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Wednesday, 7 November 2018

GEDC Forum on Reaching Beyond Boundaries: Transcending Disability Beyond Law's Boundaries, Transcending Law’s Disabilities by Low Hong Ping (James)

The following was presented by James Low Hong Ping at a forum organised by the Kuala Lumpur Bar Committee Gender Equality and Diversity Committee on 15 October 2018. The forum was titled “Reaching Beyond Boundaries: Transcending Disability.”




INTRODUCTION

Thank you very much for the kind introduction.

Good afternoon, ladies and gentlemen. First of all, I would like to thank the KLBC Gender Equality and Diversity Committee for inviting me to speak today. The title of my sharing today is “Beyond Law's Boundaries, Transcending Law’s Disabilities.”

Sorry if you came here expecting me to lament on my or my peers’ disabilities. We are not the problem. We have problems as much as all of us do in life generally. But we are not the problem. The problem partly lies in the law.

So I will be speaking from the legal perspective, looking at how disability rights have been bound by the deficiencies in law, and how we can reach beyond law’s boundaries and transcend law's disabilities.

My sharing is divided into four sections: First, I will discuss how Malaysia has not fully implemented the Convention on the Rights of Persons with Disabilities. Secondly, I will show that though the Federal Constitution of Malaysia does not expressly mention persons with disabilities, there is protection nonetheless. Thirdly, I will talk about the shortcomings of the Persons with Disabilities Act 2008. Finally, I will suggest that persons with rare diseases, among whom I am one of them, may still be protected despite the legal issues plaguing disability rights.

1 The Convention on the Rights of Persons with Disabilities
The Convention on the Rights of Persons with Disabilities (or known as “CRPD”) is the first United Nations human rights treaty of the 21st century. It is reported to be the most rapidly negotiated ever.[1] The CRPD was a response to an overlooked development challenge – according to the World Report on Disability published by WHO and World Bank in 2011, approximately 15% of the world’s population are persons with disabilities, out of which 80% live in developing countries.[2]

The CRPD responds by reaffirming that our rights are human rights and by strengthening respect for these rights.[3] In this regard, three out of eight General Principles of the CRPD are based on respect.[4] In short, the purpose of the CRPD is to promote, protect and ensure full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and promote respect for our inherent dignity.[5]

Malaysia signed the CRPD on 8 April 2008 and ratified on 19 July 2010.[6] Having ratified the CRPD, Malaysia undertakes to perform the General Obligations provided in art 4 of the CRPD. A couple of noteworthy obligations are: first, to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the CRPD,[7] and secondly, to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise.[8] On these two fronts, we have simply failed to implement legislative measures to eliminate disability discrimination.

Further, Malaysia has not ratified the Optional Protocol,[9] which allows an international supervisory Committee on the Rights of Persons with Disabilities to receive and consider communications from individuals who allege that his or her country has violated the CRPD.[10] In addition, Malaysia has considered itself not bound by Articles 15 and 18 – Article 15 provides for freedom from torture or cruel, inhuman or degrading treatment or punishment, and Article 18 liberty of movement and nationality.[11] The reservations on those two Articles take away the fundamental principles which underpin the CRPD.[12]

Ultimately, while the explicit recognition of the rights of persons with disabilities in CRPD is a crucial first step, the impact is contingent on individual countries’ actions. Critically, to realise the objectives of the CRPD, States parties must embed its principles in national law.[13] With that, I now turn to the Federal Constitution.

2 The Federal Constitution of Malaysia and Disability
The Federal Constitution (“Constitution”) is the supreme law of Malaysia and any law which is inconsistent with the Constitution is void to the extent of the inconsistency.[14] In other words, the Constitution is the highest law in Malaysia and any other law which is against the Constitution is invalid or unconstitutional.

Part II of the Constitution lists the fundamental liberties accorded to citizens of Malaysia or all persons. If any law restricts the fundamental liberties enshrined under Part II beyond the restrictions permitted by the Constitution, the law is invalid or unconstitutional.

Among the fundamental liberties housed under Part II, art 8(1) of the Constitution provides that “All persons are equal before the law and entitled to the equal protection of the law.” art 8(2) then prohibits discrimination on certain grounds unless sanctioned by the Constitution. Among the grounds, however, disability is not one of them.

Nonetheless, the principle of equality and the protection of equality before the law accorded by art 8(1) is all-encompassing. Although art 8(2) may not provide shelter to discriminated persons with disabilities, art 8(1) is open to all persons who seek refuge from inequality.

