Hishamuddin blasts MCA Youth for blasting Khairy?

Let's follow the logic here.
1. Khairy made an insensitive statement which was made public.
2. MCA Youth publicly denounces that statement.
3. Hishamuddin says MCA Youth is wrong because there are "channels" to discuss racial issues.

Several questions come to mind:
1. Why is Khairy not advised to use the correct "channels" to air his insensitive statements?
2. Is Hishamuddin using the correct "channels" in reprimanding MCA Youth?
3. Is there another "channel" we can all switch to rather than watching this drawn out useless affair?

After all, however much Khairy tries to raise the Chinese bogeyman, the truth of the matter is the average Malay will continue to deal with the average Chinese because business is more important than politics (that's why people join politics in order to advance in business, but rarely would anyone start a business in order to advance in politics).

Acknowledgement without accountability means little...

The PM in addressing the MCA general assembly is reported to have said that he has requested Khairy to be careful with his statements. However, the PM said he is not certain whether Khairy should apologise because he does not know what Khairy specifically said.

What a cop-out. How can the PM, knowing full well that there has been strong sentiments expressed against his son-in-law's statement, hide behind the veil of ignorance? Especially since the statement was made in an official UMNO gathering, by a person holding an official UMNO office? This is not teh tarik banter we are referring to. This was a speech calculated to inflame emotions on racial sentiments. A cheap trick to try and win support by raising the Chinese bogeyman.

Imagine how Pak Lah would react if the sentiments came from the Chinese instead? What would Pak Lah do if the Chinese Youth leader decided to announce to the public that he will never sell shares to a Bumiputera in order not to erode the position of the Chinese? What if this leader followed up by declaring that MCA must be strong so that the Malays will not exploit the Chinese disunity and weakness in order to take advantage of the Chinese? Will this Chinese leader not be hauled up for sedition? If so, why is it not inappropriate for Khairy to be hauled up as well?

Khairy may think that he needs to portray himself as an ultra-Malay to climb up the ranks of UMNO. But he must remember that UMNO and Malaysia requires the harmonious relationship between the races, as well as the economic support of the multi-racial business community to continue to rule. The reason UMNO gets support is because it is not PAS, but if it starts smelling and feeling and tasting like PAS, then people will eventually conclude that UMNO equals PAS, and perhaps better spiritual PAS than racialistic UMNO.

As for Pak Lah, don't just acknowledge Khairy's wrongs. Make him apologise and hold him accountable for it as well.

Why a simple review would not be enough.

The Bar Council has called for a review of the 1988 judicial crisis. And former Lord President Tun Salleh Abas today came out in support of the review. The Government (if Nazri Aziz's stance is reflective of the government) is firmly against it.

What's the big deal about the judicial crisis? Simply put, it was interference with the judiciary by the government of the day at its worst. The highest-ranking judge of the country was sacked pursuant to a tribunal many would regard as being unfair and unlawful. This was done because there were vested interests involved in various decisions that had to be decided by the judiciary, not least of which a decision regarding UMNO, and by implication the Premiership of the country.

Undoubtedly, 1988 was a sordid affair. But is a simple review sufficient? We've had ample reviews and royal commissions in the past. What happened, for instance, to the royal commission inquiring into the workings of the police force, which called for an independent commission to regulate the police? Nothing seemed to have come out of that. It is difficult enough to get the government of the day to agree to set up a royal commission of inquiry, then in most cases there must be a further struggle to have the commission's findings made public. Even then, there must be a further struggle to have the commission's findings to be earmarked for implementation. And even when the government has agreed to implement the commission's findings, there is need for a further struggle to translate that agreement into action.

All in all, it's a tremendous waste of time and resources to get the government machinery to move. So, what's the use of a review? Especially in this case where there does not seem to be any interest on the part of the government to do so?

Perhaps the government will be more receptive if the former Lord President would gather together with the other sacked judges, form a consortium of private companies, and propose to be given 20-year monopoly rights on the renewal of Sijil Annual for all lawyers annually. After all, the various local councils have shown that this is the way forward as far as dealing with the government is concerned.

