Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
5/1/2019 1 Comment
International Humanitarian Law (IHL) is a law that is meant to protect innocents from the sufferings of war. Challenges now stand between the original objective of the IHL and the actual reality of warfare.
War invariably causes indescribable pain and suffering. Left unregulated, it devastates millions of lives — civilians and combatants alike. This is where International Humanitarian Law (‘IHL’) comes into the picture to safeguard humanity. The purpose of its existence is to alleviate the sufferings of civilians and persons hors de combat during war.
It is a given that minimum standards of humanity within the ambit of IHL must be respected and met in any situation of armed conflict. What’s more, a balance must be struck between military necessity and basic sense of humanity. IHL allows parties to the armed conflict to impose drastic measures during war to overcome an adversary. For example, it may be militarily necessary to cause death of the belligerents. However, this is only permitted if humanity is considered. To this end, restraints and limitations on means and methods of warfare have been put in place for the waging of war; also, humane treatment must be given to prisoners of war. Today, 196 nations have ratified the four Geneva Conventions. It is clear that IHL has evolved into one of the most substantially codified branches of international law which is globally relevant. Therefore, its humanitarian principles should be consistently upheld by all state parties and their subjects.
4/25/2019 1 Comment
What does not seem to have been decided in all the established common law jurisdictions is that an exclusion clause would be considered as an ouster of the court’s jurisdiction as decided by the Federal Court in CIMB Bank Berhad v Anthony Lawrence Bourke & Anor.
The recent Federal Court decision in CIMB Bank Berhad v Anthony Lawrence Bourke & Anor was not so unexpected given the arguments adopted by the counsels and the unfortunate position of the Plaintiffs who were individual customers/borrowers of a leading bank. What is regrettable is that, in its attempt to do justice to the party with the weaker bargaining power, the Federal Court may have unnecessarily chosen to disregard well-established legal principles of contract law and rendered the work of drafting contracts more difficult.
3/2/2019 0 Comments
Whether the Federal Court's decision in setting aside its previous decision on the ground of 'coram failure' was rightly made?
I. A BRIEF HISTORY OF BELLAJADE V CME GROUP & TAN SRI LIM CHENG POW
In the recent judgment on Bellajade v CME Group & Tan Sri Lim Cheng Pow, the Federal Court set aside a judgment it delivered last year on the ground of coram failure. The Federal Court had heard the case at an earlier date and reserved judgment until 25 September 2018. Then, on the 31st of July, Tan Sri Zulkefli Ahmad Makinudin resigned by virtue of Article 125(2) of the Federal Constitution. On the 25th, Tan Sri Azahar Mohamed pronounced in court the written judgment authored by Tan Sri Zulkefli on his behalf. The judgment, being the sole composition and reasoning of Tan Sri Zulkefli, was concurred and adopted by three other judges, who then comprised the majority.
The judgment was contested by the appellants under Rule 137 of the Rules of Federal Court (RFC) which states the Federal Court’s inherent power to hear applications to prevent injustice. The judgment was argued to be inoperative because it was pronounced in an open court only after Tan Sri Zulkefli’s resignation, when he was no longer an active member of the court. This situation may be termed as ‘coram failure’.
2/10/2019 0 Comments
Richard Malanjum, Chief Judge of Sabah and Sarawak (as he then was), answers the question on the effectiveness of having liquidated damages clauses in contracts and whether such clauses are enforceable in Malaysia in the recent Federal Court decision of Cubic Electronics Sdn Bhd (In liquidation) v Mars Telecommunications Sdn Bhd.
The Federal Court decision in the case of Selva Kumar Murugiah v Thiagarajah Retnasamy (“Selva Kumar”) on the scope of Section 75 of the Contracts Act 1950 (“S.75 CA”) has left many questioning the effectiveness of having liquidated damages clauses in contracts and whether such clauses are in fact enforceable in Malaysia. Many judges, lawyers and industry leaders share the view that liquidated damages clauses are effective and important means by which parties to a contract are able to negotiate and agree upon entering into the contract as to the compensation payable for non-performance of contractual obligations. Such clauses aim to reduce the need for costly and time-consuming court proceedings in the event of a breach and provide commercial certainty for contracting parties with regard to the risks they undertake in the contract. Judicial support for these liquidated damages clauses are found in most common law jurisdictions and their importance to the construction industry in particular is well recognised.
Suicide and attempted suicide are criminalised in Malaysia, but is that the right reaction to such an emotional upheaval?
‘No matter how much pressure you are facing, suicide is not a solution. Now that you’re out of the hospital, you must be charged in court. You must know that attempting suicide is a crime.’
These were the words uttered to an unemployed 24-year-old, Yew Kah Sin, who had the burden of her mother’s lung cancer treatment riding on her back as the courts sentenced her to a fine of RM2,000 or three months’ imprisonment after she tried killing herself early of 2017. Sad as it is to admit, ‘suicide’ has become a common term to read in the papers today as many attempt to end a beginning they have yet to see out of blind desperation. The current legislation, however, seems to deal with these recurring cases by punishing those who attempt to commit suicide with fines or terms of imprisonment. On this matter, Hannah Yeoh, the Minister of Deputy Women, Community and Family Development recently claimed that the criminalisation of suicide is archaic and should be reviewed. This article aims to explain the legal position of Malaysia on suicide and the differing views on whether such a position should remain in today’s society.
