Thursday, 18 December 2014

The Birth and Death of Lawyers - a Lament

Imagine a world where births and deaths are occurrences that happen without the normal pomp and circumstance. Imagine that it is merely marked with the filling of official papers.  

Sad isn't it, to have a birth that is noted only on the birth certificate; or a funeral where the body goes into the ground (or the crematorium) with only the death certificate to stand as witness.

That's what is happening to the legal profession in Malaysia. The births of new lawyers are no longer celebrated by the profession. It is a cattle call. An assembly line. To be endured, to be taken advantage of by getting free food.  

And no longer is the death of a lawyer remembered with the reverence of a proper reference, no matter how insignificant his or her contribution was to the profession. References are seemingly a waste of time, to be "kept-in-view," while the business of law happens.

That is sad.  

Yes, the profession is now experiencing a huge number of births every day. Some worry there is already a glut of new lawyers.

So what? Isn't a new birth cause for joy? The baby may be ugly, not so bright, handicapped even - but it still has potential. Yes, it may take up space in the house, eat your food, cry and complain - but that baby is still family.  And as you grow old, that baby grows up to take your place. That is the circle of life. That is inevitable.  

Logically it makes no sense for lawyers already in practice to celebrate the birth of new lawyers - they will eventually "steal" your business. But then, the practice of law is not really a business, is it? It is often touted, and it bears repeating, "A lawyer is a professional," and that means acting against your own interest when it is the right thing to do.

The businessman-lawyer would be absolutely silly to welcome a new entrant into the profession. But surely, somewhere deep down, beneath all that suspicion, paranoia and one-upmanship lies the spirit of the professional who rejoices that another possible great lawyer is born, ready to pick up the mantel when the old passes away.

Surely.

References are times to pause and take stock of our lives. In the hurly-burly of practice, lawyers tend to forget that we are human, susceptible to every human condition that befall all mortals. We get sick, we get into accidents, we wear our pants one leg at a time ... and we die. Is it too much to ask to remember our fallen brothers and sisters once a year during a reference? To bring our lives to a pause to remember theirs? To comfort their family (and remind ourselves) with the words, "He was my brother, she was my sister. We believed in the law. He fell first. We remember his journey. He was of the brotherhood, a comrade - a member of the Bar."

Or is that game of golf too enticing for this?  

The death of tradition is not marked by thunder and lightning. It slowly slips and fades away into the night as we slowly, but surely, think our lives, those little pockets in the infinity of time we call OUR lives, as more important than the cause we undertook when we said to our younger more na├»ve selves, "I want to be a lawyer!"

We all believed in the cause once, surely. You would not be reading this far, dear brother, dear sister, if you do not believe in the law and the fraternity that is the Bar.  

Come, come witness the future birth of new lawyers.  
Come, pause at the passing of our own, once a year.  

The world either hates us or fears us ... and almost always wants us to give it more discounts. That is the world. That is the way of the world.

Amongst ourselves, let us treat each other with respect, for we are family.  Let not our traditions go into that abyss. Add on to them. Modify them, if you like. But celebrate the births, and mourn the deaths. And then go back to your chambers, to the daily grind of practicing the law. For that is who we are - members of a noble fraternity.  

Let us therefore live as such.

The Tangkak Hymnal case - December 2014

OVERVIEW:-
The Royal Malaysian Police (PDRM), in early December 2014, seized 31 hymnals titled, "Mari Kita Memuji Allah Kita," from Cyril Mannayagam, a Catholic priest in Tangkak, Johor. 

"Johor deputy CID chief Assistant Commissioner Dennis Lim said the case was being investigated under Section 298A of the Penal Code for causing disharmony, disunity, or feelings of enmity, hatred or ill-will on grounds of religion."

THE LAW:-
Section 298A - The then Supreme Court in Mamat Daud [1988] 1 CLJ (Rep) 197 did rule, by a majority of 3-2 (majority decision of Salleh Abas LP, George Seah, and Mohd Azmi, with Hashim Yeop Sani and Eusoffe Abdoolcader dissenting) that section 298A of the Penal Code is INVALID and therefore NULL and VOID and of NO EFFECT and that order took effect from 13 October 1987. 

MY OPINION:-
It is a waste of the time for the PDRM to investigate an offence pursuant to a law - s.298A Penal Code - that has been declared by the then highest court of Malaysia to be of "no effect".

RELATED ISSUES:-
In light of what has happened at Tangkak, Johor, I reread the 10-point solution explanation by Idris Jala. Two key points are as follows:-

1. "The act of “propagation” is the crux of the matter. While the 10-Point Solution allows Christians and churches to use the ALKITAB, which contains some of the 34 prohibited words, the 10-Point Solution does not condone the ACT OF “PROPOGATION” of non-Muslim faiths to Muslims."

2. "In summary, the 10-Point Solution permits the ALKITAB, conditionally in Peninsular Malaysia but unconditionally in Sabah and Sarawak."

Fact 1: A hymnal is not an Al-Kitab.
Therefore, the 10-point solution is in no way applicable to the facts of this case.

Nothing in the given facts of the case indicate that Cyril was doing anything more than ordering copies of the hymnal to be made at the photocopy shop - to be used during Christmas by his Orang Asli congregation (who use BM as the language of service), i.e. there was NO PROPOGATION of Christianity by Cyril to Muslims.

Note: Article 11(4) of the Federal Constitution is crystal clear: "STATE LAW and in respect of the Federal territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the PROPOGATION of any religious doctrine or belief among persons professing the religion of Islam."

Fact 2: There does not seem to be a similar provision in Johor that prohibits the use of the term "Allah" by non-Muslims (as there is in Selangor)
i.e. Section 9 of the Enakmen Kawalan dan Sekatan Pengembangan Agama-Agama Bukan Islam 1991 [Johor] IS NOT THE SAME AS Section 9 of the Enakmen Ugama Bukan Islam (Kawalan Pengembangan Di Kalangan Orang Islam) 1988 [Selangor]. 

DEDUCTION:-
I can hazard a guess, in my limited capacity, of what might happen with the Johor hymnal case. 

The most likely conclusion would be the eventual return of the hymnals to Cyril Mannayagam. 

There may perhaps be, in the future, an amendment to the Johor Enactment to specify words that cannot be used by non-Muslims, as has been done in Selangor (see s.9 read together with the 1st Schedule of the Selangor Enanctment).


REFERENCES:-


- Idris Jala's 24 Feb 2014 statement - http://idrisjala.my/tag/10-point-solution/



Jason Kay
Melaka
17 December 2014

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UPDATE:-
Police return Christian hymnals to Johor priest
18 December 2014
http://www.themalaysianinsider.com/malaysia/article/police-return-christian-hymnals-to-johor-priest