WISHING YOU MANY GOOD HOURS IN THE LIBRARY FOR THE YEAR 2012.

EUROPEAN CONVENTION ON HUMAN RIGHTS

ARTICLE 6 (1)

 In the determination of his civil rights and obligations or of any criminal charge against him, every one is entitled to a fair and public hearing within  a reasonable time by an independant and impartial tribunal established by law. Judgment shall be pronouned publicly but the press and the public may be excluded from all  or part of the trial in the interest of morals, public order or national security in a democratic society, where the interest of juveniles or the protection of the private life of the parties so require,or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interest of juctice.

Notes

The driving force of a modern Goverment must be Goverment by Law not Goverment by man. While Administrative Law is conceptually distinguishable from Constitutional law , the link between the two is marked.

page 8  Administrative Law in Malaysia-- Wan Azlan Ahmad
                                                             --Nik Ahmad Kamal Nik Mahmod

THE CRIMINAL LAW JOURNAL-1953

"IT IS AN AXIOMATIC TRUTH BORNE OUT BY THE POLITICAL HISTORIES OF VARIOUS COUNTRIES THAT A CITIZENS FREEDOM CANNOT BE SAFE IN THE HANDS OF THE EXECUTIVE OF ANY STATE HOWSOEVER BENEVOLENT AND THAT THAT FREEDOM CAN ONLY BE PROTECTED ONLY BY THE LAW COURTS AND THE JUDGES OF THE STATE UNLESS THEY ARE  THEMSELVES SUBORDINATED TO THE EXECUTIVE."

The above statement was made by Sri Thakur Prasad Dubey , Distrcit Judge, Azamgarh, Uttar Pradesh.in the year 1953.That was a very long time ago and many theorists still have reservations about unfettered political power vested in the Executive.Thus the emergence of Human Rights Lawyers.The line between the elected Executive and the unelected Judiciary is sometimes filled with tension- and there exists a no man's land in between where the legal "lets dance" between the Executive and the Judiciary takes place.

LORD CHIEF JUSTICE HEWART

R V SUSSEX JUSTICES , EX PARTE  Mc CARTHY [1924] 1 KB 256

"It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

'UNERASONABLENESS' 1948- 1 KB 223

 The Classic test of  unreasonableness is the Wednesbury principle, formulated by Lord Greene.

" .... a person entrusted with a discretion must, so to speak, direct himself properly in law."

CCSU [1985] AC 374

In the GCHQ case Lord Diplock referred to the principle of proportionality ..

A & Ors v Secretary of the State for the Home Department [2005] UKHL 71;[2005] 3 WLR 1249 AT 1300

... that evidence procured or which may have been procured by torture overseas, even without the complicity of British Officials, shall not be admissible before the English Special Immigration Appeals Commission,and there Lord Hope declared:-

A & Ors v Secretary of the State for the Home Department [2005] UKHL 71;[2005] 3 WLR 1249 AT 1300

The use of  such evidence is excluded .....on grounds of  its barbarism,its illegality and its inhumanity. The law will not lend it's support  to the sue of torture for any purpose whatsoever. It has no place in the defence of freedom and democracy,whose very existence  depends on the denial of the use of such methods to the executive.

AUSTRALIAN JOURNAL OF ADMINISTRATIVE LAW-MAY 2011

CONCEPTUALISING ACCOUNTABILITY [p128]

The traditional definition of accountability generally refers to the formal duties of the public agencies to account for their actions to the Parliament and ot the Courts.However, this narrow rendering has been largely discarded in favour of an extended concept of accountability or "the duty to give account for one's actions to another person or body."The broader approach properly recognizes that there are multiple strategies of accountability "involving both public and private sectors in both horizontal and vertical relationship with public decision makers."Goverment is now more complex and fragmented than originally conceived and there is a wide range of possible mechanisms by which these regulatory actors may be held accountable."

In extending an extended concept of accountability, Scott posits key questions: who is accountable, to whom and for what?

LOWENTHAL AND WATSON

 In a study of writing among 170 academic staff L & W identified 2 distinct  types of writer:-

"Serialists" who see writing as a sequential process in which the words are corrected as they are written and who plan their writing in detail before they begin.

