Life at the Bar

Speech by K. S. Dass at the Bar Ethics Lecture Luncheon at Hotel Hyatt, Johor Bahru on Wednesday 16.7.2008.


Speaking about one’s experiences at the Bar is not easy because it may sound like an autobiography.

One lawyer’s experience years ago or a generation ago or generations ago may be good material for reading but hardly good for emulating. Things have drastically changed over the last fifty years with the advent of modern science and technology and with the ever changing attitude of the people generally. For example thirty years ago it would have been unheard of it there is no free flow of sherry when there is a call to the Bar, the same flow was seen when there was an elevation to the Bench, but that has become a thing of the past. Today, we are served with syrup with lot of sugar in it. That is the social side of the legal profession. Whether a lawyer’s life will be as sweet as syrup is another matter. The legal profession could be very attractive but very exacting and punishing. It is unlike the jackfruit which is thorney and unsightly to look at but has sweet pulpy segment inside. Legal profession, from the outside, is glamourous but inside it is exacting, punishing and at times very ugly.

When someone speaks of his experience, he would only reveal the brighter side of his career omitting the mistakes, blunders and errors he has done. Seldom would one admit that he had been wrong – more so lawyers who will never admit that their clients were wrong, a blind faith in their client I suppose. Perhaps that is the modern trend.

Lawyers are not universally admired. William Shakespeare said : “Let’s hang the lawyers.” Jeremy Bentham wrote : “What the non-advocate is hanged for, the advocate is paid for, and admired.” The lawyer hires himself out to do injustice or frustrate justice with his tongue, wrote John Stuart Mill. In the United States they are described as the hired guns. Whether a lawyer wants to be a hired gun or an anchor of morality is upto him or her.

Lord Denning confessed that when he was young he wasn’t concerned so much with the rightness of the cause, “I was concerned only, as a member of the Bar, to win if I could.” he said.

There is nothing wrong in attempting to win the case but it should be done according to the rules, and without misleading any one. Never believe and behave as if your client is an angel and his opponent a replica of the devil.

The debate whether the lawyer must have his client’s interest or the ends of justice as paramount has been going on for a long time. It is now described as the role morality – reflecting client’s interest and common morality reflecting the interest of society. A lawyer has to look into both and come to a rational choice. His contribution to the development of law cannot be lightly forsaken.

Every judgment of the court although affects the parties in a particular case, in fact, is a declaration to the society how the courts will act in a given situation, and as a lawyer involved the role he or she has to perform is of utmost importance- thus, it is not only the client’s interest which is paramount but the interest of the society.

Those who are at the threshold of the legal career should always remember that the legal profession is one which, if you are willing, will never stop teaching you. It is one profession which pays you to learn. A client comes to you with a problem and you are supposed to solve it. In trying to solve the client’s problem, we are learning and there is no end to learning in the legal profession. Lord Denning once remarked: ‘the more I read the little I know.’ Erasmus who saw himself as a citizen of the world and a monk of the fifteenth century, is attributed to have “freed European scholarship from its intellectual servitude to the past and prepared the way for the reformation………”1

Erasmus studied and during his travels had come across a precept from an unknown philosopher which influenced him profoundly: “ Live as if you are to die tomorrow, study as if you are to live forever.”2

Those who kept on studying are still living although they are dead and gone. Their works have been immortalized in journals and in books. Every religion encourages learning and lawyers who deal with people’s problems have to be alert and this they can succeed in doing so if they do not abandon learning. Learning alone will not suffice. Lawyers must be prepared to analyse what they have read and understand the substance. A cow which eats the pages from the holy book does not become holy. A donkey which carries books of knowledge does not become an intellectual. Lawyers must understand this.

Coming back to the experiences that I have gone through, I can say that each lawyer has his or her own way of handling cases. It is difficult to emulate another because an individual may have different ways of dealing with his clients, with the judges and with his peers.

So each will have to develop his or her own method in dealing with the clients, with the court and with the peers; but, make sure they are 1. The First Freedom, a History of Free Speech. Robert Hargreaves, at 41 (Sutton Publishing 2002)
2. Hargreaves, at p. 42

within the bounds of normal courtesy and ettiquette. In dealing with
your peers there are certain guidelines in the rules of etiquette which you should familiarize.

Dealing with the clients is the most vulnerable aspect of the profession. No client will be satisfied even if you had obtained the best bargain for him or done the best for him. Your own client is your worst enemy, more so in the modern world of materialism. The attack on lawyers is very serious and they should be very careful when dealing with their clients.

