27 October 2009

Cyber Law : Powers of MCMC



The primary body governing the internet in Malaysia is the Malaysian Communication & Multimedia Commission (MCMC), governed by the Communication & Multimedia Act 1998 (CMA 98).

The MCMC has many powers under the CMA 98. Today we will focus on one such power.

In Section 51 of the CMA, the Director of MCMC may issue directions in writing to any person regarding the compliance or non-compliance of any licence conditions. Of course the licence holder shall be given time to reply and explain for non-compliance.

This powers would relevant to licence holders to provide network facilities in Malaysia. Granting of licences are referred to in Section 27 to 31 CMA 98.

Failure to comply with the Direction(s) may lead to a conviction with punishment of a fine of maximum RM300,000 or imprisonment fo 3 years, or both. This can be found at Section 53 CMA 98.

26 October 2009

Teoh Beng Hock - To exhume a Corpse


At the Teoh Beng Hock Inquest, the family of the late Mr Teoh has requested to exhume his body for a 2nd autopsy. This is in reaction after Dr Pornthip's testimony at the Inquest last Wednesday.

We append below the relevant provision related to this exercise to exhume a corpse. You may find the relevant provision at the LOCAL GOVERNMENT ACT 1976.


BURIAL PLACE, CREMATORIA AND EXHUMATION

97. Exhumation of corpses
.

(1) No person shall within the local authority area exhume any corpse or the remains of any corpse otherwise than
-

(a) by order by a Magistrate's Court for the purpose of a judicial enquiry; or

(b) under a licence granted by the local authority authorising such exhumation and after payment to the local authority of such fee as may be determined by the local authority with the approval of the State Authority:

Provided that no licence shall be granted under the provisions of parag
raph (b) -

(i) where the cause of death was an infectious disease as defined in any written law relating to quarantine and the prevention of diseases; or

(ii) in the case of a corpse that has been buried for less than five years, unless the local authority is satisfied that there are special reasons requiring the exhumation.

(2) Any person who exhumes or causes to be exhumed or permits to be exhumed any corpse or the remains of any corpse contrary to the provisions of this section or who shall neglect or fail to observe any precaution prescribed as a condition of the licence to exhume or who fails to comply with any reasonable directions issued to him by a local authority for the purpose of preventing danger to the public health shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to a term of imprisonment not exceeding one year or to both such fine and imprisonment.


22 October 2009

The deal about Judicial KPIs (The Nut Graph)

(From the Nut Graph)

22 Oct 09 : 8.00AM

By Ding Jo-Ann
dingjoann@thenutgraph.com

Zaki
Chief Justice Tun Zaki Azmi

THE setting of key performance indicators(KPIs) for judges is being touted as the mechanism that will turn Malaysia's beleaguered judiciary into an efficient, justice-dispensing system. Chief Justice TunZaki Azmi has made improving judicial efficiency his personal mission. "I want to ensure that justice is produced fast. Clear the backlog. If I can do this, then I would be very happy," he reportedly said shortly after taking office in October 2008.

Superficially, this seems to be cause for celebration. Judges having measurable monthly targets should theoretically result in greater efficiency. But do KPIs for judges make sense? Can the dispensation of justice be measured in this way? Is this a long-term solution that will restore the judiciary's reputation, or is it just a cosmetic fix that is wreaking havoc on lawyers, their clients and the administration of justice?

Rushing out justice

Although KPIs look good on paper, the stories on the ground suggest that some judges are so obsessed with meeting their KPIs that they are willing to sacrifice being fair and thorough, resulting in justice being compromised.

"A judge told me my case had to be finished because of the KPI," says one lawyer. "We had fixed specific trial dates months ago because my client, who was overseas, could only attend on those dates. [But] a few days before the trial, the judge [suddenly] insisted the witness attend one day earlier."

ticking stopwatch

When told that the witness could not be present on the new date, the judge said: "I don't care. We have to proceed on this date. Get another witness. If not, too bad, we continue with the case."

This lawyer and several others The Nut Graph spoke to declined to be named so as not to jeopardise ongoing cases should the judges involved hear of their complaints.

