belgian peacekeepers who were killed by soldiers at Camp Kigali on 7 April. Bagosora was also responsible for the organised killings perpetrated by soldiers and militiamen at a number of sites throughout Kigali and Gisenyi between 6 and 9 April.

Ntabakuze was found guilty, as the commander of the elite Para Commando Battalion, for the participation of his soldiers in killings at Kabeza, Nyanza Hill and the L’Institut Africain et Mauricien de Statistiques et d’Economie (IAMSEA) in Kigali.

Nsengiyumva was considered responsible for massacres at Mudende University, Nyundo Parish as well as the targeted killing of civilians in Gisenyi prefecture, the area under his operational command. He was also guilty of sending militiamen to the Bisesero area of Kibuye prefecture to kill Tutsi refugees in June 1994.

The Prosecution alleged that Kabiligi participated in the distribution of weapons, meetings to plan the genocide as well as a number of specific crimes, many of which were related to roadblocks in the Kigali area. Kabiligi advanced a successful alibi for much of this time period. It was also not proven that he had operational authority or that he targeted civilians.

The trial opened on 2 April 2002 before Trial Chamber III. After the non-reelection of one judge and the announced retirement of another, the case was transferred with the consent of the Accused in June 2003 to Trial Chamber I, composed of Judges Erik Møse of Norway (presiding), Sergei Alekseevich Egorov of Russia and Jai Ram Reddy of Fiji.

A total of 242 witnesses were heard during the trial, 82 for the Prosecution and 160 for the Defence. The trial concluded after 408 days. More than 300 written judicial decisions were issued during the course of the proceedings. In parallel with this trial, the judges heard nine single-accused cases.

Protais Zigiranyirazo was assisted by John Philpot (Canada) and Peter Zaduk (Canada) while the Prosecution was led by Wallace Kapaya (Tanzania) assisted by Charity Kagwi-Ndungu (Kenya) , Iskandar Ismail (Malaysia), Brian Wallace (Jamaica), Iain Morley (England), Slyver Ntukamazina (Burundi), Gina Butler (USA) and Jane Mukangira (Rwanda).

By Fahri Azzat

The call to the Bar is one of the most momentous occasions of a lawyer’s life. For it is on that day that he or she is registered on the Rolls of the High Court and has an ‘exclusive right to appear and plead in all Courts of Justice in Malaysia according to the law in force in those Courts’: see section 35 of the Legal Profession Act, 1976 (’the Act’). Anybody who appears in court to represent a client would be an ‘unauthorised person’ under the Act: see section 37 of the Act. The manner in which the call to the Bar is to be carried out is not provided for in the Act.

The tradition as I understand it here is that after a chambering pupil has completed his chambering period of 9 months, he will then file his long call papers to be admitted to the Bar. He then has to obtain a Mover to move his petition on the hearing date. Though it is not provided for anywhere, the practise is that it is the Master’s responsibility to procure a suitable ‘Mover’ for the chambering pupil. I think this is an excellent convention and would go further and say that it is the duty of the Master to find the Mover. This would also promote better camaraderie and relations at the Bar too.

A Mover is someone who would ‘move’ the chambering pupil’s petition before the presiding High Court Judge on the day of his call. Who qualifies as a Mover? This again is not provided for anywhere. The practise here is that it has to be someone ’senior’ and I agree with it. One does not send a junior for such a momentous and important occasion just as one would only want to send the best lawyers for an important matter. How senior does the Mover have to be? I would argue that he must have completed 7 years in active practise. This is because it is only after 7 years can one take a chambering pupil: see section 13(1) of the Act. If one is senior enough to take a chambering pupil, it follows that one should be senior enough to move another chambering pupil’s petition. The Bar Council also appears to endorse such a position.