Even if our Constitution does not expressly protect our rights, legislation serves as an important role.[15] The principal legislation on our rights is the Persons with Disabilities Act 2008.

3 The Persons with Disabilities Act 2008
The Persons with Disabilities Act 2008 (“PWD Act”) came into force on 7 July 2008.[16] The PWD Act consists of five parts and 46 sections. The parts are: (1) Preliminary, (2) National Council for Persons with Disabilities, (3) Appointment of Registrar General, et cetera, and Registration of Persons with Disabilities, (4) Promotion and Development of the Quality of Life and Well-Being of Persons with Disabilities, and (5) General.

Particular mention should be made of Part IV of the PWD Act. This Part lays down the rights of persons with disabilities: Chapter 1 on Accessibility, Chapter 2 on Habilitation and Rehabilitation, Chapter 3 on Health, Chapter 4 on Protection of Persons with Severe Disabilities and Chapter 5 on Situations of Risk and Humanitarian Emergencies. Although the provisions in this Part lay down the rights, there are several issues with the PWD Act being a rights-based legislation:

1. The provisions in Part IV fall short of being offences if the rights are violated. The Human Rights Commission of Malaysia (SUHAKAM) submitted that it is important for the legislation to make discrimination of a person’s disability an offence.[17]

2. The PWD Act does not provide for an enforcement mechanism against those who discriminate against or fail to provide amenities for persons with disabilities.[18]

3. ss 41 and 42 of the PWD Act become the shield for any legal proceedings against the Government. Ikmal Hisham has opined that the sections must be abolished to ensure there is serious implementation of the PWD Act in accordance with international standards and laws in developed countries.[19]

An example of unlawful disability discrimination can be found in Hong Kong. s 38 of the Disability Discrimination Ordinance (“DDO”) provides that it is unlawful for a person who provides goods, services or facilities to harass another person with a disability who wants to acquire the goods or services or make use of the facilities.

In the same Ordinance, s 2(6) explains that a person harasses another person if the former engages in unwelcome conduct (which may include an oral or written statement) on account of the person’s disability in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person would be offended, humiliated or intimidated by that conduct.

With respect to enforcement, the Hong Kong’s Equal Opportunities Commission (“Commission”) shall encourage persons who are concerned with the matter to which the act relates to effect a settlement of the matter by conciliation.[20] In this regard, the Commission possesses the power to conduct formal investigations,[21] power to obtain information[22] and may make recommendations and reports on the formal investigations.[23]

Notwithstanding the conciliatory interference by the Commission, the DDO provides that discriminated persons may initiate civil proceedings in like manner as any other claim in tort.[24] If liability is established, the court may various orders, including declarations of unlawful conduct, orders to perform acts to redress any loss or damage and general, punitive or exemplary damages.[25]

A case from Hong Kong that is worth examining is Ma Bik Yung v Ko Chuen.[26] The plaintiff was on a wheelchair and intended to get into the taxi that the defendant was driving. However, the defendant was unwelcome towards and unwilling to help the plaintiff; the taxi driver refused to assist the plaintiff into the car, reluctant to put the wheelchair into the boot and made rude and offensive remarks while they were on the journey.

The District Court held that the defendant’s act amounted to harassment and ordered the defendant to give a written apology and pay damages. However, the Court of Appeal quashed the District Court’s order of an apology from the defendant and the Court of Final Appeal affirmed the quashing.[27]

The lack of offences and the absence of an enforcement mechanism in the PWD Act reflect serious doubts as to whether the Government is committed in pursuing and advancing the rights of persons with disabilities.[28] Some quarters even questioned whether the PWD Act is disabled friendly or an attempt to discriminate.[29] It is pertinent that the principal legislation on disability rights has remedial provisions. This is as much important as the need to enshrine disability as one of the prohibited grounds of discrimination in art 8(2) of the Constitution.[30]

Despite the shortcomings of the PWD Act, it is my view that the legal protection as it is applies to persons with rare diseases as well.

4 The PWD Act and Persons with Rare Diseases
Malaysia does not have legislation on rare diseases. Consequently, Malaysia does not have an official definition of what is regarded as a rare disease. Besides, orphan drugs, which are drugs for persons with rare diseases[31] are listed as the world's top 10 most expensive drugs,[32] putting them out of the reach of most patients. Nonetheless, persons with rare diseases are still protected by the PWD Act.

s 2 of the PWD Act defines persons with disabilities as including those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society. The definition of persons with disabilities in the PWD Act is similar to how the CRPD defines persons with disabilities in Article 1. As such, the jurisprudence of Article 1 of the CRPD is of great assistance.

The Committee on the Rights of Persons with Disabilities[33] has found that albinism falls into the definition of persons with disabilities provided by Article 1 of the CRPD. In arriving at its conclusion, the Committee noted that “a human rights-based model of disability requires that the diversity of persons with disabilities… and the interaction between persons with impairments and attitudinal and environmental barriers… be taken into account.”[34]

The Committee's opinion was made based on paragraphs (i) and (e) of the Preamble of the CRPD, which respectively recognise the diversity of persons with disabilities and that disability is an evolving concept. Interestingly, the PWD Act also recognises that disability is an evolving concept in its Preamble.[35]

Hence, the PWD Act, specifically the basic human right of the access to health, applies to persons with rare diseases. This follows that persons with rare diseases have the right to the enjoyment of health on an equal basis with persons without disabilities[36] and the Government and the private healthcare service provider shall make essential health services available to persons with rare diseases, including genetic counseling, early detection of disabilities, timely intervention to arrest disabilities and treatment for rehabilitation.[37]

The Government is therefore urged to follow through on its promise prior to 14th General Election to increase the budget allocations and provide incentives to tackle rare diseases. In this regard, the Government has a public and constitutional duty and responsibility to fulfill this promise as access to health is a basic human right provided in the PWD Act.

CONCLUSION
I started my sharing today by saying that the problem partly lies in the law. Another part of the problem is our perception towards persons with disabilities – the attitudinal barrier. This in my humble opinion is an easier obstacle, for it only takes a decision to overcome the attitudinal barrier; a decision to reach beyond the boundary of what we think is normal into the reality that diversity is natural, a decision to descend to humility, ascend in empathy and transcend disability, a decision to make the world better, humanity closer and lives lovelier.

Thank you very much.

The script was first published on the website of WeCareJourney, whose permission was obtained prior to this republication.


