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 For the past two years, the National Young Lawyers Committee
had been conducting interviews on young lawyers from the Peninsular Malaysia.
This time around, it is our privilege to feature interviews with young lawyers
currently practising in East Malaysia. Through these series of interviews with
our counter-parts, the NYLC hopes to create a greater sense of understanding and
awareness about legal practice in East Malaysia.
This month, we feature an interview with Desmond Sahathevan, who is currently
practising in Kuching, Sarawak. Desmond is of Sri Lankan-Chinese descent born in
Kuching. He graduated from University of Leicester in 1998 and was called to the
Sarawak Bar in 2001. He is practising in a medium size firm (by Sarawakian
standards) and his area of practice is primarily civil litigation. He enjoys
reading, sports and movies. Desmond took some time off his busy schedule to
share some of his thoughts with Valerie Choo on issues affecting the
professional practice and the administration of justice.
1. The Advocates Association of Sarawak (AAS) comprises four main branches
from different parts in Sarawak namely Kuching, Sibu, Miri and Bintulu, and each
branch has a separate committee. Can you enlighten us on the Association’s
framework and the way it operates?
Under the AAS Constitution, the four branches of Kuching, Sibu, Miri and Bintulu
fall under the umbrella of the Central Committee. The Central Committee is
responsible for the affairs of the Association at state–level, and the interests
of all its members and the legal profession in general, whilst the Branch
Committees manage the affairs of their respective branches in accordance with
the rules of the Association and the instructions of the Central Committee and
Delegates’ Conference.
The elections for the Branch and Central Committees are held every two years.
The elections for the Branch Committees will be held first, and each elected
committee is entitled to appoint and send delegates to the Delegates’
Conference, which is held annually. At the Delegates’ Conference during an
election year, the Central Committee is elected to serve for the following two
years.
2. I understand that a Young Lawyers Sub-Committee (YLC) has recently been
set up under the Kuching branch committee and you have been appointed to chair
the sub-committee. Was the setting up of the YLC a unanimous decision by all
committee members? Were senior lawyers supportive of the idea? What is the
definition of young lawyers in Sarawak?
Yes, to the first two questions. There is no official definition of ‘young
lawyers’ in our Constitution at the moment, and we accept any member willing to
be part of and assist the sub–committee. We still have yet to set up a Young
Lawyers Sub–Committee at state level and we are looking to do so soon.
3. Do Miri, Sibu and Bintulu plan to set up their own YLC in the near future?
I believe Miri has already done so whilst Bintulu and Sibu are looking into
setting up their own sub–committees.
4. The Malaysian Bar Council’s National Young Lawyers Committee has been
encouraging all State Bar Committees to have a Young Lawyers Sub- Committee.
What is your view on that?
I think it definitely will assist in bringing young lawyers from each State Bar
closer together, especially when there are various activities involving young
lawyers. I would think that it is more difficult for one committee to have to
locate and keep track of the activities of young lawyers in all the States. It
would be much easier to contact the various committees of each State, who in
turn can alert and seek support from its members.
5. How does it feel to be appointed as the Chairperson of the newly set up
YLC? What are your present and future plans for young lawyers in Kuching? What
steps would you take to encourage more young lawyers to join and participate in
the YLC?
Our branch’s Young Lawyers Sub-Committee has just been set up and is still at
its infancy. It is always good to be part of something new and I hope that we
will be able to hit the ground running in terms of getting young lawyers
throughout the State of Sarawak to be more active in the Association. We are
looking into organizing more activities, both educational and recreational, for
our young lawyers to get involved in.
6. Last year, the National Young Lawyers Committee of the Malaysian Bar
released a survey report on the working conditions of young lawyers. The purpose
of the survey was to identify pertinent issues, the needs and interest of young
lawyers such as remuneration and benefits, working hours, work related
pressures, performances, work-life balance, etc. How would you describe the
working condition of young lawyers in Sarawak?
Having been in practice here for quite a few years now, I have no complaints.
The remuneration here in Kuching, particularly for young lawyers, is obviously
not as high as in, for instance, the Klang Valley, and that is dictated by
market conditions. That aside, I’d like to think that lawyers here get a good,
healthy balance between work and family/social life, and young lawyers here are
given every opportunity to learn the ropes and broaden their legal knowledge.
However, we have the same pressures as lawyers from anywhere else, as regards
servicing our clients, keeping to the Court’s schedule, collecting our fees etc.
One good thing is that we save a lot of time over here not having to go through
massive traffic jams when going to or leaving work.
7. We are all aware that there is no unified Bar for West Malaysia and East
Malaysia. Can you give us an overview of the procedures / requirements that
needs to be fulfilled by a Sarawakian after one completes the Certificate in
Legal Practice (CLP) and thereafter intends to do pupilage in Sarawak?
