Wednesday, 24 August 2011

BREAKING NEWS | 5th China-ASEAN Forum on Legal Cooperation and Development (26 and 27 Sept 2011)

BREAKING NEWS | 5th China-ASEAN Forum on Legal Cooperation and Development (26 and 27 Sept 2011)



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Circular No 182/2011
Dated 22 Aug 2011


To all Members of the Malaysian Bar

BREAKING NEWS: 5th China-ASEAN Forum on Legal Cooperation and Development (26 and 27 Sept 2011)

Around the globe, economic recovery from the 2008 global financial crisis is fragile and tenuous.  With the US recovery in disarray, the Euro zone debt crisis spreading, Japan shaken by the Great Tohoku Earthquake and Tsunami, and the Middle East locked down in riots, the threat of yet another global recession looms.  Amidst the crashing stock markets, silver linings are few and far in between. 

One bright spot in this gloomy environment is the advent of the China-ASEAN Free Trade Area ("CAFTA") and the booming trade and investments in the region.  A year after the China-ASEAN Free Trade Agreement took effect in January 2010, optimism in the CAFTA region is palpable and spreading.

Tapping into this revival of China-ASEAN trade and economic cooperation, Bar Council Malaysia, together with China Law Society, the ASEAN Law Association of Malaysia and the Kuala Lumpur Regional Centre for Arbitration, are jointly hosting the 5th China-ASEAN Forum on Legal Cooperation and Development in Kuala Lumpur, Malaysia, on 26 and 27 Sept 2011. 

Far back in history, China and her Southeast Asian neighbours have always enjoyed thriving trade and commerce plied by Chinese junks and Arab trading dhows along the maritime Silk Route spanning the Chinese coast through Vietnam, the Malay archipelago and Indonesian isles onward to India, Middle East and Africa.  "In this modern day and age, there is every reason to hitch our South East Asian economies to the booming Chinese juggernaut and every reason to believe in the mutual prosperity and benefit of win-win cooperation among CAFTA members," says Lim Chee Wee, President of the Malaysian Bar, at the launch of the Forum on 16 Aug 2011. 

With China's plan to rely on domestic consumer spending to fuel its huge economy, there is a rising global shortage of raw materials, minerals, energy, commodities and food.  Japan's northern food basket was drastically impacted by the Fukushima radiation fallout, thus making food security, the global food shortage and rising prices major issues worldwide.  Most Association of Southeast Asian Nations ("ASEAN") economies are endowed with fertile land and abundant rainfall well suited for the cultivation of food and commodity crops on a massive scale.  There is also an abundance of untapped energy and mineral resources in the region and Chinese investments are flowing into ASEAN at a fast clip.

Jeff Leong, Member of the Bar and member of the CAFTA 2011 Organising Committee points out, "The China-ASEAN Forum is one of the best networking opportunities for business lawyers and investors to establish working ties with participants from China and ASEAN for investment projects in energy, mining, commodities and food security such as oil and gas, coal, iron ore, oil palm, rubber, tea, coffee and rice."  According to Leong, transactional lawyers in Asia will be kept busy structuring such deals for the next few years.

"The possibility of disputes can never be entirely ruled out, despite the best of trade ties and relationships," says Sundra Rajoo, Director of the Kuala Lumpur Regional Centre for Arbitration and a panellist of the upcoming Forum.  Efforts are undertaken to address treaty disputes and coordinate arbitral centres in the CAFTA region.  "The forum is an excellent platform for alternative dispute resolution professionals to network and exchange ideas, especially in view of the diverse cultures, legal traditions and background of the countries in the CAFTA region," says panellist from Hong Kong, Yang Ing Loong.

"A China-ASEAN Mediation Centre will also be launched at the forum," says the Honourable Justice Tan Sri James Foong, Chairperson of the CAFTA 2011 Organising Committee and a senior Federal Court Judge in Malaysia.  A brainchild of China Law Society, the mediation centre will be located at the southern Chinese island of Hainan and is intended to matchmake joint venture parties in the CAFTA region.  "Where differences in opinion and dispute arise, the mediation centre will help resolve disputes without damaging business relationships and trade ties," explains Tan Sri James Foong.