[1] Secretary General Hails Adoption of Landmark Convention on Rights of People with Disabilities, Official Statement of the UN Secretary-General, 13 December 2006, UN DOC SG/SM/10797, HR/4911, L/T/4400, <http://www.un.org/News/Press/docs/2006/sgsm10797.doc.htm> accessed on 13 October 2018.
[2] World Health Organization and World Bank, Summary: World Report on Disability <http://apps.who.int/iris/bitstream/handle/10665/70670/WHO_NMH_VIP_11.01_eng.pdf;jsessionid=08A8E2593F368DD950BADAF93620ED95?sequence=1> accessed on 13 October 2018.
[3] United Nations – Disability, Frequently Asked Questions regarding the Convention on the Rights of Persons with Disabilities <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/frequently-asked-questions-regarding-the-convention-on-the-rights-of-persons-with-disabilities.html> accessed on 13 October 2018.
[4] art 3, Convention on the Rights of Persons with Disabilities.
[5] art 1, Convention on the Rights of Persons with Disabilities.
[6] United Nations Treaty Collection, Convention on the Rights of Persons with Disabilities
[7] art 4(1)(a), Convention on the Rights of Persons with Disabilities.
[8] art 4(1)(e), Convention on the Rights of Persons with Disabilities.
[9] Convention on the Rights of Persons with Disabilities and its Optional Protocol, Signatures and Ratifications <http://www.un.org/disabilities/documents/maps/enablemap.jpg> accessed on 13 October 2018.
[10] art 1, Optional Protocol to the Convention on the Rights of Persons with Disabilities.
[11] United Nations Treaty Collection, Convention on the Rights of Persons with Disabilities
[12] Lim Chee Wee, Press Release: Time to remove all reservations and sign the Optional Protocols” (The Malaysian Bar, 8 July 2010).
[13] Amy Raub, Isabel Latz, Aleta Sprague, Michael Ashley Stein and Jody Heymann, “Constitutional Rights of Persons with Disabilities: An Analysis of 193 National Constitutions” Harvard Human Rights Journal, 2016, Vol. 29, p. 204 at p. 205.
[14] art 4(1), Federal Constitution, Malaysia.
[15] Amy Raub, Isabel Latz, Aleta Sprague, Michael Ashley Stein and Jody Heymann, “Constitutional Rights of Persons with Disabilities: An Analysis of 193 National Constitutions” Harvard Human Rights Journal, 2016, Vol. 29, p. 204 at p. 238.
[16] P.U. (B) 268/2008, Malaysia.
[17] Human Rights Commission of Malaysia, Report on Persons with Disabilities: Submission on the Proposed Legislation on the Rights of Persons with Disabilities.
[18] The Coalition of Malaysia NGOs in the UPR Process, Universal Periodic Review on Malaysia for the 4th Session of UPR February 2009, para. C6.
[19] Ikmal Hisham bin Md. Tah, “A Need For Remedial Provision To Protect Persons With Disabilities In Malaysia,” Proceeding of the Kuala Lumpur International Business, Economics and Law Conference at Kuala Lumpur, December 2-3, 2013, 9-15, p. 11.
[20] s 62(1)(d), Disability Discrimination Ordinance, Hong Kong.
[21] s 66, Disability Discrimination Ordinance, Hong Kong.
[22] s 68, Disability Discrimination Ordinance, Hong Kong.
[23] s 69, Disability Discrimination Ordinance, Hong Kong.
[24] s 72(1), Disability Discrimination Ordinance, Hong Kong.
[25] s 72(4), Disability Discrimination Ordinance, Hong Kong.
[26] [1999] 2 HKLRD 263.
[27] [2002] 2 HKLRD 1.
[28] Khaizan Sharizad, “The disabled have rights, too” (The Star, 4 March 2010) <http://www.thestar.com.my/story.aspx?file=%2f2010%2f3%2f4%2ffocus%2f5779213&sec=focus> accessed on 13 October 2018.
[29] Ainul Jaria Maidin, “Legal Framework Regulating for Improving Accessibility to Built Environment for Disabled Persons in Malaysia”, at p. 4 <http://ssrn.com/abstract=1992205> accessed on 13 October 2018.
[30] Working Group of the Disabled, Human Rights Committee, Malaysian Bar Council, Memorandum Bangkit 2012, 17 Mac 2012 <http://www.malaysianbar.org.my/index.php?option=com_docman&task=doc_view&gid=3655> accessed on 13 October 2018.
[31] Pacific Bridge Medical, “Orphan Drugs in Asia 2017” <https://www.pacificbridgemedical.com/wp-content/uploads/2014/03/Orphan-Drugs-in-Asia-2017.pdf> at p. 1, accessed on 13 October 2018.
[32] Pharmaceutical Research and Manufacturers of America (PhRMA), “2005 - 2015: A Decade of Innovation
in Rare Diseases” <https://www.phrma.org/report/2005-2015-a-decade-of-innovation-in-rare-diseases> accessed on 13 October 2018.
[33] CRPD/C/18/D/22/2014.
[34] CRPD/C/18/D/22/2014 at para 7.6.
[35] Preamble, para. 1, Persons with Disabilities Act 2008, Malaysia.
[36] s 35(1), Persons with Disabilities Act 2008, Malaysia.
[37] s 36(1), Persons with Disabilities Act 2008, Malaysia.

Monday, 22 October 2018

KLBC Activities Report for September 2018

4 September 2018 
Seminar on Updates to the Companies Act 2016 
Organised by the Professional Development Committee, this seminar was presented by Wong Tat Chung at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 62 participants. The seminar covered the Companies Act 2016: The after effects and the relevant subsidiary legislation.



5 September 2018 
Seminar on An Introduction to Construction Law  
Organised by the Professional Development Committee, this seminar was presented by Choon Hon Leng at the KL Bar Auditorium from 10:00 am to 1:00 pm. The seminar was attended by 42 participants and covered, amongst others, "The Players"; "The Structure"; "The Jargons and the Law"; "Preparing a Construction Contract"; "Resolving Construction Disputes"; and "The Construction Industry Payment and Adjudication Act 2012".



7 September 2018
A Day in the Life of… Series: An Industrial Relations and Employment Law Practitioner 
This is a new series introduced by the Professional Development Committee for members of the Bar and pupils to get up-close with senior law practitioners in different areas of practice and have all their queries answered on everything they wanted to know about the respective area of practice. This first session in the Series was conducted by Muhendaran Suppiah at the KL Bar Executive Meeting Room from 4:00 pm to 6:00 pm. It was attended by 20 participants.



8 September 2018
Workshop on Smart with Money, Smart with Life
Organised by the Young Lawyers Committee, this workshop, held at the KL Bar Auditorium from 11:00 am to 1:00 pm, was presented by Aaron Tang, a Financial Blogger @ mr-stingy.com and Suraya Zainudin, a Communications Consultant and Blogger @ RinggitOhRinggit.com. The workshop was attended by 23 participants.



