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.
10/5/2020 0 Comments
Written by Ms Choong Shaw Mei, an Advocate and Solicitor (Malaya) and part-time lecturer in the University of Malaya.
Edited by Celin Khoo Roong Teng.
Lately, the UK Court of Appeal made another significant decision on the recoverability of LAD in the case of Triple Point Technology, Inc v PTT Public Company Ltd (‘Triple Point v PTT’). An interesting issue relating to claims for LAD in the event of a failure to complete performance of the contract was raised.
The legal principles in contract law dealing with liquidated and ascertained damages (‘LAD’) have received a great deal of attention after the stunning restatement by the Federal Court in Cubic Electronics Sdn Bhd (In Liquidation) v Mars Telecommunication Sdn Bhd (‘Cubic Electronics’) in 2018 when the apex court of Malaysia reinstated the importance and viability of LAD clauses. The said decision was unexpectedly based on the UKSC decision of Cavendish Square Holdings BV v Talal El Maksessi (‘Cavendish’) whereby the Federal Court realigned the law on LAD in Malaysia as set out in Section 75 of the Contracts Act 1950 with the new penalty test postulated by the UK Supreme Court. Recently, another significant decision on the recoverability of LAD was made by the UK Court of Appeal in the case of Triple Point Technology, Inc v PTT Public Company Ltd (‘Triple Point v PTT’), which raised an interesting issue relating to claims for LAD in the event of a failure to complete performance of the contract.
Written by Toh Zhee Qi, a second-year law student of the Faculty of Law, University of Malaya.
Edited by Ahmad Muntazar bin Ali.
The rising sea level and global temperature led to the inexorable rise of climate movement. Being a signatory of the Paris Agreement, Malaysia has pledged allegiance towards the global collective commitment of cutting climate-altering pollution. Nonetheless, this fight remains a challenging feat.
The global climate movement has begun to gain momentum. However, the race against the global warming clock is almost shoulder to shoulder. Climate change can severely impact human life. Extreme weather threatens water supply and food security, which consequently leads to human migration and health implications. This is essentially a cycle that needs to be put to rest or at least slowed down until alternatives are found.
In response to the threats of global warming, international bodies have started to take action. To understand the start of the international environmental movement, we need to backtrack to 1992, when the Rio Earth Summit took place. Three international environmental conventions were tabled — United Nations Convention on Combatting Desertification (UNCCD), the United Nations Framework Convention on Climate Change (UNFCCC), and the United Nations Convention on Biological Diversity (UNCBD).
Fraud is often defined as a wrongful deception that is intended to cause financial or personal gain, however fraud is notoriously difficult to prove. Thus, this begs the question what is the standard of proof required to establish fraud? Interestingly, Malaysia has had a colourful experience in the development of this area of law.
In one way or another, human beings, being one of the most social animals, are met with one type of decision which would determine their next course of action every single day — to believe or not to believe. Philosophers, young and old, have since the dawn of time debated on this particular issue: Is it in our nature to deceive others? As such, governments in every corner of the world have considered this debate in establishing their legal systems.
In this article, the author wishes to map out the development of Malaysian laws pertaining to one type of deceit: Fraud — specifically, matters relating to the standard of proof when it comes to civil fraud. This is not a relatively new area of discussion, but so long as fraud exists, as it is the case today, the author is of the opinion that it remains relevant and may benefit members of the legal world and laypersons alike.
6/10/2020 0 Comments
Since time immemorial, there have been many deaths that are said to be unexpected or mysterious. Death inquests are usually done to investigate the cause of these deaths, and Malaysia is no exception in its application. However, there seems to be a reluctance on the part of Malaysia's coroners to help beyond giving their verdict during the inquest.
American author Lois McMaster Bujold has a famous quote — ‘the dead cannot cry out for justice; it is a duty of the living to do so for them’. Over the years, the unfortunate deaths of Muhammad Adib, Nora Quoirin, Mohamad Thaqif, Teoh Beng Hock and many more, have left indelible memories with many of us. Notably, faith and trust in death inquests have always been instilled in our rakyat, purportedly as a tool to bring justice to the dead.
The primary purpose of a death inquest is to determine the cause and circumstances of deaths that occur in sudden, unexpected or unnatural circumstances. Notwithstanding this, a distinct and broader function — the prevention of death by public exposure of conditions that threaten life — has become increasingly significant. This function is inextricably linked with the coroner’s ability to issue recommendations based on the circumstances of the death occurred, so that future deaths arising from similar circumstances can be prevented.
However, it has been observed that the coroner courts in Malaysia have been reticent in providing recommendations to prevent similar fatalities. Thus, it is this silence on coronial recommendations in Malaysia that this article seeks to delve into by analysing local and overseas experience in this aspect. This article will also analyse the recent change of coroners’ attitude in issuing recommendations in Malaysia and will end with proposals for the quest of this sought-after voice.
Even if the customary status of the principle of non-refoulement remains elusive, all is not lost for the Rohingyas fleeing on rickety boats. In our third and final article, we will explain how an ASEAN framework can be forged from the law of the sea and law of asylum.
Finally, the Association of Southeast Asian Nations (ASEAN) agreed to accept their long-suffering neighbours fleeing from internal strife with open arms. It was an unprecedented moment of concession and cooperation by States not even parties to the Refugee Convention.
The Indochinese boat crisis would always be remembered with bittersweet feelings.
After the Vietnam War ended in 1975, tens of thousands of Vietnamese and Laotian fled from the reverberating aftershocks on boats to Hong Kong and South-East Asia. Save for China taking in about 260,000 Vietnamese, all other neighbouring countries refused to grant asylum.
In July 1979, 65 States attended meetings of the UN International Conference on Indochinese Refugees held in Geneva. A mutual understanding was reached. Western countries such as the United States (US) and Canada agreed to resettle the Indochinese refugees, whilst ASEAN countries would only provide them ‘temporary refuge’ pending such resettlement or return to their homelands.
Despite initial positive reception, ASEAN gradually grew disillusioned. Reduction of quotas and slow processing in the West caused a ‘caseload’ building up in Asia. The rate of arrivals far outpaced the rate of resettlement. Temporary asylum was turning into permanent camps.
6/2/2020 0 Comments
In line with calls for women's empowerment and the right to parenthood, the time has come for Malaysia to embark on a new horizon of the medical industry and legalise commercial surrogacy. As long as we have the guidance of an efficient legal framework and learn from countries which legalise surrogacy, it may be beneficial to both intended parents and surrogate mothers alike.
Pregnancy and birth-giving are considered the most sensitive and sacred aspects of humanity. Therefore, it is understandable for some to consider the practice of renting a womb as blasphemous. It is certainly absurd for women to purposely put their body through the strain of pregnancy only to give the baby away. Then again, that is exactly what commercial surrogacy is, and it is a highly profitable industry. Commercial surrogacy is, or at least it was, a juggernaut in the global economy, by grossing between 500 million US dollars and 2 billion dollars in India alone. However, in the last decade such practice has been banned by several countries such as the United Kingdom, Canada, and even in India, where it had thrived the most. This begs the question, what is so bad about commercial surrogacy? After all, commercial surrogacy is an attractive alternative for infertile couples while offering financial opportunity to women who are willing to become surrogate mothers. Hence, the aim of this article is twofold: first, to show that the countries which banned commercial surrogacy were merely unable to regulate it; and second, that commercial surrogacy, with an efficient legal framework, can be beneficial to infertile couples and surrogate mothers alike.
5/27/2020 0 Comments
In the first article of this three-part series, we have examined whether customary rule of non-refoulement can be derived from human right treaties in order to engage Malaysia’s international responsibility. In this second part, we will examine the different state practices in search of custom.
By May 2015, the humanitarian crisis had peaked. The discrimination of the Rakhine Buddhist majority against the Rohingya Muslim minority was morphing into full-blown suppression — denial of citizenship, internal displacement, and detention with abysmal living conditions. ‘I received heart-breaking testimonies from Rohingya people telling me they have only two options,’ reported the UN Special Rapporteur in Myanmar, ‘Stay and die or leave by boat’.
However, voyages from the Bay of Bengal to the Straits of Malacca is extremely treacherous. They are often arranged by crime syndicates involved in smuggling and human-trafficking. Aggressive crackdown operations by Thai authorities have left mass graves on both sides of the Thai-Malaysian border.
The rising casualties of Rohingyas gripped international headlines. Around 5,000 Rohingyas and Bangladeshis were left stranded at sea, in dire need for food, water, and medical attention. A few unlucky ones perished by starvation, dehydration, disease, drownings and abuse by traffickers aboard the boats.
A person is stateless when he or she is not a national of any state under its law. Many human rights organisations have defended the right of stateless persons to be accorded a nationality in order to afford basic healthcare and education, but it still remains a hard-fought battle.
It is trite law that he who asserts must prove. Yet, when deciding cases regarding statelessness, two issues remain contentious: (i) who bears the burden of proving that the applicant is, in fact, stateless, and (ii) to what standard must this be proven? This article will lay out the positions adopted by the Malaysian Court of Appeal regarding these issues in the cases of Than Siew Beng and Lim Jen Hsian. The article also aims to analyse the stance of other jurisdictions in contrast with Malaysia’s, particularly the European Court of Human Rights and the Australia Administrative Appeals Tribunal, to prove Malaysia’s prejudicial stance against stateless applicants and non-conformity to international standards. Additionally, it advocates for the burden of proof to be shared between the applicant and the state by analysing the importance of a flexible approach to the standard of proof on a case-by-case basis.
5/17/2020 0 Comments
Malaysia’s pushback operations against Rohingya boats during the COVID-19 pandemic has once again stirred controversy. In the first article of this three-part series, we will examine whether any customary rule of non-refoulement can be derived from human right treaties in order to engage Malaysia’s international responsibility.
The Rohingyas hold the unenviable distinction as the ‘most persecuted minority in the world’. For decades, they have been subjected to violence — from murder to rape — in the northern Rakhine region of Myanmar. The slow pendulum swing of political power from the military junta to the quasi-democratic government steered by Nobel Laureate Aung San Suu Kyi has brought little respite.
The international community no longer watches in silence. In April 2017, the United Nations Human Rights Council (HR Council) undertook an international independent fact-finding mission in Myanmar. In September 2018, the HR Council reported that the Rohingyas suffered ‘systemic oppression and persecution’. In August 2019, the HR Council confirmed there are ‘reasonable grounds to conclude… that Myanmar incurs State responsibility under the prohibition against genocide and crimes against humanity, as well as for other violations of international human rights law and international humanitarian law’.
5/9/2020 0 Comments
S.21(1) of the UK Limitation Act 1980 has revealed its unfairness as it leaves the claimants barred by limitation simply because the trust property lies in the hands of a dishonest assister. Therefore, there is a need for a statutory intervention or legislative reform to crystallise the view of the slim majority in the UK case of Williams v Central Bank of Nigeria.
For more than a century, the scope of limitation on actions by beneficiaries of a constructive trust against dishonest assisters or knowing recipients has continued to confound lawyers and scholars alike. Although such conundrum has been recently revisited by the UK Supreme Court in Williams v Central Bank of Nigeria (Williams), the slim 3-2 decision raises more questions than answers. In Malaysia, the High Court has followed Williams without delving deep into the majority and minority opinions of the four Law Lords which so sharply divided the English apex bench.
The starting point of our analysis is S.21(1) of the UK Limitation Act 1980 (UK LA 1980) (in pari materia with S.22(1) of the Malaysian Limitation Act 1953 and S.22(1) of the Singaporean Limitation Act) which reads:
‘21. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action –
(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or
(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.’
Such section operates as an exception to the general rule prescribing a limitation period of six years on actions by a beneficiary to recover trust property or in respect of any breach of trust. Simply put, such two exceptions can be characterised as the ‘fraudulent breach exception’ and ‘trust property exception’.
The principal question that has triggered much jurisprudential debate is this: do the two exceptions apply to actions against a stranger to a trust who is merely liable to account as a constructive trustee on the footing of dishonest assistance or knowing receipt?
The COVID-19 outbreak has compelled countries worldwide to enforce lockdowns, but will such extreme measures actually save human lives or sacrifice human rights?
The COVID-19 pandemic is truly a scourge to humanity. The death toll exceeds 100,000. Millions more are infected. Fatalities continue to mount. The virus is especially vicious against the elderly and those with pre-existing conditions (mercifully leaving the young largely unharmed). From Wuhan to Lombardy to New York, any corner of the world can be the next epicenter.
4/19/2020 0 Comments
The absence of a specific law to protect privacy indicates the urgent need for Parliament to amend the PDPA in order to ensure the effectiveness of privacy protection laws in this country.
The right to privacy is recognised as a fundamental right under Article 12 of the Universal Declaration of Human Rights (UDHR) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Generally, privacy refers to the state of being free from public attention, violation or misuse. It represents an individual’s peace and tranquillity.
However, the legal concept of and rights to privacy have been proven difficult to define despite many attempts. The Calcutt Committee defines privacy as the right of an individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by the publication of information. The Australian Law Reform Commission divided privacy into four interrelated concepts, known as information privacy, bodily privacy, privacy of communications and territorial privacy. In retrospect, the earliest and most widely used description to define the right to privacy was ‘the right to be let alone’, coined by Justice Cooley in 1888.
Although this widely accepted definition remains elusive, privacy is undeniably multi-dimensional. It comprises of the right to be left alone, the right to exercise control over one’s personal information, and the right to protect one’s dignity and autonomy.
In the recent decision of Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui and Another, the Court of Appeal revisited the principles on forfeiture of deposits and the treatment of liquidated damages clauses in contracts that had been adopted and discussed by the Federal Court in Cubic Electronics v Mars Telecommunications in 2018.
The Federal Court decision in Cubic Electronics v Mars Telecommunications was generally welcomed by members of the legal fraternity as well as the construction and related sectors in Malaysia as being a commercially sensible and much needed restatement of the law on damages clauses. Prior to the said Federal Court decision, the use of damages clauses in most contracts was severely limited by Malaysian law pursuant to Section 75 of the Contracts Act 1950 (‘S.75 CA’). The Federal Court in Cubic Electronics held that S.75 CA allows the use of damages clauses unless they are proven to be penalty clauses and, inter alia, that S.75 CA would apply to the forfeiture of deposits. This landmark decision generated a great deal of interest from academicians as well as practitioners and has been cited with approval in a number of High Court decisions as well as a Court of Appeal decision. However, the Court of Appeal subsequently handed down a rather unexpected decision in the case of Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui and Another (‘Macvilla’). The Macvilla judgement appears to be critical of the approach taken by the Federal Court in Cubic Electronics. While most of its statements on the law are obiter, the decision may well generate some confusion with regard to the clear restatement of the law on S.75 CA by the apex court.
Sexual harassment is an unwelcomed behaviour that is offensive, humiliating or intimidating. As the government scrambles to find a solution, what does the future hold for a sexual harassment bill?
The global #MeToo movement as well as the Harvey Weinstein scandal have sparked controversy and a growing awareness on the plight of sexual harassment victims — drawing the local community’s attention to cases closer to home.
In 2018, a specialist doctor from a public hospital in the Klang Valley was dismissed for various counts of sexual harassment counduct towards his female housemen. This case was brought to the attention of the former Health Minister Dzulkefly Ahmad, all the way to the Yang di-Pertuan Agong, who had consented to this doctor’s dismissal. Nevertheless, the doctor was not criminally prosecuted and the case was not pursued further.
The Federal Constitution is the supreme law of the land in Malaysia. Yet, like all laws, it must be capable of change. However, how much change can the constitution be subject to by a majority political faction before it becomes unrecognisable?
The basic structure doctrine is no stranger to disciples of the law. Frequently tied in with the issue of constitutional amendments, the basic structure doctrine, as its name suggests, posits that there are several features within the Constitution that form the basic fabric of our nationhood, and cannot simply be taken away by virtue of a constitutional amendment or a legislation propounded by Parliament.
The brainchild of judicial activism, this seminal doctrine which arose from the Indian constitutional courts has found its place within Malaysian jurisprudence. For many years, it was a doctrine which was felt but not seen, as many Malaysian judges had been in the past sceptical of its compatibility with local circumstances. However, after the luminous decisions of the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and Indira Gandhi v Pengarah Jabatan Agama Islam Perak, there is no longer any reason to question its importance.
2/28/2020 0 Comments
One fateful Sunday, the coup attempt labelled as the ‘Sheraton move’ disrupted the usual two-coalition political configuration in the country, sending Malaysia into a state of political turmoil.
The events of the past four days raise several questions regarding the constitutional ambiguities of the legal framework governing the breakdown of a governing coalition and subsequent attempts to form a new government. In several instances, the events that have transpired over the past four days, have intimated some fragmentary answers or, at the very least, demonstrated the attitude of institutional actors such as the Prime Minister, Attorney General, and Palace officials during such a political crisis.
Although some of these questions are moot given the emergence of a political consensus, they nonetheless shed light onto the difficulties at the interface between codified constitutional rules — most of which were promulgated in 1957 — and the dynamism of contemporary political events.
Erinford injunction is one of the types of injunctions provided in court. Although it has not been formally introduced in Malaysian statutes, this does not restrict its usage and development in the courts of Malaysia.
An injunction is a relief in the form of a court order, which forbids or compels a specified party from doing a certain act. Based on equitable principles, it is normally granted when damages is not an adequate remedy. There are different types of injunctions available, namely temporary (interlocutory or interim) injunctions, perpetual (final) injunctions, injunctions to perform a negative agreement, and special injunctions. The subject matter of this article, the Erinford injunction, is one of the few special injunctions developed through case law.
11/12/2019 1 Comment
The Derbyshire principle has always protected citizens from actions of defamation in the wake of governmental dissent or issues raised against the government. However, this protection has since been removed in Malaysia
Gone are the days for detractors to make statements against the Malaysian Government without fear. In its recent ruling of Government of Sarawak v Chong Chieng Jen, the Federal Court has made a definite yet controversial decision to lift the ban for the government or public authorities to sue its citizens for defamation. The government can now launch a legal suit on defamation against any normal citizens.
This overruled principle, commonly known as the Derbyshire principle, originates from the House of Lord’s decision of Derbyshire County Council v Times Newspaper in 1993. It has since served as a principle to deny governmental body’s right to sue for defamation in common law countries.
The problem of plastic pollution is more focused on by the public than microplastic pollution. