The Race Relations Act and what it entails

Recently, no doubt due to the turmulous turn of events within Malaysia, some of which involve ethnicity, a Race Relations Act had been proposed. The justification? Relations between different ethnic groups had deteriorated to an alarming rate, and despite there being a plethora of powerful legislation at the Government’s disposal (the Sedition Act 1948 and the Internal Security Act 1960 among them) there has yet to be enacted law to govern how conduct between different races should be held.

This proposal had, as reported today, been accepted by the Cabinet. Syed Hamid Syed Albar, Malaysia’s Home Minister, was quoted as saying in that report that the proposed Act would include, among other things, touch on race relations through the economic, education and distribution systems, as well as what he termed “provisions on punative action” using the Federal Constitution as the guideline. Britain, he further elaborated, had the Act for many years, and that the British Act would be used as a reference, along with other European laws, in the drafting of the Act. Given that it seems that Malaysia will have such legislation, we of Reading Law feel it only appropriate to do our patriotic duty, and enlighten kindred souls on what exactly such an Act would encapsulate, using of course the British version of the legislation as our guideline, as well.

Britain’s Race Relations Act 1976 is a restatement of earlier Acts passed in 1965 and 1968. The long title of the Act states that it is “An Act to make fresh provision with respect to discrimination on racial grounds and relations between people of different racial groups…” and sure enough a cursory glance through the Act as it is divided into Parts deal with discrimination. Discrimination in the course of employment, in the carrying out of trade, in education, etc. Basically the key word here is discrimination, based upon race, and by virtue of Amentment Regulations of 2003, upon religious grounds as well. Syed Hamid had said that the Federal Constitution would be used as a guide, and in this light, regard is likely to be made to Article 8’s protection of equality before the law. Considering special provisions for the protection of the native Malay population enshirined in Article 153 of the Constitution, it is likely that the Act would contain a number of exceptions, for example, in the field of Malay Reservation Enactments of the States of West Malaysia, as well as institutional safeguards enacted persuant to the said Article, for example, the University Teknologi MARA Act.

The British Race Relations Act also established the Commission for Racial Equity (now the Commission for Equity and Human Rights) whose duty it was to ensure that discrimination on the basis of race was kept to a bare minimum, however it is unlikely that the enactment of such an Act here in Malaysia would result in the creation of a similar Commission.

In any event, it is crucial to note that this Act does not contain any “punative provisions” as envisaged by Syed Hamid, at least, not of the sort that supporters of this Act in Malaysia are likely to want to see, given the controversy that first led to the suggestion of this Act (no link given, do your own research to find out what, hint: google “Ahmad Ismail”) and for such provisions it is submitted that the authorities might find inspiration from a seperate UK statute, namely the Racial and Religious Hatred Act 2006, which amended the Public Order Act 1986 of the UK to introduce a Part within the Act dealing with incitement to hate towards persons of particular race and religion. Indeed the subject matter of this latter Act is most apt to deal with any utterances of ill will that target individuals or groups based on their ethnicity, so the Government might want to consider enacting this Act as well, or even instead.

(Postscript: Britain’s Race Relations Act 1976 has been repealed following the introduction of a new comprehensive law on equality, the Equality Act 2010. – 19/5/2010)

LAW572: Cyber Law

One of the elective course offered to Law Students in the 4th Semester at Universiti Teknologi MARA Malaysia is Cyber Law (Bachelor of Legal Studies (Hons.) Programme Structure).

Cyberspace was born with the invention of the Internet, a generally accepted opinion. Because of its digital form, it becomes a new frontier for the legal world. As humanity becomes more dependent on this virtual world, activities – both good and bad – trickle over in there. Heck, an extreme is online rape – where your character or identity online was ‘sexually raped’ by another. Sounds weird and unbelievable, right? But it happens (Link). So how do you handle this?

Another question which Cyber Law in UiTM covers is data protection. How much of your information that you are giving away being exploited and used against you? Well, you do know that personal information includes you password, date of birth, mother’s maiden name, pet’s name, school and other ‘innocent’ data which you disclose on social networking sites like Facebook, Friendster and MySpace. Perhaps you accidentally blogged about it. Hey, these days you do not know who’s being paid by whom at what rate to do what online. As a human being, what right do you have against such exploitation?