12 September 2018
Seminar on An Introduction to Motor Insurance Personal Injury Claims
Organised by the Professional Development Committee, this seminar was presented by Ravin Singh at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 28 participants and covered, amongst others, "Pleadings”; “Making a Claim”; “Defending”; “Do’s & Don’ts”; and “Using the Compendium”.



18 September 2018
Feedback Counter at the Kuala Lumpur Court Complex 
The Civil Practice and Court Liaison Committee (“CPCLC”) ran a second feedback counter at the Cafeteria, Level B1, Kuala Lumpur Court Complex from 9:30 am to 11:30 am to receive feedback and complaints from members of the Bar and pupils pertaining to the Kuala Lumpur Courts. This time, the CPCLC received 29 feedback forms.

19 September 2018 
Pupils Introduction Session
A monthly tradition, the September’s Pupils Introduction Session was held on 19 September 2018. The session, attended by 99 pupils, was led by Foong Cheng Leong. The purpose of the session is to introduce pupils to the structure of the Malaysian Bar and the Kuala Lumpur Bar, the election to both the Bar Council and the Kuala Lumpur Bar Committee (“KLBC”) and the highlights of the Malaysian Bar. It included a session for pupils to raise issues and problems faced by them during their pupillage period. The other executive committee members of the KLBC were also present to provide input and possible solutions.

Also included in the Pupils Introduction Session was a session on “Diversity & Inclusion” which experimental module was launched in the December 2017 Pupils Introduction Session. The session was conducted by Goh Siu Lin.



20 September 2018 
An Afternoon with Clare Rewcastle Brown: Journalism and Press Freedom 
The Kuala Lumpur Bar Committee was privileged to have Clare Rewcastle Brown, author of The Sarawak Report, share an afternoon with members of the Bar and pupils talking about journalism and press freedom. 35 people attended this event.



21 September 2018
A Day in the Life of… Series: A Criminal Law Practitioner
Organised by the Criminal Law Practice Committee, this second session in the Series was conducted by Amrit Pal Singh at the KL Bar Executive Meeting Room from 3:00 pm to 5:00 pm. It was attended by 8 participants.


25 September 2018 
A Day in the Life of… Series: Sports Law Practitioners
Organised by the Professional Development Committee, this third session in the Series was conducted by Richard Wee and Lesley Lim at the KL Bar Executive Meeting Room from 4:00 pm to 6:00 pm. It was attended by 9 participants.



26 September 2018 
A Day in the Life of… Series: Accounting and Finance for Law Practitioners
Organised by the Professional Development Committee, this fourth session in the series was conducted by Lim Kien Chai at the KL Bar Executive Meeting Room from 3:00 pm to 5:00 pm. It was attended by 24 participants.



29 September 2018
Town Hall Meeting on Revamp to the Legal Profession Act 1976
The Kuala Lumpur Bar Committee organised a Town Hall Meeting at the KL Bar Auditorium for members of the Kuala Lumpur Bar to provide their feedback regarding provisions that, in their view, should be amended in, or added to, the proposed revamped Legal Profession Act. The Town Hall Meeting was chaired by Karen Cheah, Chairperson of the Bar Council Ad Hoc Committee for the Amendments to the Legal Profession Act and Member of the Bar Council Committee to Reform the Legal Sector.


Wednesday, 26 September 2018

KLBC Activities Report for August 2018

1 August 2018
Criminal Litigation Workshop for Pupils 
Organised by the Pupils Committee specifically for pupils, the above workshop was conducted by Lim Chi Chau and Jacky Loi Yap Loong at the KL Bar Auditorium from 3:00 pm to 5:30 pm. The workshop was attended by 28 pupils and focused primarily on the practical aspects of handling a brief covering the following areas, "Obtaining Client's Statement”; “Bail Application”; “Mitigation”; and “Trial Process". 

 


2 August 2018
Seminar on Best Practices in Strata Property Management
Organised by the Corporate and Conveyancing Practice Committee, the seminar was presented by Lai Chee Hoe at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 72 participants and covered, amongst others, “Right to vote”; “Right to be elected”; “Absent proprietor”; “Voting in General Meetings”; “Different type of resolutions”; “Different rate of charges”; “Sub-management”; “Developers’ duty”; and “Duties of JMB/MC”. 