One may ask, why doesn’t the Master himself move the chambering pupil’s call? The reason is simply to avoid a conflict of interest. After all, the chambering pupil is tutored by the Master. What is more the Master also affirms a supporting affidavit for the chambering pupil’s petition, so he would not be ‘objective’ and has a stake in the success of the petition (although it is wholly about reputation and not pecuniary). One may argue that it is usually an uncontentious matter, so one need not be too technical about these things. However, there is nothing technical about propriety or ethics which should not be waived for the sake of convenience. Furthermore, it could turn into a contentious matter if either the Bar Council, Attorney General Chambers or the State Bar Committee representatives raise an objection.

Being asked to move a chambering pupil’s call is also, to me, an honour. Firstly, for the Master to think of and want you to move his pupil’s call means he thinks well of your advocacy skills. Secondly, as a mover you would be akin to the midwife helping the Master give birth to this new lawyer and in doing so would generally be contributing positively to the cause of Justice.

So what exactly does a Mover do? Basically he would make a speech about the accomplishments and the chambering pupil’s character to ‘persuade’ the court that he is a fit and proper person to be admitted to the Bar. If there are 8 chambering pupils, then there will be 8 speeches given, although not all necessarily by different lawyers because a Mover can move a few chambering pupil’s calls in one hearing. The Master has no role to play in the call except to robe the chambering pupil after the High Court has admitted and enrolled them as an advocate and solicitor in its Rolls.

Unfortunately, the call to the Bar has become a painfully tedious, routine and ritualistic affair devoid of any interest or celebration. I place the fault for that entirely with the Mover and Masters. It is so because these days the Mover does not take the trouble to prepare their speeches (I use the term ’speech’ and not ’submission’ because there is no reply and to distinguish it).

The unfortunate common practise is now for Mover to ask the chambering pupil to prepare a draft speech for them. They would make minor amendments (if they had time or interest) and then recite, or more commonly drone or mumble, the speech at the hearing with paper in hand sometimes barely 4 inches from their face. Sometimes they don’t even bother to look up from the paper. Or when they do it is as if they were coming up for air only to dive down again. Sometimes they don’t even read the speeches right, even though they do it week in and week out.

And the draft speeches are usually atrocious but what does one expect from someone who has not begun practise? They usually recite where they were born, their parents’ names and jobs, what societies or clubs they participated in from kindergarten right up to university, their hobbies (sometimes) and finally rounding off with a big thank you to their parents, family, boy/girlfriend, their Master and everybody at the firm ‘untuk segala tunjuk ajar yang telah diberi kepada saya‘. You would think they were all working off a template and if you did, you would not be far wrong. I understand that the Bar Council has come up with a guideline on what to include in the chambering pupil’s speech and it is made up of all that.

This is a sorry state of affairs. I vehemently disagree with the Bar Council in putting out a guide on what the speech should include. Its doing so indicates that the Bar Council is countenancing this horrendous practise of Movers droning the poorly drafted speeches prepared by chambering pupils during their calls. Routine and tedium is what one is left when standardization is imposed for something that is supposed to be organic, personal and unique to the chambering pupil and Mover. So instead of a joyous spectacle to be cherished, we are left with an experience we would do better not to dwell on. How many chambering pupils in recalling details of their call to the Bar remembers their Mover’s speeches? Not a lot I would imagine. What they would remember of it is what the Mover’s speech has been reduced to - a tedious, boring, forgettable experience.

The speech for the call - its preparation, its drafting and delivery - to the Bar is the sole responsibility of the Mover. The chambering pupil may help with the research, supply the details, organize people whom the Mover would like to meet with but he should not draft the actual speech. The Mover that relies on the speech of a chambering pupil or from someone else abdicates his responsibility not only to the chambering pupil. If you stop to think about it, it reflects poorly on all its participants. It reflects poorly firstly on the Master who did not give much thought to the mover. It then reflects on the Mover because it shows him to be unprepared and disinterested. Finally, it reflects on the chambering student who will have a poor speech recited for him in that the Master did not think him worthy enough to make an effort to get a decent Mover for his call. And that makes for a poor impression if not experience to the friends and families following the proceedings.

