Tuesday, April 27, 2010

A Citizen's Diary

While I am not a full time politician, the political movement is still at my heart. I am dismayed by the defeat of PKR in the by-election last Sunday. The result cast a serious doubt on our ability and will to build a better Malaysia.

Irrespective of the allegation of any misconduct by the winner of the by-election, the result is damning. I am concerned with the result as it appears than anything else. The result, I mean, is not the victory or defeat of any of the alliance. It is the voting trend.

What worry me the most is the dichotomy of voting patern. It appears that when the Chinese support to PR escalates, the Malay support declines enormously, not to mention that BN has recover marginally the Indian's votes.

The polar of voting patern between races is extremely unhealthy to construction of better society. Putting this into perspective, as it is, there are scums who incite racial hatred to earn political millege. The diversified support of BN and PR respectively and exclusively by Malay and Chinese provide nutrient for those pre-historical stone-age scumbags to hatch and grow.

If this polar of preference does not alter by next general election, we will see a majority government of Malay on the right of the Speaker, and a minority opposition of Chinese on the left. To aggravate the scenario, the Chinese based opposition seems to contend and confined with their wrestle with the Chinese based ruling party. The rampancy and overwhelming taking issues like Chinese schools, Chinese scholarship, Chinese temple do make (or portrait) them as Chinese party, not national party. Turning the Chinese based opposition into "Chindraft" is dire.

As a prerequisite of the intended revamp of our political landscape and structure, the majority of population, namely, the Malay must be ready. A picture of Malay as governer and Chinese as opposition would be as equal disastrous as the longevity of BN.

Thursday, April 8, 2010


最近,小皇帝时常表现得非常霸道,对不喜欢的东西,不是“把它打掉”,就是“捉他到balai" . 那天,在槟城度假,就有值得记录的对话。

老婆 :“旸,你弄坏酒店的灯泡,uncle 不会再让你来holiday"
旸 :“不要Uncle. Uncle 坏蛋。捉他去balai polis"
我 :“旸,你以为你是内政部长,随便用ISA捉人”
老婆 : "旸,你最好别从政,不然你一定会滥用权力”

4岁的旸懂什么ISA, 滥用权力。。。

Tuesday, January 19, 2010






Thursday, November 12, 2009

A Lawyer's Diary (5)

The following are notes taken during my partner, Mr. Philip Koh's submission in reply in the case of Nizar -v- Zambry. I find it enlightening :

1. My Lords, in the absence of our leader (Tuan Haji Sulaiman) with leave of this Court it falls on me to make a reply.

Federal Court: Only one counsel?

Philip Koh : Yes, only one and I will be brief and shall definitely not exceed 6 pm, probably earlier.


2. In the Privy Council case from Nigeria, Adengbero v Akintola Viscount Radcliffe asked whether there is anything in the scheme of the Constitution that compels a certain way of interpreting the document. We say that in the task of Constitutional Interpretation there are three basic questions:-
WHO Interprets?
WHAT is being interpreted?
HOW is it interpreted?

3. The Learned and Honourable Attorney General and Learned Counsel for Respondent and we are on the same page in so far as the vital question that confronts us is the question of interpreting the Perak State Constitution.

4. My Lords, in answering the question I shall be referring to two major documents in our Reply: can My Lords refer to them? The Perak State Constitution and our Core Bundle Ikatan IT (P). Does Your Lordship have these two documents? The Crux of Appellant’s position is that the Constitution is to be interpreted by the Courts and NOT by any other institution however high.


5. I respectfully refer to Article LXIII (pg 35 of the Perak Constitution) entitled “Special Jurisdiction of the Federal Court as to Interpretation of the Laws of the Constitution.”
I refer also to Article LXIV (pg 36) Advisory Jurisdiction of the Federal Court where HRH may refer “any question as to the effect of any provision of this Constitution which has arisen or appeared to HRH likely to rise and the Federal Court shall pronounce in Open Court its opinion on any question so referred to it.”

6. I emphasise that the hearing is in OPEN COURT so that all reasons may be ventilated and decisions are not made which may give rise to speculations and conflicting accounts of what happened.

7. This is important as it shields and insulates HRH from criticism of taking over the interpretive function.

8. It is the Court which interprets and not HRH. It is neither the Menteri Besar nor even the Legislative Assembly that has the interpretive function over the constitution.
I refer again to jurisdiction of HRH to refer issues to the Federal Court under Article LXIV of the Perak Constitution.


9. My Lords this will shield HRH from criticism and contestations by either side of the divide.

10. I repeat that this also insulates the HRH from the sordid business of political horse trading.

11. My Lords, as Tun Suffian observed in Malaysia there is no one institution that is Supreme. What is supreme is the Constitution. In our case here, it is the Laws of the Constitution of Perak.


