OPENING OF THE LEGAL YEAR 2017 @ SANDAKAN, SABAH SPEECH BY MR. BRENNDON KEITH SOH PRESIDENT OF THE SABAH LAW ASSOCIATION

OPENING OF THE LEGAL YEAR 2017
6th JANUARY 2017 @ SANDAKAN, SABAH
SPEECH BY MR. BRENNDON KEITH SOH
PRESIDENT OF THE SABAH LAW ASSOCIATION

Salutations
Yang Amat Arif Chief Justice of the Federal CourtYang Amat Arif Chief Judge of Sabah and Sarawak Yang Arif Judges and Judicial CommissionersThe Federal Attorney GeneralThe State Attorney General of Sabah The State Attorney General of Sarawak The Sabah State Minister of Special TasksSenior Federal CounselsJudicial OfficersPresident of the Advocates Association of Sarawak, Mr.Ranbir Singh SanghaPresident of the Bar Council, Mr. Steven ThiruMy learned friends, distinguished guests, ladies and gentlemen.

Welcome

1. On behalf of the Sabah Law Association, I wish to extend both our heartiest salutations and a warm welcome to all those present today for the Joint Opening of the Legal Year 2017 commemoration for Sabah and Sarawak in Sandakan. Your presence here today makes the occasion all the more auspicious and meaningful having journeyed from different corners of Malaysia. Furthermore, this magnificent event is all the more nostalgic as it marks a return to the place where this tradition was first introduced in Sabah, sixteen years ago in the year 2001.

Introduction

2. Having been born here in Sandakan, permit me to begin this speech by making a brief reference to its historical past. Once a trading outpost in the 1700s of the Sulu Sultanate, it became the capital of the then British North Borneo in the 1800s. The modernisation which occurred during the 1900s took a significant step backwards with the Japanese occupation during World War II. Thereafter, the inhabitants of Sandakan experienced the unsustainable boom of economic prosperity due to the extensive timber trade in the 1970s. In more recent times, the forestry industry has given way to the business of palm oil.

3. Fast forward to today and this part of Sabah is now famed for its abundance of nature, wildlife and rich biodiversity. It is thus commendable that despite its past, Sandakan has come around full circle having been named “The Nature City of Sabah” in 2004. This evolvement speaks volumes about Sandakan’s remarkable ability to reinvent itself and thus chart its future direction for the better.

4. It is therefore symbolic that we, the stakeholders in the administration of justice, are here today in Sandakan to similarly record the historical twelve months just gone and correspondingly mark and navigate our objectives and ideals for the ensuing year.

5. No opening of the legal year would be complete without reference to the seeds of legislation planted by what Lord Denning described as “the greatest constitutional document of all times”, the symbol of liberty, the Magna Carta. Amidst the global backdrop of Brexit, the ascendency of the President Elect Donald Trump and dampened oil prices we are faced with both economic uncertainty and testing times. The one constant that we should continue to grasp is that principle, the foundation of our basic rights, the Rule of Law.

6. Lord Neuberger, the President of the United Kingdom Supreme Court in expounding the Rule of Law reminds us that:-

“First, the laws must be freely accessible: that means as available and as understandable as possible.

Secondly, the laws must satisfy certain requirements; they must enforce law and order in an effective way while ensuring due process, they must accord citizens their fundamental rights against the state, and they must regulate relationships between citizens in a just way.

Thirdly, the laws must be enforceable: unless a right to due process in criminal proceedings, a right to protection against abuses or excesses of the state, or a right against another citizen, is enforceable, it might as well not exist …”

7. The Rule of Law transcends time and society as we draw both guidance and strength from its concept and its paramount application in the legal sphere. As Nick Rahall said:-

“A resilient people cherishing liberty and equality and the rule of law will endure.”