Now because most the speeches are drafted by the chambering pupils, they understandably leave out the vital ingredient of the speech - the good character of the chambering pupil. Good character is a vital pre-requisite for a chambering pupil called to the Bar: see section 11(1)(b) of the Act. If the chambering pupil does not possess good character then he would not meet the criteria for being called to the Bar.

It should be noted that this is the only condition that cannot be documented and can only be given by way of the Mover’s speech. All the other conditions (see section 11(1)(a), (c) and (d) of the Act) are fulfilled by displaying the relevant documentary evidence. This is why the Mover’s speech is highly important because it has to make out a prima facie case that the chambering pupil possess good character to be a fit and proper person to be called to the Bar. If he fails to do that, the High Court Judge is entitled to either strike out or dismiss the chambering pupil’s petition.

Unfortunately this portion of the speech is never addressed especially when the chambering pupils draft the speech. It is probably not addressed by the chambering pupil because they failed to do sufficient research on the requirements of the speech. And even when the speech is done by a Mover, he tends not to address this issue probably because he does not know them well enough to attest to the chambering pupil’s good character, or overlooks this requirement.

I know all about this because the first three or four times I was asked to move someone’s call to the Bar - I did what I described above. I would usually meet with the chambering pupil for a meal or drink so I could chat with them to get an idea of what they are like. Then I would ask them to prepare a draft speech to which I made some minor amendments and read out during the call.

I confess that I felt thoroughly awful and guilty when I did it on all those occasions. I felt awful because the draft speech was awful and so my speech was awful. It was singularly uninspiring. The guilt was because I felt as if I had cheated them out of a momentous occasion with my pathetic speech. I had ruined it. Instead of giving something to take away, I had robbed them of it. I was too embarrassed to even receive the chambering pupil’s thanks because I felt I should be the one apologizing if not groveling.

So the next time I got a request to do a call to the Bar, I promised myself to do it better. I would approach it as I would an important contested hearing and so give it my best shot. The wait thankfully did not take too long and I was asked to move my friend’s chambering pupil’s call, an idealistic young Chinese gentleman who intended to practise for a while before making his way to the United Nations. Though I asked him to prepare a draft speech, I only used it to extract facts. When I finally met up with him, I asked better and more relevant questions because I knew the focus of my speech - those facts or features that brought his character to light or afforded me an opportunity understand what kind of person he was. Once I was done with my interview with him, I spent a few hours researching, preparing a draft of my speech and then revising it until I was happy with it - exactly how I would prepare my submissions. This chap inspired me so much that I took the trouble to even memorize a poem the night before to round off my speech for him.

As an aside, this is what the chambering pupil must bring to the mover - inspiration. For myself, they must inspire the mover either by way of their character, intelligence, pleasantness or ambition (not sexual favours or money). Some of those chambering pupils calls I have moved before were so completely bland and boring that they failed to move me in the least. When I engage with them, I get one liner answers or disinterested replies. I have decided that if I am asked to move this type of person’s call in the future, I will decline because they can offer me nothing for their speech. The speech is as good as its subject matter and its mover. If the subject matter is found wanting, there is little a mover can do to make a speech interesting except by lying profusely. As the saying goes, if you have nothing nice to say about a person, best to remain silent.

Coming back to the mains, when I was finally called upon to deliver my speech, and I say this with humility, I was confident and outstanding. Confident because I had the speech prepared, I had gone over it several times and knew it well. Outstanding simply because I was the only one who came prepared with my very own speech. There were undoubtedly better counsels than me moving other calls that day, but I was the best prepared. The other 9 speeches that day were read off the drafts and the difference my speech and theirs was marked.

