Repeal UUCA (Part I). Repeal s47 PHEIA too.

There will be a workshop organised by DAPSY on Universities and University Colleges Act (UUCA) 1971 with the theme "Repeal UUCA-Give New Life to students!”

Date: 11th Feb 2006 (Sat)Time: 9.30am – 4.00 pm
Venue: Selangor Chinese Assembly Hall
Speakers:• Yusri Muhamad (ABIM)• Amer Hamzah (Lawyer)• Loke Siew Fook (DAPSY)• Soh Sook Hwa (DEMA)

From what I have read, one USM graduate has applied for a judicial review (Order 53) to quash the decision of the Disciplinary Board, USM. The plaintiff also mounted a challenge on the constitutionality of Section 15 UUCA. This is an interesting case.

I would think that DAPSY should not lose sight on another similar and oppressive provision namely Section 47 Private Higher Educational Institutions Act 1996. While UUCA applies to public universities (with the exception of IIUM and UiTM), PHEIA is applicable to private universities and colleges.

I am not able to find such discriminatory provision in other commonwealth jurisdictions.

National University of Singapore Act
http://statutes.agc.gov.sg/

University of Manchester Act 2004 (UK)
http://www.opsi.gov.uk/acts/locact04/20040004.htm

Australia National University Act 1991 (Australia)
http://scaleplus.law.gov.au/html/pasteact/0/346/pdf/ANU1991.pdf

University of Manitoba Act (Canada)
http://web2.gov.mb.ca/laws/statutes/ccsm/u060e.php

University of Hong Kong Ordinance
http://www.hku.hk/pubunit/cal2004/images/pt4.pdf

The relevant provisions are as following.

UNIVERSITIES AND UNIVERSITY COLLEGES ACT 1971
15. Prohibition on a student or a students' organization, body or group associating with societies, etc.

(1) No person, while he is a student of the University, shall be a member of, or shall in any manner associate with, any society, political party, trade union or any other organization, body or group of persons whatsoever, whether or not it is established under any law, whether it is in the University or outside the University, and whether it is in Malaysia or outside Malaysia, except as may be provided by or under the Constitution, or except as may be approved in advance in writing by the Vice-Chancellor.

(2) No organization, body or group of students of the University, whether established by, under or in accordance with the Constitution, or otherwise, shall have any affiliation, association or other dealing whatsoever with any society, political party, trade union or any other organization, body or group of persons whatsoever, whether or not it is established under any law, whether it is in the University or outside the University, and whether it is in Malaysia or outside Malaysia, except as may be provided by or under the Constitution, or except as may be approved in advance in writing by the Vice-Chancellor.



PRIVATE HIGHER EDUCATIONAL INSTITUTIONS ACT 1996

47. Prohibition on student, students' association, etc., associating with political party, unlawful society, etc.
(1) The constitution of a private higher educational institution shall contain prohibitions--

(a) on a person, while he is a student of a private higher educational institution, becoming a member of, or in any manner associating with, any political party, trade union, society, association, organization, body or group, unless allowed by the Registrar General--
(i) whether or not it is established under any law; and
(ii) whether it is within or outside Malaysia;

(c) on a person, while he is a student of a private higher educational institution, and any society, association, organization, body or group of students of a private higher educational institution expressing or doing anything which may be construed as--
(i) expressing support or sympathy with or opposition to any political party or trade union; or (ii) expressing support or sympathy with any unlawful society, association, organization, body or group.

Eulogy: Tan Sri Chong Siew Fai

Former Chief Judge of Sabah and Sarawak, Tan Sri Chong Siew Fai, passed away yesterday. May God bless his soul.

One of the landmark case adjudicated by the late Tan Sri Chong Siaw Fai was Mohd Hassan v Public Prosecutor [1998] 2 MLJ 273

He had basically fortified the rule against double presumption under Dangerous Drugs Act. This legal argument is still good law and has indeed save many lives from the gallows.

Sitting at the Federal Court, he said:
"to come to the presumptions of possession and knowledge under section 37(d) of the Act, one need only to arrive at a finding of having had “in custody or under … control anything whatsoever containing” the drug whereas to arrive at the presumption of ‘trafficking’ under section 37(da), a finding of being “in possession” of the drug is necessary. It would therefore be unduly harsh and oppressive to construe the automatic application of presumption upon presumption. "

His opinion was reaffirmed in the five man Bench in Tunde Aptira & Ors v Public Prosecutor (2001) 1 MLJ 259 and seven man Bench in Tan Tatt Eek v Public Prosecutor.