In this physical realm, if you defame someone in Ashford or Muar, you will be subjected to the laws of the land as it is in England or Malaysia. But what if you are in New York and you are defaming a person or company in Russia in your blog? Are you protected by geographical and geopolitical immunity? Or, for example, you forward seditious materials via e-mail. Are you liable for any crime? Apparently, the New Yorker can be sued by the Russian person, natural or corporate.

In this elective, you will also learn the laws affecting e-commerce, copyright, blogging, spamming and many other ‘cyber’ issues.

From a few friends who are in the field, I would like to state for the record that Malaysian lawyers versed in cyber law is very much in demand. It’s a matter of looking for the opportunities before the bandwagon arrives.

Documentation and the Law Student

I’m sure you are familiar with the ISO buzz. Chances are you might have come across it when you’re at the premises of certain government agencies and some private firms. The common certification is ISO 9000. But what is ISO and how is it relevant to the Law Student?

The essence of ISO lies in documentation. You record and create a standard operating procedure which revolves around the service or product. Coming up with it is not enough; you will have to follow the procedure as well. External auditors would be checking to ensure you comply. If anything goes wrong, you are supposed to sit down and investigate where it went wrong and check it with your procedure. If the error was internal, you need to solve the problem and minimise losses. If you need to change the procedure, by all means do so. On the other hand, if the mistake was external, you have to talk to the vendor or supplier. Explain the purpose of the meeting, inform them the problem and how it is linked to them. Should the other party address the problem, you can keep them. But where things go sour, you have to severe the loss and make a move.

How will this be relevant to the Law Student – and, later, lawyers?

The cornerstone of the Torrens System is “registration is everything”. I would like to adapt this to: records are everything. Please remember that when you practice, your case can be thrown out of court just because you overlooked some trivial technicalities. You forgot to fill in a form or the form was written with blue ink in cursive writing. A manual also helps you manage your life better.

When studying, you could identify how to set priorities. What are the criteria for one task to be more important than another. In your room, you could fix one place to keep your keys and documents. When you want to take it, it’s there. When you need to keep it, there it goes.

Documentation also helps your finances. When you’re eating out, try to ask for and keep the receipt. Or at least record the price. When you buy books and magazines, do the same. Why? Because you can get tax exemption from the latter. Well… maybe your parents can. You can also dictate when and why will you withdraw what amount of money from the bank.

Sounds complicated? Well, sad to say this is what you will have to emphasize on. Heck, as Law students, you ought to learn the double entry system when it comes to the calendar! When you’re working as an in-house counsel, especially for corporations and government agencies, you will face all this. It may not always be known as ISO, but documentation will become part of your life.

Legal Research Methodology

At one point of time, you will be exposed to legal research methodology. This subject is important to assist you in doing your research for the Honours paper as well as future researches. Did you know that you have to do more research, reading, analysing and digesting information after graduation? What? Please do not tell me you’re shocked? What do you think people in the working world do? Did you think that when you join a law firm, you have all the assistants to help you? I can only say, in many cases, you wish! That imagination of yours applies after 5 years of opening your own firm or after you’ve been promoted to a more senior level. Even then you still need to read, analyse and digest the information before you present a case in court.

What’s that you say? You don’t want to be a practicing lawyer? No problem, the rule still applies. You still need to prepare reports, white paper, presentations etc.

Let’s get back to earth, shall we, O Young Angkasawan. 😉

Practical Tips for LAW558

My partner, Azira Aziz, and I concluded our LRM as a course last Tuesday. It was a presentation of your proposal before Prof. Dr. Shad Saleem Faruqi and Ms. Siti Hafsyah Idris. All in less than 5 minutes. In a way, our LRM was smooth sailing. We had our topics approved way before anyone else had. Our proposal paper met no objections and our presentation was 5 minutes or so compared to the rest. All on time, on schedule and no hassle.

“Favouritism” you may cry out? No, I do not think so. Here’s our little secret: we consult the lecturers over and over again – from topic and title selection, to proposal draft to presentation.

We began our project during the mid term holidays in February. We met Prof. Dr. Shad to resolve a dilemma: we had to equal practical and viable area of research. Our learned professor resolved the matter by selecting a more feasible area. We (read: Azira) explained thoroughly on what we intended to cover in this research. There and then we got our topics – which was approved. Simple, isn’t it? And the meeting was less than 1/2 hour!