For me the best part was that everybody enjoyed my speech. There was laughter, there were smiles, there was praise and there was poetry, and the air felt electric again with interest. After the call was done, many complimented me on my speech and I even got a call to move from a lawyer in court that day to move one of his pupil’s call later in the year. The chambering pupil was profuse in his thanks and said he felt so proud that I gave an excellent speech for him. That definitely ranks up there as one of my most memorable occasions in court. It also taught me that it pays to prepare meticulously and do the best I can no matter how grand or humble the occasion.

Later when I had time to contemplate my entire experience on this, it occurred to me how unfortunate it was that most Movers and potential Movers took their task lightly and did not look upon the experience as a valuable opportunity. The call to the Bar is I think one of the best places to develop or shine as an advocate because firstly, it is always not contested. You have no opponent and so there is no stress or pressure. Secondly, there is an expectant and ready audience. Thirdly, you are given a lot of room in your speech and it is much less formal than a inter-partes dogfight. Fourthly, you have time to prepare and research your speech and yourself as much as possible before delivering it. Finally, most of the other Movers are probably going to give the run-of-the-mill speeches, so you will definitely stand out. So to pass up such an opportunity to display your advocacy and intellectual skills to its fullest is quite a shame. It’s almost akin to throwing away money.

If I am asked to move a call again, I would approach it in the same manner but with an improved methodology. This is what I would do:

(1) Still have the chambering pupil prepare his draft speech. There are 2 purposes to this. Firstly to see how he expresses himself and how he thinks about himself. Secondly, to get the facts.

(2) Have at least 2 meals/drinks (time permitting) with the chambering pupil. The second round is just to add more familiarity and to follow up on any other questions that I missed out the first time.

(3) I would ask the chambering pupil to arrange a meal/drinks with their close/good friends and family (at least the parents or a close sibling). This would enable me to get a more rounded and extra dimension to the chambering pupil’s character.

(4) I would then look for a piece of literature (either a prose passage or a poem) to either relate or define the chambering pupil’s character.

(5) Prepare a draft and revise it continuously until I am satisfied with it.

I sincerely believe that if future Movers took the trouble and effort to prepare and work on their own speeches, it would certainly restore the call to the Bar to the joyous momentous occasion it is meant to be instead of the tedious, boring and dry affair that it has become. Some may complain and argue that they would not have time to do all that in preparation of their speech. My retort to that would be see Rule 6 of the Legal Profession (Practice and Etiquette) Rules 1978 which provides that ‘[a]n advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.’ And if they complain that it is too much work for a mere call to the Bar then the complainant has no business moving anyone’s call.

“Jeff Ooi & eLawyer Team”

Last Thursday (23 October 2008), I have attended a seminar organised by the KL Bar Committee entitled “Blogging & Defamation Law Forum”.

During the welcoming speech, the chairman of the IT committee of the KL Bar, Richard Wee, said the main purpose of organising this Forum is to educate the general public, especially the growing community of bloggers, about their rights under the law, so that they know what to write and what ought no to write in their blog. He hopes through this Forum, bloggers could gain the knowledge of drawing the line between freedom of speech and defamation.

There were about 80 to 100 attendees turned up on that day. The said number will be greater should the organiser use the right strategy in promoting the Forum. (more effort should be spent in reaching out to the bloggersphere instead of legal community).

The 1st speaker was Nizam Bashir, who is practising in Malacca. Nizam started by giving an overview of cases against bloggers in Malaysia. He further explained about the laws which bloggers need to know, especially defemation law, what is considered defamatory and what is not.

Followed by Foong Cheng Leong, who is a young lawyer practising in one of the largest law firm in KL, were sharing about the precaution manners to
avoid in any law suits. He also shared about his experience of being threatened to be sued against one of his blog post by another blogger. I found his advice was practical which comes from his real life experience.

Mr Foong has also generously allowed me to share his power point presentation slide show here for the benefit of those who couldn’t attend the Forum.

As mentioned in my previous post, Jeff Ooi, the blogger become member of parliament, was also one of the panel speakers. This previous full time blogger seems to be a hilarious speaker. He related blogging to sex. Amongst other, he said “blogging is unlike having sex, you must do it with your eye open!”. His making loving thing just went on and on…hahaha!