CLP Convocation: Jan 19th 2006 @ PWTC

The CLP (Certificate in Legal Practice) convocation was held on 19th January, 2006 at Putra World Trade Center, Kuala Lumpur.

The Regent of Perak, Raja Dr Nazrin Shah, graced the event. The event were attended by Attorney General, Judges, lecturers, lawyers as well as CLP graduates and their family members.

Raja Dr Nazrin Shah advised law practitioners against turning the courts into an arena for politicking or seeking influence.

He also said "In upholding justice, law practitioners should keep their minds free of any prejudice, emotion and personal interest,"

There were 841 candidates sitting for CLP exam in year 2005. Only 300 of us passed the exam.

Here are the collection of photos taken by my wife.


Gang of Four. We entered UM Law Faculty as external students to study Jurisprudence in year 2000. Four years later, we attached to Brickfield College for CLP preparation classes.
And now, we are on the path to become Advocates and Solicitors.

From Left: Josephine Lim (Seremban), Cha Kee Chin (Seremban), PS Ong (PJ) and yours truly (Penang)


From Left: Me and Cha -- The DAP connection.
Cha was the DAP candidate for Mambau (Negeri Sembilan) in 2004 General Election.

The other DAP comrade who passed the CLP in 2005 is YC Foo. She is doing her master in London.





My Wife, 5th Aunty and Father attended my CLP convocation. My mother could not make it as she helped to take care of my two young kids.

Moorthy's case: Chapter IX of Act 505

There is a special chapter (Chapter IX) on the conversion to Islam in the Administrative of Islamic Law (Federal Territories) Act 1993 (Act 505).

Abdullah has announced that his administration is not going to amend the Consitution. His administration will to look at ways to improve the subsidiary legislation.

One of the aspect needs to be improved is certainly Chapter IX of Act 505. The law should impose a positive duty on the Majlis Agama to inform the converted as well as his or her immediate family on the changes to their rights upon conversion.

The important sections are as following:

Section 85: Requirements for conversion
(1) The following requirements shall be complied with for a valid conversion of a person to Islam:

(a) the person must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith;

(b) at the time of uttering the two clauses of the Affirmation of Faith the person must be aware that they mean "I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah"; and

(c) the utterance must be made of the person's own free will.

(2) A person who is incapable of speech may, for the purpose of fulfilling the requirement of paragraph (1)(a), utter the two clauses of the Affirmation of Faith by means of signs that convey the meaning specified in paragraph (b) of that subsection.


Section 86: Moment of conversion
A person is converted to Islam and becomes a Muslim as soon as he finishes uttering the two clauses of the Affirmation of Faith provided that the requirements of section 85 are fulfilled, and that person shall then be referred to as a muallaf.

Section 90: Certificate of Conversion
(1) The Registrar shall furnish every person whose conversion has been registered with a Certificate of Conversion in the prescribed form.
(2) A Certificate of Conversion shall be conclusive proof of the facts stated therein.

Section 92. Determining whether non-registered person is a muallaf
If any question arises within the Federal Territories as to whether a person is a muallaf, and the person is not registered in the Register of Muallafs or under any law of any State as a muallaf, that question shall be decided on the merits of the case in accordance with section 85.

Recusal application: The test of "Real Danger of Bias"

Federal Court (FC) has delivered a judgment on the case of Dato Tan Heng Chew v Tan Kim Hor on 4th Jan 2006. This case is part of the legal battle on wind-up petition of Tan Chong Motors.

It does not break any new ground of law.

In practice, the judge can either recused on his/her own motion or upon the application by the litigants. The ground for such motion is on pecuniary, personal interest or the judge had already made a decision on the same or very similar issues in the earlier suit.

FC reaffirmed the decision by the same court in the case of MPPP v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan and the case of Mohd Ezam & Ors v Ketua Polis Negara. In the latter case, it was a unanimous judgment by a 5-member panel.

The ratio decendi:
In a recusal application, the correct test to be applied is the "real danger of bias" as stipulated under the English case Re Gough. The reference point is the trial judge and not the fair-minded lay observer. The terms of "real danger" is used rather than "real likelihood". This is to ensure that the court is thinking in terms of possiblity rather than probability.