Complaints to the Disciplinary Board had become rampant which does not vet the complaints but calls the lawyer to explain with a warning that if no explanation is given it will be referred to the Disciplinary Committee, no matter how trivial or vexatious the complaint may be.

Physical assault has also been employed by disgruntled clients. One senior lawyer was chased with an umbrella around the court house by a woman client after she had lost a case. This happened in Johor Bahru High Court. Lord Hailsham a former Chancellor recalled that when he was a young barrister, a witness he had cross-examined appeared suddenly from behind a pillar as he left the court and said, ‘Young man, you made me out to be a liar. Take that and that and that.’ And hit him three times with her umbrella.3

Clients suffer from selective amnesia. They will tell you something and forget it quickly and a busy practitioner will take it for granted and
3. Advocates by David Pannick at p. 31 Oxford University Press [1992]

prepare the case by giving some advice which would put the client at ease. When things go wrong the client becomes very hostile and blames the lawyer. There are many ways of avoiding this. One way is when you are taking the client’s instructions treat him as if you are cross – examining him, especially when fraud is alleged. Then tell him the strengths and weaknesses of his case. Don’t ever tell him that his case can be won with hands down. You will never know what your opponent has up his sleeves or what the judge will have in his mind looking at the evidence.

I recall a case when the judge had given judgment in favour of my client and the court had adjourned, my client was agitated. He said, ‘I want the lawyer to cut off his hand!’ I scolded him. ‘What nonsense is this?’ He replied, ‘My opponent’s lawyer said to me if I can win this case he will cut off his hand!’ The moral of the incident is don’t ever risk your physical organs or your honour. Winning or losing a case is common. If a lawyer is dissatisfied with the court’s decision there is always a remedy – appeal.

An advocate who loses a case should be strong enough to accept the defeat. As a gentleman of the Bar take it on the chin. If a lawyer is dissatisfied with the decision of the court he should advise the client to appeal. The decision to appeal must come from his client. The advocate should not balm his injured feelings or ego by forcing an appeal on his client.

Judges are also human beings and they can be very sensitive to criticisms which go beyond fair comment. Some lawyers become too emotional, as a result refuse to accept a decision that had gone against him or her. You ought to be careful when dealing with the judges and avoid being cited for contempt of court.

In the case of Lord Advocate v Jameson, the lawyer wrote a letter to the judge reflecting his judicial conduct, containing matter disrespectful and insulting to the court and injurious to the administration of justice. The Scottish Court of Session found that this was a “high offence against the dignity of the court and reprimanded the
lawyer for his contempt.” 4

In Nova Scotia a lawyer wrote to the Chief of Justice complaining that, ‘ I can’t help thinking that I am not fairly dealt with by the court or judges, and that the well beaten track is often departed from some bye-way to defeact me.’ The Judicial Committee of the Privy Council’s found the lawyer guilty of contempt, ‘of the most reprehensible kind.’5

In our jurisdiction we had a similar case. The Plaintiff who succeeded in the High Court lost on appeal. The advocate wrote a letter to the judges criticizing the judgment. Delivering the judgment of the Supreme Court, Azmi SCJ explained, the advocate was needless to say……………extremely unhappy and disappointed with the outcome. He embarked on the extraordinary mission of writing various letters to the court and to the solicitors of the appellants and copied to others, criticizing the court’s judgment in allowing the appeal.” Those letters were “highly derisive” of the court alleging that the decision was “unjust and biased” and threatening that unless the judgment were to be reviewed, there is no justice in the court. The advocate was fined RM5,000.00 6. In a Singapore case, an eminent lawyer remarked that the judges by refusing to re-open the appeal they were setting the seal 4.[1822] 1 Shaw 285 referred to in the Advocate by David Pannick
5.In the matter of Thomas James Wallace [1861] CR 1 PC 283, referred to in the Advocate by David Pannick.
6. The Attorney – General v Arthur Lee Meng Kuang [1987] 1 MLJ 206
open dishonestly. Although the judges took no notice of this the advocate in response to a challenge by the opposing advocate wrote the same remarks in a letter. The matter was referred to the Inquiry Committee of the Law Society which found that the advocates conduct was improper and fined him $250-00. His appeal to the Privy Council was dismissed.7

Will it be any different for an advocate who was unsuccessful in court to publish an article insulting the judge? In such a case, it was held contempt of court had been committed. This was held in the case of Re Sarbadhicary8 in 1906 by the High Court in Allahabad, India. The barrister was suspended from practise for four years.