Then it came to the write up of the proposal paper. We divided up the task. After much procrastination from yours truly, we finally completed our paper – one week before the submission date. You might be wondering, “Was it really procrastination?” Well, relatively speaking, it was. 😉 Anyway, we submitted the draft for proofreading to Ms. Hafsyah. Remember, this is a draft. We ratified the problems, ironed out the creases and the following day, which was the submission day, we submitted our proposal. It was, again, accepted.

The last hurdle is actually the presentation of the research proposal.

Here, my copywriting/commercial writing skills and expertise came out. Can you guess how many slides, including the ‘front page’ and the ‘thank you’ slides, we have? All in all, 12 slides only. My partner kept on saying ‘sempoi giler presentation kita!‘ (trans: “our presentation is very simple!”). Also, I slashed the number of words on a slide. In one particular slide, we included  diagram! Simple. Not an essay

When Contemplating Law…

I’ve been receiving questions such as “Should I do Law?” and “Is reading Law easy?” over the past few weeks. For you who took the time to write an email and post a comment, I would like to thank you. Perhaps I could be of an assistance to you and Malaysians out there who are thinking of doing Law or have been thrusted into the legal field to satisfy the powers that be. 😉

As they say, the legal profession is among the oldest profession in the world – next to prostitution. Some jokes and puns points the two being the same. :-S Remember that just because you will be pursuing your Legal Studies or Jurisprudence degree, it’s not a guarantee that you will become a lawyer. The road is still long. Heck, even if you did Pre-Law or Asasi Undang-Undang, no one can say you will be called to the Bar. Having a Law degree, however, gives you significant advantages over the competition.

The three years you spend or invest in you Bachelor of Legal Studies (Hons.) or equivalent are to instill skills to find the Law, understand the Law and apply the Law. You do not actually learn the Law per se. Through legal education, you are thought to find relevant issues to be tackled, formulate a solution, present and defend it under thorough scrutiny. Because Law is chaotic, there is no right answer. In fact, lawyers who adhere to the ‘text book solution’ idea is best kept at arms length. You will be dealing with the rights and liabilities of everything and anything in Malaysia. Thus, you need to learn to make colours out of black and white. In my view, shared by many, the best lawyers are the creative ones! Take Boston Legal, for example. Though it may be a sitcom, but their arguements are persuasive – and that is what you need in the Malaysian Legal Fraternity.

To quote the Constitutional Law Don, Y.Bhg. Prof. Dr. Shad Saleem Faruqi of UiTM, Law students give life and meaning to the word of the law. It is the lawyers and the judges who can expand and contract the vocabulary employed and arranged by Parliament to condone, condemn or prohibit acts and omissions. Teh Cheng Po, among others, is such a display of creativity.

As mentioned previously, a Law student must always keep an open mind as well as being able to formulate logical opinions when in the field. Out of the thousands of cases which goes under the Judge’s hammer every year, at least a handful must be landmark cases. While the doctrine of judicial precedent governs the judiciary to ensure we have a consistent one, the doctrine allows some leeway for courts to adopt change. Much depending on your understanding of the law, quite frankly.

Then, there’s the issue of defending a person who is different from you. You might end up defending a group of Orang Asli or Native of Sarawak and Sabah against some multinational corporation or other big shots. To get to them, you might have to do more than jungle-tracking. Can you afford to do that, mentally and emotionally? Many jurisdictions have admitted that eye-witness account does not necessarily produce accurate accounts of the event. How can you be sure what your client is saying is the truth or a fabrication? While we’re at this, let us not forget hostile witnesses and judges themselves. Bear in mind,those on the Bench are human too. What happens if your arguement is rejected by the court, what do you do? Perhaps you face a situation where you might loose. What is your next move?

Life as a Law Student is no where near glamourous for some. Yet, there are those who still manage to party every night and still graduate with that degree. Personally, I have no comment on this. You need to balance your life. University at large is a good time for you to learn what and why to prioritise. Just remember that you have to read and comprehend a lot of material.

Do you see the skills – among others – you can acquire from doing Law? You may not be called to the Bar at the end of the day, but you will still have the same skills as those who do – more or less.