Another lawyer says that some judges are no longer giving sufficient time for proper legal research to be done for submissions after a trial is concluded. "After several days of trial, the judge wanted us to make legal submissions the very next day," the Kuala Lumpur lawyer said. "When we protested, the judge checked whether the KPIs had been met for that month. Upon confirming that it had, then only were we given more time."

The lawyer says that in the past, lawyers were given at least two weeks to consider the evidence and conduct further research to back up their submissions. She argues that as a result of the pressure to complete closing submissions in record-breaking time, decisions may not always be correct because they would not be based on research to rebut fresh evidence.

Worse, there have even been reports that criminal cases proceeded without the presence of the appointed defence counsel. Considering that drug-related cases at the High Court involves the possibility of the death penalty, the current efficiency drive can seriously compromise the more important need of ensuring a fair trial for the accused.

"We agree that matters should go on, without a doubt," says Penang lawyer Jagdeep Singh Deo. "But this must be balanced with the fact that [appointed] counsels should be allowed to be present when the case goes on."

Richard Wee
Richard Wee

Jagdeep recounts that one particular drug-related case in Penang involving the death penalty went ahead even though the defence counsel could not be present. "It is quite ironic," he continues. "In a capital case, if the accused is not represented, ordinarily the court will assign counsel because to be fair, the accused must have counsel." But in the mad rush to meet KPIs in the particular case Jagdeep was recounting, justice could not have been done.

Lawyers also complain that each court is also now demanding priority when fixing trial dates. When lawyers cannot be present at two different courts at the same time, they are accused of taking on too many cases. Sometimes they are asked to hand over cases to their colleagues if trial dates clash.

Lawyer Richard Wee feels this could be unfair to clients. "If some lawyers take on too many cases that they cannot handle, I agree they must cut down but the judges cannot force us to drop cases that we have been handling for more than five years," he says in a phone interview.

"We must be given time, for example, if we are told, 'By 2010, no more adjournments will be granted on the basis that you have another case to handle', then we can inform our clients as well."

Speed vs quality

But not all lawyers think that chasing after KPIs has resulted in justice sometimes being aborted.

"Generally, I think the KPIs are quite good. They are moving the cases much faster and judges are accountable in situations where cases are being postponed unnecessarily," Khaizan Sharizad Abdul Razak says.

Wee, however, believes that there are problems with the implementation of the reforms.

"There is an unnecessary feeling of wanting to make everything fast at the expense of justice," he says. "The law should always cater for all. The courts should have the flexibility to slow down certain cases."

Seira
Seira Sacha
(pic courtesy of Seira)

Lawyer Seira Sacha Abu Bakar argues that KPIs for judges don't work and other measures should be used to improve the judiciary. "Judges' competency must be looked at in terms of how they perform when hearing cases and in giving sound judgments... In their rush to commence and complete trials, there is a risk that judges may overlook some issues," she argues.

Cannot go back

Bar Council president Ragunath Kesavan reveals to The Nut Graph that the Bar Council has been in talks with Zaki who assures them he's looking into all these "teething problems". Whatever happens next, Ragunath says, the system cannot go back to how it was before.

"This is a work in progress. We had a system that never worked previously. No one wanted to deal with the system and overhaul the system... We have not reached an ideal system but we can't go back to the old system which doesn't work. Changes have to take place," he says.

Wee concurs that Zaki is trying. He says Zaki replies promptly to e-mails and constantly meets with the Bar Council and the state bar committees. "Before him and [previous Chief Justice] Tun [Abdul] Hamid [Mohamad], we were never consulted."

Ragunath Kesavan
Ragunath Kesavan

But these efforts aside, Ragunath says that for the system to work, judges themselves must be able to speak out if the KPIs cannot be met for valid reasons. "We've been told that the [chief justice] will not interfere with the running of each court. Therefore, the judges should put their foot down if they feel they cannot comply with the KPIs. If they cannot finish a particularly complex case and need more time, they should be prepared to justify this and not just say, 'I have KPIs, I have to finish the case now'."

There's no doubt that everyone wants a more efficient judiciary. "We all want cases to be disposed off quickly, but this must be balanced with a proper hearing of the case," Seira argues. That, instead of just speed, is what lawyers are saying will ensure justice and fairness.

"It's a good thing to clear the backlog but there should be certain caveats to it...The discretion of the judges must be applied without having KPIs as a consideration," Jagdeep says. "The bigger consideration, the paramountconsideration, is justice." favicon


11 October 2009

Injunction


Usually an Injunction is described as an Order to stop an act. There are many types of Injunction, but generally, the interim/interlocutory injunction is the usual Injunction sought in Court.

The Rules of High Court 1980 has a specific provision to guide Judges & Lawyers on the procedure to apply for an Injunction, specifically Rule 29. The most famous case quoted would be the American Cynamid case where the English Court gave a guide on when to grant an Injunction. In Malaysia, the case of Keet Gerald adopted and adapted the English legal principles from that American Cynamid case.

The most significant requirement would be the need to retain the position of the Plaintiff. The Court would have to be persuaded that failure to grant the Injunction may cause irreparable damage to the Plaintiff.

Judges in Malaysia do not grant Injunctions freely. Ask any Civil Litigation lawyer, and they will tell you that it is difficult to persuade a Judge to grant the order. Usually it would need strong evidence in support of the Plaintiff to bring the Judge to the Plaintiff's side.

A lawyer would usually file a Writ or an Originating Summon to initiate a suit against the other party. The Suit would have the usual prayers of a mandatory Injunction against the Defendant though in practise, once an interim/interlocutory Injunction is granted, that may see the conclusion of the matter.

The lawyer would also file a Summon in Chamber (SIC) to seek an ex-parte, interim/interlocutory Injunction; and that SIC would be backed up by an Affidavit explaining the reasons for the need to have an Injunction against the Defendant. A Certificate of Urgency is filed together with that SIC to seek leave from the Registrar that the Plaintiff's case be heard as soon as possible, usually on the very day the SIC is filed.

When this SIC is heard before the Judge and if an Injunction is granted; this is an ex-parte interim/interlocutory Injunctions - which is an order granted without the presence of the Defendant, and is usually granted if the circumstances warrant the Court to intervene quickly. The law demands an undertaking from the Plaintiff that should the Injunction be deemed incorrect later, the Plaintiff must compensate the Defendant.

About 21 days later, the Court will fix a new date where the Defendant now may appear in Court to contest the Injunction. Amongst lawyers, this is called the Inter-parte Injunction.

Injunction applications amongst the Civil Litigation lawyers is usually seen as tough, particularly since these kind of applications usually must be filed quickly (sometimes within hours of receiving instructions from the client) and challenging to the lawyer.

In future postings, RWL will comment on popular Injunctions like the Mareva Injunctions, the Anton Pillar Injunction & the Erinford Injunction.


Permits to Assemble in Malaysia


Section 27 of the Police Act 1967 confers the power to the Police to grant permits for assemblies & Meetings. The Police must be satisfied that the proposed assembly/meeting is not likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to excite a disturbance of the peace.

Under Section 27(5) states that an illegal 'assembly' is defined as 3 persons or more meeting up for an assembly, meeting or procession. Anyone caught for this is guilty of an offence.

Section 27(5) is further explained in Section 27 (5A), (5B) & (5C).

S27 (5A) states that a person claiming not to know that the assembly that the person is attending was illegal; is not a defence in Court if charged.

S27 (5B) states that a person who through innocent circumstances become part of the assembly, will be accorded a defence. An example; if you are walking along the street an a procession took place which the Police happened to sweep in to arrest the people including you; you may plea innocent circumstances that you were merely walking by.

S27 (5C) on the other hand refers that if an Organisation was party to the assembly without permit, the entire Organisation will be deemed to be involved.

Section 27 became a hot topic recently as lawyers who appeared at a Police Station to assist some detained people, were themselves arrested on the basis that they were 'assembling' in front of the Station without a permit.

It must be noted that Article 10 (1) (b) of the Federal Constitution states that the citizens have a right to a peaceful assembly. Article 10(2) (b) however states that restrictions may be made in the interest of National Security.

The Police Act should be interpreted in tandem with Article 10, and where there is inconsistency between the Federal Constitution & the Police Act, the former must prevail.