2016 – A Year of Milestones

8. The year gone by has been challenging but ultimately constructive on many fronts for the Sabah Law Association.

9. Principal among the achievements was the witnessing of the Bill described as The Advocates Ordinance (Sabah) Amendment Act 2016 being passed by the Dewan Rakyat on 18th October 2016 and subsequently by the Dewan Negara on the 20th December 2016, a landmark event for the Sabah Bar. The amendments to the Advocates Ordinance have been mooted by the Sabah Law Association over a quarter of a century ago and will, inter alia, entail the formation of a statutory body called “The Sabah Law Society” for all advocates in the State of Sabah. This institution will have a sanctioned role in the admission, discipline and the conduct of all advocates. Inevitably this paves the way forward towards self-regulation and independence of the legal profession in Sabah both of which form a fundamental part of the Bar’s self-identity.

10. The Sabah Law Association is deeply appreciative to all the stakeholders involved in bringing about this Bill to fruition, namely the Minister in charge of Legal Affairs, the Judiciary, the Federal and State Attorney General’s Chambers, the Sabah State Cabinet as well as the lawmakers, all of whom have ensured the smooth passage of this Bill through Parliament. It is pertinent to record that the voice vote in the august house was an emphatic and absolute “aye”.

11. Furthermore, it is material to state that the creation of the Sabah Law Society is in accordance with the spirit of the constitutional safeguard accorded to the then Borneo States as declared in the Report of the Inter-Governmental Committee, section 63 of the Malaysia Act 1963 and Article 161B of the Federal Constitution. This historic event will therefore provide recognition for the autonomy of the legal profession in Sabah.

12. Once formed, the Sabah Law Society will join the ranks of other statutory regulators of the legal profession, namely the Bar Council, the Law Society of Singapore and the Integrated Bar of the Philippines. We are made to understand that the Advocates Association of Sarawak are on a similar journey and we look forward to the day when there will be three (3) statutory bodies regulating the legal profession in Malaysia.

Collaborations with the Judiciary

13. The Sabah Law Association continued its participation with the judiciary’s mobile court programme of verifying the late birth registrations by providing pro bono legal aid and advice to the members of the rural community in Sabah. In doing so, the Association had also officially adopted Sekolah Kebangsaan Pekan Pensiangan as part of its social responsibility objectives and has resolved to contribute resources to equip the students and teachers with additional learning materials.

14. In 2016, the Association also maintained its participation in the workshops entitled “An Introduction to Mediation for Community Leaders” which was held most recently in the Ranau district and co-organised with Pusat Sumber Adat dan Mediasi Kaum Anak Negeri Sabah (PUSAKA) and the Sabah Native Court of Appeal. Disputes resolved amicably without having to go through the Native Courts go a long way to preserving the unity and harmony within the local communities.

15. Similar collaborations were also carried out by the Association and the judiciary in the recent Native Court and Environmental Law workshops held at the Mondikot Deer Camp, in the District of Papar together with other native and environmental non-governmental organisations. The Native Court in Sabah has a recognised role in dispensing justice to the indigenous community. On the fauna front, we were horrified with the discovery early this week that the critically endangered Borneo Pygmy elephants are being hunted by poachers for their ivory tusks. Although Malaysia is a signatory to the Convention on International Trade in Endangered Species (Cites) which outlaws ivory trading and requires the implementation of a National Ivory Action Plan, the need to eliminate the scourge of this senseless industry remains pressing.

16. The Association is also pleased to record the publication of three (3) guidebooks on (1) sale and purchase agreements and caveats, (2) bankruptcy and winding up proceedings and (3) enforcement of judgments which was produced together with the judiciary in Sabah. These guidebooks will serve as a practical introduction and functional reference for the legal fraternity. More guidebooks are in the pipeline. In addition, the other title produced is a guide for self-represented litigants and this publication was a tri-partite effort between the judiciary, the Advocates Association of Sarawak and the Sabah Law Association.

17. Looking forward, at the initiation of the judiciary the Association is ready to work on an amenable and rational framework of rules for Continuing Legal Education [“CLE”] to require all advocates to attend a minimum number of hours of legal education in a calendar year. The timeline suggested is for these rules to come into force by the year 2018. The view taken is that the CLE is necessary to keep abreast with the latest laws and jurisprudence, to maintain the ethics of the profession and enhance the standards of the practice of law. Upholding requisite high standards of professional conduct and capacity of an advocate will prevent the ever prevalent potential for erosion of public confidence against our noble profession.

18. It is perceived that the CLE will complement the already existing two day course and test on practice and etiquette for pupils which currently organised by the Association. If we are to impose these standards on our newer members of the Bar, we should be brave to admit that the learning should never cease, irrespective of our seniority.

Collaborations with the Sabah State Attorney General Chambers and the Lands and Surveys Department, Sabah

19. The Sabah Law Association has been resolutely committed to both the special working committee headed by the State Attorney General of Sabah and the steering committee headed by the Minister of Special Tasks, YB Datuk Teo Chee Kang both of which seek to revamp the land development process. This includes the conversion of land and the proposal of new legislation to streamline the issuance of individual titles of properties, particularly high rise developments. I am pleased to record that the proposals are at the final stage of endorsement and that fresh legislation is expected to be tabled at the State Legislative Assembly this year.

20. Whilst on the topic of law reform, the Association would impress upon the special working committee its commitment to assisting in the amendment of the Sabah Land Ordinance to remove the current uncertainty surrounding the issue of indefeasibility of title or interest as a result of the recent Federal Court decision in Sia Hiong Tee & 3 Others v. Chong Su Kong and 6 Others [2015] 4 MLJ 188. The effect of the decision confirms that under the Sabah Land Ordinance there is an absence of protection for the bona fide purchaser without notice.

21. As the majority of practitioners in the State of Sabah are conveyancers advising members of the public and financial institutions on the legitimacy of title, ownership and interest, the Association believes that legislative intervention is now a matter of urgency so as to remove the current quandary. From a policy perspective, perhaps it is time to consider implementing an assurance fund or title insurance so that any person who subsequently suffers a loss as a result of fraudulent conduct may have recourse for recovery and compensation accordingly.

22. The other notable contribution by the Sabah Law Association last year was the launching of the “Land Dealings Electronic Submission System Version 2.1” known as LADESS 2.1 together with the Lands and Surveys Department. The computerisation of land registration or land information systems is an inevitable consequence of the global impact of computers into everyday transactions. External factors such as the push for greater efficiencies in legal transactions, a reduction in legal costs and a desire to maintain security of title and prevent fraud creates a suitable environment for improving upon the current technology. As a result of this collaboration between the Association and the Lands and Surveys Department, the conveyancing practice in Sabah has been refined with the dispensation of escrow documents. Furthermore, the system will communicate the transmission of both presentation and memorial numbers electronically to the law firms thus avoiding any intermediaries in the process. This transformation will rationalise, streamline and expedite the system of land registration in the State of Sabah.

Engagement

23. Last year the Association carried out the Legal Awareness Weekend on 8th and 9th October at the Suria Sabah shopping mall in Kota Kinabalu which was aimed at improving access to justice. The event was a remarkable success with eleven (11) legal talks given to the public on a range of topics, from an introduction to syariah law to the rights of accused persons. In addition, pro bono legal consultations were provided by a panel of lawyers throughout the weekend. The event was supported by the judiciary, the State Attorney General Chambers, relevant government departments, legal education providers and publishers of legal material. It is hoped that this umbrella approach to the provision of pro bono legal services to the general public will continue in the foreseeable future.

24. Charles Dickens said “Charity begins at home, and justice begins next door”. Following in this vein, the Association held the SLA Charity Legal Run on 6th November 2016. The event attracted over 1300 participants comprising of members of the legal fraternity and members of the public. The surplus sum of RM24,000.00 was raised and distributed to five charitable organisations last month.