12. We have already drawn My Lords’ attention to Articles XIX(1) and (1A) the “Vacating the Throne” provision and how it can be “deemed vacant” by operation of law in Part II of the Perak Constitution.

13. Article XIX(1) says that “If the Sovereign shall absent himself from the State for more than three consecutive calendar months ... the Sovereign shall be deemed to have vacated the throne. Article XIX (1A) provides that in that event “...He shall cease to be the Sovereign and shall be deemed to have vacated the throne.”

14. We also draw My Lords’ attention to Article XXXIV of the Perak Constitution.“If a member of the Legislative Assembly becomes disqualified for membership of the Assembly or dies, his seat shall become vacant.” Again, the text of the Perak Constitution itself provides in concise and clear language if it desires and intends that an office is to be “deemed vacated” or “SHALL become vacant.”


15. Simple clear words that could have been introduced into Article XVI (6) if the draftsman is desirous to introduce words to such effect. Yet the Learned and Honourable Attorney General says that under Article XVI(6) the post of the MB can be deemed vacant.

16. Article XVI (6) reads: “If the Mentri Besar ceases to command the confidence of the majority of the members ... he shall tender the resignation of the Executive Council.”

17. Counsel for Respondent cannot ask this Court to “mind the gap” and supply the omission.

18. We have referred to Merdeka University case which settles how constitutions are interpreted and nothing in the cases referred to by Counsel for Respondent and the Learned and Honourable Attorney General refutes this.

19. It is our submission that TEXTUALLY and STRUCTURALLY the Perak Constitution provides the balance and equilibrium to govern the constitutional polity.

20. My Learned and Honourable Attorney General referred to his being in Amir Kahar’s case.

21. I was also privileged to be Junior Counsel in the Tun Mustapha case heard by Mr Justice Tan Chiaw Tong. It adopted the reasoning in Ningkan.


22. In an important passage, Tan Chiaw Tong J said that regardless of whether you used words like “revoke” or “vacate” etc., there was no power to dismiss. Neither the Learned and Honourable Attorney General nor Counsel for Respondent has refuted the reasoning of Tan J.

23. I now refer to the HRH’s Media Statement:- “Sekira YAB Dato’ Seri Ir. Mohammad Nizar bin Jamaluddin tidak meletak jawatan sebagai Menteri Besar bersama ahli-ahli MMK, maka jawatan Menteri Besar serta ahli-ahli MMK tersebut dianggap telah dikosongkan.”

24. With respect, this is tantamount to dismissal and/or deemed vacant which both TEXTUALLY and STRUCTURALLY the Perak State Constitution does not permit to be read into Article XVI(6).

25. We also note that there has not been any refutation of Mr Justice Tan Chiaw Tong’s ruling in Tun Mustapha’s case that the Interpretation Act does not apply where there is a “contrary intention”.

26. The Perak Constitution provides clearly that the Menteri Besar does not hold office at the pleasure of HRH. Therefore, although there is a constitutional power to appoint under Article XVI(2), the contrary intention that “the MB does NOT hold office at the pleasure of HRH” precludes any suggestion that HRH has the power to dismiss.


27. By the way, it should also be noted that Mr Justice Tan in Tun Mustapha also said that the Governor should be given space to calmly and independently deliberate as to the appointment of the Governor (or MB), as intended by the Constitution.

28. This did not happen here. As we all know, the Deputy Prime Minister with his entourage was in HRH’s palace. The contemporaneous document at pg 4 of the Core Bundle also shows that at the material time there was no one identified from the BN side who could be said to command the confidence of a majority of the members of the Legislative Assembly.

29. Though it may be readily conceded that the TUANKU of Perak is more robust than the Tuan Yang Di Pertua of Sabah, this does not change the principle.


30. Learned Counsel for Respondent said that we have not referred to facts which are crucial in this Appeal. He suggested we were running away from them; that we dare not face the facts. My Lords, we stress that the law is just as important in this Appeal. Our appeal concerns the intricacies behind the provisions of the Perak State Constitution and also involves complex case authorities.

31. But let us now respond to the facts:-
The Counsel for Respondent and the Learned and Honourable Attorney General said that the facts demonstrate that:-
(i) MB Nizar came to HRH with knowledge that he has lost the confidence of the majority of the members of the Legislative Assembly;
(ii) it is undisputed that MB Nizar has lost the majority. Counsel for Respondent says that 28 – 27 is not a deadlock. But he forgets that Sivakumar can resign as a Speaker and an outsider can be appointed. 28 – 28. That is why BN appointed Ganesan as “Speaker”.