3 August 2018
Dining: Taste of the Bar VII 
Organised by the Pupils Committee, this event was held at the Orchid Restaurant, Royal Lake Club from 7:00 pm to 9:00 pm. The event was designed to give pupils an opportunity to spend an evening interacting with senior members of the Bar whilst seeking guidance and insight about the legal profession. 30 pupils attended the event which was graced by a former Judge, Dato’ Varghese George and nine senior members of the Bar, namely:

Hendon Mohamed  
Muhendaran Suppiah  
Atan Mustaffa Yussof Ahmad  
Lim Koon Huan  
Fahri Azzat  
Sharmila Ravindran   
Foong Cheng Leong  
Ravinder Singh Dhalliwal  
Idza Hajar Ahmad Idzam  

Y.A. Dato’ Varghese George (Retired Court of Appeal Judge) shared his personal legal journey to encourage the pupils to continue to improve in all aspects of their personal life as well as practice.



4 August 2018
Interstate Bar Games 2018
Hosted by the Negeri Sembilan Bar Committee, the Interstate Bar Games 2018 was held in Seremban. The sports played were Golf, Football Premier, Football Veteran, Volleyball, Ladies Futsal, Netball, Badminton, Darts and Basketball.

Kuala Lumpur Bar emerged the overall champion and the results were as follows:

        
No
Sport
Result
 1
Golf
1st Place
 2
Football Premier
2nd Place
 3
Volleyball
2nd Place
 4
Ladies Futsal
1st Place
 5
Netball
1st Place
 6
Badminton
1st Place
 7
Basketball
1st Place



7 August 2018
Seminar on The New Companies Act 2016 and the Companies Winding Up Petitions: An Introduction
Organised by the Professional Development Committee, this seminar was presented by Alex Chang at the KL Bar Auditorium from 1:30 pm to 4:30 pm. The seminar was attended by 56 participants and covered, amongst others, "New threshold of issuing a Notice Pursuant to s 218  (now 465 and 466) of the new Act"; "Definition of Unable to pay the debts"; "Affidavit Verifying Petition"; "New Commencement of the  Winding Up"; "Twice or four times Advertisement of the Petition in the Newspapers?"; "Affidavit In Opposition to Petition"; "Appointment of an INTERIM Liquidator, Official Receiver or the (Private) liquidator"; "Costs"; "Interpretation by the Federal Court of the word ‘and'  in s 223  of the old  Companies Act 1965, as   ‘disjunctively’ instead of the usual  ‘conjunctively’, and now in light of the new section  467 the Companies Act 2016"; "The ‘Pay Something for Nothing’ proposition"; "How a RM74 million Court Judgment in Damages was reduced to nothing?"; and "The journey of both matters from the High Court all the way to the Federal Court".



8 August 2018
Seminar on e-Discovery and Data Forensics
Organised by the Professional Development Committee, this seminar was presented by Alex Tan and Ervin Roberson at the KL Bar Auditorium from 3:00 pm to 6:00 pm. Amongst the issues discussed were, "E-discovery within the litigation framework with case studies"; "Highlighting the importance of data preservation and maintaining chain of custody when handling digital evidence"; "Using a logic based approach in determining which potential electronic data sources are relevant to your matter"; "Explanation of metadata, deletion recovery, and exfiltration analysis in order to identify additional digital evidence"; "Exposure to internet artefacts and social media/cloud discovery"; "Leveraging technology to optimise document review and trial preparations - creating value-add for your clients"; and "Incorporating discovery readiness into your law firm and your clients". The seminar was attended by 32 participants. 



9 August 2018 
Seminar on Pre-Trial Preparation for Criminal Brief
Organised by the Criminal Law Practice Committee, the seminar was presented by Collin Arvind Andrew at the KL Bar Auditiorium from 3:00 pm to 6:00 pm. The seminar was attended by 37 participants and covered, amongst others, “Overview of the Criminal Trial Process”; “Charge”; “Bail”; “Section 51A Documents”; “Representation Letter and Plea Bargaining”; “Interviewing Client”; and “Case Analysis”. 



10 August 2018
Seminar on An Introduction to Industrial Court Procedures
Organised by the Professional Development Committee, this seminar was presented by Atan Mustaffa Yussof Ahmad at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 52 participants and covered, amongst others, "Industrial Relations Act 1967"; "Industrial Court Rules 1967"; "Industrial Relations Regulations 1967"; "The Industrial Court"; "Industrial Court Proceedings"; "Preparing and Presenting"; "Costs and Awards"; "The nature of awards"; "The limits imposed by sec. 30(6) IRA"; "Effect of an award"; "Avenues to challenge an award of the Industrial Court"; "Judicial review"; "Application under sec. 33A"; "Stay of award"; and "Non-compliance of an award and Penalty".


