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Friday, 15 March 2019

KLBC Activities Report for February 2019

15 February 2019
Reference Proceedings
A Reference Proceedings was held for nine departed members of the Kuala Lumpur Bar on Friday, 15 February 2019 at 9:30 am. Presided by Y.A. Datuk Hajah Azizah binti Haji Nawawi, the Reference Proceedings was in honour and memory of Teoh Eng Keat, Khu Kim Guat, Dato’ Hj. Sabarudin bin Hj. Othman, Dato’ Abdullah bin Mohd Yusof, Michael Lim Hee Kiang, Ho Hon Mun, Patrick Michael Dass and Tina Cheah Yee Teen. Click here to view the photos.


15 February 2019
Pupils Introduction Session
A monthly tradition, the February’s Pupils Introduction Session was held on 15 February 2019. The session, attended by 103 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 members of the KLBC were also present to provide input and possible solutions.


15 February 2019
Appreciation Dinner
An Appreciation Dinner was held on 15 February 2018 at PAVILION @ Royal Lake Club, Kuala Lumpur for all members and non-members of the Bar who have selflessly sacrificed their time for the Kuala Lumpur Bar. These volunteers have contributed by giving lectures, conducting or moderating seminars/workshops, representing the KLBC at hearings of Admissions to the Bar, sitting in sub-committees and rendering any other form of assistance to the KLBC.

16 February 2019
Seminar on How to Stand Out and Maximise Potentials: 6 Qualities Law Firms look for in a Lawyer
Organised by the Young Lawyers Committee, this seminar was presented by Lee Tatt Boon at the KL Bar Auditorium from 10:00 am to 12:30 pm. The seminar was attended by 32 participants.


21 February 2019
27th Annual General Meeting
The 27th Annual General Meeting (“AGM”) of the Kuala Lumpur Bar was held at the Auditorium at Wisma MCA, Jalan Ampang. 508 members attended the said AGM. The office-bearers of the KLBC for 2019/20 elected at the AGM were: Chairman - Harleen Kaur (Leena); Committee members - Sharmila Ravindran, Foong Cheng Leong, S. Saravana Kumar, Alvin Oh Seong Yew, New Sin Yew, Jacky Loi Yap Loong, Vivekananda Sukumaran, Vivian Kuan Hui Xian, Rajsurian Pillai and Louis Liaw Vern Xien. Shashi Devan Thalmalingam was elected as the KL Bar Representative on the Bar Council. It was also confirmed at the AGM that the subscription for the year 2019 was to remain at RM125.00 per member.



23 February 2019
18th Kuala Lumpur-Selangor Bar Games 
The 18th Kuala Lumpur-Selangor Bar Games was held on 23 February 2019 at Kompleks Sukan Persada Plus, Petaling Jaya and Hoops Arena, Level 4 Summit USJ Shopping Mall with the Selangor Bar playing hosts. Selangor Bar beat the Kuala Lumpur Bar 5-3 winning at golf, badminton, men’s futsal, ladies futsal and soccer to become the overall champion lifting the Lall Singh Muker Challenge Trophy. Kuala Lumpur Bar won netball, volleyball and basketball. The post-games dinner and prize-giving ceremony was held in the same evening at the Sunway Lagoon Club, Subang Jaya. Click here to view the photos.


27 and 28 February 2019
Two-Day Practical Workshop on Conveyancing Practice
Organised by the Corporate and Conveyancing Practice Committee, this workshop was presented by Lee Peck Ha, R. Yogeswari, Dennis Teoh, Susan Joseph, Chong Wai Kuan, Nahzatul Ain, Sarah Kambali, Daphne Lew Chah Yee and Donny Kwa Soo Chuan at the KL Bar Auditorium from 9:00 am to 6:00 pm. The workshop was attended by 66 participants and covered, amongst others, “Options to Purchase”; “Crafting the Final SPA”; “Conditions, Precedents and Subsequent”; “Private Caveats”; “Conflict of Interest”; “AMLATFAPUA”; “Clients Management”; “Clients’ Interest”; “Risk Management (Chaos, Claims & Billing)”; “Land Acquisition”; “RPGT (Act 169)”; “Completion Delays”; and “Conveyancing Process A-Z”.


KLBC Activities Report for January 2019

7 January 2019
Corporate Workshop for Pupils
The Pupils Committee organised a Corporate Workshop specifically for pupils on 7 January 2019 focusing primarily on the practical aspects of handling a brief covering the following areas, "Overview: Negotiation, Due Diligence and Drafting Process"; "Commercial Considerations"; "Practical Pointers including Common Mistakes when Drafting"; "Salient Clauses including Consideration, Conditions Precedent, Completion, etc"; "Covenants and Warranties by both Vendors and Purchasers"; "Boiler Plate Clauses"; and "Remedies for Breach of Contract". 82 pupils attended the Workshop which was conducted by Sheba Gumis.


13 January 2019
5th KL Bar Run
The 5th KL Bar Run was successfully held on Sunday, 13 January 2019 at the Lake Gardens. A record breaking of 175 teams with 700 runners participated in the said Run. To commemorate the 5th Anniversary of the Run, a Children’s Run was introduced for children of members of the Bar, aged 7-16 and it attracted nine runners.

As in the previous year, the KL Bar Run collaborated with Care2Run which sent four teams to participate in the Run. Care2Run is a sports mentoring programme for youths aged 8-18 years with special focus on children with higher learning needs who come from different social economic backgrounds

The Run was flagged off at 7:00 am by the Chairman of the Kuala Lumpur Bar, Goh Siu Lin.

The results were as follows:

Fastest Team
Champion - Speedy Gonzales
1st runner-up - The Younglings
2nd runner-up - CLO Mean Machine
3rd runner-up - CCA Nike
4th runner-up - Chowz

Fastest Male Runner
Champion - Barry Boey Chee Wai
1st runner-up - Neo Chi Chyn
2nd runner-up - Yau Yee Ming
3rd runner-up - Mohammad Adzfar bin Mohammad Alami
4th runner-up - Lee Guan Tong

Fastest Female Runner 
Champion - Eunice Ong Huey Shen
1st Runner-up - Khor Hsu Ann
2nd Runner-up - Ng Ai Li
3rd runner-up - Lim Yam Poh
4th runner-up - Janet Chai Pei Ying

Fanciest Dressed
Champion - Team CCA A Team
1st Runner-up - Team JustRunLa19
2nd Runner-up - Whole of CCA
3rd runner-up - Whole of CLO
4th runner-up - Team ZRP Kancil Turbo

Best Team Name
Law and Odor



17 January 2019
Seminar on The 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 3:00 pm to 6:00 pm. The seminar was attended by 33 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".


18 January 2019
Official handing over of reading materials to Sungai Buloh Prison
The Criminal Law Practice Committee (“CLPC”) organised a Campaign from 15 May to 15 November 2018 to collect reading materials for the inmates in the Sungai Buloh Prison. The Campaign brought in over 1,000 books and magazines. A simple ceremony to officially hand over the books and magazines was held at the Sungai Buloh Prison on Friday, 18 January 2019 at 11:00 am. The KLBC was represented by the KLBC Chairman Goh Siu Lin, Honorary Secretary Jacky Loi Yap Loong, CLPC Chairperson Shashi Devan Thalmalingam and KL Bar Representation on the Bar Council Khaizan Sharizad Ab Razak.



23 January 2019
Pupils Introduction Session
A monthly tradition, the January’s Pupils Introduction Session was held on 23 January 2019 in two sessions, morning and afternoon. The morning session was attended by 91 pupils and the afternoon session, pupils. Both sessions were led by Alvin Oh. The purpose of the Pupils Introduction 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 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 morning session was conducted by Pang Kee Teck and Goh Siu Lin. The afternoon session was conducted by Thilaga and Goh Siu Lin.

