32. But what are the facts and law? It is trite law that a man’s knowledge has to be evaluated at the relevant time. From MB Nizar's view point and state of knowledge on 4th and 5th of February and not in retrospect.

33. What is that knowledge? Zainun JCA in the Court below opined that “an unenlightened MB will not go down well with the public.” MB Nizar has been described as “dishonourable”. Is he? Is that what the facts bear out?

34. Let us refer to the crucial letter dated 5th February, 2009. With My Lords’ leave, I read the contents of the letter.

35. My Lords, may I be permitted to read the letter in its entirety. Yes, My Lords, please note the reference to Article XVI(6). But also take note that the Learned and Honourable Attorney General stopped short of reading a crucial sentence i.e.:- “ini bermakna sokongan Menteri Besar itu perlu diputuskan oleh Persidangan Dewan Negeri.”. Further take note, “Patik dengan ini merafa sembah bahawa pimpinan Pakatan Rakyat sebulat suara meminta Patik untuk tidak meletak jawatan sehingga krisis perlembagaan ini diputuskan oleh Mahkamah atau Dewan Negeri Perak.” So we have contemporary documentary evidence that there is a need to go to the Dewan Negeri or the Courts to decide the issue. This is far from the Respondent’s contention that Nizar had already lost the confidence of the majority of the members of the Legislative Assembly when he approached HRH. Go to the Court: hear the yearning for justice from Courts by MB Nizar.


36. For Respondent’s Counsel and the Learned and Honourable Attorney General, there appears to be a triumph of facts over law. We differ. We say that the law as it stands, in Nizar’s case, is triumphant over facts here. Even if we concede that the facts are against the Appellant, we submit that the law determines the scope of Article XVI(6).

37. We say that even if we assume that the facts are against MB Nizar, we, nevertheless, submit that the LAW must triumph over FACTS. Article XVI(6) does not contain the words which Counsel for Respondent and the Learned and Honourable Attorney General wants this Court to read into.


38. We would also refer to a letter from the Speaker, Mr Sivakumar dated 6th February 2009 which urged the convening of the Legislative Assembly, “supaya mengadakan mesyuarat Sidang Dewan Negeri Perak ... diadakan secepat mungkin.”

39. The Speaker also asked that the swearing in of Dato’ Dr Zambry be deferred “sehingga selepas mengadakan mesyuarat sidang Dewan Negeri Perak tersebut.”

40. Was MB Nizar afraid to face the Legislative Assembly as contended by the Learned and Honourable Attorney General and Counsel for the Respondent?


41. Counsel for Respondent has made much of contemporaneous documents. We submit that this document from the Speaker, being contemporaneous, demonstrates that MB Nizar has throughout requested for convening of Legislative Assembly.

42. Federal Court (Dato Haji Embong FCJ): It will be more helpful if there is an earlier letter or request.

Philip Koh: Yes My Lords, we again refer back to letter dated 5th February 2009 from MB Nizar to HRH. [See pg 14 of Core Bundle IT ( P)] “Patik dengan ini merafa sembah bahawa pimpinan Pakatan Rakyat sebulat suara meminta Patik untuk tidak meletak jawatan sehingga krisis perlembagaan ini diputuskan oleh Mahkamah atau Dewan Undangan Negeri Perak.”


43. My Lords, it is wrong for them to say that we are not concerned with facts. Indeed, we say that Dato Aziz J at the High Court has dealt with the facts at pgs 1193 through to 1204 of Jilid 14 / 15 of Rekod Rayuan filed by Appellant. We refer especially to pg 1204: “In the circumstance I would prefer the version by the Applicant that the request for dissolution on 4th February 2009 was made pursuant to Article XXXVI (2) of the Perak State Constitution and that the issue of loss of confidence in the State Legislative Assembly was never raised or became an issue the averment by the SLA also is not supported by contemporaneous document in the form of Exhibit PSLA-1. I am fortified in this conclusion when the SLA confirmed, under re-examination by the Learned and Honourable Attorney General, that in Exhibit PSLA-1, Article XXXVI (2) Perak State Constitution is the ground for dissolution.

44. Earlier, when our leading Counsel Tuan Haji Sulaiman submitted there was authority for Federal Court to overrule a Court of Appeal finding of fact as against the High Court, the case of Asean Papermills was referred to. We hereby hand over the case authority for ease of reference to the Court. Refer to the passage that if the Court of Appeal drew wrong inferences from the chain of evidence, the Federal Court may overrule the decision of the Court of Appeal.