13 August 2018
Blood Donation Campaign
The Annual Blood Donation Campaign, organised with the assistance of the National Blood Bank, was held at Level 2 of the Kuala Lumpur Court Complex at Jalan Tuanku Abdul Halim. Members of the Bar, Court staff and members of the public nobly came forward to participate in this Blood Donation Campaign. A total of 56 donors registered. Unfortunately, only 44 were eligible to donate. The 12 were rejected because they were either underweight, having high blood pressure or low blood pressure or had lived in the United Kingdom from 1980 till 1996 or in Europe between 1980 until the present.  A total of 44 units of blood were collected from the caring donors.



15 August 2018
Pupils Introduction Session
A monthly tradition, the August’s Pupils Introduction Session was held on 15 August 2018. The session, attended by 92 pupils, was led by Alvin Oh. The purpose of the session is to introduce pupils to the structure of the Malaysian Bar and the Kuala Lumpur Bar, the election to both the Bar Council and the Kuala Lumpur Bar Committee (“KLBC”) and the highlights of the Malaysian Bar. It included a session for pupils to raise issues and problems faced by them during their pupillage period. The other executive committee members of the KLBC were also present to provide input and possible solutions.

Also included in the Pupils Introduction Session was a session on “Diversity & Inclusion” which experimental module was launched in the December 2017 Pupils Introduction Session. The session was conducted by Honey Tan and Goh Siu Lin with a special appearance by Transgender activist, Nisha Ayub.



16 August 2018
Lunchtime Talk on Hearing the Child’s Voice in Court Proceedings 
Co-organised by the Professional Development Committee and the Bar Council Family Law Committee, this talk was presented by Malathi Das, a specialist family practitioner in Singapore, at the KL Bar Auditorium from 1:00 pm to 3:00 pm. The talk was attended by 31 participants. 


25 to 26 August 2018
Arbitration Camp
Co-organised by the Young Lawyers Committee and the Young Members Group of the Chartered Institute of Arbitrators, Malaysia (CIArb), this camp, attended by 28 participants, was held at the Klana Beach Resort, Port Dickson. The speakers were Thayananthan Baskaran, Darshendev Singh. Janice Tay, Shaun Tan and Lim Tse Wei and they covered, amongst others, "Comparing litigation and its alternatives"; "Core principles of International Commercial Arbitration"; "Introduction to the Malaysia Arbitration Act 2005 and the 2018 Amendments"; "The regime of the UNCITRAL Model Law and "Arbitration Rules"; "The role of arbitration rules: A comparison of alternative regimes"; "Arbitration Procedures: documents only and oral hearings"; "Understanding Arbitration Agreements: the importance of the seat, the New York Convention, procedural laws and procedural rules"; "Commencing an arbitration"; "Arbitration Act 2005 & AIAC Arbitration Rules 2017"; "The scope of arbitral jurisdiction"; "Interim measures by arbitrators and court"; "The arbitration process: a comparison with the court process in Malaysia and elsewhere"; "Evidentiary practices: disclosure, experts and the IBA Guidelines"; and "Reliefs in Arbitration"; "Enforcing and challenging arbitral awards". The camp also included a “Up Close and Personal” session with the Chairperson of CIArb.



28 August 2018
Seminar on Expert Evidence
Organised by the Professional Development Committee, this seminar was presented by Dr. Teng Kam Wah at the KL Bar Auditorium from 3:00 pm to 6:00 pm. Amongst the issues discussed were, "What is expert evidence?"; "Admissibility of expert evidence in civil proceedings"; "Experts' qualifications and competence"; "Experts' overriding duty to the Court"; "Independence of the expert witness"; "Opinion on the ultimate issue"; "Evidence which the expert may refer to"; "Value of expert evidence"; "Immunity of experts"; and "Cross-examination the expert witness". The seminar was attended by 32 participants. 


30 August 2018
Young Lawyers and Pupils Merdeka Social
The above social event, organised by the Young Lawyers Committee to celebrate Hari Kemerdekaan, was held at For Fork’s Sake, Central Market Annexe from 8:30 pm till late.


Tuesday, 28 August 2018

KLBC Activities Report for July 2018

10 July 2018
#MeToo, Whats Next?
Co-organised by the Gender Equality and Diversity Committee and the Young Lawyers Committee, this forum was presented on 10 July 2018 at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The panelists were Lee Lian Kong (a Journalist with Asian Correspondent), Nik Elin Zurina Bt Nik Abdul Rashid, Ida Daniella Binti Zulkifili and Rajsurian Pillai a/l Chellappa Pillai. The Forum was moderated by Meera Samanther. The forum was attended by 38 participants.