The rational behind this is to maintain the highest standard of public confidence in the judiciary. Having said so, the Federal Court also cautioned that the court should be vigilant not to allow parties to do "judge-shopping" by recusal of Judges.

Solicitors' Remuneration Order 2005

The new Solicitors' Remuneration Order 2005 (SRO 2005) comes into operation on 1 January 2006 replacing SRO 1991.

SRO is a piece of subsidiary legislation that governs the conveyancing transaction fees charge by lawyers.

As a result of new Order, all non-contentious / conveyancing transactions commenced on or after 1 January, 2006 will come under the SRO 2005.

The SRO 2005 also reinforces the no-discount rule and a solicitor shall not act for more than one party in a particular transaction.

The salient update:
1. For Sale and Transfer: First RM150K, the fees are 1% (subjected to a minumum of RM300)
For the next RM850K, the fee is 0.7%.

Example:
Value Old Fees New Fees
100K 1000 1000
150K 1250 1500
200K 1500 1850
300K 2000 2550
400K 2500 3250
500K 3000 3950

2. The minimun scale fee for tenancy agreement and discharge for charge has increased from RM200 (SRO1991) to RM300 (SRO 2005).


從今年1月1日開始，產業買賣的律師費調高100令吉至數百令吉。調漲的律師費僅限於各項涉及房地產買賣的費用。

Video shots on Sin Chung Saga

My colleague, Sdr Teh Yee Cheu, who is also the Organising Secreatary of Penang DAP, has taken time to capture the video and presented the report on the partial demolition of Shin Chung Primary School, Penang. It covered the event happening in mid Dec to early January. Special thanks to webmaster of National DAP and Penang DAP for making this possible.

You can access it by clicking the website of Penang DAP
http://www.dappenang.org/

最新〈勁爆短片〉Hot Documentary 經於1月6日上映。短片中將揭發新中華小被拆實情，並反映出州政府的無能，在此件事情上無法作出妥當的處理及拯救的方案，讓新中華小面對如此的遭遇！
此短片 共分為三集，其中《公平對待母語教育》，《動土禮變成動武禮》及《別讓庭令下拆華校成先例》。接著行動黨將揭發更多精彩的鏡頭，敬請留意！

Sin Chung Saga, Suhakam should step in

Also published at http://www.malaysiakini.com/letters/45425
and http://www.dappenang.org/hottopic-165.htm

The partial demolition of Sin Chung Primary School, Kepala Batas, is a sad story.

Lawyers representing the school are using a delaying tactic by mounting the technicality attack on the eviction order. Even they succeeded in doing so at the appeal stage at High Court; this is not enough to stop the developer for filing another eviction order afresh.

As stipulated under the Federal Constitution, land is under the ambit of the State List. The State Authority has to be accountable for this saga. The verbal promise of the Penang Chief Minister to allocate the building fund is in fact created a legitimate expectation which has legal force.

I wish to refer to Article 3(1) of the International Convention for the Rights of The Child (CRC) in which Malaysia has acceded in 1995,
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

In the Sin Chung case, the developer has sent bulldozers to pull down the toilet and canteen during the school time. The manner of the eviction enforcement is against the spirit of Article 3(1) of the CRC.

Suhakam should step in to form an inquiry panel to protect the interest of the children.

A case note on "The ThumbDrive"

Singapore Court of Appeal has delivered the judgment on the case of "The ThumbDrive" on Dec 30th, 2005. FE Global Electronics Pte Ltd and Others v Trek Technology (Singapore) Pte Ltd[2005] SGCA 55

The respondent (Trek Technology) is the patent holder for Singapore patent No 87504 (Thumbdrive). Trek Technology sought damages for infringement of its patent as well as injunctions to stop the appellants (FE Global Electronics) from making, selling or disposing of any product that infringed its patent.

The appellant asserted, inter alia,
- that the ThumbDrive device is not protected by the patent.
- Alternatively, that the Trek’s patent is invalid because it is not new or novel and not inventive.

The judge ruled that the Thumbdrive had an inventive concept for a new type of data storage device. Alghouth the concept of solid-state non-volatile memory was well known and USB plugs were standard, however ,prior to patent filing, no one else thought of combining all these elements together.

Therefore, the applellant is liable for the damages for patent infringement.