45. My Lords, I further say the Learned Counsel for Respondent and the Learned and Honourable Attorney General have not refuted our arguments on Historical and Original Intent as exhibited by the Reid Report and the Draft Constitution whereby there was an express power of dismissal conferred on HRH. This was clearly omitted in Article XVI(6) of the Perak Constitution.

46. Unless we can be of further assistance, I would like to thank My Lords for hearing us and also like to thank my learned friend, Dato Cecil Abraham and the Learned and Honourable Attorney General, Datuk Ghani Patil for assisting the court to come to the right conclusion in this important case.

Saturday, September 12, 2009

老公日记 (4)

老婆时常说我没有情趣。 情趣是什么?除了发音和笔画,我无法了解它的内涵。太主观,太模糊,反正什么使女人开心,就是情趣。对十八岁女人,一起去看演唱会是情趣,对二十八岁女人来说,浪漫晚餐是情趣。对三十四岁,ntv7 品牌经历,一个有三岁儿子的女人呢? 这比如何解决次贷风暴还难。
那天老婆生日,我到书店想买一张像样的生日卡。千挑万选后,找到一张有点深度,但又不太肉麻的卡。拿到收银处,我的天,RM25 !!!! 简直是daylight robbery !!!! 他妈的几句话,加上recycle 卡,竟然那么贵。当收银机显示出“25”时,简直是天人交战,要很cheap 的拿回卡,再选过比较便宜的?还是硬着头皮掏出25元。在那数秒中,为了维护律师形象,避免改次上电视时,收银员跟他家人说,"看,就是这位律师,cheap 到买25元的卡给老婆都不舍得”,忍痛买了。我的形象至少值25元吧。