24 January 2019
Seminar on Wills, LA, Probate and SEDA
Organised by the Corporate and Conveyancing Practice Committee, this seminar was presented by Nahzatul Ain, 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 98 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".



28 January 2019
Seminar on Suing the Revenue: Essential Tax Law Principles for Malaysian Lawyers 
Organised by the Professional Development Committee, this seminar was presented by Anand Raj, Abhilaash Subramaniam and Sharon Lau Foong Yee at the KL Bar Auditorium from 3:00 pm to 5:30 pm. The seminar was attended by 39 participants and covered, amongst others, “Legal Process to Sue and Challenge the Revenue”; “Tax Law and Corporate Transactions”; “Tax Avoidance Schemes – Case Law”; “Legal Professional Privilege and Tax Law”; “Malaysian Case Studies”; and “The Far Reaching Implications of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001”.



30 January 2019
Seminar on Does Malaysia need a standalone Sexual Harassment legislation?
Organised by the Gender Equality and Diversity Committee, this seminar was presented by David Morais, Fahri Azzat and Chang Mei Yen and moderated by Meera Samanther at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 26 participants.



31 January 2019
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 2:30 pm to 5:30 pm. The seminar was attended by 72 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".


Monday, 7 January 2019

KLBC Activities Report for October 2018

2 October 2018
Seminar on Legal Due Diligence: The Necessary Evil of Merger and Acquisition Organised by the Professional Development Committee, this seminar was presented by Addy Herg at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was attended by 94 participants and covered, amongst others, "Purpose of Legal Due Diligence"; "Understanding the objectives"; "The various aspects of legal due diligence investigations"; "Connecting the dots"; "Legal analysis and legal opinion"; "The applicable law and legal documents"; "Risk management and documentation"; "Accomplishing the objective"; and "Updates and improvement".


4 October 2018
Seminar on Understanding the Crime Scene Investigation (CSI) Report 
Organised by the Criminal Law Practice Committee, this seminar was presented by Amidon Anan, former Bukit Aman Forensic Laboratory’s Crime Scene Investigation Unit Chief, at the KL Bar Executive Meeting Room from 2:30 pm to 5:30 pm. 16 lucky participants had the privilege of getting up close and personal with the expert.


9 October 2018
Seminar on Aggravated Damages in Medical Negligence Report 
Organised by the Professional Development Committee, this seminar was presented by Raja Eileen Soraya and Charlaine Adrianne Chin at the KL Bar Auditorium from 3:00 pm to 5:00 pm. The seminar was attended by 21 participants.


12 October 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 3:00 pm to 6:00 pm. The seminar was attended by 61 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 October 2018
Charity Night
Organised by the Young Lawyers Committee, the 14th consecutive Charity Night was held on 12 October 2018 at Slate @ the Row from 7:00 pm onwards, and featured performances by young lawyers competing to raise the most funds for charity. Monies raised this year was in aid of the Cleft Lip and Palate Association of Malaysia (CLAPAM). CLAPAM is a non-profit, non-government organisation and a support group consisting of volunteers from parents with children born with cleft lip and/or palate, adults with cleft lip and/or palate and healthcare professionals who manage such individuals. First established in 1992 and officially registered with the Registrar of Societies (R.O.S.) in 1993, CLAPAM provides various support services including counselling, information on feeding and care of cleft babies, and hospital/house visits. CLAPAM also functions as a link between its members and medical professionals.


15 October 2018
Seminar on Construction Industry Payment & Adjudication Act 2012 (CIPAA)
Organised by the Professional Development Committee, this seminar was presented by Dr. Nadarajah at the KL Bar Auditorium from 10:00 am to 1:00 pm. The seminar was attended by 24 participants and covered, amongst others, "An Overview of CIPAA"; "Breach of Natural Justice (under CIPAA)"; and "Excess of Jurisdiction (under CIPAA)".


15 October 2018
Forum on Reaching Beyond Boundaries: Transcending Disability
Organised by the Gender Equality and Diversity Committee, this forum was presented by Datuk Dr Amar-Singh HSS, Sangeet Kaur Deo and James Low Hong Ping and moderated by Amanda Kong Hwei Zhen. The forum was held at the Raja Aziz Addruse Auditorium from 3:00 pm to 5:00 pm. The seminar was attended by 20 participants.



16 October 2018
Seminar on Islamic Banking
Organised by the Corporate and Conveyancing Practice Committee, this seminar was presented by Dr. Syed Adam AlHabshi at the KL Bar Auditorium from 3:00 pm to 6:00 pm. The seminar was well received with 42 participants and covered, amongst others, “The Philosophical Foundations of Islamic Finance”; “Basic Prohibitions in Islam related to Islamic Finance”; and “Ethics in Islamic Financial Services”.


17 October 2018
Conveyancing Workshop for Pupils
Organised by the Pupils Committee specifically for pupils, the Conveyancing Workshop held on 17 October 2018 focused primarily on the practical aspects of handling a brief covering the following areas, "Overview of the Conveyancing Process"; "Essential clauses found in a Sale & Purchase Agreement"; "How to fill up the relevant NLC Forms"; and "Practical Pointers for the conveyancing lawyer". 43 pupils attended the workshop which was conducted by Michael Leow Yon Meng.

19 October 2018
Seminar on Child Rights Civil Perspective Family/Inheritance and the Importance of Will Writing for Child Beneficiaries
Organised by the Professional Development Committee, this seminar was presented by Kasthuri Krishnan at the KL Bar Auditorium from 3:00 pm to 5:00 pm. The seminar was attended by 21 participants and covered, amongst others, "Civil Rights of Children"; "Convention on the Rights of the Child"; "Voice of the Child in Court"; "Consequences of divorce/matrimonial/custody"; "What is the best interests of the child"; "When is it inappropriate to consider the child's view"; "Resolving and mediating matrimonial disputes involving children"; "Inheritance and Minors"; "Preparing a will with minor beneficiaries and the Wills Act"; "Pitfalls to avoid in drafting Wills"; "Relevant Statutes to fill lacunas in the Wills Act"; and "Guardianship and Trust".


20 October 2018
Seminar on Business Development For Lawyers: Building Your Career Beyond Legal Skills
Organised by the Young Lawyers Committee, this seminar was presented by Lee Shih and Foong Cheng Leong at the KL Bar Auditorium from 10:00 am to 1:00 pm. The seminar was attended by 43 participants.

20 October 2018
27th Sports Carnival KL Bar vs Royal Selangor Club (RSC)
            KL Bar played host in this year’s Series which was held on 20 October 2018 with darts and badminton being played earlier on 26 September and 17 October 2018 respectively. KL Bar emerged the Overall Champion taking home the coveted YA Tan Sri Dato’ Harun Hashim Challenge Trophy. The results were as follows:

Sport
Won by
Darts
RSC
Badminton
KL Bar
Hockey
KL Bar
Pool
KL Bar
Cricket
RSC
Squash
RSC
Football
KL Bar
Boat Race
KL Bar

24 October 2018
Pupils Introduction Session
A monthly tradition, the October’s Pupils Introduction Session was held on 24 October 2018. The session, attended by 99 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 Nisha Ayub and Goh Siu Lin.

27 October 2018
Seminar on Cloud syncing/backup practices in law firms
Organised by the Information Technology and Publications Committee, this seminar was presented by Louis Gan Keat Hooi and Shanthi Kandiah at the KL Bar Auditorium from 10:00 am to 1:00 pm. The seminar was attended by 22 participants.

30 October 2018
Seminar on Construction Law: Letters of Intent
Organised by the Professional Development Committee, this seminar was presented by Dr. Teng Kam Wah at the KL Bar Auditorium from 10:00 am to 1:00 pm. The seminar was attended by 37 participants and aimed at spotlighting some of the complexities and intricacies of Letters of Intent. 


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.