Of course, he has also shared with us about may of his invaluable blogging experience.

We received a request from Richard Granat, who is presently co-chair of the eLayewring Task Force of the Law Practise Management Section of American Bar Association, to post the below contest: 

The James I. Keane Memorial Award for Excellence in eLawyering is awarded once a year by the Law Practice Management Section of the American Bar Association at the Annual ABA TECHSHOW in Chicago.

The  Award is named for James I. Keane, the founding Chair of the ABA eLawyering Task Force. The Task Force was created in 2000, when ABA President William G. Paul, of Oklahoma City, Oklahoma, took the unusual and creative step of asking a Section to assume responsibility for one of his presidential initiatives, namely an examination of ways that lawyers could use the Internet and other electronic resources to deliver legal services to people of moderate means more efficiently and effectively. Last year\’s recipient was the law firm of Cowell Taradash, P.C., based in Chicago, for the web site at Illinoisdivorce.com .

The ABA eLawyering Task Force of the Law Practice Management Section will review the nominations and select the recipient. The Award Guidelines and Nomination Forms can be found here. Law firms can nominate themselves.

The deadline for submission is January 15. 2009.

Please visit http://www.abanet.org/lpm/award/jimkeane/index.shtml for more information.

 By Eddie Law

Have you ever wondered who is the one keeps the news up to date and posted at Malaysian Bar website? who is the webmaster of Malaysian Bar website? Yes, he is Roger Tan, a Chinese outspoken lawyer based in Johor.

Based on the Malaysian Bar website, Roger who has served as the webmaster of Malaysian Bar website, since 14 May 2005, will be retired tomorrow.

“Beginning from midnight December 1, the Malaysian Bar website will be managed by three IT executives, namely Kelvin Lee, A Ezane Mansor B Obaid and Lau Chern Loong.

They will report directly to the Secretary of the Bar, Lim Chee Wee who will, from now on and together with the Chief Executive Officer, Corrinne Wong, Director Cindy Chan and Director Rajen Devaraj, moderate and approve all the contents, comments and forum postings on the Bar Website. The Bar Secretariat has also decided to describe the new manager of the website as the Web Administrator.” as reported at the Malaysian Bar website.

Currently the Malaysian Bar website has attracted 40,000 - 50,000 hits per day, which was revamped by Roger since 2005. Since 2005, the said website has generated RM280,000 revenue for the Bar.

Due to the constant updating of the web content and high traffic, the website is always rank at the 1st page of Google when one conducts search on numerous legal terms in Malaysian context. e.g. “Malaysia lawyer” (my eLawyer.com.my also rank at the 1st page, hahah).

The website has served as the main media of the Bar, which not only publishes the latest news about the Bar and its members, but also publishes views or statements that one may not be able to find in the mainstream media.

If you still can recall, the incident when the web reporter (I guess was also Roger) who was reporting about Edmund Bon’s trial, almost, on live from the court room. I must say this was indeed very impressive and Roger is very clever in taking the advantage of internet.

In view of the above, I believe the website has now become an indispensable asset to Malaysian Bar.

Roger runs 2 blogs i.e. Voice of Reason &; rtkm.com and who also created a website to look for his missing dad. Recently he has also created a Yong Peng facebook group.

In Malaysia when most of the senior lawyers are still relying their secretary to check their emails, Roger has already created a website on his own and started blogging, he is indeed a “rare specie” amongst the senior lawyers.

After retiring from the post of Malaysian Bar Webmaster, I am wondering what will be his next venture in cyber world?

P/S: Mr Foong Cheng Leong, a young and dynamic IP lawyer cum famous blogger, when asking about his comments over this matter, he said ” Roger Tan has definitely done a very good job to the Malaysian Bar website. I hope that the new webmasters will keep up the good work and bring the Malaysian Bar website to a further stage.”

