Thursday, 10 December 2009

Wake up call to Sabah lawmakers who are also lawyers

I was at the Long Call at High Court 2, KK yesterday because I was applying for a Part Exemption. And I had the opportunity to witness this event which made to our local Daily Express's headlines today. (I'm quoting from Daily Express directly as its website loads slower than the snail). Read on.

Legal profession precedent

Kota Kinabalu: The definition of who can practise law in Sabah saw a historic precedent being set Wednesday when the High Court here granted an application for admission by a 27-year-old Sabah-born as an advocate of the High Court of Sabah and Sarawak.

Judge Datuk Clement Skinner said the applicant, Wendy Chan Poh Lu, whose father is a Bruneian and mother a West Malaysian, is qualified to practise in the State because of her birth in Sabah, thus dismissing objections from a senior lawyer.
"I therefore dismiss the objection because by virtue of her birth in Sabah, she is deemed to have Sabah connections which is the sole criteria for admission as an advocate to the High Court in Sabah and Sarawak," he said.
Counsel Puan Sri Marina Tiu, in proceeding with the objection from counsel Christina Liew, who was not robed and therefore could not appear before the court, contested that the applicant although born in Sabah is not entitled to a Malaysian citizenship and, therefore, not a Sabahan in particular.

"The petitioner's father is a Bruneian and not a Malaysian while the mother is a West Malaysian. Therefore, under the immigration law, the petitioner is in fact not entitled to a Malaysian citizenship, in general, and she is not a Sabahan in particular," said Tiu.
She argued that under the Advocates Ordinance, a person must have Sabah connection in order to qualify for admission to the Bar in the High Court of Sabah and Sarawak.
She also said the constitution provides as to who can stay and work in Sabah, and the fact of the person being born in the State alone should not qualify the person under sub-section (2)(a) of the Advocates Ordinance.
Tiu submitted that the objection is to protect the integrity of the Bar and to prevent fly-by-night lawyers from coming in to practise in Sabah but residing outside Sabah.
"If this petition were allowed, it would create a dangerous precedent which would allow non-citizens to apply and to be admitted to the Bar. In theory, even the children of the holders of the IMM13 document (which gives the holder a refugee status and gives the holder the right to stay and work) to apply and be admitted to the Bar.
"It's a matter of public concern because even an illegal immigrant who is born here and we have millions of immigrants here who can qualify under paragraph (2)(a) provided he also satisfies the other requirement in the Ordinance," said Tiu.
Meanwhile, Sabah Law Association President Datuk John Sikayun stated that they did not object to the application because on paper the applicant had complied with the requirements under the Advocates Ordinance that she was born in Sabah. Sikayun acknowledged the applicant is a holder of a Sabah identity card. But he expressed concern that the Advocates Ordinance is outdated and that it needs to be amended.

Under Section 2 of the Ordinance, a person can only have Sabah connections if the person is born in Sabah, has been ordinarily resident in Sabah for a continuous period of five years or satisfies the Chief Judge that here or she is at the time of the application domiciled in Sabah.
In responding to Sikayun's submission, Skinner said the Sabah Advocates Ordinance was enacted in 1953 when it could not have been foreseen the problems which have been highlighted during the hearing of the present objection.
However, Skinner said: "It is my view that the remedy does not lie in this court but in the legislative process."
He earlier said that it is expressly stated in Section 2(2) of the Ordinance that a person "shall be deemed" to have Sabah connections if that person satisfies any of the three conditions.
"With this deeming provision, as the law stands at the moment, once a person is born in Sabah, he or she is deemed to have Sabah connections.
That is a statutory deeming and I see no further requirement that the person must go on further to prove that he or she is entitled to Malaysian citizenship.
"As far as being admitted to the Sabah Bar is concerned, once it is deemed that a person has Sabah connections, the requirement of Section 2 (2) have been satisfied," said Skinner.

-end of quote-

oooHHH wowow.....
Now it seems like becoming a lawyer in Sabah is not so difficult afterall. 
There's actually 3 different criteria to established a Sabah Connection; you either have to be born in Sabah, stayed in Sabah for continuous period of 5 years OR domiciled in Sabah.

The decision above does have great impacts. You see, we had LOADS of illegal immigrants in Sabah since 1970s. The lucky ones managed to somehow obtain a blue IC. The not so lucky one continued to stay illegally and gave births in Sabah. So these children of the illegal immigrants are indeed Sabah born. So what if they are not Malaysians. There's no requirement in the Advocates Ordinance to say that lawyers in Sabah must be a Malaysian. Section 2(a) of the Advocate Ordinance provides that "A person shall be deemed to have Sabah connections for the purposes of this Ordinance if, and only if, he - "has been born in Sabah". Satisfying the remaining to criteria is even easier for them, although its not necessary.

Perhaps lawyers in Sabah who are also politicians can do something in the August House.

Otherwise, when this profession which most senior lawyers of Sabah is trying to protect is being 'diluted', you have no one to blame except:-
1. The judge who has set this precedent;
2. Sabah politicians;
3. Member of the Bar; and/or
4. Yourself.

With the Federal Government pressuring the Sabah Bar to open up their legal profession, this task is not easy.

2 Yawns:

gillbates said...

Don't you guys have a definite way to determine citizenship? Jus soli? Jus sanguini? what?

Karen said...

citizenship yes. But not stateship.


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