Wednesday, August 12, 2009


InquestA coroner’s inquiry, or inquest, is the term used in England for proceeding to discover the cause of death. In Malaysia, the similar procedure is provided in our Criminal Procedure Code ("CPC") at Chapter 32. The procedure is called “Inquiry of Death”. The Chapter comprises comprehensive code of conduct and procedure to be adopted when death occurs in suspicious circumstances. The police officer not below the rank of sergeant shall make an investigation and draw up a report of the apparent cause of death. Having completed the report, the police in charge of the police district shall forthwith forward such report to the Magistrate within the local limits of whose jurisdiction the body of the deceased was found. If the Magistrate is not satisfied with the cause of death so reported, he SHALL proceed to hold an inquiry, except when there is prosecution against a person connected to the death. Hence, it is the Magistrate statutory duty to hold an inquiry, if he disagrees with the cause of death reported by the police. His primary duty is to inquire into when, where, how the deceased came by his death and whether any person is criminally concerned in his death. It must be stressed that cause of death as defined in s. 328 of CPC is not confined to apparent cause of death. It also include all matter necessary to enable an opinion to be formed as to the manner in which the deceased came by his death, and as to whether his death resulted in any way from any unlawful act.Since the announcement by the government to hold an inquiry of death of Teo Beng Hock, much controversy has arisen especially concerning the power of the Magistrate in an “Inquiry of Death” and the role played by him. Arguments have been put forth that the Magistrate in an inquiry of death has very limited power comparing with the Commission of Inquiry constituted under the Commission of Inquiry Act 1950, or more commonly called “Royal Commission”.An inquiry of death is not a trial (see Public Porsecutor v Seeralan [1985] 2 MLJ 30). In a trial, the Magistrate by convention take a passive role by holding the balance ring between the conflicting parties, although he too has power to question the witnesses. The Magistrate in an inquiry is not a judicial officer to make finding on the right of a party by reliance on the evidence presented by the Prosecutor and defence counsel. He is not passing judgment against anyone. He is the investigation officer. The process being an inquisitorial process (R v South London Coroner; ex parte Thompson [1982] 126 SJ 625), the Magistrate is expected to be inquisitive. The prosecuting officer is usually present in the inquest, but not to prosecute anyone but to assist the court with the examination of witnesses for the purpose of giving evidence. The Magistrate's finding after inquiry is mere opinion, and is not binding. Swinfen Eady MR remarked in Bird v Keep [1918] 2 KB 692 at 698, 699: “The coroner’s inquisition is not like a judgment in rem. Nothing is done which is conclusive upon any person affected by it…An inquiry before a coroner is merely in the nature of a preliminary investigation. It is not of any binding force… I am of opinion that the result of an investigation conducted by the coroner, however valuable for certain purposes, cannot in law be treated as prima facie evidence against any person of the facts found by the jury”.A Magistrate holding an inquiry of death has all the powers which he would have in holding an inquiry into an offence (see Section 335(1) of CPC). This would include power provided in Section 425 of the Criminal Procedure Code : “Any Court may at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case”. The plain reading of this section is this : it is imperative for a Magistrate to summon any person who may assist the Court to reach a just decision. In fact, the Magistrate fails in his duty if he does not summon an important witness. The Magistrate holding an inquiry of death does not have any lesser power then a “Royal Commission” to summon relevant witnesses.The Magistrate may also order a medical officer to examine the body to discover the cause of death, whether or not a post-mortem examination has been made. He may proceed to view the body. The whole of the proceeding shall be open to public, unless for any special ground of public policy or expediency he may exclude public access.As stated above, an inquiry of death is not a trial to determine the right of the party. Hence, the Magistrate is not required to follow strict procedural and evidential rule as in a trial. Sometimes, the Magistrate may even take into account hearsay evidence to support his finding (See Re Loh Kah Kheng [1990] 2 MLJ 126). For instance, if the Magistrate came about information which is confidential or privilege, he can, notwithstanding the confidentiality, required the information to be supplied to him for personal consumption. This was held by Mohamed Dzaiddin to be correct approach in Re Loh Kah Kheng [1990] 2 MLJ 126.In addition, like the Royal Commission, the Magistrate holding an inquiry of death may also punish a person for contempt of court (see Public Porsecutor v Seeralan [1985] 2 MLJ 30).Usually, the deceased representative would attend the inquiry for watching brief. A counsel attending for watching brief has no right to address the Court or examine the witnesses without permission. Nevertheless, the Magistrate may allow the counsel to participate in the inquiry if the participation would assist in the finding. This is particularly desirable in relation to counsel retained by the deceased family. The Supreme Court in Public Porsecutor v Seeralan [1985] 2 MLJ 30 remarked “a defence counsel present at an inquest is not there to defend anyone, but only to look after the interests of those who engage him. Whilst he has no right to speak as of right, this right seldom becomes an issue because the court normally gives such indulgence whenever it is asked….”. This is not much different from an inquiry held under the Commission of Inquiry Act, where the panel usually allow the interested parties to hold watching brief and cross-examine the material witnesses.What if the finding is not satisfactory? An inquest is subject to judicial revision by the High Court. This is provided in Section 341A of the CPC. The object of a revision is to examine and ascertain the correctness, legality and/or propriety of any finding. In the case of Re Derek Selby, Deceased, [1971] 2 MLJ 277, the deceased’s wife was unsatisfied with the finding of the learned Magistrate, filed a petition for revision to the High Court. The High Court quashed the decision of the finding of the Magistrate of “suicide” with open verdict. There are many cases where the records or finding of Magistrate in an inquest was called up for revision by the High Court Judge (see for instance Re Loh Kah Kheng [1990] 2 MLJ 126, Public Prosecutor v Shanmugam & Ors [2002] 6 MLJ 562). Besides subject to High Court’s revisionary power, the Public Prosecutor may also direct the Magistrate to reopen the inquiry and make further investigation. In this respect, an inquiry of death is subject to better check and balance. It is not only subject to scrutiny of the Public Prosecutor, the Magistrate’s finding may also be revised by the High Court, either upon the High Court’s own motion or petition of the deceased’s family. Nevertheless, the “finding” of Royal Commission” is not subject to any revision or challenge by any other authority. This is quite clear from the High Court’s refusal to entertain judicial review sought by VK Lingam to quash the finding of the Royal Commission in their inquiry into the “Lingam Tape” scandal.Both the Magistrate conducting an inquiry of death and the Panel appointed by Yang Dipertuan Agong pursuant to Commission of Inquiry Act 1950 have all the necessary power to conduct a proper and efficient inquiry. It is a fallacy to argue that Magistrate is quite incompetent in law to conduct the inquiry. The only difference between these two bodies, perhaps, is the impression of highly independent character of the Royal Commission. Now that the Magistrate is armed with tool and tooth, he must demonstrate his ability to find the truth. I fear the atmosphere created by the public opinion that the Magistrate is lacking in power to conduct an inquiry would impede the inquiry. If the public is taking the course that the Magistrate does not have sufficient power to find the truth, the Magistrate may be swayed by treating the inquiry like a trial (where he act passively), but not a real inquiry (where he act actively). He may choose not to exercise the power he has, deliberately or unintentionally, as that seems to fit the public’s opinion. At least the public would excuse him for inherent lack of power, not his incompetence. The public taking such wrongful course does not serve justice for Teo. What the public need to do is to recognize that the Magistrate has all the necessary power to properly and effectively conduct an inquiry. The public is watching closely how the Magistrate is to exercise his power. Any dereliction of duty will not escape the public scrutiny. Any failure to summons material witness or superfacial examination of material witness will not be excused. If the truth is not out, it is the quality of the Magistrate in questioned, but not the lack of power conferred upon him.
Posted by Yap Boon Hau at 12:19 AM