But what if you’re from a Science or Technical Stream or have an interests in the Arts? To quote an old note I had in Pre-Law, “Law is a chaotic of solution with a chaotic of answers to a chaotic of questions”. Because Law covers every aspect of human life, you can steer yourself towards the science-related segment of the Law. I know of some friends who are keen on doing Medical Negligence as they find that area of the Law to be interesting… and lucrative. I have a former lecturer who’s doing a study on electronic signature – every aspect of it: all the what, who, why, when, where, how and any combo of it. As for me, I did Cyber Law for my elective – well, since I’m a freelance copywriter generating some extra bucks. The Arts part? Well, scroll up to the creativity part. 😉

At the core of it, studying Law is just like studying Life and Humanity. You dissect many aspects of everyday life – and in Law School it is arranged under categories: Contract Law, Law of Torts, Malaysian Legal System, Criminal Law, Family Law, Constitutional Law and the like. Ask questions like “how come she can do this bu he can’t?” or “can the Government do this?” You’ll even learn about the Special Privileges of the Malays and the Natives of Sarawak and Sabah (Art. 153, Federal Constitution) as it is. Some laws are rather archaic that you cannot help to be amused by it. Don’t be surprised by your reaction when you read judgements which are ‘ajaib‘ (weird) in nature: see Tan Sri Raja Khalid.

Do not let your past get to you when you’re accepted in Law School. Nevermind your history wasn’t as strong as your classmate. Who cares if you’re from the Technical stream. At the end of the day, you want to cross the stage and get your scroll. There are many books and materials on the market, online and off, which can help you. You past should stay where it is. Work your present to create your future. After all, the rule is: you cannot change your past – and there is no exception. You can alter your future by the actions you take at the present.

When in Law School, to enjoy life, my advice is carpe diem. It’s best if you can pursue studies in an area you’re into. Law school does not mean you’ll be an advocate and solicitor, but you can have the “LL.B. (Hons.) (UiTM), B.L.S. (Hons.) (UiTM)” behind your name, though.

So when contemplating Law, know what you want but keep options open.

See With Your Mind, Read Between the Lines

In an ideal world, you can expect all relevant details and information to be disclosed to you. Be it from your client, employer or the exam papers. Also, in an ideal world, you can expect the cases and problems you need to address are all clear cut and purely academic. But in that ideal world, wouldn’t it be boring? As a Law student, a skill which you should acquire in 3-4 years of legal education and training is this: reading between the lines.

Reading between the lines?

Imagine you, as a client, talking to your lawyer. Would you actually disclosed every detail? Example you’re asking for divorce. Will you tell what on earth were you doing with the other person – who is not your spouse – in your birthday suit at 3 am in the morning at a cheap hotel? Maybe your account is not meant to conceal things. Another probability is that you would forget certain details. Perhaps you were drugged before you were dragged to the hotel.

Sometimes, the things that aren’t explicitly mentioned are critical to your case. These small insignificant details, you thought, would have no effect. Sorry to say, in many a times, your overlooking of these information could result in your own loss.

Let’s be practical on the subject, shall we?

Case law. You are asked to read Donoghue v Stevenson or Re Webster. Next tutorial class, you are to present it and submit a report. Alternatively, you were assigned Stephen Kalong Ningkan and are asked to prepare a case brief/report. What do you do? How can you tell an argument was from the respondent and the other from the appellant?

If you’ve opened up a case law, you would know that the details therein are: case name, keywords, summary, judgment. Yes, the lawyers representing each party are named as well. But you do not have ‘arguments by the plaintiff’ or ‘defendant’s submission’. Yes, again, some judges highlight who said what. But what if they did not?

Here’s where your ‘reading between the lines’ skill comes in.

Another illustration, a statute. A particular clause says so-so-and-so are prohibited? But does it also mean that not-so-and-so are all permitted? In your first year, you would be exposed to the rules of interpretation (i.e. Golden rule, mischief rule, literal rule, hybrid, etc). But the apply these you still need to know: what is this person not telling me but can be deduced – not assumed – from this scenario?

Why not ‘assumed’? A fatal mistake many do over and over again is defending their case based on pure assumption. When you deduce, you have a concrete evidence based on the scenario. When you guess, you are shooting in the dark. Personally, I don’t want my lawyer to d the later. It is a sure way to fail.