11 July 2018
Seminar on Insolvency Act 1967 | Revamping the Bankruptcy Act 1967
Organised by the Professional Development Committee, this seminar was presented by Trevor Jason Mark Padasian at the KL Bar Auditorium from 10:00 am to 1:00 pm. The seminar was attended by 54 participants and covered, amongst others, “"Bankruptcy (Amendment) Bill 2016 – Insolvency Act 1967"; "Government’s Objectives"; "Subordinate Legislation – Insolvency Rules 2017 and Insolvency (Voluntary Arrangement) 2017"; "Minimum Threshold Increase (RM30,000 to RM50,000)"; "Single Order Bankruptcy"; "Voluntary Arrangement"; "Substituted Service"; "Social Guarantors and Other Guarantors"; "Prohibited Objections to Discharge of Bankrupt"; "Automatic Discharge of Bankrupt"; and "Effective Dates of the Amendments".


12 July 2018
Seminar on Basic Aviation Law
Organised by the Corporate and Conveyancing Practice Committee, this seminar was presented by Sarguna Kumaari at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 40 participants and covered, amongst others, “Public International Air Law”; “Private International Air Law”; “Organisations in Aviation”; “Contracts between Airlines”; “Malaysian Perspective”; and “Consumer Protection Laws”.


13 July 2018
Seminar on Recent Developments on the Law of Derivative Action in Malaysia: Does the Majority Always Rule?  
Organised by the Professional Development Committee, this seminar was presented by Ainul Azam bin Ahmad Khamal at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 16 participants and covered, amongst others, "Revisiting Foss V Harbottle: ‘the proper plaintiff rule’"; "Derivative Action – The Malaysian Experience"; and "Judicial Approach – The Way Forward".


18 July 2018
Pupils Introduction Session
A monthly tradition, the July’s Pupils Introduction Session was held on 18 July 2018. The session, attended by 87 pupils, was led by Alvin Oh. The purpose of the session is to introduce pupils to the structure of the Malaysian Bar and the Kuala Lumpur Bar, the election to both the Bar Council and the Kuala Lumpur Bar Committee (“KLBC”) and the highlights of the Malaysian Bar. It included a session for pupils to raise issues and problems faced by them during their pupillage period. The other executive committee members of the KLBC were also present to provide input and possible solutions.

Also included in the Pupils Introduction Session was a session on “Diversity & Inclusion” which experimental module was launched in the December 2017 Pupils Introduction Session. The session was conducted by Goh Siu Lin.



19 July 2018
Seminar on Wills, Probate, LA and SEDA
Organised by the Corporate and Conveyancing Practice Committee, this seminar was presented by Nahzatul Ain binti Mohd Khalid, Sarah Kambali, Daphne Lew Chah Yee and Selva Balan Sinnan at the KL Bar Auditorium from 10:00 am to 4:30 pm. The seminar was attended by 89 participants and covered, amongst others, "the basic concept and fundamental of writing a will"; "determining the mode of application"; "processes for obtaining probate or letters of administration of an estate of a person, and small estate"; and "its relevance with conveyancing practice".



20 July 2018
Seminar on Division of Matrimonial Assets 
Organised by the Professional Development Committee, this seminar was presented by Vicky Alahakone at the KL Bar Auditorium from 3:00 pm to 6:00 pm. Among the issues discussed was Section 76 of the Law Reform (Marriage and Divorce) Act 1976 and how the Malaysian Courts have interpreted this section before they arrive at a decision/order. The speaker also discussed whether there is an urgent need to amend Section 76 so that the Malaysian Laws are in line with the current laws and trends in other developed nations with regard to the division of matrimonial assets. The seminar was attended by 64 participants.


26 July 2018
Seminar on Anti-Trafficking in Persons and Anti-Smuggling of Migrants (ATIPSOM)
Organised by the Criminal Law Practice Committee, this seminar was presented by Lim Chi Chau at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 8 participants.


27 July 2018
Seminar on Writing to Win: Effective and Persuasive Written Advocacy
Organised by the Professional Development Committee, this seminar was presented by Dhinesh Bhaskaran, Ken St James and Brendan Siva at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The speakers spoke on how to approach written work, the general principles of effective written advocacy and the visual and substantive presentation of evidence and arguments. Written advocacy forms an integral part of court work, often replacing or supplementing oral advocacy for hearings and after trial submissions. Therefore, it is of paramount importance that written work submitted to the court is effective and persuasive. The seminar was attended by 102 participants.