‘Do action speaks louder than words’??? However, the Bar Council Human Rights Committee proved vice versa. They decided to talk rather than walk in conjunction with the celebration of the 60th anniversary of the Universal Declaration of Human Rights(UDNR) 1948 as well as the Human Rights Day on the 10th of December 2008.

Hence, The Bar Council Human Rights Committee will be organizing the Bar Council Human Rights Debate 2008 to make known towards the public about our rights as homosapiens. In addition, this debate will cultivate moral values and narrow the gap regardless culture, ethnic and language because all rights allied issue will be debated. The debate ought to be the right place to express your opinion on international and national policies. The theme for the debate is “UDHR @ 60 and still not all is right”. The event will take place on the 9th-12th of December, 2008 at KDU college (PJ Campus).
If you are interested to know more about the Articles in UDNR, you can click the link ,http://www.un.org/Overview/rights.html

Each team consist of two person. The debate will be held in the British Parliamentary style. Thus, there will be opening and closing arguments for both the government and the opposition. Each person will be given 7 minutes to present his/her argument. Audi Alteram Partem is exercised in the debate.The debate do not requires you to only speak, but hearing the other party is essential too! Watching debates has never been mundane to me, most of the speakers were very eloquent people. If you think you are one of them, quickly register for this debate. Attractive prizes are awaiting the winner. If debate is not your cup of tea, perhaps you can opt to participate as an adjudicator or in the Public Speaking competition.

However, if you wish to assist or donate a token of appreciation for this event. Please do not hesitate to do so because it is never easy to organize and make it successful event without support from everyone. Let’s participate and celebrate this event to show that WE CARE and we are concern about our rights. If we do not even care about our rights, who will?
_____________________________________________________________________________________

The applicable fees in respect of the Debate Tournament and Public Speaking Competition are as follows:

I. Debate Tournament

For participants

RM250 per person (for debater)
RM250 per person (for adjudicator)
RM250 per person (for officer/ observer)
(Fee includes food and hotel accommodation)
Every team must have 2 debaters and 1 adjudicator. (For participating institutions, the maximum number of teams permitted is 5 per institution)

For ‘Stay At Home’ participants

RM180 per person (for debater)
RM180 per person (for adjudicator)
RM180 per person (for officer/observer)
(Fee includes food)
Every team must have 2 debaters and 1 adjudicator. (For participating institutions, the maximum number of teams permitted is 5 per institution)

II. Public Speaking Competition

RM50 per person (Fee includes food)

Registration Process:

Kindly send to us via wire transfer the requisite fee(s) by 30 October 2008, details of which are as follows:

Bar Council
HSBC, No 2, Leboh Ampang, 50050 Kuala Lumpur, Malaysia

Account No: 301-022166-001
SWIFT Code No: HBMBMYKL
(Please pay all bank charges so that the Bar Council receives the full amount of the fees.)

Alternatively, send your cheque(s) made in favor of the ‘Bar Council’ to them.

After transferring or sending your fee, e-mail them at hrdebate08@malaysianbar.org.my, and tell them your name, institution, and the amount of money you transferred/sent.

Attach a copy of the transfer slip/cheque and the registration form to the e-mail you sent. They will not cover transaction costs.

Please visit http://hrdebate08.wordpress.com/ for more information.

P/S: eLawyer.com.my is proud to be one of the sponsors of the above event.

By Khairul Anuar bin Shaharudin (Advocate & Solicitor)

There are a lot of politicians from the legal background either as a graduate of law school but never practice law or famous law practitioners who are fodder for their soundbites in or out of Parliament. They are well-known to be hardliners and don’t care what people say about them. Either to their face or behind them. Some of the best politicians, which are subjective (I mean, what is a good politician? A good bullshitter?) are lawyers. Either in the opposition side or the current government side. Either in the Parliament of Malaysia or as a state assemblyman. All are known for being very good in talking the talk. But do they walk the walk?