Is a formal adoption order necessary?

Malaysian society continues to maintain the practice of "foster parents" or "godparents". Many times, children are unofficially and/or customarily adopted by their uncles and aunties or other close relatives.

In Amarapathi Periasamy v Muniandy Periasamy, a child was released to the care of her aunt for 11 years and at all times, her aunt and uncle acted (and was acknowledged by all) to be the child's foster parents. When she was 12 years old, the aunt brought her back to meet her natural parents, and the natural parents refused to allow her to return to the foster home. The foster parents commenced a suit for custody of the child.

The case proceeded all the way to the Federal Court where the Court dismissed the case, on the grounds that the natural parents would have custody of the child and the jurisdiction of the Court to determine custody is only exercise when there is a dispute between the natural parents in respect of the custody. The Court pointed to the lack of formal adoption procedures as an indication that the foster parenthood was not intended to be permanent.

So, for all "foster parents", "godparents", informal adoptive parents, and the like, take the additional step to apply for a formal adoption order. An adoption order renders the adopted child to be a child of the marriage (i.e. ranks equally with other legitimate children of the marriage). And upon issuance of an adoption order, the adoptive parents actually have a greater right to custody of the child as compared to the natural parents. This would prevent surprises like in the case of Amarapathi Periasamy, where the natural parents disputed the "adoption" after 12 years.

Is a formal adoption order necessary?

Malaysian society continues to maintain the practice of "foster parents" or "godparents". Many times, children are unofficially and/or customarily adopted by their uncles and aunties or other close relatives.

In Amarapathi Periasamy v Muniandy Periasamy, a child was released to the care of her aunt for 11 years and at all times, her aunt and uncle acted (and was acknowledged by all) to be the child's foster parents. When she was 12 years old, the aunt brought her back to meet her natural parents, and the natural parents refused to allow her to return to the foster home. The foster parents commenced a suit for custody of the child.

The case proceeded all the way to the Federal Court where the Court dismissed the case, on the grounds that the natural parents would have custody of the child and the jurisdiction of the Court to determine custody is only exercise when there is a dispute between the natural parents in respect of the custody. The Court pointed to the lack of formal adoption procedures as an indication that the foster parenthood was not intended to be permanent.

So, for all "foster parents", "godparents", informal adoptive parents, and the like, take the additional step to apply for a formal adoption order. An adoption order renders the adopted child to be a child of the marriage (i.e. ranks equally with other legitimate children of the marriage). And upon issuance of an adoption order, the adoptive parents actually have a greater right to custody of the child as compared to the natural parents. This would prevent surprises like in the case of Amarapathi Periasamy, where the natural parents disputed the "adoption" after 12 years.

How to disqualify a solicitor?

In many non-disputed matters, one solicitor may act as common solicitor for all parties. But when the matter subsequently gets disputed, the same solicitor then seeks to represent one party in the dispute. If that happens, you may seek to disqualify the solicitor from acting for the other party. There are a few grounds to do so. Some common grounds are:

a. Solicitor is a potential witness;
b. Solicitor has received confidential information likely to prejudice your case;
c. Solicitor will be acting in conflict of interest.

But before you seek to disqualify any solicitor, think carefully. Would it be better to stick with the devil you know than the devil you don't?

Who gains from the Lebanese conflict?

Finally, a ceasefire is in place in Lebanon. What started off as a reckless cross-border raid by Hizbollah to capture 2 Israeli soldiers ended in a full scale war. The disproportionate response of Israel led to the destruction of 600 km of roads, 150 bridges, and between 40,000 to 200,000 homeless (depending on the source of information). Factories were razed to the ground, foreign investment fled the country, and the tourism industry of Lebanon which boasts 1.6 million visitors annually seems not likely to recover anytime soon.

The Israeli intention to secure the release of its 2 captured soldiers remains unfulfilled.

So, what has this war accomplished?