"Holists" who can only think as they write and compose a succession of complete drafts.

AT THE SHAH ALAM COURT TODAY

 WHAT HAPPENED IN THE SHAH ALAM COURT TODAY CAN BE DESCRIBED IN THE FOLLOWING WORDS...

" KALAH JADI ABU- MENANG JADI ARANG"

SIMPLY PUT IT WAS JUST A WASTE OF TIME & ENERGY.( My lawyer friend got  sick so I had to stand in for him)

ON SUCCESS

Getting ready is the secret of success.- Henry Ford

SOME INFO FOR THE LAW STUDENT

The Malaysian Bar is a creature of statute established under the Advocates and Solicitors' Ordinance 1947 which ordinance was subsequently repealed by the Legal Profession Act 1976. It is an independent Bar whose aim is to uphold the rule of law and the cause of justice and protect the interest of the legal profession as well as that of the public.

The legal profession in Malaysia is a fused one with a membership of approximately 12,000 members and its membership is increasing by 10 -15% annually. Each advocate and solicitor is automatically a member of the Malaysian Bar so long as he/she holds a valid Practising Certificate.

MR.STUDENT-HELLO THERE?

 I are the light that enlightens your personal darkness

 I may sound arrogant- but you are nothing without me

 Are you born rich? No silver spoon in your mouth?

 So study lah!!! What's the problem Mr. Lawyer??

SHROUDS JUDICIAL DICTIONARY OF WORDS AND PHRASES - VOL7 PAGE 1666

MEMBER OF HOUSE HOLD ( Statutory Definition)

" person to be regarded as a "member" of a particular household , even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it." ( Domestic Violence,Crime and Victims's Act 2004 (c28), s5)

SHROUDS JUDICIAL DICTIONARY OF WORDS AND PHRASES - VOLUME 2 PAGE 951

FAIRNESS

The requirement of fairness in respect of the actions of an administrative body "is not fixed and its content depends upon all the circumstances and, in particular, the nature of the decision which the body is required to make." (R ( Roberts) v Parole Board [2005]UKHL 45)

THE DEATH PENALTY-ABOLISHMENT?

 I felt very much sorry for this lady who stoop up to speak. She was commenting on the Soosilawat's murder case. (...sampai mayat pun tak dapat)

PROF. KHAW LAKE TEE

PROF KHAW LAKE TEE TALKING ON THE ABOLISHMENT OF THE DEATH PENALTY AT KLCC ON THE  13TH OCTOBER 2011.

13th OCTOBER 2011-KLCC

I think a distinction needs to be made between drug traffickers and murderers in  respect of this matter. Most of the convicted drug traffickers today happen to be "mules" -used by some unknown person or persons. Those convicted on this ground, perhaps the death sentence should be commuted to a life sentence.But those convicted of murders, the capital punishment should be upheld. Some people cannot be rehabilitated. One such example is the serial killer- Ted Bundy. Malaysia has had its share of these criminals-from Botak Chin to Bentong Kali and Mona Fendi who hacked her victim into 18 pieces.

Parliament has to stay it's course without repealing this law and mete out a  deterrent sentence to potential would be murderers. Of course, this does not mean that there will be  no more murders in Malaysia- but  the Goverment can make it's stand clear to all those living under the  Malaysian flag- for those convicted of murder, the consequences can be most severe.

[2011] 1 ILR 507- SUNNY KHOO

Wednesday, October 12, 2011

[2011] 1 ILR 507- SUNNY KHOO

SUNNY KHOO V YB MENTERI SUMBER MANUSIA, MALAYSIA, KUALA LUMPUR

HIGH COURT MALAYA, KUALA LUMPUR AZIAH ALI J

[JUDICIAL REVISION] NO:R1-25-143-2008] 1ST NOVEMBER 2010

Administrative Law- JR- Statutory Body - Decision of Minister  not to refer representation on dismissal to IC for adjudication - Whether decision justified in view of  reinstatement offer made- IRA 1967 s20(3)

The applicant applied for JR under O53 Rules of the HC 1980 for an order for certiorari to quash the decision made by the Minister under S20(3) of the IRA 1967 in refusing to refer the applicant's representation to the IC for adjudication.