Currently, there is a kind of a upheavel among lawyers on the lack of lawyers willing to take the mantel of a presidency of the Bar Council or being on the council itself. There are a few articles in newspaper like in the Star newspaper on 21.11.08 by the Putik Lada columnist or a campaign by http://www.elawyers.com/ aboth the lack of voting papers being returned to the Bar Council secretariat. We vote by post you see.

If any one of the candidate want to rig the voting, I think its plausible as it is just a piece of paper with the name of the candidate and a column for you to tick your choice. This year, there are 23 candidates for 12 post. Everyody remember the fiasco of last year’s Bar Council election? I think, but am not sure, the case on that election is still on appeal. That what’s I love about the Bar Council, half of our yearly fees go to defending the Bar from litigations due to some members not being satisfied with the Council’s decision.

Choose me as the next Bar Council President and I will act cute to get what I want

According to that article in the Star newspaper (pg. N55) by Janet Chai Pei Ying, it is said that out of the 13,000 current registered Bar Council member, only 3,500 will return their ballot paper. The other ballot paper will be recycled as rough paper (that’s what I usually do with all the circular sent by the Bar Council before they started to send me emails) or even worse just thrown out into the trash. If the list of candidates of this year is anything to go by, nearly 80% of it are the same candidate you see year in, year out.

Why you say? Like what Janet said in her article, the Bar members who will always itching for a fight and argument during the Annual General Meeting, have no interest in being leaders or charts the course of the Bar Council. They were willing to let a few who sometimes have to sacrifice their time to sleep to fight for all the things the Bar Council stands for. Some I may not even agree with but I have just realised the power of my vote and I voted this year. I even sent SMSes to a few of my lawyer friends and asked all the lawyers in my firm to vote.

I have experienced the localised version of the Bar by being a member of a Committee in a Bar Committee of a state in Malaysia. My partner is a chairperson of one of the Committee in the same Bar Committee and we have found out the hardship and the sacrifice that we have to make worthwhile. It was great to learn about being a member of a society like we did once in university but it is a different ballgame althogether. Next year, we may do a role reversal…

Back to my comment on lawyers in general especially with regard to the Bar Council. Lawyers just don’t want to care when they are supposed to. They should vote and don’t just bitch about the lack of support or the fights that the Bar is fighting is not up their alley or they don’t agree on it. Vote and determine who leads. Then you can make a change. Like that guy in a country halfway across the world says,

“Yes, we can…!!!”

By Fahri Azzat

I was reading the decision of GS Gill Sdn Bhd v Descente, Ltd and another appeal [2008] 6 MLJ 181 recently where the Court of Appeal had yet another instance to reaffirm the principle (which really needs no further affirmation or re-affirmation, but perhaps things are the way they are because some judges still need regular reminders every now and again; so I’m also not quite sure why this case even merits a report since it just rehashes principles long stated) that an appellate court would not interfere with an actual finding of fact by a trial court. What they would interfere with is only the inference of fact drawn from a finding of fact. Gopal Sri Ram JCA wrote the lead judgment and referred to the decision of Clarke v Edinburgh Tramways [1919] SC 35 and the dicta of Lord Shaw of Dunfermline which bears reproduction so that the thoughts it provoked from me can be better appreciated:

When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate court? In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I — who sit here without those advantages, sometimes broad and sometimes subtle, which are the privileges of the judge who heard and tried the case — in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.

So the rationale for this principle is actually found in the practical realities of record keeping of the early 20th century i.e. before the ubiquity of the video (both in terms of recording and reproduction) and the computer age. That we have entered the age where anybody can take a video from their cameraphones or PDA’s or even just our cameras; and where we live in an age of such lense making precision and accuracy of camera control so as to capture ‘their demeanour, … their manner, … their hesitation, … the nuance of their expressions, … even the turns of the eyelid’, I think it rather strange that we should still apply this principle fashioned from an age without video and computers.