林猷荃 said...
1. There is one article in Merdekareview explaining the difference between our Death Inquiry and English Coroner's court. You may want to comment on that.2. I think have point out one important difference between Death Inquiry and RCI ie the review by High Court. May I ask, is the High Court BOUND to review if there is an application by aggrived party? Or is there a discretion. If one High Court Judge refuse to review, can the party try another Judge, and another one and another one till one that is willing to review?3.You mentioned both in the article and NTV7 interview main difference between Death Inquiry and RCI is public perception that RCI is constituted by more qualified and independent members. Relatively speaking, isn't this not mere perception, but also a matter of fact based on the way the member is appointed?4.Even if the difference is only a matter of public perception, isn't this sufficient to tip the balance over to favour RCI to investigate Teoh's death now that this case has caused serious crisis of confidence in the system?5.May I know who can decide which Magistrate to conduct the Death Inquiry? Under the Subordinate Court Act 1948, each Magistrate (Court) has designated territorial jurisdiction conferred by the Yang Dipertuan Agong. Does this mean the Shah Alam Magistrate Court will have to conduct the Death Inquiry?6.You expressed your worry that the Magistrate may fail to appreciate his power in a Death Inquiry. I think it is important to avoid that. May I suggest you to write in one of the English paper on this to serve as a reminder to all including the Magistrate concerned?7.You also mentioned you are worried current public view that Magistrate is incompetent to investigate Teoh's death, may become a self fulfilling prophecy. You may have a point. However, from anothre angle, can we not say that such public pressure may have an opposite effect? I mean to say that when the Magistrate concerned know that his every move will be subjected to public scrutiny, he may want to be extra careful and understand well his power before going into the Death Inquiry? Of course, if there is any behind the scene hanky panky, whether there is public pressure or otherwise, it will not affect the outcome.Hope you can answer my querry, FOC.
28/7/09 10:43 AM
Yap Boon Hau said...
1. is the High Court BOUND to review? Chapter XXX1 confer a discretionary power to revive. HC may refuse. However, he must exercise his discretion judiciary having regards to the circumstances of the case. If one High Court Judge refuses to review, then no other Judge’s should, this is to preserve consistency in decision. It is noted that the HC Judge has very wide power in revision, including, order further inquiry, receive additional evidence and vary the decision of Magistrate.2.Public perception : perception of independence and actual independence are distinct. The process of appointment in RC is to satisfy the public perception of independence, and true, in view of its appointment, most of RC are independent. That does not deprive a lower rank officer (like Magistrate) from acting independently. See in Anwar Ibrahim 2nd sodomy trial, a Sessions Court Judge was brave enough to dismiss the certificate of transfer signed by her boss (AG), but unfortunately, overturned by HC and COA. That is why Anwar wants his case to stay in Sessions Court Judge, not with the High Court Judge who supposed to be more independent then the Sessions Court in terms of legal protection given to the later. Similarly, in Nizar v Zambry, a High Court Judge gave a celebrated ruling, while the Court of Appeal overturned it.3.Public perception is sufficient to tip the balance over to favour RCI to investigate : I haven’t expressed my view on this. I intended to but after AG published his view, I decided not to as I don’t want to be seen licking up. My view is : it is not an option to have RC to investigate the cause of Teo’s death. It touches the legality issue. S. 2 of Commission of Inquiry Act 1950 provides 4 circumstances to direct RC inquiry : conduct of public officer, management of public service, management of public service not solely maintained by state fund and public welfare. The cause of Teo’s death, despite much of public’s concern and interest, does not fall under any of the purpose under which a RC can properly and legally constituted to investigate. If I am asked to draft the “terms of reference” to RC with regard to Teo’s death, I can only ask the RC to investigate “whether Teo’s death is contributed by any public officer” in order to make the inquiry intra-vires. However, I must confess that this reference does not answer the wider question of “what is the cause of death of Teo”. If the question is answered negatively, then, there is still questions of how his death comes about, whether any other person (other than public servant) involved in causing his death. The question would still have to be answered by Inquiry of Death. 4.Who can decide which Magistrate to conduct the Death Inquiry? I think the Chief Registrar of Federal Court. 5. Is the Shah Alam Magistrate Court will have to conduct the Death Inquiry? Yes. 6. To write in one of the English paper? That was my plan, but since then, there have been many publications about that, I doubt my writing would contribute further to better understanding.7. Public pressure may have an opposite effect? It may be true, what I was trying to convey is : “hey duke, you have all the powers to do proper investigation, don’t just sit there acting like copying machine. Be inquisitive. This is our expectation”. This would place the right pressure on him, rather then : “hey duke, you are just a toothless tiger, and low rank officer, and since you (or other Magistrate) haven’t done a good job previously, I don’t expect you doing a good one now.” (which is what the public opinion now). 8. hanky panky? Nothing we can do until the next GE. Thanks to intelligence and mental-provoking questions.
28/7/09 12:28 PM
林猷荃 said...
I think your point no.3 ie on S2 of the Commision of Inquiry Act 1950 finally convinced me on why Death of Inquiry is legally more appropriate. I do not see such argument in Chinese paper and online media. You mentioned there is a lot of writings in English paper, but I seldom read those. Maybe someone has indeed mentioned it.But I still feel that the gravity of the issue warrants something more than an ordinary Inquiry of Death. Perhaps the term of reference should investigate whether any public official act has directly and indirectly contributed to Teoh's death. At the same time Death of Inquiry still goes on simultaneously to look at cause of death whether due to public official act or otherwise. Not sure such overlap is appropriate. By the way, I referred to some historical material on the Warren Commision on the Investigation on The Assasination of President John F Kennedy. It I have not understood erroneously, US president can simply set up a commission of inquiry without authority from any statute. The both Houses merely pass a resolution to allow the comission to compel attendance of witness and production of evidence. I wonder whether this is because the check by the Legislature is very effective they are not worried the Executive also has very wide powers generally. I suppose Malaysian PM has no such power. Just an idea, if our Parliament can pass a statue (Teoh Beng Huat Act 2009) to set up a specific commission with enough power to ascertain the various issues surrounding Teoh's death, this may be the ideal way to deal with the issue. But then, politically, this is impossible.
28/7/09 4:34 PM
李晓蕙 said...
Yap Boon Hau, do Malaysians a favor by publishing your writtings in our local papers, both in mandarin and english papers. (but you may need to simplify it and only focus on those points which have not been mentioned so far)
29/7/09 8:01 PM

