Ahad, 1 Disember 2013

The Star Online: Nation

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The Star Online: Nation

Looking at the limits of the law


A British Supreme Court judge warns about the perils of taking "judge-made" law too far.

IN the 27th Sultan Azlan Shah Law Lecture in Kuala Lumpur recently, British Supreme Court judge Lord Jonathan Sumption focused on the tendency for courts in Europe to "convert political questions into legal ones".

He was speaking to an audience of around 1,400 that filled a hotel ballroom to capacity, with almost 200 guests outside who were unable to enter.

They included the President of the Court of Appeal, the Chief Judges of Malaya, Sabah and Sarawak and many current and former Malaysian judges, as well as a former Singapore Chief Justice and a serving Singapore Court of Appeal judge.

Lord Sumption challenged these top legal minds with his address on the limits of the Law. He pointed out that in common law jurisdictions (such as Britain and Malaysia), judges can make and unmake the law, and can overrule past decisions, even those of the highest appellate courts.

The "empire of law" has expanded, he said. "Restraints on the autonomy and self-interest of men, such as religion and social convention, have lost much of their former force, at any rate in the West." (http://www.supremecourt.gov.uk/docs/speech-131120.pdf)

Their role had been largely taken over by law, he added: "Popular expectations of law are by historical standards exceptionally high."

British and other common law jurisdictions have been framing issues as questions of law even in cases that do not really lend themselves to a legal solution, the 65-year-old judge said.

For example, as the European Court of Human Rights at Strasbourg develops the European Convention for the Protection of Human Rights and Fundamental Freedoms, he said, "this kind of judicial lawmaking" takes "many contentious issues which would previously have been regarded as questions for political debate, administrative discretion or social convention and transforms them into questions of law to be resolved by an international judicial tribunal."

And through this process, the Strasbourg court recognises "some rights which the signatories do not appear to have granted, and some which we know from the negotiation documents that they positively intended not to grant."

He questioned giving the force of law to values for which there is no popular mandate, and pointed out that rights can never be wholly unqualified: "Their existence and extent must be constrained to a greater or lesser extent by the rights of others, as well as by some legitimate collective interests. In deciding where the balance lies between individual rights and collective interests, the relevant considerations will often be far wider than anything that a court can comprehend simply on the basis of argument between the parties before it."

Lord Sumption's address reminded former Court of Appeal judge Tan Sri V. C. George of legal developments in India. For example, in disposing of a 1993 public interest case, a Supreme Court bench ordered changes to make the environment around the Taj Mahal environmentally safer.

"They brought in the long arm of the courts to cut down pollution," said the former judge, who has attended all 27 of the annual lectures. "They were justifying what they were doing because the executive and legislative were not doing what they should have done. This started in the heyday of India's Chief Justice P. N. Bhagawati (in 1985 and 1986)."

But in Malaysia, said former Bar Council president Lim Chee Wee, "the speech by Lord Sumption on the tension about the proper boundaries between judge-made law and Parliament-made law does not resonate because we are grappling with a more basic problem."

Over decades, he pointed out, judicial discretion was restricted with mandatory sentences for many offences. Laws such as the Printing Presses and Publications Act oust judicial review. And the Constitution (Amendment) Act 1988 gave High Courts and lower courts only 'such jurisdictions and powers as may be conferred by or under federal law'.

"Fortunately, in the last 10 years with more independent and intelligent judges, we have seen a number of judicial decisions which uphold the supremacy of the Federal Constitution and which provide a check on abuse of executive powers," Lim noted. "I would hope to witness one day a similar debate in Malaysia that our courts have overreached themselves in upholding and promoting human rights ahead of our Parliament."

The Sultan Azlan Shah Law Lecture is organised by the Sultan Azlan Shah Foundation, of which Raja Nazrin Shah, the Regent of Perak, is chairman of the board of trustees.

The audience on Nov 20 included many young lawyers and law students, noted former High Court judge Tan Sri Visu Sinnadurai. "The response to the lecture was overwhelming."

Modern-day Robinson Crusoe


French businessman heads to desert island to become first 'Web Robinson' with solar panels, a windmill, a laptop, a tablet and two satellite phones.

HAVE computer – and Internet connection – work anywhere. So goes the cost-cutting corporate human resources mantra.

Even on an uninhabited coral island in the middle of nowhere?

To the dismay, perhaps, of office workers everywhere, Frenchman Gauthier Toulemonde has returned to civilisation to report that it is indeed possible, though not necessarily desirable nor particularly cheap, to relocate staff "offshore".

Until six weeks ago, Toulemonde, a businessman, journalist and former banker, was inclined to agree with the received wisdom that workers, given the right equipment, can labour more or less anywhere.

Being adventurous as well as entrepreneurial, however, he decided to put the theory to the test and at the same time fulfil a childhood dream of living like a modern-day Robinson Crusoe.

"Who hasn't dreamed of going to a desert island, to get away from it all, to go on an adventure. For me it was a childhood dream. When I'm big I'll leave, I told myself, but as an adult obliged to work to live and subject to the numerous constraints of modern life, I realised it was complicated," he wrote in his blog.

But a year ago, fed up with commuting from his home in the northern French city of Lille to Paris, Toulemonde, 54, decided to relocate his job as the head of a publishing business to an uninhabited island in the middle of nowhere for several weeks.

"I found myself in Gare Saint Lazare in Paris just before Christmas watching the continuous stream of people passing by," he said.

"They had this sad look on their faces, even though they were carrying Christmas presents. It had long seemed to me absurd, this travelling back and forth to offices.

"My idea of going away had been growing for a while, but it was on that day, I decided to leave."

It took six months to identify a suitable island, a 700m-by-500m island in the Indonesian archipelago (the Indonesians made him promise not to reveal its exact location) more than 16,000km from Paris, and a few more months to prepare.

On Oct 8, he left his home in Lille with four towel-sized solar panels, a windmill, a laptop computer, a tablet computer and two satellite phones. He was also carrying two tents to protect him and the equipment from the humidity and the seasonal heavy rains.

Gecko, a borrowed dog, "rented" from a Chinese businessman came too to scare off local wildlife that included rats and snakes.

Toulemonde, who had a budget of 10,000 (RM44,000) for the adventure, including 20 (RM87) a day for Internet, said he wanted to be the world's first "Web Robinson".

"I wanted to show how with solar energy and new technology, we can live differently and work from far away cutting out all the time lost in commuting," he said.

He added that the adventure was no holiday: "I had a business to run, and had to deal with suppliers, banks, clients. The aim was to show I could do this on my own from far away."

He woke at 5am daily and went to bed around midnight. For a change of diet from the rice and pasta he had packed, Toulemonde fished in the sea and rooted out vegetables.

In between, his company Timbopresse was able to publish two editions of Stamps Magazine, to the same deadlines and with the same content.

Last week, on his return from the long distance 40-day "business trip", Toulemonde was a changed man.

There were, he admitted, the good points.

"It was like being in quarantine for 40 days," he said.

"It was good to get away from modern life, to follow the rhythm of the sun and to live in the closest possible contact with nature.

"There's always the risk that when you actually fulfil a childhood dream it won't live up to what you expect. In this case, far from it. I was extremely happy. Every day was magical."

And there were also the, well, not so good. Quite apart from the rats and snakes and the torrential rain and "terrifying storm" on his first night on the island, there was the constant and terrifying fear of the Internet being cut off for lack of electricity or because the rats had got to the cables.

And, he was forced to admit, life can get a bit dull without someone to say "bonjour" to every morning.

"Doing everything virtually has its limits," he admitted on Friday.

"Working from a distance is certainly doable, and with the Internet and Skype you are never alone. But I'd say 40 days is about the limit.

"But it's not the same as physically meeting someone. Nothing can replace human contact." — ©Guardian News & Media 2013

Liow slams ex-EC chief over redelineation remark


GENTING HIGHLANDS: The MCA is concerned about issues in the country that give rise to racism and racial polarisation.

MCA deputy president Datuk Seri Liow Tiong Lai (pic) singled out a recent remark on the redelineation of electoral boundaries by former Election Commission chairman Tan Sri Abdul Rashid Abdul Rahman.

Liow said Abdul Rashid was allegedly creating hatred among the people, referring to the reported remark by the ex-EC chief that the three redelineation exercises during his term from 2000 to 2008 and as deputy chairman before were done to ensure the Malays remain in power.

"He is unprofessional," Liow said when opening the Pahang MCA convention here yesterday.

"MCA will stand firm to preserve the unity of the country," he added.

Abdul Rashid, who reportedly made the remark at a Nov 24 Perkasa gathering, had also said the EC did the redelineation of the electoral borders properly and not illegally.

He was further quoted as saying: "The people who lost in past general elections claimed we did it wrong. But then how did the Barisan Nasional lose in Kelantan, Penang and Selangor?"

Meanwhile, Liow, who is also Pahang MCA chairman, said the party is asking its two state assemblymen, Datuk Lau Lee (Damak) and Datuk Fong Koong Fuee (Cheka), to be included in the state executive council.

He said MCA aims to recapture the six state seats it lost in GE13.

He said MCA is also reclaiming the candidacy for the Kuantan parliamentary seat, which he said was "loaned" to Umno as well as the candidacy for the Tanah Rata state seat, exchanged for the Ketari seat with the Gerakan at the last polls.

Liow called on all party members to stay united to regain the support of the people.

Pahang MCA gave their support for Liow to be the next party president and backed a resolution to re-register party members and to have direct contest for the party presidency and other top party posts.

The convention also adopted 28 other resolutions, covering the economy, education, government and social affairs.

Kredit: www.thestar.com.my

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