Report on the Malaysian Law Conference

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  • November 21, 2007
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By Valerie Choo

The 14th Malaysian Law Conference organized by the Malaysian Bar Council was held on 29-31st October 2007 at the Kuala Lumpur Convention Centre.

The three day Conference was really an excellent experience and eye opener for many of us in which it provided invaluable knowledge and information and further created greater awareness and understanding amongst us. I am particularly glad for this great opportunity to listen to what professionals have to say in relation to the many issues at hand. The conference seeks to address controversial yet interesting issues.


It has been widely accepted that a competent, independent and impartial judiciary free from any interference by any party is important to the society, and public confidence in the judiciary is essential to the integrity of the judicial system. However, as of late the Malaysian judiciary has been under considerable attention and has been receiving criticisms adding to the recent incident that had adversely affected the public perception of the judiciary.


For too long we have heard criticism after criticism about the judiciary. The latest crisis that had emerged in the judiciary is none other than the infamous ‘Lingam tape’ that has ignited uproar in the legal fraternity.


The controversial video clip purportedly showed a senior lawyer, identified as VK Lingam brokering judicial appointments with a senior judge in 2002. Former Chief Justice Ahmad Fairuz Sheikh Abdul Halim was alleged to be on the other end of the phone conversation. The clip was released by the country’s former Deputy Prime Minister, Datuk Seri Anwar Ibrahim.


With the emergence of the shocking video clip, the concerns expressed by various sectors in relation to the country’s judiciary can no longer be left unattended. The Bar Council was exceptionally of the strong view that immediate and urgent action must be taken and that means  a Royal Commission of Inquiry into the matter and the affairs of the judiciary must be appointed. The government, in looking into the matter, instead established a three-man independent panel to investigate the authenticity of the video clip. However the panel investigating the clip had admitted in a press conference that the narrow scope of the panel appeared to be restricted solely to determining the authenticity of the video clip. The Bar Council is also concerned that the panel having acknowledged its lack of powers in compelling the production of evidence, has neither power nor immunity to direct investigations. The Bar Council called upon the government to immediately appoint a Royal Commission of Inquiry to investigate into the incident and into the state of the judiciary. 


The rot in the judiciary started long time ago. Malaysians cannot afford to stand by and watch any longer. As a result of the authorities not heeding the pleas of the Bar Council, on 26 September 2007, a strong crowd of more than 2,000 members of the Malaysian Bar and some concerned citizens walked from the Palace of Justice to the Prime Minister’s Department to hand over the Bar’s memoranda urging the government to set up a Royal Commission of Inquiry to verify the authenticity of the controversial video clip and to establish a permanent judicial appointment commission for the appointment of judges in the future. 


The historic “Walk for Justice” that happened for the third time in the 60 years of history of the Bar has been marked as one of the notable struggles of the members of the Bar in upholding the cause of justice. Approximately two thousand lawyers in their suits, marching in the heat and rain deeply believe that it is the responsibility of the Bar to be at the forefront, fighting for the interests of justice.


Given the ongoing controversies surrounding the judiciary, especially the video clip incident which has been worrying, many were of the view that now is the time for us to consider the possible reforms to strengthen the judicial appointment process in Malaysia.


His Royal Highness Sultan Azlan Shah of Perak delivered a sharp rebuke to the country’s judiciary when he told the members of the Bar at the Conference that the judiciary was in serious need of reform. The Sultan of Perak said that it is time for the judiciary to regain the public’s confidence and win back the high esteem it used to enjoy. Retired judges, lawyers and politicians lauded Sultan Azlan Shah’s call for judicial reform. ‘I am driven nostalgically to look back to a time when our judiciary was the pride of our region and our neighbours spoke admiringly of our legal service,’ said His Royal Highness. His Royal Highness stated that the entire process of consultation with the Conference of Rulers is a constitutional role that was contemplated by the drafters of the Constitution in which a role of checks and balances is there to ensure the appointment of the best persons to important constitutional positions. It was also clearly intended to prevent any abuse of power by not giving the appointing authority the sole discretion in the appointment process of key positions under the Constitution.


Refering to the Walk for Justice, Prime Minister Datuk Seri Abdullah Ahmad Badawi took the view that a public demonstration is not like any other public social event. A demonstration gives the impression that a problem has reached an intractable impasse even when, in reality, it has not. He said that they could still sit down and talk about it. He stated that the government is not only willing, but is also serious in addressing the view of the legal fraternity. He called on the Bar to work together with the government sincerely, without preconditions and without being suspicious of each other.


In spite of the controversy surrounding the judiciary, the Minister in the Prime Minister’s Department, Datuk Seri Mohamed Nazri Abdul Aziz, still denied that there was any crisis in the judiciary. He said that people were still seeking redress in the courts and that crisis was merely in the minds of those talking about it. With regard to the Putrajaya march, the Minister launched his salvo against the lawyers and branded them as “crazy” over the ‘Lingam tape’ controversy and was reported to have said that lawyers were behaving like the opposition by marching on Sept 26. One of the most disturbing answers given by Datuk Seri Nazri was in response to the question, “What if the video clip was genuine but the person did not want to come forward?”, in which he retorted  “That’s not our problem”. The Minister also mentioned that one thousand lawyers who marched on Sept 26 cannot compare with 11 million voters and if anyone is not happy with the judiciary, they should take it to the ballot box.


His challenge struck a raw nerve and this was discussed in one of the sessions in the Conference whereby calls for the Rakyat to go to the ground reverberated the walls of the auditorium.


There has been calls that the present method where judges are nominated by the prime minister for royal approval be replaced with a more transparent judicial appointment panel. I would personally think that it would be right that the Bar takes up the Prime Minister’s invitation to “chat” and I certainly hope that he will rise to the occasion and come up with certain solutions for the betterment of the country’s judicial system. If the meeting between the Prime Minister and the Malaysian Bar president bears no fruit, then the Bar must be prepared to take the necessary resolutions at the up-coming extraordinary general meeting scheduled on November 22 to put a stop to this crisis. This cannot just go away without a full and thorough investigation.


Many questions were raised in relation to what should lawyers do next if there is no action taken on the judicial scandal exposed by the ‘Lingam tape’? With regard to this, the bold suggestion blurted out by many without hesitation was to boycott the judiciary and walk out of courts.


During the question-and-answer session at a special session entitled ‘We watched, we walked, we now … do what?’ held on the last day of the conference, a participant among the audience said the problem was not getting the publicity it deserved, and suggested that it be taken internationally. She was courageous enough to state that it is time for lawyers not to show up in court one day all around the country and show that the country is unable to run without lawyers. A fellow member of the Bar, Haris Ibrahim cited the courageous example of the Pakistan Chief Justice Iftikhar Muhammad Chaudhry who was suspended by president Gen Pervez Musharraf on March 9. This led to lawyers boycotting the courts, confronting riot police officers, burning pictures of Musharraf and holding nationwide protests. It resulted in the judiciary’s reinstatement of Chaudhry on July 20 through legal process. They brought the administration of justice to a standstill. The judiciary cannot function without the legal profession.


However, the proposed boycott raises crucial questions for everyone to ponder: What do we really want of the judiciary and Malaysia? The recommended boycott is not something that should implemented out of rash thought. We have to be very careful with any steps we take. We have to remember our responsibility first to our clients; and secondly, we have to be careful not to jump into conclusions regard any issues at hand.

An alternative measure that could be taken involves educating the public at large regard the current situation of our judiciary system and the importance of a clean and independent judiciary. This measure is taken for the purpose of creating public awareness of the crisis we are fighting for and also for the reason that we, lawyers are accountable to the public. It is important to put forward to the public that this is a fight for a better system, a fight to be waged by all of us. It is a fight for each and every citizen’s right to a competent, independent and impartial judicial system. We must all work together to ensure that this objective is achieved and the proper environment subsists in which every Malaysian can come to court seeking truth and justice without fear. It will be all well and good if the government can do its best to restore the public’s confidence in the judiciary.


Another issue that drew the attention of the participants at the conference was the suggestion of whether fingerprints should be introduced in property / land dealings. The presentation was given by Commercial Crimes Investigation Department, Legal/Inspectorate Division, Principal Assistant Director ACP Tan Kok Liang.


As of late, the issue cases of forgery of property/land has increased tremendously. It is indeed frightening to hear that property worth billions of Ringgits were lost in cheating cases. The actual figures may have been much higher as many others would have gone unreported. The rapid increase is a cause for worry and calls for urgent action by the government.


The present practice is such that lawyers identify parties in a property/land dealing by relying on the photographs in the identity card or passport, and using them to verify their identities. However, these photographs are very often old and the image differs from the physical appearance of the parties involved. Furthermore the facial features of a person tend to change over time. In addition to that, signatures of people may change over time as well. With recent advanced technologies, photographs or even MyCard or passport can be forged and may not be easily detected by lawyers or land officers handling property/land dealings. Even documents kept in government custody are sometimes altered. This happens so easily because most transactions require nothing more than a signature.


The former head of the fingerprinting unit of the forensics laboratory said at the present moment, there is no law requiring the mandatory use of fingerprints in such transactions, but is highly encouraged to do so. The basic fundamentals in the science of fingerprint identification are permanence and individuality. Using fingerprinting during land and property transactions can offer a unique feature to prevent fraud and to identify impostors. This is so for the reason that no two persons have been found to have the same fingerprints which makes it very good for the purpose of identifying a person. It is said to be an added security feature supplementing the use of signatures. Fingerprints of a person have never known to change over time except may be through transplants. The use of fingerprints is also provided for under Section 210(2) of the National Land Code.


Pursuant to this section, although the person involved can have a choice of either affixing his thumbprint or signature, it is suggested that both be affixed simultaneously. 


The fingerprinting process is easy to implement. It is suggested that for the first issue document of title, the inked thumb print or any fingerprint of the owner of the property/land or a company director representing the company owning the property/land can be impressed upon it alongside his or her signature at the land office. With the use of fingerprints alongside a signature, fraud can be detected at the initial dealing when the fingerprint of the seller is compared with that on a genuine title.


The recommendation for fingerprints on property documents may be one way to deter fraudulent transactions from taking place. The method is seen strictly enforced by the Employees Provident Fund for withdrawals of even a small amount of money. The Immigration Department also records the thumb prints of everyone acquiring a Malaysian passport. The thumb prints of foreign workers who are given work permits are also recorded by the Malaysia immigration Department.


As such, the same practice should be applied to property transactions. Hence, it is hoped that the government would act on the suggestion of using fingerprints in property/land dealings. 










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