Tuesday, November 11, 2008

A Lawyer's Diary (4)



Much has been said and argued about the reinstatement of the local government election (“LG Election”). In fact, reinstatement of LG Election formed part of the manifesto of opposition in the 12th General Election. The very fundamental movement towards a matured democratic society must start with an LG Election. Without which, there cannot be true democracy.

This article is not written to analyze the effectiveness/efficiency of elected local authority than the appointed local authority. Rather, to provide some thought as to the alternatives available to those States which differ from the Federal Government in respect of LG Election. To put in another words, the purpose of this writing is to seek solution available to the State Governments (quite clearly the State Government under Pakatan Rakyat) who wish to hold LG Election, but feel constrained by the Federal Law and Federal Government, where the latter prefers local authority members to be selected.

Now I may sound naïve to assume that there is genuine intention of the Pakatan Rakyat State Governments to move for LG Election. Nevertheless, without such naïve presumption, it serves me no purpose of writing this article.


From historical perspective, there was a legislation called Local Government Election Act 1960 (“LG Election Act”), authorizing LG Election. Section 5A of the LG Election Act provides :

“Notwithstanding anything to the contrary contained in the provisions of any written law which relates to Local Councils in force in any State, the State Authority may, after consultation with the Election Commission in respect of the boundaries of the local area and the number of Councillors to be elected to the Local Council having jurisdiction in such area, by order published in the Gazette of the State direct that the whole or a majority of the members of a Local Council shall be elected under this Act”

Subsequently, the Parliament deemed fit to enact the Local Government Act 1976 (“LG Act”) comprises of the provision affecting the LG Election in Section 15(1), which reads :

“Notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect”.

It is accepted that the Federal Law ceases to have effect when it is expressly repealed by another Federal Law. In this case, the Parliament appears not to label their intention to stop LG Election by repealing the LG Election Act, as the Parliament did not include LG Election Act as lists of repealed law in the Second Schedule of LG Act pursuant to Section 166 of the same. However, by introduction of Section 15(1), Section 5A of LG Election Act became inconsistent with Section 15(1).

So, there arises a question whether Section 5A of LG Election Act has been repealed by “implication”. Repeal by implication is not unprecedented, and certainly not ruled out by Courts as unconstitutional. Nevertheless, there is always presumption against repeal by implication. The rationale is simple : the legislator is presumed to know the existing law, so when enacting a new law without providing repeal of old law, it gives out an intention not to repeal the existing legislation. In this case, Section 166 of LG Act provides for list of repealed acts/enactment, but LG Election Act was omitted. What is the proper interpretation of these provisions?