Under the Advocates Ordinance of Sarawak, any person with Sarawak
connections who has completed the CLP or the Bar Vocational Course is entitled
to take up pupilage at the chambers of the State Attorney General or any
Advocate in Sarawak who previously has had no less than five years of practice
in any part of Malaysia. No person can be admitted as an Advocate unless he or
she has been a pupil or read in chambers for a period of no less than twelve
months.
A person is deemed to have Sarawak connections if he or she either was born in
Sarawak, or has been ordinarily resident in Sarawak for a continuous period of
five years or more, or otherwise satisfies the Chief Judge of Sabah and Sarawak
(“Chief Judge”) that he or she is, at the time of asking, domiciled in Sarawak.
The Chief Judge has the discretion to exempt any person from the whole or part
of any period of pupilage in certain cases. For law graduates who have been
called to the West Malaysian Bar or Singapore Bar, regardless of the number of
years of practice, generally nine months exemption from pupilage will be granted
by the Chief Judge.
8. There has been much discussion of the position in respect of legal
practice in Sabah and Sarawak as members of the Malaysian Bar are not allowed to
practise in either Sabah or Sarawak. However Sabah and Sarawak practitioners are
allowed to practise in West Malaysia. What is your opinion on this? Why do you
think such a restriction is imposed and why is it not reciprocal?
Such a restriction is in place by virtue of the Malaysia Agreement, which
accords special protections to Sabah and Sarawak and confers on the State
Authorities to control entry into, and residence in the two states, and these
safeguards have been incorporated into the Federal Constitution, ever since the
birth of our country. Prior to the Agreement, it was reported by the Cobbold
Commission that there was a genuine fear amongst the people in North Borneo and
Sarawak that if Malaysia was to be formed, their rights as citizens would be
affected and undermined by virtue of Malayan dominance. The Malaysia Agreement
was drafted to provide the aforesaid safeguards for the people of Sabah and
Sarawak, and those safeguards are still necessary today.
The matter of restrictions on West Malaysian lawyers practising in Sabah and
Sarawak is not just a matter only concerning the legal profession, but is a
constitutional and legislative matter. It is only with the assent of the
legislatures of both East Malaysian states that those safeguards can be lifted.
The fact that those safeguards are still in place shows that our state
governments do not think that we are ready to open up for West Malaysian lawyers
to practice here. Perhaps racial integration and overall development in both
states has not reached a level to justify taking away the protection for the
people here.
9. As a result of such restriction, the Malaysian Bar Council had on numerous
occasions raised the issue of Sabah and Sarawak opening their legal services to
peninsular lawyers. What is your say about this?
Again, this is a constitutional and legislative matter which has to be
decided by the respective state governments, and it is not just a matter for the
Malaysian Bar Council, but also the Sabah Law Association and the Advocates
Association of Sarawak, who are all of equal stature. As you have pointed out,
there is no unified Bar in Malaysia. West Malaysia, Sabah and Sarawak each have
their own Bars and enactments governing lawyers in their respective
states/jurisdictions. One may be able to equate this present state of affairs to
the position in countries such as Australia or the United States of America.
10. You are also the Chairman of the Sports and Recreation Sub-Committee,
Kuching branch and a member of the Publicity Sub-Committee, Kuching branch. How
do you strike a balance in life as a married man and having to hold all these
positions at the same time?
Thankfully, I have yet to get into any real trouble with my family over my
various roles in the Association. Ultimately, I try to serve the Association in
any way that I can and after all that, I just take my family out for a nice
dinner and hopefully that will smooth things over.
11. Throughout your practice, how would you describe the activities of the
Association? Are young lawyers in Sarawak, particularly in Kuching, actively
involved in the Association’s activities? What measures can the Association take
to encourage more participation in the activities?
I would describe the level of participation by young lawyers here as healthy but
capable of being increased further.
In the past year leading up to the last AGM, the focus of the Kuching branch has
been on ‘continuing legal education’ and we have tried to organize many seminars
for our lawyers to attend so that they could broaden their legal knowledge.
Furthermore, we have in the past organised a Legal Awareness Day, whereby we
would on a given day go out to the public and offer free legal advice so as to
raise public awareness on their basic rights and what they can do. We are
definitely going to organize more seminars and conferences with the aim of
further developing the skills and knowledge of lawyers here. We are also
discussing the possibility to having a Family Day for lawyers to bring their
families and get together on a social basis, as well as other sporting and
recreational activities for lawyers who like to sweat and compete.
I think the key is to be diversified in our events and activities so as to cater
to the interests of hopefully, most if not all of our members. Also, it is
important to introduce new and fresh ideas for events every so often so that our
members would not get bored.
12. Would you consider practising in Peninsular Malaysia in the near future?
Do you think practice between West and East Malaysia varies extensively?
I have considered it in the past but circumstances dictated that I come back
to practice in Sarawak. From what I gather, there are quite a few differences
between practice in West and East Malaysia, particularly in respect of court
practice and procedure and also in respect of conveyancing matters. We also have
a smaller pool of lawyers in Sarawak, so we have to regularly deal with the same
people time and time again, and thus we are probably more familiar with each
other than lawyers are in West Malaysia.
13. Having gone through the Certificate in Legal Practice (CLP) in 2000, what
is your general view on the CLP examinations? The CLP is tipped to be scrapped
in favour of the Common Bar Course (CBC) and Common Bar Exam (CBE) in order to
standardize and improve the quality of legal practitioners. Can you share your
thoughts on that?
I felt that during the time when I sat for the CLP, there was not enough
emphasis on honing a lawyer’s practical skills, such as advocacy, negotiations
or client management. We were just given materials to read and past year
questions to do to prepare for the exams. An example of a knock on effect of
this is I come across lawyers who have little knowledge of proper court decorum
and this could be attributed to a lack of emphasis on this during the
professional course. I am all for a professional course which not only focuses
on instructing candidates on matters of practice and procedure but also helps
them to develop their practical skills so that they be more equipped for legal
practice.
14. The Court of Appeal in a recent case decided that lawyers from Peninsular
Malaysia are allowed to represent clients in civil and criminal appeals
originating from the High Court of Sabah and Sarawak when the Court of Appeal
sits in West Malaysia and this caused much uneasiness among Sabah and Sarawak
lawyers. The Kuching branch of AAS held an Extraordinary General Meeting (EGM)
on 16th November over the ruling of the Court of Appeal. Were you present at the
EGM? How did it go? What was decided?
Yes, I was present. Expectedly, our members felt and continue to feel very
strongly about the matter. The EGM passed five resolutions to be put before the
Delegates’ Conference, due to be held on 22nd November, 2008, for approval, the
objective of which is to protect and ensure the preservation of the exclusive
rights of all Sarawak Advocates to appear in Appeal cases originating from
Sarawak courts, no matter where such cases are fixed for hearing.
I wish to point out that these EGM resolutions were only to be put up for
approval by the Delegates’ Conference.
The final amended and approved resolutions passed unanimously by the Delegates’
Conference on 22nd November, 2008 are as follows :-
“(1) That the Association shall intervene in the Court of Appeal and if
necessary in the Federal Court against the decision of the Court of Appeal in
Civil Appeal No. Q-02-724-2007. (Dato Ting Check Sii and Datuk Hj Muhammad
Tufail Bin Mahmud & Ors) which held inter alia that the Advocates Ordinance
(Cap. 110) has no extra-territorial effect and when the Court of Appeal sits in
the States of Malaya hearing appeals from decisions of the High Court of Sabah
and Sarawak, the right of audience before the Court of Appeal is governed by the
Legal Profession Act 1976 and not by the Advocates Ordinance (Cap. 110).
(2) That pending the final resolution of the issue of the right of audience of
Advocates before the Court of Appeal and the Federal Court hearing Appeals
originating from Sarawak, the Association shall makes representation to the
President of the Court of Appeal and the Chief Justice of Malaysia that in
exercising their respective powers and discretion and under Section 39 and
Section 75 of the Courts of Judicature Act, they should fix the venue for the
hearing of any appeals originating from Sarawak in Sarawak and not in Putra Jaya
or any places outside Sarawak particularly in the States of Malaya.
(3) To call for a permanent panel of the Court of Appeal and Federal Court to be
stationed in the State of Sarawak or Sabah to hear appeals originating from the
High Court of Sabah and Sarawak and to set up a Court of Appeal Registry and
Federal Court Registry in Kuching, Sarawak.
(4) To Petition to the Right Honourable the Prime Minister of Malaysia, the
Chief Minister of Sarawak, the Chief Justice of Malaysia, Chief Judge of Sabah
and Sarawak, the defacto Law Minister, the Federal Attorney General, the State
Attorney General and the Legislature to observe and give due regard and effect
to the constitutional safeguards enshrined in the Federal Constitution and the
Inter Governmental Committee Report, the Malaysia Agreement and the Advocates’
Ordinance which conferred the exclusive right of audience before the Court of
Appeal and the Federal Court hearing Appeals originating from Sarawak upon
Sarawak Advocates.
(5) In the event that the decision of the Court of Appeal in Civil Appeal No.