1. Greater support for Hizbollah- branded terrorist organisation by the West, but seen to be the "hero" who has stood up to the military superpower of the region. We can expect more notoriety from this organisation in the future.

2. Difficulty for the Israel government to implement the further withdrawal from the Gaza Strip. Like it or not, Israel will withdraw from the Gaza Strip only if it is politically expedient, and this recent war is not going to make it politically expedient for Israel to withdraw further at any time soon.

3. Greater fuel for recruitment by terrorist organisations. One-sided information coupled with youthful zest and enthusiasm can easily be manipulated to lead marginalised youths into infamy, driven by their hope of glory or martyrdom, whichever comes first.

4. Better profits for weapons suppliers. The war has used up a reasonable amount of supplies of bombs and weaponry, and these need to be replenished. The weapons industry is reputed to be a US$8 billion dollar industry per annum.

5. Better political mileage for Bush. Hizbollah helps preserve the political fiction that Islam perpetuates terrorism and is out to destroy US/Israel/West and all the values they stand for.

6. Further disenfranchisement between Israel and its Arab neighbours, which only serves the right-wingers of both Israel and Arabs.

7. Potential disaster for Ehud Olmert, PM of Israel, for his handling of the Lebanese crisis which has resulted in a seeming "defeat" for Israel.

8. Better fundraising for a Republican president for the next elections in the US. It is said that the Bush administration comprises 32 executives and stockholders from the weapons industry (www.themoderntribune.com). The perpetuation of war is good for business.

So, we have a ceasefire, a mere cessation of hostilities. But there is as yet no peace, which remains an illusive dream so long as parties with vested interests in war remains in power.

Come on, Pak Lah. Stop the lies...

Pak Lah must be losing sleep these days. With Tun M viciously attacking him, he is up to his neck defending against the allegations thrown his way. One good step he took was to de-classify the documents which showed that Tun has clearly misconceived the situation. With truth, Tun M is reduced to a bark worse than his bite.

If only our dear PM would allow truth to prevail in other situations as well.

The Jasin MP made an outright lie in Parliament. First, he said he was merely helping a Bumiputera company. He disavowed any interest in the company- merely doing his altruistic duty as a MP. Later, it emerged that he was the only Bumiputera in the company concerned. The truth has come out. Where is the action against him?

Now, the Selangor MB made another outright lie. He said there was no such thing as a monopoly right granted to billboard companies. The Sun has uncovered documents showing that an actual contract was signed 20 months ago. The truth has come out. What action will be taken against him?

If no action is taken by our PM, then it will merely reflect badly on himself. The next time he claims to tell us the truth when he is attacked by Tun M, can we really believe him?

Come on, Pak Lah. Be the PM we know you can be. You have suffered long enough in politics and waited for your moment of power which has now dawned upon you. You have made us promises which we hold on to dearly- promises of a Malaysia for all Malaysians, free from corruption. Don't let deadweights of a past administration, whether a Tun or a YB, hold you back.

Lending made easier...

We have all encountered it. Once in a while, someone wants to borrow money from us. Question is, can we recover this money if the loan turns bad?

The Malaysia Moneylenders Act renders all moneylending activities by non-licensed moneylenders to be void. This means that the moneylenders would be unable to enforce the loan in a Court of law. This provision has cast some doubts as to whether a friendly loan can be recovered through the legal process.

In the recent Court decision of Floral Trends Ltd v Li Onn Floral Enterprise (M) Sdn Bhd, the Court answered the question with a resounding "yes". An unlicensed moneylender can recover the loan, even with interest, on the condition that it can show the court that the lending was a "one-off" incident, and that the lender is not actually carrying out a moneylending business.

On the one hand, that seems fair since a borrower should by right return monies borrowed. But on the other hand, the purpose of the Moneylenders Act is to regulate the terms of borrowing (including interest chargeable), and by allowing one-off incidents, the Court is removing the protection afforded to the consumer under the Moneylenders Act. It may be difficult for the borrower to show that the lender is in fact an illegal moneylender, and there is nothing stopping the lenders from pleading a series of "one-off" incidents.