I would have thought that the appellate courts would have wanted to implement videotaping trial proceedings with the camera trained on the witnesses face and body the entire time (or whoever else since cameras are so cheap and plentiful these days) so that they would not just have the documentary record but could now judge the performance of the witness with their own eyes and make their own finding as to their demeanour and manners. So clearly video recording would eradicate such inaccurate record keeping where the witnesses’ performance is concerned and improve the accurace of the record of appeal. If section 3 of the Evidence Act defines a document as ‘any visual recording (whether of still or moving images)’ then clearly the video performance of the witness can be included in the record of appeal as well. In that sense, there’s actually no need to change make any major change in substantive law since a video recording of the witness can be included in the record of appeal (although it is envisaged that there would be some amendment on the procedural aspect).

I find it even more puzzling that the legal systems in the commonwealth have been so slow to take this up especially when one of the principal modes of thoughts in our Commonwealth judicial system is concerned with the objective ascertainment of facts (I’m applying one of Lord Justice Laws’s many superb thoughts in his excellent meditation titled ‘What is Virtue?’ [2004] 4 CLJ i). Facts are the basis of laws. Facts are the basis of a claim. Someone’s credibility is a question of fact. That credibility is surmised from their performance in court. Since we now have equipment that can ensure an accurate record of the witnesses performance, surely the important issue of fact findings should not be left open to the possibility of being incorrect when there is an avenue to reduce error.

This line of thought has also got me thinking: How many of our legal principles were fashioned or influenced heavily due to the lack of or only availability of inferior technology when the principle was declared? The other observation I draw from this is that the legal communities in general are not good at implementing technology into legal and judicial practise.

This article was originally published at Loyarburok.com

Bar Council is holding their council members election during the month of November 2008. As mentioned in our previous post, the voting rate was always unsatisfactory.

eLawyer, as an online law portal wishes to contribute our small bit by providing a space at our law blog to allow the candidates who are running for the council members’ election to introduce themselve and shout out their manifesto so that the voters will get to know them better.

In addition to creating awaraness amongst the existing members of Malaysian Bar, we also hope such awareness can be created amongst the future members of the Bar i.e. law students.

We are glad to receive the first election statement from one of the running candidate Mr Colin Pereira.

I am offering myself as a candidate for election to the Bar Council, having served the Bar in the following capacities:

2008/09: Deputy Chair Professional Standards and Development Committee, Bar Council

2007/08: Deputy Chair Professional Standards and Development Committee, Bar Council

2006/07: Chair, Continuing Legal Education Committee, KLBC

2004/05: Chair, Social and Pupil’s Welfare Committee, KLBC

2003/04: Chair, Social and Welfare Committee, KLBC

2002/03: Chair, Social Committee, KLBC

2001/02: Chair, Social Committee, KLBC

There are two issues which I care passionately about, which are, improving our skills as lawyers and alleviating the problems we face in our practice. I have done my best during the last 3 years to organise as many professional development programs for lawyers. However, one area in which I believe the Bar has failed, is in its dealings with the judiciary. It has, on many occasions, compromised our interest when dealing with the judiciary resulting in great hardship for many lawyers in our day to day practice. We are accorded little respect by the judiciary whilst those who purport to represent our interests appear to be more focused on organising social events with the judges. For many of us, who do not have the benefit of a large firm behind us, we rely on the Bar to defend our interests. Those of us who have had to deal with registry clerks and have been given the run around will appreciate my concerns. We are professionals and ought to be treated as such.

I do believe that all the candidates have a contribution to make. I will not therefore ask you to vote for me specifically as opposed to the other candidates. My concern is that the majority of lawyers do not vote at all. My appeal to members is that whoever you decide to vote for, please take some time to vote and return the ballot papers.

And, if I myself am not successful, my hope is that my message will be heard by the winning candidates.

~By Mr. Colin Pereira~

P/S: For other candidates, please do not hesitate to email your election ststement to us at sarah@elawyer.com.my