Q-02-724-2007 is upheld by the Federal Court to move the Federal Court to
confirm the validity of previous decisions and orders made by the Court of
Appeal and the Federal Court sitting in Kuala Lumpur or Putra Jaya in respect of
Appeals originating from Sarawak prior to the said decision of the Court of
Appeal in Civil Appeal No. Q-02-724-2007 and to strive for appropriate
amendments appropriate amendments to be made to the Court of Judicature Act or
the Legal Profession Act to restore the right of exclusive audience before the
Court of Appeal and the Federal Court hearing matters originating from Sarawak
to Sarawak Advocates in conformity with the spirit and intent of the
Inter-governmental Committee Report, the Malaysia Agreement and the Advocates
Ordinance (Cap. 110).”
15. A history is created when Barack Obama became the first African American
to be elected president of the United States. Prime Minister Abdullah Ahmad
Badawi himself said it was possible that Malaysia could have a non-Malay leader.
What is your general opinion on this? Is Malaysia prepared to be led by someone
who is not from the country’s Malay-Muslim majority?
Barack Obama’s election as President shows that people are always willing to
vote for what they think is right, regardless of race or religion. The people of
Malaysia are no different. It is a fundamental provision in our Federal
Constitution that every citizen has a right not to be discriminated by reason of
race, religion or descent, although the Constitution also recognizes the special
position of the Malays and identifies Islam as the religion of the Federation. I
look forward to a time when Malaysians will come to a point where they can
overcome racial and religious boundaries, and elect a person primarily for his
or her merits, capabilities and desire to solve problems.
Though I do not think Malaysia is right now ready to be led by someone who is
not from the country’s Malay–Muslim majority, due to the boundaries which must
be overcome first, such as the cutting down of religious politics and the NEP
being reviewed, what is much more important is that whoever is our leader, he or
she rightfully defends and upholds the spirit of the social contract, conceived
51 years ago, and always act fairly bearing in mind the multi–racial and
democratic nature of Malaysian society.
16. Recently two assemblies were held. One was to protest against the ISA and
the other, to support it. Both groups were exercising their right to freedom of
assembly as enshrined in the Federal Constitution. The police were accused of
practising double standards when only one group was targeted for arrests, namely
the anti-ISA group. What is your general opinion?
Obviously, blatant practice of double standards is not right. The police have to
be consistent and unbiased in the application of their powers. As for the ISA,
the original purpose of its enactment was for protection against terrorism and
communism, and there have to be checks and balances in the exercise of the
powers prescribed therein. I am of the popular view that the ISA should be
amended to introduce restrictions so that its usage is restricted to the
original purposes for which the Act was first introduced, and it is not abused.
17. The Government had recently lowered the rate of employee’s contribution
to the Employees Provident Fund (EPF) from 11% to 8% for two years from January
2009. Much dissatisfaction arose since the government’s proposal. Do you think
it is a good idea to have a mandatory cut in EPF deductions? Or would you prefer
it otherwise?
At the moment, employees are allowed the option of maintaining their
contribution at 11%, so I think it’s a non–issue. Only time will tell if such a
move on the Government’s part was a wise one.
Other YL Personalities:
Ang Kai Whei
Tham Shien Shyong
Ong Yu Jian
Nor Erini Bt Mustapha Kamal
Teng Siew Yik
Sia Teng Teng
Alvina Mun Sook Kwan
Melisa Tai Mein-Sze
Vincent Tan Boon Siang
Muhammad Syamsulfaiz Zainuddin
Ummi Kalthum Bt Zakaria
Mohd Taufik
Bin Md Tahir
Goh Chuan
Chean
Hemalatha
Parasa Ramulu
Kho Yieng San
Ng Li Lin
Karthigesan
a/l Shanmugam
Juna Binti
Jusoh
Syamsuriatina
Ishak
Albert Ding
Choo Earn
Sulaiman Bin
Abu Bakar
Nasdrul Umur
Bin Shamsulhuda
Elaine Daly
Devkumar
Kumaraendran
Sandesh Kabir
Singh
Edelina Sophia
Binti Sophian Pulle
Mohd Busyairy
Bin Che Muda
Wong Fook Meng
Fadiah Nadwa
Fikri
Lee Chooi Peng
Angeline Cheah
Yin Leng
Mishant a/l
Thiruchelvam
Shahrizal Bin
Mohd Zin
Rezalman B.
Bahran
Gavin Tang Cheng
Loong
Noreen Ahmad
Ariff
Nadia Ashikin
binti Maduarin
David Dinesh
Mathew
Nizam Bashir
Bin Abdul Kariem Bashir
Amer Hamzah
Bin Arshad
Ernie
Suffiani Binti Salim
Ahmad Syukri
Bin Yusoff
Dipendra
Harshad Rai
Soo Wee Loon
Tracy Hah
Aminuddin bin
Abdullah
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