Quite clearly, these two provisions (Section 5A of LG Election Act and Section 15(1) of LG Act) cannot stand together. They contradict each others. In my view, this is a classic case where the Court would apply the principle of repeal by implication to strike down one of them. So, under this principle, the later supersedes the earlier. In the words of the Indian Supreme Court, the expression of “notwithstanding anything to the contrary contained in any written law” is a simple way of doing away the effect of pre-existing inconsistent law. The LG Election Act appears to have been enacted in 1960 where the LG Act was in 1976. Hence, LG Act prevails, and the operating law is Section 15(1) of LG Act which PROHIBITS LG Election.

The State Assembly is authorized by the Federal Constitution to enact law relating to local government. This is provided in Ninth Schedule, List (II), paragraph 4(a), including, of course, the local government election to its office bearers.

However, the Parliament may, in certain matters, and for the purpose only of ensuring uniformity of law and policy, make laws with respect thereto. According to Article 76 of the Federal Constitution, these matters include local government, which necessarily include local government election too.

The law made under this list shall be considered as Federal law but not State law. The State Assembly is limited by Article 75 of the Federal Constitution which provides :

“If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.”

It is therefore without doubt that the Federal legislation has power to make law pertaining local government election, and the State Assembly does not have power to repeal or amend it. The State Assembly too cannot make law that is inconsistent with the Federal law. The interim conclusion at this stage of analysis is that : in view of Section 15(1) of LG Act, the State Assembly cannot make law, despite so authorized by the Ninth Schedule, to “reinstate” LG Election. This conclusion of course is premised on the assumption of constitutionality of Section 15(1), which is the subject of my next discussion.


Let me recap my conclusion above so as not to give impression of confusion and inconsistency. The incontrovertible conclusion of “the Federal legislation has power to make law pertaining local government election” does not necessarily means “the Federal legislation has power to make law to deprive local government election.”

Article 113(4) of the Federal Constitution provides :

“Federal or State law may authorise the Election Commission to conduct elections other than those referred to in Clause (1).”

Article 113(1) expressly confer power to either the Federal legislative body or State legislative body to command the Election Commission to conduct “other election” by way of Act of Parliament, or Enactment of a State. In my view, the words “elections other than those referred to in Clause (1)” encompass the LG Election.

The intention of this provision is clear : both Federal and State are conferred power to conduct LG Election through the Election Commission. Such power, in so far as the States are concerned, is vested by the Supreme law of the land.
It is my argument, Section 15(1) of LG Act, by declaring ceasation of all law relating to LG Election, has the effect of depriving the State legislature to make law to conduct the LG Election. Not only Section 15(1) of LG Act repealed implicitly the Federal Law authorizing LG Election, it prevents the State Assembly from making law within their express purview. It renders a constitutional power conferred by Federal Constitution ineffective.

It is provided in Article 4(1) of the Federal Constitution that

“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

The Supremacy of Constitution has been repeatedly upheld in all the Courts of modern societies, and recognised as sanctity of law. Thus, the inconsistency between Section 15(1) of LG Act and Article 113(4) should be resolved in favour of Article 113(4). Section 15(1) of LG Act, in my view, should be declared unconstitutional.

Section 15(1) of LG Act cannot be saved by its constitutional backing in Article 76. Article 76 is an enabling provision or power conferring provision, namely to provide power to the Federal legislation to make law that regulate local government, including local government election. So, there should not be any dispute if the Federal legislation makes law to regulate local government election by setting out the procedure and rules applicable throughout the Peninsular. Article 76 only serves to protect Federal law, like LG Election Act from being struck down for unconstitutional for transgression the State List. The conferring of power to regulate a matter cannot be taken to include conferring power to repeal or deprive the other legislative authorities’ power to make law pertaining the same, particularly when it is confronted with the express provision on specific matter in Article 113(4).


If the State authority does not wish to engage with the Federal on legal battle, which in any event, uncertain as to it outcome, a practical approach may be found in LG Act itself.

Section 1(4) of the LG Act provides :

“The State Authority may, notwithstanding the provisions of subsection (2), by notification in the Gazette exempt any area within any local authority area from all or any of the provisions of the Act or from any by-laws.”

So, Section 15(1) of the LG Act is not absolute and permanent. The Act itself permits exemption of its operation by Gazette. In this respect, perhaps Section 1(4) is the better option. At the risk of being inconsistency, an argument can in fact be advanced that if we read Section 1(4) and 15(1) of LG Act together, there is nothing unconstitutional about Section 15(1) because after all, the State authority is still empowered to suspend operation of Section 15(1) of LG Act in the event they GENUINELY wish to reinstate LG Election. In such situation, Section 15(1) posed no prohibition to LG Election.

So now left the question of political will on the part of Pakatan Rakyat which is tested by time.