Held: the applicant refused the offer of re-instatement to his previous post with the same terms and conditions of employment. If the employer reinstates or offers to reinstate  the employee to his former employment without loss of any benefits or privileges, there is simply nothing to refer because of the re-instatement or the offer thereof.

1127

6967335

[2011]3 ILR page 241

HARIANTO EFFENDY ZAKARIA &ORS V MAHKAMAH PERUSAHAAN MALAYSIA & ANOR
HIGH COURT MALAYA , KUALA LUMPUR - AZIAH ALI J
JUDICIAL REVIEW NO:R3(1)- 25-367-2009] 25TH OCTOBER 2010

In considering this application, I am mindful of the approach that this Court ought to take and I can no better than to refer to the judgment of Mohd Ghazali Yusoff JCA ( as His Lordship then was) in the case of Mernara Panglobal SDn. Bhd v Arokianathan Sivaprasagam [2006] 2 CLJ 501 of JR as follows:

I would think that in dealing with Judicial  Review a Judge should have the following principles, inter alia, in the forefront of his mind:

1. JR is not an appeal from a decision but a review of the manner in which the decision was made.
2. The HC is not entitled on an application for JR to consider whether the decision itself, on the merits of the facts, was fair and reasonable.
3. The HC through JR, should not introduce technicalities of the Court of Law to the Industrial Court;this would certainly be so as s.30(5) of the Act imposes a duty upon the Industrial court to have regard to substantial merits of a case rather than to technicalities and it also requires the Industrial Court to decide a case in accordance with equity and good conscience.
4. the main and only function of the IC in dealing with a reference under Sect.20 of the Act is to determine whether the misconduct or irregularities complained of  by the Management as to the grounds of dismissal were in fact committed by the workman and if so,whether such grounds constitute just cause for the dismissal.
5. the Court should not be burdened with the technicalities regarding standard of proof, the rules of evidence and procedure that are applied in the Court  of  law;

Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd [2010] 6 MLJ -at page 1

Harianto's Case has conveniently by-passed  the latest views on JR in Ranjit Kaurs Case. Why are the lower Courts still  stating that JR is not concerned whether the decision itself, on the merits of the facts was fair and reasonable when the Federal Court had stated  in Ranjit's case that there is no more distinction between JR and the Appeal  process?

There is a  glaring inconsistency now in this aspect of the law.
 
Students who want to score an "A' for this paper need to thrash out this issue  in a meticulously manner.

VJ'

Firm Code: 7977

2011 Certification No: 2011/M/07977/57508

TIMELESS LEGAL MAXIMS FROM THE - "AL-SUNNAH"

From Ali r.a.berkata Rasulullah s.a.w. bersabda yang bermaksud;

"Apabila dua  orang dihakimkan kepadamu, maka janganlah kamu menjatuhkan hukuman untuk yang pertama sehinggahlah kamu mendengar percakapan (keterangan) daripada yang lain, maka kamu akan mengetahui bagaimana caranya kamu membuat keputusan."

The above legal maxim  already existed long before the English Judiciary  laid down  the equitable maxim that  "No one shall be condemned unheard" & " Justice must not only be done but must be seen to be done."

The above legal  requirements is also part of  the Malaysian Federal Constitution [in the context of Administrative Law]


Article 135

1.(2) No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard:

If the above law is breached, it will pave the way for Judicial Review in the High Court for an application for 'Certiorari' . The High Court has the jurisdiction to quash the decision of an Inferior Tribunal or even the Public Services Commission.
Case Law-TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR [CIVIL APPEAL NO. J-01-28-1995] 22 JANUARY 1996

Ps. This is not the "only" case law but one among thousands. Students need to do some reading up. Remember- you can only build up on previous existing knowledge.This can take some time. There is no such thing as understanding Judial  Review  after  browsing 2 hours in the library. ---Vj---

WELCOME BACK TO STUDIES

Just a gentle reminder to students that the holidays are over-vj-

Lau Yuk Hua's case.