Better perhaps to adhere to the principle, "Neither a borrower nor a lender be..."

Is Malaysia losing its plot?

Perhaps it's Dr M's constant criticism, or perhaps it's just the tougher economic conditions, but so often nowadays, I hear people saying, "Malaysia won't get anywhere". Is Malaysia losing its plot? Should we consider jumping ship? In the midst of pondering these questions, I came across this poem which I thought puts a different perspective to the situation. Here's how it goes:

"I've already run for dear life,
straight to the arms of God.
So why should I run away now
when you say,
'Run to the mountains,
the evil bows are bent,
the wicked arrows aimed
to shoot under the cover of darkness
at every heart open to God.
The bottom's dropped out of the country;
good people don't have a chance'?

But God hasn't moved to the mountains;
his holy address hasn't changed.
He's in charge, as always,
his eyes taking everything in,
his eyelids unblinking,
examining Adam's unruly brood
inside and out, not missing a thing.
He tests the good and the bad alike;
if anyone cheats, God's outraged;
Fail the test and you're out,
out in a hail of firestones,
Drinking from a canteen
filled with hot desert wind.

God's business is putting things right;
he loves getting the lines straight,
setting us straight.
Once we're standing tall,
we can look Him straight in the eye."

It's so tough to have a father in power...

Dr M said it all. He NEVER helped his children in their business dealings when he was PM. Of course, fresh in our memory is PM's statement a couple of days ago that he too never helps his son or son-in-law despite being in power. And who can forget the son of the ex Transport Minister, (now Tun) Ling Liong Sik, who similarly had a very successful businessman son, whom of course he never helped as well.

Ah...it's so very tough to be the son of a person in power. When you're successful, your father gets all kinds of allegations thrown at him. And if you're not succcessful...wait, what am I talking about? All children of fathers in power are successful. The notion of an unsuccessful son does not exist.

Maybe Senior Minister Lee Kuan Yew was correct after all when he advised the smarter Singaporeans to have more children so that better genes can be inherited. Perhaps we could adopt that policy and maybe achieve Vision 2020 in the year 2019 instead?

More is said when left unsaid...

Today, the dramatic headline in The Sun declares, "PM Strikes Back". Finally, he gives a full-length interview aired over TV3 where he took on some of the crucial accusations against him. It must have been difficult to keep silent all these while, and we know for sure if Dr M was in the hot seat, he would not have kept silent for half the time.

I like Pak Lah. He comes across as a decent man, who seems sincere in wanting to fulfill his mandate. I half suspect he would construe his mandate as something bestowed by Allah s.w.t., although democrats would like to think that he is fulfilling the mandate of the rakyat. Perhaps both are true.

However, as a trial lawyer, I cannot help but notice the discrepancy in the way he described his son, Kamaluddin, and his son-in-law, Khairy Jamaluddin. Concerning his son, Pak Lah was emphatic: "Kamal has never abused his ties with me. 80% of his business is from overseas. He is not involved with other local firms or government concessions. He has never asked help from the government or anything that required a bail-out for him." Strong words, strong convictions, and totally admirable.

Concerning Khairy, however, Pak Lah said, "There is no proof that he seized government projects." Huh? What does that really mean? It can be read so many ways:

1. There IS no proof that he seized government projects. (We destroyed the evidence already).

2. There is NO proof that he seized government projects. (He just didn't do it. All allegations are lies).

3. There is no PROOF that he seized government projects. (He did it, but you cannot prove it).

4. There is no proof that HE seized government projects. (Entities rumoured to be linked to him did it, but you cannot say it was him).

5. There is no proof that he SEIZED government projects. (It was given to him on a silver platter. No seizing involved).

6. There is no proof that he seized GOVERNMENT projects. (The projects he seized did not belong to the government. They could have been private finance initiatives, or projects of GLCs which are technically private entities).

7. There is no proof that he seized government PROJECTS. (The subject matters which he seized cannot technically be construed to be projects. They were more in the form of licences, grants, etc).

DISCLAIMER: I really don't know the truth or falsity of any allegation against Khairy. I did not even watch the TV3 interview but have plucked the above from the front page of the Sun. This post should not be read as a critique against Khairy, but should instead be read as a comment on how Pak Lah's simple explanation could be construed in so very many ways. If Pak Lah was certain of his statement, he could perhaps be more emphatic in his denial. The same way he denied nepotism regarding his son, Kamaluddin.

Different forms of marketing
(courtesy of my friend, Janice Chan)

Direct marketing: See a girl, walk up to her and say, "I'm rich. Marry me."

Advertising: Out with bunch of friends, see a girl and your friend walks up to her and say, "He's rich. Marry him."

Telemarketing: See a girl, get her phone number, call her the next day to say, "I'm rich. Marry me."

Public relations: See a girl, pour her a drink, open the door for her, picks up her bag for her, give her a ride home, then say "I'm rich. Marry me."

Brand recognition: Girl sees you, walks up to you and say, "You're rich. Can I marry you?"

Customer feedback: See girl, walk up to her and say, "I'm rich. Marry me", then get a slap on your face.

Have a wonderful week ahead.

Kheng Hoe

Aim for the moon and land on the trees? Hardly the case...

Hey, did you hear about the actress who sued a magazine for libel seeking RM1 million in damages (see NST today). Dramatic, isn't it? Doesn't it make you wish somebody rich would defame you so that you can seek this alternative route to become a millionaire? Well, think again.

Let's first look at some slightly boring legal concepts. The law categorises damages into roughly 3 categories. There is:

1. General damages, where the plaintiff (i.e. you, if you're trying to get rich through this alternative millionaire route), tells the Court, "I suffered something but I cannot tell how much I suffered in monetary terms". Believe it or not, people pull this trick in the Courts all the time, although I can just imagine the response you'll get if you try pulling this same trick with the police. "Tuan, I lost something but I don't know what I lost". Your brains, probably, and if you persist in making such a police report, maybe your liberty as they throw you into the lockup for up to 14 days to think about you've actually lost. When the Court faces a claim for general damages, it looks at the situation, looks at past decisions, and pronounces a judicially decided arbitrary sum, which can be anything from RM1 to a zillion-gabillion dollars. (So, why should anyone limit themselves to RM1million, I wonder?)

2. Special damages, where the plaintiff (i.e. you, and please refer to paragraph 1 for the rest of the description about you), tells the Court, "I suffered something and I can clearly show how much I suffered in monetary terms". Now, that's a better situation, and if you can prove you suffered the moon, you can actually get the moon PROVIDED the other party can afford the moon. Otherwise, you just get everything the other party has, which may just be his underpants (he's given all his suits away, you see).

3. Aggravated, examplary or punitive damages, where the plaintiff (i.e. you, and you get the picture by now what kind of a person you are), tells the Court, "Even though I only suffered $x, I should get more than that because you need to "punish" the defendant (i.e. the millionaire who defamed you and opened the gateway for you to seek this alternative millionaire route), so that other people will not act in the same way". Here, you may have merely suffered the moon but you may get the sun thrown in for good measure. Happens with kids, right? Big brother bullies little brother. Little brother cries loudly. Mother punishes big brother (general damages). Father buys ice-cream for little brother and refuses to give any to big brother (aggravated, examplary or punitive damages). You get the point.

So, what's wrong with seeking moon-high damages? I can think of a few factors:

a. On a macro level, seeking high damages stifles free speech in society. Everybody gets too scared stiff to make any comment just in case they are sued. Without freedom of speech and expression, there is no exchange of ideas and society rots with outdated concepts. Can you imagine what would happen if Karl Marx sued everybody who voiced an opposition to his brand of economics? Worse, what if the Courts granted an injunction against every opposing idea? Adam Smith would be impoverished, the entire world will embrace Marxism for lack of an alternative, and you and I become inconsequential comrades in the worldwide Marxist revolution. Which ultimately makes your RM1 million or zillion-gabillion rather worthless.

