OPENING OF THE LEGAL YEAR 2016
22 JANUARY 2016
ADDRESS BY THE PRESIDENT
ADVOCATES’ ASSOCIATION OF SARAWAK
Leonard D. Shim
MAY IT PLEASE:
1. YOUR LORDSHIPS AND LADYSHIPS
2. THE HONOURABLE FEDERAL ATTORNEY-GENERAL
3. THE HONOURABLE STATE ATTORNEYS-GENERAL OF SABAH AND SARAWAK
4. PRESIDENT OF THE SABAH LAW ASSOCIATION
5. PRESIDENT OF THE BAR COUNCIL, MALAYSIA
6. MY FELLOW MEMBERS OF THE BARS OF SABAH AND SARAWAK
7. INVITED GUESTS
8. LADIES AND GENTLEMEN
1. As we reflect on the past year, it would be fair to say that 2015 was a challenging year for our country. We’ve all felt and in many ways borne the effect of the implementation of the GST and the substantial depreciation of our Ringgit. There continue to be increases in the prices of goods, services and our costs of living. There is loss of income from crude oil exports. The 1MDB scandal continues unabated and with it, the deepening political crisis that engulfs all of us.
2. There is no denying that the passing of laws such as the Prevention of Terrorism Act, the amendments to the Sedition Act and most recently the National Security Council Bill has been hasty. There was little to no proper public consultation. All these laws involve detention without trial, denial of access to legal advice and representation, and provisions that curtail judicial review and the Courts’ powers of sentencing. Without a doubt, there is encroachment by the Executive into the Judicial Branch of the Government.
3. There are also on-going attempts now to introduce hudud laws into our secular country and legal system.
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4. It is against the backdrop of these pressing events and circumstances that we all marched and gather here this morning. Much like the yearly recurring problem of the haze, these afflictions of ours are man-made. Their solution is political in nature and that goes beyond the reach of the Branch of Government we serve. But still, it is to the law and the Courts that ordinary citizens turn to for help when they are affected by these problems.
5. We must uphold our role as society’s problem solvers. The Courts must offer solutions and not be another level of bureaucracy that merely compounds those grievances.
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6. The 3 Bars have on many occasions spoken out very publicly in unison against these laws. We have sought to highlight to the Government and also to the public at large, the shortcomings of these laws in the context of a nation that is governed by the Rule of Law and democratic ideals.
7. Unjust laws can only cause injustice. When there is widespread injustice – whether or not one claims that as wrongly perceived – it still falls on the Courts to temper that perception. If there is no justice from the Courts, then we cannot blame in the increasing numbers of the citizenry who now perceive there is more Justice when they take to the streets. From the events of 2015, we know this is no longer fiction or a matter of perception.
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8. In the case of Loh Kooi Choon v. Government of Malaysia, the Federal Court stated that:
The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying three basic concepts: One of them is that …
no single man or body shall exercise complete sovereign power but it shall be distributed among the executive, legislature and judicial branches of the
9. Raja Azlan Shah in Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd also cautioned that:
Every legal power must have legal limits, otherwise there is dictatorship.
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10. The importance of the role of the judiciary in providing checks and balance under the doctrine of separation of powers cannot be overstated. The hopes and expectations of the public would demand that it be so.
11. In 2015, the decisions of the Court of Appeal in Menteri Bagi Kementerian Dalam Negeri & Anor v. Jill Ireland Binti Lawrence Bill in relation to the unlawful seizure of Christian publication containing the word “Allah” and the decision in Kassim Ahmad & Federal Territories Islamic Department affirming the supervisory jurisdiction of the Civil High Court over the Syariah Court in relation to unconstitutional actions by the religious authority are illustrative of the checks and balances provided by the judiciary to the citizenry under the doctrine of the separation of powers.
12. But there were also some missed opportunities. For example, the refusal to grant leave to appeal in See Chee How & Anor v. Pengerusi Suruhanjaya Pilihan Raya Malaysia and the Court of Appeal’s decision in Public Prosecutor v. Yuneswaran A/L Ramaraj concerning the right of peaceful assembly have given rise to uncertainties on the validity or application of certain laws by the Courts. Public concerns on the erosion of fundamental rights and liberties safeguarded under the Federal Constitution are as such not without reason.
13. And then there was the unfortunate case of Indira Gandhi which held that the High Court of Malaya has no jurisdiction over the validity of unilateral conversion of minors by their Muslim father.
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14. Is this also the situation in Sabah and Sarawak? What are the limits of the jurisdiction of the civil courts here?
15. To answer this, I restate the point that was taken up by Mr. Sim Hui Chiang, then President of Advocates’ Association of Sarawak in his address at the Opening of the Legal Year 2007 on 5th February, 2007 when he said:
Article 121(1A) of the Federal Constitution – which states that the High Courts have no jurisdiction of the Syariah Courts – is an amendment made in 1988.
But, by Article 161E(2)(b), no amendment shall be made without the concurrence of the Yang di-Pertua Negeri of the State as it affects the operation of the Constitution as regards, inter alia, the jurisdiction of the High Court.
Thus, arguably, the jurisdiction of the High Court of Sabah and Sarawak remains unaffected by the amendments.
For the same reason, it is still vested with the judicial powers of the Federation and not merely such jurisdiction and powers as may be conferred by or under
Federal law. This protection of the jurisdiction of the High Court of Sabah and Sarawak is one of the State’s rights enshrined in the Federal Constitution.
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16. It is the strident hope of the Bar and indeed, of all Malaysians that in the face of so many attempts to erode our basic rights and freedoms, the Courts continue to be strong; continue to be that bastion of justice, fairness and equality.