LAU YUK HUA V THE COMMISSIONER OF STATE PUBLIC SERVICE COMMISSION OF SARAWAK -[2011] 4 AMR 700 --YEW KEN JIE J

Held: The right  to be "heard " in a disciplinary action levelled againt a public officer need not be by way of oral evidence, and it can take a form of  representation.Thus, failure to be accorded an oral hearing does not mean that there is a denial of natural justice. The applicant was given the opportunity to be heard in that he was given the opportunity to give a written representation. Hence, there was no breach of  rule32(1) of the PSC Rules. [PSC- Public Services Commission Rules]

CASE LAW

 Najar Singh v Goverment of Malaysia & Anor [1976]  1 MLJ 203 PC -Viscount Dilhorne

The word "heard"  does not invariably connote an oral hearing.It can be used and is not infrequently used in relation to something written.

Zainal bin Hashim v Goverment of Malaysia  [1979] 2 MLJ 276 PC

The right to be heard given by Article 135(2) of the Constitution dos not require the person concerned to be given an oral hearing and it could not be argued that the failure to give the appellent an oral hearing was a denial of justice.

PSC Malaysia v Vickeswary a/p RM Santhivelu YAA Tan Sri Zaki PCA ( as His Lordship then was) held:-

"...  it is clear that it is never the intention of the legislators to give an officer under disciplinary action the right to give oral evidence.In any case as far as the deceased was concerned, he was given an opportunity and he did give a very lengthy letter explaining in detail why he could not  have committed the acts of which he was charged under. He said in his letter that he was prepared to appear  before the disciplinary authority  to answer questions  but the disciplinary authority decided from the evidence available to it that it was not necessary to hear the deceased in person."

When the moon is full...

Oysters open completely when the moon is full; and when the crab sees one it throws a piece of stone or seaweed into it and the oyster cannot close again so that it serves the crab for meat. Such is the fate of him who opens his mouth too much and thereby puts himself at the mercy of the listener.

Leonardo da Vinci 1452-1519

Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd [2010] 6 MLJ -at page 1

Historically, JR was only concerned with the decision making process where the impunged decision was flawed on the ground of procedural impropriety.However the decision in R Rama Chandran held the decision of an inferior tribunal may be reviewed on the grounds of  'illegality',  irrationality and possibly 'proportionality' which permit the Courts to scrutinize the decision not only for process but also for substance.It allows the Courts to go into the merits of the matter.The distinction between review and appeal no longer holds. ( see para 15) R Rama Chandran v The Industrial  Court of  Malaysia & Anor [1997] 1 MLJ 145 followed.

[ This is a ridiculous decision  and on the exam papers needs to be handled cautiously and meticulously. The origin of JR and its purpose needs to be re-examined.]

[2010] 6 MLJ -at page 1

Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd

FC-Putrajaya - Civil Appeal No.01-1-2009
Arifin Zakaria CJ Malaya ,  Mohd Ghazali and Raus Sharif    12 May 2010

Dari segi sejarah,semakan kehakiman hanya berkaitan dengan proses membuat keputusan dimana keputusan yang dipersoalkan adalah salah atas alasan ketidakwajaran prosedur.

Walau bagaimanapun , keputusan didalam kes R Ramachandran memutuskan bahawa keputusan tribunal yang lebih rendah boleh disemak atas alasan 'illegality, irrationality dan kemungkinan 'proportionality' yang membenarkan Mahkamah meneliti keputusan tersebut bukan hanya untuk proses tetapi juga untuk kandungan.

Ia membenarkan Mahkamah menentukan merit perkara  tersebut.Perbezaan di antara semakan dan rayuan tidak bertahan lagi  (lihat perenggan 15 ) R. Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 diikut.

ABANDONED OFFICE

The Bush administrations sent terror suspects to Libya for interrogation, despite that country's reputation for torture, according to documents found in the abandoned office of Libya's spy chief. This document is the first of two discussing the rendition and human rights of Abdel-Hakim Belhaj.

HARI RAYA GREETINGS TO EVERYONE!!