b. On a societal level, seeking high damages is unproductive to society. Litigation takes a lot of time and effort. This is time and effort away from productive activities like developing your career, making more babies, attending development courses, spending time with your family, lowering your golf handicap, spending time with your second family, or whatever else takes your fancy.

c. Of course I understand you're not the "macro" type. In other words, you don't really care what happens to society at large. Well, seeking high damages is not realistic on your part as well. Consider that (now Tun) Musa Hitam as a sitting DPM was defamed and awarded a grand sum of....(drum roll, please, and hold your breath as I announce this ala the MC of Contender)...One.....Hundred......Thousand.....Ringgit. That's right. Not a million-zillion-gabillion, but a paltry RM100,000. Now, seriously, is your reputation really worth more than a sitting DPM? Mine is not, but you may still be on an artificial high from last Friday night (I know what you did last Friday).

d. If you sought a reasonable sum (say RM200,000 given inflation since the DPM's case), you could have made your claim in the Sessions Court and saved a lot of time and expenses. Your lawyer would have charged you a much more reasonable amount, and the other party would be more inclined to settle with you since you seem like a rational person. Isn't that nice and hunky-dory? Everybody living happily ever after. But of course, it's not like you to take the reasonable route, is it?

e. Now, if you're a lawyer, dare I suggest that seeking a high quantum of damages actually damages the legal profession? You see, when you put in a claim for RM1 million, there is an unrealistic and unreasonable expectation on the part of the client to expect you to get at least a substantial part of that million. (Oops, I may have said that wrongly. I meant the client would expect you to get the sum for them, not as your fees). Sure, claiming RM1 million would get your name published in the newspapers, but can you imagine what happens when ultimately the newspapers publish that you got RM100,000 only? How lousy these lawyers are, everybody else thinks. They only got 10% of what they claimed. Truth is, you probably did well, but earned a bad rep for it.

Honestly, I get enquiries for so many cases where people want to sue for the most ridiculous sums based on the craziest and flimsiest reasons. I always decline. Because I know that sometimes when we shoot for the moon, we don't land on the trees, but on our bums instead. And that would ultimately hurt.

Please stop hitting me so that I can hit you back!

Today front page in The Sun, the Iranian president is said to comment that the only way to resolve the Israel-Lebanon conflict is by totally obliterating the Zionist regime. But, he insisted that there must first be an immediate ceasefire.

Huh? Am I missing something here? I'm a dispute resolution lawyer by practice, and I know for a fact that sometimes, the best defence is an offence. Now, I'm not justifying what Israel is doing, and many of Israel's conduct cannot be justified. But as long as we have characters like the Iranian president around, the US is not about to withdraw its support of Israel. What kind of a logic is that? I want to totally destroy you, so please stop bombing me so that I have the opportunity to do so. Who in their right frame of mind would ever, ever agree to that?

Peacekeepers are also a thorny issue in this matter. Would Israel be comfortable with peacekeepers from OIC countries stationed at its borders? On the flip side, would Lebanon be comfortable with "pro-Zionist" peacekeepers from US and UK within their country?

All these wars bring me back to the words of Jesus, "Blessed are the peacemakers, for they shall be called sons of God". Humanity can at best be peace-keepers, but lasting peace needs to come from a higher source.

Welcome to my blog.

Before today, one of my favourite self-made quote was, "The mark of a good lawyer is one who is technologically backward".

I guess that has to change now that I am stepping into the world of blogs.

You see, I have a passion for writing. That's what made me write for The Sun newspaper every month (FreeSpace column, third Monday of every month, www.sun2surf.com). And that's what's driving me to this whole new world.

What can you expect to get here? Rantings and ravings on all things Malaysian. Quirky viewpoints and off the park comments. And sometimes, you may just learn something about Malaysian law (if not the shortcomings thereof).

So, enjoy the read as I enjoy this ride. And if anything I say is of interest to you, email me at ask@mycounsel.com.my.

Until my next posting, cheers.