It is true freedom of expression and speech are guaranteed to the advocates but they cannot ignore the limits. If a judge seeing such a scurrilous and abusive letter may consign it to the waste paper basket or on reading an article by an unsuccessful advocate containing insulting remarks ignore the insult remembering the fable of the fox which having failed to reach the grapes concluded that they are sour grapes. Silence is golden- it may be an option but lawyers themselves will have to decide. Last but not least, in the legal profession there is not substitute to hard work. Time will always be running against you. How you manage the time depends on you, and you alone, without sacrificing your client’s interest and the interest of justice.

A lawyer’s life can be stressful if he or she let personal emotion to take control. Be sincere in your work for there is no pride when you have won by misleading or hitting below the belt. If you have discharged
7. Hilbourne v Law Society of Singapore [1978] 1 WLR 841
8. Re Sarbadhicary 23 TLR 180 [1906] referred to by David Pannick in Advocates


your duty honestly the result should not bother you. You are not the decision-maker and let that be with the judges. Do good and be good to yourself.

EXPECTATIONS OF MALAYSIANS

K. SILA DASS

Khalil Gibran (1883-1931), the renowned Lebanese poet, philosopher and artist wrote : “Are you a politician asking what your country can do for you, or a zealous one asking what you can do for your country? If you are the first, then you are a parasite, if the second, then you are an oasis in a desert.”

Now that the elections are over, those politicians who have ascended to the seats of power will have to decide whether they are going to be oases in the deserts or parasites. Strictly speaking, they have no option but to refrain from being parasites, otherwise Malaysians who have learned to reject the parasites will not hesitate to use it again.

So many things have happened in the recent past, and it was always felt that the Barisan Nasional will weather the storm and return to power. It had expected to retain two-third majority, but the combined opposition was determined to deny just that. BN had been denied two third majority. What will happen next is everybody’s guess. Fortunately, there appears to be a disciplined, mature approach to this shocking results. The euphoria of victory has not been translated into irresponsible processions or celebrations. The leaders of all parties have acted responsibly to ensure the transfer of power in the various states, BN had lost its hold.

BN will eminently conduct post-mortem to discover its dismal performance at the polls. And it will learn that it is BN’s own makings which had caused its poor showing. Among the many reasons for its losses, BN must realize that some of its leaders have been behaving in a manner that they owned the country, or the country owed them; and that the people were to be there to be ruled forgetting that it is the people who gave them the mandate to rule. Besides, arrogance of few leaders have had been very pronounced leading the people to feel that they are powerless to remedy the situation. When remedies were needed, the arrogance of these few leaders substituted fair analysis and approach. The people were told to shut up. The results of the 8th March 2008 show that the Malaysian voters will not countenance such arrogance for far too long.

The Malaysian people have decisively rejected arrogance as part of the Malaysian political norms, culture. Their decision ought to be respected.

The victorious parties have the paramount duty to translate the promises they made to the people during the election campaign. Thus all parties must evaluate the gains and losses, in a pragmatic manner. The victors should not lull into a false sense of security that the Malaysians could be hoodwinked or that they have poor memory. The recent elections results have shown that the Malaysians whilst are able to endure the disappointments, arrogance of its leaders, and are prone to suffer constantly, are capable of putting an end to such suffering.

Barisan Nasional’s responsibility will be far greater than it was. Although its component parties have suffered miserably, the surviving dominant partner should demonstrate that it will not abandon the vanquished. It was a general policy of BN, its attitude toward the people that had brought about the rude shocks.

The opposition, DAP, PKR and PAS, having made significant impact in Malaysian politics, must remember that it cannot afford to be seen to wanting power but lacks the capability to exercise it for the benefit of the people and Malaysia. Besides, it must show that it has the capability to offer a clean, efficient governance with transparency as its hallmark. Power brings strength, but it could also bring disaster when it is wrongly used or abused.

The victorious opposition parties have the difficult task to coalesce their good thoughts and bring about just rule in all the states that are under their control. They should work to ensure that Malaysia is the home for all Malaysians. Malaysians are aware of the distinct objectives among the opposition and it is obvious each will not want to encroach into the other’s political objectives but the Malaysians’ aspiration is to see governance in the states and in the Centre, which will be attentive to the people’s need. Malaysians will have to wait and see whether the objective differences are likely to yield unpleasant consequences which none of the opposition parties and Malaysians envisaged, or the differences will be put aside for the general good of the Malaysians and Malaysia.