Another thing you should consider are the circumstances surrounding the problem. Remember, honour killing may be illegal and inhumane in some parts of the world. In a different part, it may be the best option. In cases such as defamation, you cannot assume that the parties involved grew up and are trained in England or Kuala Lumpur. Your clients can be from Ulu Kapit and Ulu Baram for all we know in real life. These circumstantial informations should be deduced and be used.

Now, let’s talk exam papers, shall we?

In the Finals, the information provided in the question paper are all relevant and meant to show something. Use it, manipulate it but do not resort to assumption unless you can deduce. Deduce, again, a la Sherlock Holmes. 😉 No one said the Legal Studies/Law programme was an easy, trouble free programme. :-p

Did you know that extra marks are allocated if you can detect the ‘hidden’ issues? Consult your lecturer or tutor for more details. Each subject has different approaches.

When you’re in UiTM, you will do the Literature Appreciation subject in your 4th Semester. Use this opportunity to be critical of literature. It’s a good foundation to reading between the lines.

‘Anti-Hopping’ law – Will it work?

According to this New Straits Times newspiece, newly appointed Minister in the Prime Minister’s Department in charge of Judicial Affairs, Senator Zaid Ibrahim, has proposed that Malaysia adopt an ‘anti-party hopping’ law. The purpose of such a law would be to prevent an assemblymen or Member of Parliament from changing political parties once they have been elected. This proposal, being reactionary (as is always the case in any Malaysian situation) is in response to the recent 2008 Malaysian Elections which saw the Opposition gaining a record number of seats at federal level, denying for the first time ever the ruling coalition’s two-thirds majority in parliament. Following this, prominant Opposition leader Anwar Ibrahim had claimed that certain members from the ruling coalition had expressed interest in joining the Opposition in enough numbers so as to gain a parliamentary majority and thus toppling the current government. Countenancing this, Zaid said a Bill would be drafted and tabled for this purpose.

 Much has been said in support of this proposal. Malaysia’s foremost legal authority, Professor Shad Saleem Faruqi, before the elections speaking at an Election law talk organised by the UiTM Law Society claimed that party hopping was a form of “political prostitution”. He has in the past few days also voiced support for such a law. The logic of such a law is simple. If you contested on say, Political Party A’s ticket, and after winning, suddenly switch allegiances to Political Party B, carrying the won seat with you, is it fair to the electoral who voted for you in the first place, assuming of course they vote for the party you’re from?

 However, such a stand could be held to contradict the notion of freedom of association, which is a right protected under Article 10 of the Federal Constitution of Malaysia. In the case of Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697, one Nordin Salleh, a member of the Kelantan State Legislative Assembly, from PAS, a party that was ruling in Kelantan at the time but was in Opposition at the Federal level, switched from that party to the BN, which was ruling at the Federal level. PAS which had earlier passed its own anti-hopping law sought to take action against Nordin, but failed for the Court ruling that such a law was void for violating freedom of association under Article 10. Similarly such a precedent esstopped PBS, a Sabah based political party, from taking action against assemblymen which crossed from that party over to the BN in the 1970-80s. It should be noted at this point that these developments were all favourable to the ruling coalition so of course, there was no question of allowing a law prohibiting such a practice then. Besides, didn’t it contravene a human right? Now that this situation puts BN in an adverse condition, what with its weakened support base following the 2008 elections, such a law is on the cards. This isn’t an attempt to be political – far from it. But this is simply fact. Still, the Opposition parties, such as Nik Aziz of PAS, support such a move. Oh, well.

 Professor Shad, opining in the New Straits Times recently, said there would be two ways in which such a law could be reconciled with the Federal Constitution’s protection of freedom of association. One, such a law could be enacted on grounds of morality, which is an exemption provided within Article 10 itself. The problem with this approach is that, given that PAS’ own anti-hopping law failed the Article 10 test despite the existance of this proviso, it is doubtful whether Zaid’s Bill would. Another would be by amending Article 10 to allow the law to function without this hiccup, as has been done in countries such as India. But amending the Constitution now would need the support of the Opposition parties, given that the ruling BN has been denied its usual two-thirds. Zaid expressed confidence that they would allow this, should it need be. The question is, would they?