Surah Al-Fatihah

1. In the Name of Allâh,the Most Beneficent,the Most Merciful.
2. All the praises and thanks be to Allâh,the Lord of the 'Alamîn.
3. The Most Beneficent,the Most Merciful.
4. The Only Owner and the Only Ruling Judge of the Day of Recompense
5. You Alone we worship,and You Alone we ask for help.
6. Guide us to the Straight Way
7. The Way of those on whom You have bestowed Your Grace, not of those who earned Your Anger,nor  of those who went astray

SUN- Thursday 11, 2011

PUTRAJAYA: Maintaining public confidence and trust in the Judiciary should be the main agenda  of the institution, Chief Justice Tun Zaki Azmi told Judges yesterday.He said the public must see the judiciary as an institution that was unbiased and free from dishonesty.

SUNDAY BLUES!!

MRS.A:  I just found out my husband is having an affair with a pub woman!!! Thats F@#$%^  B*^%$#%!!
               I want to sue him for everything!! can you help.....????   That  B%$####@#.......!!!! I   saw  the bloody SMS....so romantic ....Said he had to work late  in the office.. so this was it!!!!! Yesterday he said he had an important "closed door " meeting in the Company... Now I am wondering what meeting was that....????!!!

VJ--  Calm down Puan. Calm down.......

GREETINGS FROM SABAH.

Arriving in KK.

CONGRATULATIONS!!!

EXAMS OVER!!

Well this is me  just finished my CLP exams many years ago.Everybody has left the exam hall except me- My head is swirling and I have forgotten my name and where I live!!!!!!   vj

EXAM GUIDANCE- THE PRACTICAL SIDE

1. Practice writing down your  authorities- for example - write down 20 cases that you will be definitely be needing in the exam hall.

2.Cut off period- 2 days before the exam- you need this time for yourself Don't tell others to get lost-You just get lost yourself  to your private study.

3. Don't torture yourself- in between the monotony of study- you can make that 10 min phone call to your friends - maybe for a short teh tarik session to refresh.Just make sure it does not last 2 hours.

4. Study well, Eat well, Sleep well - Good Luck to all of you.-vj

SAGONG TASI-EXAM REVIEW

When writing on land issues-Mabo 1 & Mabo 2.( predecessor is Millirpum case).Since they have lost much of their lands, and there are few lawyers who would look into their affairs- do you think their rights should be entrenched into the Federal Constitution??

RESEMBLENCES

The next time you are tempted to break out in a silly laughter in the library,remember you may faintly remind those present around you of something they had seen in the zoo.Keep your laughter human. Vijay- The Midnight Owl

ANONYMOUS

The crowd is unstable, inconsistent, and easily manipulated.

Marbury v Madison [1802] SC- USA.

John Marshall- CJ
That the people have an original right to establish, for their own future goverment, such principles, as in their opinion shall most conduce to their own happiness is the basis on which the whole American fabric has been erected.

You can use the above quote , if your decide to write on, the Dream Constitution.

You have to make  some comparisions on a few constitutions. This is just an academic question- because in the end the Constitution is what it really is- a DREAM in peoples minds. England, N.Z. and Israel (exception- no constituion), USA, Australia and any other Constitution in the world is bound to have problems with different ethnic and racial  groups. This problem is nothing new-it is as old as the world itself. One way is to tackle it from a sociological level- by having an absolute or constituional monarchy. Another is to have  a  comprehensive constitution with a strong   independant Judiciary. One thing is for sure though- the country may need the army, the banks   and the civil service to exist- but neither can suceed for long without lawyers being somewhere around the corner.Constitutional Lawyers frame the Constitution, Litigation lawyers argue in Court, and Judges decide where the justice of the case lies.There is no escaping your goodselves.

ADIOS-SAYONARA-SEE YOU IN COURT SOMEDAY.[LAST CLASS- THURS-6-7 PM:13-4-2011]

WILL WRITE THE CAPTION TOMORROW- ALREADY VERY TIRED -LAH!!

ADIOS-SAYONARA-SEE YOU IN COURT SOMEDAY.[LAST CLASS- THURS-5-6 PM:IT WAS A PLEASURE HAVING YOU ALL IN CLASS-4-2011]

IT WAS A PLEASURE HAVING YOU ALL IN MY CLASS.

I WILL CONTINUE THE COMMENT TOMORROW- VERY TIRED- LAH! HARAP AMPUN!.-vj

ADIOS-SAYONARA-SEE YOU IN COURT SOMEDAY.[LAST CLASS- WED-6-7 PM:13-4-2011]

WOW! MY STUDENTS BOUGHT A CAKE FOR ME!!!!

SAYA PAHALA -LAH!!! EAT CAKE IN CLASS AND GET PAID BY UM!!!

PEGUAM SUDIRMAN-ALWAYS HAS THAT WINNING SMILE !!!

YOU NEVER KNOW- ONE DAY YOU MIGHT BE SITTING UP THERE AND MAYBE I WILL BE THE ACCUSED STANDING IN THE  DOCK!!!

ADIOS-SAYONARA-SEE YOU IN COURT SOMEDAY.[LAST CLASS- WED-5-6 PM:13-4-2011]

Keep up the pursuit.Nothing comes easy in life [except trouble]

THE  JOURNEY OF A THOUSAND MILES BEGINS WITH THE FIRST STEP- CONFUCIOUS

 PEGUAMBELA & PEGUAMCARA DARI UM!!!!

THIS PHOTO LOOKS MORE LIKE A MODELLING CLASS THAN A LAW CLASS!!!!

WHEN YOU CLOSE YOUR EYES EVERY NIGHT- THIS IS WHAT YOU MUST SEE.

EXAM TIPS

 A spirit from the other world visited me in my studyroom today. I got a fright and immediately hurled myself under the table and hid my face.The I heard a voice which  told me that the exam questions on AL are going to be tough and the main thrust of the questions will be on Current Issues. Then the spirit disappeared. Then I got out from under the table sweating profusely and immediately put this on my blog. I solemly swear before this Court that this is the truth,the whole truth and nothing but the truth.

LAW STUDENTS WHO WANT TO SCORE AN "A"

1.      Administrative  Law  Model  for  the  New  Millennium.

TO BE CONTINUED

GOD BLESS YOU ALL.

Everyone is smiling except for one person who seems to be bosan. Kenapa adik? Best smile goes to Peguam Sudirman.

A PERSISTENT QUESTION ASKED BY YOUNG LAWYERS.

MATTER BEFORE SESSIONS COURT
 Allright- a dreadful mistake has been made!!!The Pleadings contains errors in reference to Company's name &  Companys registration number because lawyer  was not paying attention and had inserted somebodys IC number instead.And  all parties are bound by their pleadings. So how do we clear this hurdle when the documents are already in the Courts file and the defence lawyers are objecting that they are not the Defendants named in the Summons and have applied to the Court to strike out the Summons?

 The procedure is found in Order 15 Subordinate Courts Rules 1980

Order 15 (1) Amendment.

 Amendment of summons or pleading with leave.

[You don't have to commit suicide over this]. But you have to file a Notis Permohonan & Cadangan Saman Perpinda together with an Afidavit Sokongan.

Administrative law- a guide to your exams

Pengarah Tanah dan Galian,WP v Sri Lembah Enterprise

"The Courts are the only defence of the liberty of the subject against departmental aggression"

THE AXE

" Bagai kapak memasuk minang"

Like sending an axe to negotiate marriage arrangements, who ruins everything even before the  discussion has hardly begun.[usually by suggesting that the dowry is a bit too low] Similar to sending a  clumsy idiot with a capital "I" to handle a delicate matter. This can also be extended to mean ill- prepared  lawyers who fumble their way through cases, totally ruining any possible out of Court settlements.     The Midnight Owl

LOKMAN [AL-QURAN] verse 19

19.  "And be moderate in your walking,and lower your voice.Verily, the ugliest

        of  all voices is the voice of  ASSES."

[Students need to remember this verse especially when they are in the library.]

Jowitt's Dictionary of English Law

"Public law is that part of the law which deals with the state, either by itself or in its relations with individuals, and is called constitutional, when it regulates the relations between the various divisions of the sovereign power; and administrative, when it regulates the business which the state has to do...."