LAND LAW AND THE JUDICIAL FIASCO

K. Sila Dass

Introduction
The function of the law is to regulate human affairs so to avoid regular conflicts and the possibility of lawlessness. In a civilized society it is envisaged that law will protect everybody and everybody’s right. There can be no doubt or confusion over this simple proposition; yet, recent case laws seem to suggest that there could be instances when an innocent person could lose his most cherished rights and there is nothing the court do.

The most characteristic feature of a civilized society is the existence of an effective, independent, uncorrupt judiciary which administers justice in accordance with law and upholding the spirit and letter of the constitution. The powers of our Constitution had no doubt that the people of Malaysia (initially Federation of Malaya) wanted a constitution that will have provisions consistent with a civilized society aspiring to be a civilized Nation. It is with that noble idea Article 4(1) was enshrined which says that the constitution shall be the supreme law of the country.

“The constitution is not a mere collection of pious platitudes” so pointed out Raja Azlan FJ (as he then was and now HRH the Sultan of Perak), in the case of Loh Kooi Choon v. The Government of Malaysia 1.

1 (1977) 2 MLJ 18 at p. 188
The fundamental liberties that are enshrined and which are the supreme laws of the Federation could be gleaned from Part II which deals with (Art. 5) (a) liberty of the person; (Art. 5) (b) prohibition of slavery and forced labour; (Art. 6) (c) protection of laws, retrospective criminal laws and repeated trials; (Art. 7) (e) Equality; Art. 8(f) Prohibition of banishment and freedom of movement; (Art. 9), (f) freedom of speech, assembly and association, (Art. 10); Freedom of religion (Art. 11) (g) Rights in respect of education (Art. 12) and (h) Rights to property (Art. 13). All these are sacred rights and they cannot be whittled down or denied except where there is a built-in restrictions and this has been recognized, however, no force or institution could effectively invade, erode these rights and if they do so, such an act will be unconstitutional.

Under the constitution an individual has certain fundamental rights upon which not even the power of the State may encroach. These powerful words are from Raja Azlan Shah (as he then was) in the case of Loh Kooi Choon, supra.

Rights to property
The objective of this essay is to address the issues pertaining the Rights to property as enshrined in the constitution and the lukewarm appreciation of it by the court, especially the Federal Court.

Article 13 clearly says that no person shall be deprived of property save in accordance with law.

The word “property” means land, and land also includes building, structures, fixtures annexed to it. This meaning is supported by Clause (2) of Article 13 which says that no law shall provide for compulsory acquisition of property without adequate compensation.

While Article 13(1) speaks of a person’s fundamental rights over his property, the mechanism to protect these rights are to be found in the National Land Code, 1965. It would be safe to say that the National Land Code complements Article 13(1) of the Constitution and in so far as the rights of the land owner (or proprietor) are concerned with, Article 13(1) and the protection accorded by the National Land Code should be considered together.

National Land Code 1965:

The National Land Code 1965 is an Act of Parliament and it codified all the existing laws into one. Thus, the further Land Code (FMS) and all over State Land Enactments although repealed over the National Land Code 1965 came into effect.

Effect of a Codifying Act A codifying Act is an important piece of legislation. It set out to present an orderly and authoritative statement of the leading notes of law on a given subject, whether those rules are to be found in Statute Law or common law. (see Ilbert’s legislative Methods and Forms)


The basic rule for a codifying statute is to look at the language and what is its natural meaning 3(See Odger’s Construction of Deeds and Statutes, 5th Edition at p. 335). In the case of Bank of England v. Vagliano 3 Lord Hershell said :

“I think the proper course is in the first instance to examine the language of the statute and to ask what is it its natural meaning un-influenced by any considerations derived from the previous state of the law and not to start with enquiring how the law previously stood and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If for example such a provision be of doubtful import, such resort will be perfectly legitimate.”

When a codifying statute is under deliberation it is permissible to look at the state of the provisions of law in cases of ambiguity or where words have acquired a technical meaning4.






3. [1891] A.C. 107 at p. 144
4. See Yorkshire Insurance Co. Ltd v. Niebet Shipping Co. [1962] 2 QB 330.

CHILDREN WITHOUT BIRTH CERTIFICATES

by K. Sila Dass

If children born in this country do not have birth certificates, it is indeed a shameful state of affair, for, those children will be denied education and eventually deprived of their right to lead a decent life as citizens of this country. And if they turn to crime who is to be blamed? If we look at the statutory provisions relating to births we can see that although they are strict they have been conveniently flouted. I said it is a shame because of the cavalier manner in the enforcement of the law in this regard.