17. We must remind ourselves that our Nation’s first and last lines of defence are not weapons, bullets and shells. Neither is it soldiers and fortresses.
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18. Our first and last lines of defence are the beliefs we have. The ideals we strive to live by. I can give no better example of these than to read out again the sacred words of our Rukun Negara:
WHEREAS OUR COUNTRY, MALAYSIA nurtures the ambitions of:
• achieving a more perfect unity amongst the whole of her society;
• preserving a democratic way of life;
• creating a just society where the prosperity of the country
can be enjoyed together in a fair and equitable manner;
• guaranteeing a liberal approach towards her rich and varied
cultural traditions; and
• building a progressive society that will make use of science
and modern technology.
NOW THEREFORE, WE, the people of Malaysia, pledge to concentrate
the whole of our energy and efforts to achieving these ambitions
based on the following principles:
• BELIEF IN GOD
• LOYALTY TO KING AND COUNTRY
• SUPREMACY OF THE CONSTITUTION
• THE RULE OF LAW
• COURTESY AND MORALITY
19. `When these principles are sacrificed and compromised, there will be nothing left to fight for. Nothing left to defend.
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I will now report briefly on the activities of the Association in 2015:
Relationship with the Judiciary
20. We continue to build on the strong working relationship we have with the Judiciary. The Chief Judge of Sabah & Sarawak continues to engage the Bar and we have had regular dialogues in 2015 concerning matters such as road accident cases, the YBGK program and more recently, on how insurance companies can assist in resolving in a more efficient manner personal injury claims that are before the Courts.
21. The Association also organises dinners for the Federal Court and Court of Appeal judges during their sittings in Sarawak. These are social events that allow for both senior and junior members of the Bar to dine with and engage members of the Bench in a less formal setting. It is a tradition we are proud to continue this new year and beyond.
Relationship between the 3 Bars
22. I can report that the relationship between the 3 Bars is getting stronger every year. Our committees continue to meet regularly and to exchange views and cooperate in the furtherance of the common interests of our members and the legal profession of Malaysia as a whole. Notable projects have been the drafting of the Code of Practice for the 3 Bars as the Data User Forum under the Personal Data Protection Act 2010, the establishment of a joint working committee on the right of advocates from the 3 separate Bars to practice in the Federal Territory of Labuan.
23. Where the occasion demands it, the 3 Bars have stood together in voicing out society’s concerns such as the repressive laws recently by Parliament. In 2015, we also lent our voice to the cause of justice and humanity by joining in the campaign to commute the death sentence of a Sarawakian, Mr Kho Jabing to life imprisonment. Mr Kho Jabing, is on death row in Singapore after being convicted by the Courts there for murder.
Advocacy Training for Lawyers
24. The Association heeds the call of the Chief Judge of Sabah & Sarawak for more competent and better skilled advocates. In April of last year, many of our lawyers participated in a 3-day intensive training program in Kota Kinabalu to hone their skills as trainers in the art of courtroom advocacy.
25. These lawyers, now certified trainers, are ready in 2016 to conduct the same program for members of the Sabah and Sarawak Bars.
26. The Association played its role in bringing awareness to the general public on various current affairs issues.
27. In May 2015, we participated in a forum on the provisions that ought to be incorporated into the proposed Harmony Bill.
28. In August, we joined in a roundtable discussion between the Human Rights Commission or SUHAKAM and various NGOs on the implementation of the International Covenant on Economic, Social and Cultural Rights, and delivered a paper on how local laws in Sarawak comply and don’t comply with the standards of ICESCR.
29. In December, the Association jointly organised a public forum on how to improve the Malaysian Anti-Corruption Agency, with the Institute for Democracy and Economic Affairs.
Efforts to become a Statutory Body
30. In many respects, the functions - though not yet form - of the Association have transformed to that of a statutory body.
31. We have been empowered under statute to regulate the registration of firm names, given powers to vet and object to the issuance of practicing certificates of advocates who may be in violation of rules governing their practice as legal practitioners or who have fallen below legal standards required of them as advocates.
32. For these reasons, in 2016 the Association will work on achieving statutory body status so that it can execute these tasks more effectively. Draft amendments to the Advocates Ordinance will be submitted to the Honourable Attorney-General of Malaysia this year and we hope to have fruitful discussions with the Attorney-General’s Chambers.
Amendments to the Remuneration Rules 1988
33. Amendments to the Advocates Remuneration Rules 1988 are now awaiting the concurrence of the State Attorney-General of Sarawak. It is our hope that this can finally be gazetted in 2016 especially in light of the economic challenges facing all of us.
Pledges for 2016
34. In 2016, the Association reaffirms its pledge to work closely with the Judiciary and the Attorney-General’s Chambers in the administration of justice in Sarawak.
35. We also take this opportunity to extend our congratulations to all Judicial Commissioners and Judges who have been elevated to the Bench. On this note, the Association hopes to see the appointment and elevation of more judges from Sabah & Sarawak to reflect the diversity and makeup of the Federation.
36. We also welcome and congratulate Tan Sri Dato Sri Haji Mohamed Appandi Ali on his appointment as the Federal Attorney-General of Malaysia and wish him well in executing the duties of his high office. The Association stands ready to cooperate with the Federal AGC on all matters.
37. I wish also to welcome and congratulate my counterparts in Kuala Lumpur and Kota Kinabalu, Mr Steven Thiru and Mr Brenndon Soh on their election as President of the Bar Council and Sabah Law Association, respectively in 2015.
38. Last but not least, to all in attendance here this morning, I wish you a Happy New Year 2016 and Gong Xi Fa Cai to those who will be celebrating the Lunar New Year.
May God bless you all.