 VJ: basically public law regulates the conduct and relations berween the State and its citizens. Unlike private law, for example Contract, Partnerships & bequeathing of property by writing Wills, Public law is administered by the State and if they act ultra vires, then this law can be challenged by way of Judicial Review. The 2 pillars of  Public law are the Constitution and Administrative Law. I hope this helps.

MOOT COURT AT UM= 1-4-2011

Appeal Rejected. Judgment of the High Court is affirmed. Court rules in favour of Respondents.

 Since the Respondents were unfairly advantaged by submitting that the Appellants application was time barred-that is, the application had exceeded that 40 day period- the Moot Court did not include that point in assessing the Overall Assessment.

Generally, too  much reading from notes and Respondents referring to notes which were not available for the Judge and the Appellants. Furthermore there was no objection from the Appellants!! Besides that , it was an okay fight- but Diana's submission tipped the case for the Respondents.

Note: A Judge cannot descend into the arena of litigation to help anyone.A litigant may have done a lot of work, but if  a legal point is not mooted before the Court  clearly &  concisely, the Judge cannot come to rescue  the lawyer.

 ACTUAL COURT LITIGATION

If the lawyer drowns, the Judge will not throw you a lifeline.You will be eaten by the sharks-that is,  the opposing Lawyers. This is the reality of actual  Courtroom Litigation.Welcome to the Legal Profession.

Administrative law- a guide to your exams- A Comment on FC Art 5(3)

RIGHT OF AN ACCUSED TO  LEGAL COUNSEL
Ooi Ah Phua v Officer in Charge, Criminal Investigations, Kedah/ Perlis [1975] 2 MLJ 198 at 200
Cannot be exercised immediately- balance must be struck between the right of a person to consult his lawyer and the duty of the police to collect evidence of the wrongdoing.

Hashim bin Saud v Yahaya [1977] 2 MLJ 116 - onus of proving that if the right if exercise would impede investigations falls on the police.

c/f   PP v Nomezam Apandy [2005] 4 MLJ 365- right exists at the time of arrest.

Theresa Lim Chin Chin v Inspector General of Police [1988]1 MLJ 293should be left to the good judgment of the authority.

Mohd Ezam v Ketua Polis Negara [2002] 4 MLJ 449 FC - The ISA makes no provision for denial of access to legal representation which would be inconsistent with Art5(3) of the FC.

Majlis Agama Islam Selangor v Boon Boon Chuen & Ors [2008] 6 MLJ 494

"Another point is  this.The procedings before the HC was a JR proceedings.It has been said often enough that in JR proceedings, the Courts are only concerned wit the decision making process of a public body and not the decision itself.Simply put the Courts are not going to substitute a fairer or just decision of its own"

Panduan untuk peperiksaan-  this case can be used to partly illustrate your introductory answer in  explaining the nature of JR proceedings.Sri Lembah Enterprise v Pengarah Tanah &  Galian 1979 1 MLJ 135 can be quoted to elaborate further.

THE CASE BEGINS

 By the time the case is called up before the Court-each party will have the others Bundle of  Documents.( If a party wants to  adduce additional documents, a  request must be made to the Court . This is fraught with some 'hiccups' as the Court may ask a reason for this late filing.The Court may allow/disallow. Further, the opposing Counsel may object to this. But the Industrial Court will  allow as it is not a Civil Court but a Court of Equity.

Litigation is like the picture here- only half is visible, the other half is unseen. Each party only sees the BOD's & SOC -but  the hidden side is - which way  does the EIC and the Cross Examinaition go? That is where the real battle lies. A strong EIC can present an air tight case which cannot be penetrated by the Defence.On the other hand a meticulous Cross Exmaination  can cause the Plaintiffs sworn witness statement to collapse. (This is done by exposing discrepancies between the SOC and the WS- which is usually not easily visible for the undiscerning). The problem is further compounded when there is a naturally gifted liar  sitting in the Witness dock.

Tips: Remember - what is seen only accounts for 50%- what is unseen will account for the remaining 50%.Do not try to "machine gun" your way through the trial- chances are you may shoot yourself.

PS. Is there a reason why  this Peguam is posing behind a Chinese newspaper?