Notwithstanding the fact that the law on the registration of every birth is very clear and it imposes a duty on the father or the mother of the child to give information concerning a birth of a child, it also imposes identical duty on the occupier of the house in which the child was to the knowledge of that occupier born, any person present at the birth, and any person having charge of the child. [See section 7(2) of the Births and Deaths Registration Act 1957 [BDA1957]

Apart from the persons qualified to give information of a birth the law imposes a duty on the Superintendent-Registrar and the Registrar of Births and Deaths to procure by all means in their power the best and more accurate information respecting any birth or still-birth or death which may have occurred within the registration area and to cause particulars of the same to be recorded, so far as is practicable [See section 28(1), BDA 1957].

Since the information of the births and deaths was considered to be of great importance, the legislature made it a duty of every police officer, penghulu and headman to obtain information of every birth within his respective area and also information respecting the lawful father and mother of every child in his area and the occupier of any house in which any birth may have taken place and give notice thereof to the Registrar. [See section 28(2) of the BDA 1957].

It must be added that the duty of the Superintendent Registrar and the Registrar as envisaged in Section 28(1) and the duty of every public officer penghulu and the headman as envisaged in Section 28(2) of the Act of 1957 are not limited to the information relating any birth but also includes the collecting and registering information as to any still birth or death that had occurred.

The most salient aspect of the duty of the police officer, penghulu and the headman is the penal provision which says that any one of them who has in his possession of any such information of birth, still-birth and death within the respective area who wilfully neglects or omits to disclose the same to the Registrar shall be guilty of an offence and be liable on conviction to a fine not exceeding fifty ringgit (see section 28(3) of the BDA 1957).

The effect of section 25(2) of the Act of 1957 is that it is the duty of every police officer, penghulu and headman to collect [obtain] the information of every birth, still-birth and death within his respective area. By this the legislature had in mind that every birth must be recorded so that there will be sufficient protection of the child. Thus, if the information of a birth has not been collected (or obtained) as envisaged by section 28(2) it means the named officers have neglected their duty.

If there are children in the country without birth certificates thus depriving them the right to education and all the privileges attached to their citizenship right, it means those who have been statutorily required to perform a very essential duty have neglected to do so. It is the parents’ fault no doubt, but we must acknowledge the fact that parents in the category who have failed to register the birth of their child are illiterates and no one informed them of their responsibility. It might be said or could be said that there had been absolute neglect on the part of the authorities to inform or educate the parent – public the necessity to register every birth of their offspring. This is one factual situation that had been tormenting parents and their children without birth certificates. One might be prompted to say that ignorance of law is no excuse. If so, what about public officers who have neglected their statutory duty?

The law is very clear and it the duty of the Registrar of Births and Deaths to register the birth of every child without requiring the proof of the marriage of the parents. The Act of 1957 does not say that the Registrar of Births and Deaths should satisfy himself of the validity of the matrimonial status of the parents of the child that was born. The act of 1957 simply requires the registration of the birth of every child without having to look at the legitimacy or illegitimacy or the religion of the parents. I am told that there have had been instances when the Registrar of Births and Deaths has refused registration in the absence of the marriage certificate of the parents. They have not been able to identify the law under which this unreasonable demand is made. And because of this children are left with no birth certificates and their future doomed.

Now reverting to the position of the children without birth certificates, it has become a very serious problem, because these unfortunate children will be not be admitted to schools and no one seems to realize that in such a circumstance their future will be bleak. I have in fact pointed out this predicament faced by children without birth certificates in my articles in the Makkal Osai, a Tamil daily on 7 February 2006, and on 11 April 2006 respectively. I did write in the same paper (Makkal Osai) that a general amnesty be granted to these unfortunate children without birth certificates. I also suggested that a survey should be carried out in every state to ascertain the number of children who are without birth certificates. In case the parents are unable to confirm the date of birth of the child, the parents should be allowed to select a date of birth. Those children who were born in this country, it should be sufficient if family friends or those who have the information could give a certificate confirming the child’s birth. Those who have children in their care but have not been able to trace the biological parents should be allowed to choose a date of birth and have it registered.

It is a notorious fact that the children who are caught in this dilemma are mostly from the Indian community. As a transitional means the authorities will be doing a good service to the children who are in such predicament be allowed to be enrolled in schools first and let the process of registration of birth take its own time. The motive must be to save the children and give them a decent life with education. This must be approached with compassion and humane considerations.