25. In addition, a public forum was organised together with the Bar Council of Malaysia on “Promoting Greater Police Accountability in Malaysia” touching on the requirement for the proposed Independent Police Complaints and Commission. The forum generated much interest from the civil society. The Association looks forward to future co-operations with the Bar Council and the Advocates Association of Sarawak.

26. An example of the joint collaboration between all three (3) Bars is the Borneo Advocacy Training Course which had conducted a criminal advocacy course in Sabah and a civil advocacy course in Sarawak last year using the renowned Hampel method. At present there is no substitute for the advocacy skill set developed over the two day intensive course and we forecast this to continue this year.

27. The Association will continue to strive to conduct and organise seminars for the legal community on a regular basis as it has done so last year on a multitude of topics from the new Companies Act and Sports Law to Employment Law in Malaysia. Additionally, it is expected that the Association will conduct a workshop in Sandakan and Tawau to brief members of the implications of the recent amendments to the Advocates Ordinance.

Notable Decisions and Outcomes

28. The Association would like to record the conclusion of two trials which gained prominence for the mammoth amount of judicial time that they consumed. The Darinsok case involving Native Customary Rights was amicably settled after fourteen (14) years as a result of three rounds of mediation midway through the trial and by which time 115 days had been completed with only 16 witnesses having been called. The efforts of the mediators, the parties and their respective counsels are to be lauded in ensuring an all-round solution. Had the Darinsok case not been resolved, it is doubtful whether the other case, known as the Lahad Datu intrusion involving the charge of waging war against the Yang Di Pertuan Agong would currently occupy a record of 186 witnesses and 263 days of trial.

29. Other cases of interest decided last year include Azmi Mohamad Azam v Director of Jabatan Agama Islam Sarawak & Ors [2016] 6 CLJ 562 where the judicial review was granted by the High Court for relief to, inter alia, change the applicant’s name to Roneey anak Rebit at the National Registration Department. The other being the Federal Court decision of Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd & Anor [2016] 3 MLJ 553 where it was decided that Order 57 r 1 of the Rules of Court 2012 made pursuant to section 17(1) of the Courts of Judicature Act 1964 did not give the jurisdiction to transfer proceedings from the High Court of Malaya to the High Court of Sabah and Sarawak, and vice versa.

Conclusion

30. On that note, it is timely for me to end where I began. Former President Jimmy Carter said “The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries. In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect.”

31. On this important date in our annual calendar, the Association hereby renews its pledge to continue the virtuous work with all stakeholders of the legal fraternity. We wish everyone a happy new year and record our appreciation and compliments to everyone involved in the administration of justice as we look towards building upon a strong foundation for the year ahead. Carrie Chapman Catt said “To the wrongs that need resistance, to the right that needs assistance, to the future in the distance, give yourselves.”

32. At this juncture we would also like to congratulate both Yang Arif Ismail Brahim on being appointed a Judicial Commissioner as well as Tuan Dean Wayne Daly on being appointed as the Registrar of the High Court of Sabah and Sarawak last year.

33. Similarly, the Association would also congratulate Mr. Ranbir Singh Sangla on being elected at the President of the Advocates Association of Sarawak in 2016.

34. And in final conclusion, and some might say by popular demand, I wish to recite a short pantun in Kadazan:-
Li nopo kuihib toitom di basaanon dotokou, nga ii no timbangan do kotuhidan
Duduvo tanda, i noikot binitua doid suang kotinanan
Do ponokomiontong diti mizau, ii mogkoitik do toongobon dotokou
Om iho nodii poogi do izotokou no ii monoina do aadang, i kapahapasan touhi
Kotuhidan kumaa toinsanan, au monutul do bansa, votik om kusai toi tondu
Iti no i tonggungan pinababaan dotokou, aiso podoosizan om aiso pogoogozoon

Translated it means:-
The black robe we wear, the scales of justiceBoth symbols, so sacred in embodimentTo be the watch over mankind, who knock our doorsAnd thus it is for us to justly do, the honest deliveranceJustice to all, devoid of race, colour or genderOur ordained moral duty, without fear or favour

Thank you.