12/20/2018 1 Comment
Is the opt-out system the answer to filling the gaps between demand and supply of human organs?
The gap between the demand and the supply of human organs for transplantation in Malaysia is on the rise, despite the efforts of the government to promote donor registration. The supply of organs in Malaysia suffers from a persistent chronic dearth, which results in many people who need organs suffering and dying while on waiting lists.
Several countries have opted for a change in legislation and introduced an opt-out system, whereby cadaveric organ procurement is based on the principle of presumed consent to increase the number of donations. Cadaveric organ donation is the donation of organs after the death of an individual. Such individual is classified as a potential donor in the absence of explicit opposition to donation during the individual’s lifetime. It is interesting to note that the English government recently announced its plans to change the law on consent for organ donation. The new opt-out system, known as Max’s law, seeks to be in place by 2020 in England, if Parliament grants approval.
Law is a living growth and not a changeless code. All societies are dynamic and no law can make time stand still. Law Reform Commissions or Institutes can provide principled and imaginative new law. They can be catalysts of change, responsive to the world around them and to the public they serve. It is time we recognise their role as moderators, modulators and mediators of change.
*This is an unedited original manuscript.
Law is an indispensable attribute of every civilised society. Formulating, interpreting and enforcing a simple, fair, modern and efficient system of law is a challenge as tall as the trees, as deep as the seas. Why this is such a formidable challenge is not so difficult to understand.
Antiquity: There is a proliferation of laws and this is matched only by their obsolescence. Life is larger than the law and no formal system of norms can cope with the complexities, probabilities and pitfalls that accompany life’s endeavours. All societies are dynamic and no law can make time stand still. Law is a living growth and not a changeless code. The felt necessities of the times demand a constant reform of legal instruments to cope with social and economic realities. Laws and institutions must go hand in hand with the progress of society, technical innovations and increasing globalisation.
10/23/2018 0 Comments
The 2010 Amendments, an attempt to expedite criminal trials.
Pre-trial processes were introduced into the Criminal Procedure Code (Amendment) Act 2010 and have since been encapsulated in Chapter XVIIIA of the Criminal Procedures Code (“2010 Amendments”). The 2010 Amendments embody Parliament’s spirit of resolving the backlog of cases and promoting speedy trials in line with the Malaysian Government Transformation Programme. Further, the 2010 Amendments were also spurred by the then Chief Justice Tun Zaki Azmi’s initiative to deliver justice more expeditiously.
This article will elucidate the three main components of pre-trial processes – pre-trial conference, case management and plea bargaining, and discuss the advantages and disadvantages of the pre-2010 and post-2010 Amendments through the lens of the Court, defence, prosecution, and victim (“Parties Concerned”). Attempts will be made to ascertain whether these amendments are for the better or the worse. If these amendments do indeed bring disadvantages to the Parties Concerned, the author will determine which pre-trial regime, pre-2010 or post-2010, is the lesser of two evils.
Child marriage is presently legal for both Muslims and non-Muslims respectively. Owing to the recent headlines of reported cases of child marriage, this issue has re-emerged as a hot-button issue, with numerous calls to end the practice of child marriage.
The issue of child marriage sparked outrage in Malaysia owing to the controversial marriage of an 11-year-old girl to a 41-year-old man. Malaysians have expressed grave concerns about the incident, resulting in clarion calls from many quarters to raise the floor age of marriage to 18. This call is especially pertinent in light of Pakatan Harapan’s pledge in its manifesto for the 14th General Election, which was to “ensure the legal system protects women’s rights and dignity”, including “introducing a law that sets 18 as the minimum age of marriage”.
However, the nation is currently witnessing the controversial handling of child marriage issue by the Women, Family and Community Development Ministry, headed by Datuk Seri Dr. Wan Azizah Wan Ismail. The minister has received brickbats with reasonable justifications as it has been two months since the incident occurred, but there is yet to be any significant resolution proposed. The answer to the people’s cries was repetitive — that the federal government does not have jurisdiction to intervene in child bride cases. Yet another case of child marriage was reported on the 18th of September in Kelantan where a 15-year-old girl tied the knot with a 44-year-old man, who is a father of two. The author is of the opinion that the longer the ministry delays in reacting towards this controversial issue, the higher the number of young girls who will fall victim to child marriage and have their welfare and interest jeopardised.
The High Court here has granted an interim gag order against the media from discussing the "merits" of Dato' Sri Najib Tun Razak's case
Image credit: https://goo.gl/WAECbg
Recently, the arrest of former premier Dato’ Sri Haji Mohammad Najib bin Tun Haji Abdul Razak (Dato’ Sri Najib Tun Razak) garnered massive attention from the rakyat and the world. In response to such scintillating news, the Malaysian media outlets have given vast coverage on this issue from the moment of arrest up until the hearing before the Kuala Lumpur High Court. Tenaciously, these media outlets prescribed the background information and details of this arrest, which happened due to graft allegations in the management of the 1Malaysia Development Berhad subsidiary known as SRC International Berhad by Dato’ Sri Najib Tun Razak and his counterparts.