In times of crisis and recession, the quick and the nimble survive by managing risks and tapping opportunities.  Some of these opportunities lie in the CAFTA region.  Register now! 

Attached please find the programme of the Forum. For more information, check out the official website of the Forum at www.cafta2011.com.  To register, kindly complete and submit the attached registration form by fax to 03-2032 2043 or 2026 1313; or by email to janet@malaysianbar.org.my.  Online registration is also available. 

Kindly contact Janet Nathan, CAFTA 2011 Organising Committee Officer, by telephone at 03-2050 2103 should you have any queries. 

Thank you.


Lim Chee Wee
Deputy Chairperson
CAFTA 2011 Organising Committee




This circular and the attachments may also be accessed here.


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Seminar on An Overview of Tax Appeals | Law, Practice and Recent Developments (5 Oct 2011)

Seminar on An Overview of Tax Appeals | Law, Practice and Recent Developments (5 Oct 2011)



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This circular may also be accessed here.


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Press Release: Malaysian Government must uphold natural justice and honour basic principles on the role of lawyers

Press Release: Malaysian Government must uphold natural justice and honour basic principles on the role of lawyers


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Press Release

Malaysian Government must uphold natural justice
and honour basic principles on the role of lawyers


The Malaysian Bar is once again appalled by the recent action of the Malaysian Government to prohibit UK-based lawyer Imran Khan from entering Malaysia.  Khan had travelled from London to Kuala Lumpur to meet with his clients, speak to various parties about his clients' case and gather further information about the marginalisation of the Indian community in Malaysia.  This is the subject of a class-action law suit by the Indian community in Malaysia against the British Government.

Khan was prevented from entering Malaysia on the basis that he was a "prohibited immigrant".  The Malaysian Government is obliged to state which particular provision of section 8(3) of the Immigration Act 1959/1963 Khan violated, which resulted in him being declared a "prohibited immigrant".  Pursuant to section 8(4), the burden of proof that any person seeking to enter Malaysia is not a prohibited immigrant shall lie upon that person, but this is rendered impossible if Khan was never informed of the specific allegation against him.

Khan's prohibition follows the earlier deportation of William Bourdon, the Paris-based lawyer for human rights non-governmental organisation Suara Rakyat Malaysia (better known as SUARAM).  SUARAM has initiated legal proceedings in France in relation to the purchase by the Malaysian Government of two Scorpene submarines.
The crude manner of Bourdon's expulsion and Khan's prohibition gives rise to speculation of the motive underlying the government's action, and begs the question of why the government appears afraid of these two foreign legal proceedings. 

In both instances the Malaysian Government breached the principle of natural justice, a foundational element of administrative law.  By failing to inform either person of the specific grounds for his deportation or prohibition, and by refusing to afford either of them an opportunity to challenge the order, the Malaysian Government failed to uphold a basic tenet of administrative law, thus breaching their human rights.  

In so doing, the Malaysian Government reneged on its responsibility under the Basic Principles on the Role of Lawyers.  These basic principles were adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders 1990, which the Malaysian Government attended and supported.  Paragraph 16 of the Basic Principles mandates that, "Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics."  In respect of Bourdon and Khan, the Malaysian Government did none of these.   

The Malaysian Bar calls upon the Malaysian Government to cease interfering with the right of foreign lawyers to meet with their Malaysian clients in respect of foreign legal proceedings.  In light of the pending liberalisation of the Malaysian legal profession and the entry of foreign lawyers into Malaysia to practise foreign law, it is counter-productive for the Malaysian Government to turn away foreign lawyers who take up causes that are unpopular with the Malaysian Government.  This lack of respect for the independence of lawyers does not bode well for the international reputation of Malaysia.


Lim Chee Wee
President
Malaysian Bar
23 Aug 2011






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Press Release: Government must consult all stakeholders, especially Orang Asli, on proposed Orang Asli land titles policy

Press Release: Government must consult all stakeholders, especially Orang Asli, on proposed Orang Asli land titles policy


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Press Release
Government must consult all stakeholders, especially Orang Asli, on proposed Orang Asli land titles policy


The Malaysian Bar is dismayed with the recent announcement by the Jabatan Kemajuan Orang Asli ("JAKOA") in relation to the finalisation of the proposed Orang Asli land titles policy.  Grievances in reaction to this announcement voiced by various members of the Orang Asli community to the Malaysian Bar suggest that the Government has once again not engaged in prior consultation with Orang Asli and failed to obtain the free, prior and informed consent of affected Orang Asli in finalising the policy.  Malaysia has committed to do so in the pledges it has made in the United Nations Declaration on the Rights of Indigenous Peoples 2007 ("UNDRIP").

Stemming from the Orang Asli's earlier objection to a proposed land titles policy through its protest memorandum and peaceful demonstration in Putrajaya on 17 Mar 2010, the Malaysian Bar had previously requested that the Government furnish in advance any future policies affecting Orang Asli lands and corresponding amendments to the law to all stakeholders, including the Malaysian Bar, in order to facilitate meaningful prior consultation with all affected Orang Asli.  The deafening silence from the Government in not responding to this request and the recent announcement imply its continued lack of will to engage meaningfully with Orang Asli. 

It is unacceptable that a Member State of the United Nations and Human Right Council disregard the principles contained in the UNDRIP with such impunity in its domestic practice of international norms.  In this regard, any attempt to deny the status of Orang Asli and their land rights is also a clear violation of their fundamental rights guaranteed under the Federal Constitution.

It is therefore an abhorrence that violations against such rights that have been entrenched by the highest law of the land, case law and international human rights laws continue in the form of unilateral and paternalistic land policies that risk the loss of Orang Asli customary lands.

The implementation of previous government-imposed integration policies that caused the coerced resettlement of Orang Asli will result in Orang Asli losing out on their customary lands that they rightfully possess, and eventually their identity as a distinct indigenous group of peoples.  In addition to extricating Orang Asli from their source of livelihood, physical and spiritual way of life, and economic, social and cultural heritage, Orang Asli who are deprived of their lands are also being stripped of their rights to life, equality and property, fundamental liberties and, rights guaranteed to all Malaysians under the Federal Constitution.

The Malaysian Bar urges the Government to be steadfast at all times in upholding and honouring the obligations it undertook when Malaysia voted in favour of adopting UNDRIP.  In accordance with UNDRIP, the Government has a duty to halt any steps to introduce any policies and legislation affecting Orang Asli customary lands, until a process of consultation is conducted with all affected communities and relevant stakeholders, and their free, prior and informed consent and cooperation is obtained.  We call on the Government not to act in any manner inconsistent with those rights.  Without this preliminary measure, the Government's vote in favour of adopting UNDRIP that, inter alia, reiterates the right of Orang Asli to self-determination, rings hollow.

The ongoing SUHAKAM National Inquiry into the Land Rights of Indigenous Peoples in Malaysia presents an excellent opportunity for the Government to review its policy on indigenous land rights.  The Malaysian Bar calls upon the Government to consider the culminating SUHAKAM report that would be made available in June 2012 in formulating, with the effective participation of all indigenous communities, including Orang Asli, reforms to indigenous land rights.

To facilitate this process and to avoid rendering the SUHAKAM inquiry superfluous, we appeal to the Government to desist from proceeding with any land policy affecting Orang Asli pending the outcome of the SUHAKAM inquiry.

The Malaysian Bar has contributed to the ongoing dialogue on Orang Asli land rights through, for example, its Committee on Orang Asli Rights, Human Rights Committee, the Perak Bar, and through membership of the task force on Orang Asli Rights established by the Selangor State Government.  Members of the Malaysian Bar have offered their legal services on a pro bono basis to assist the Orang Asli communities to protect and defend their land rights.  Similar efforts have been made by lawyers in Sabah and by members of the Sarawak Indigenous Lawyers Association.

Lim Chee Wee
President
Malaysian Bar

22 Aug 2011





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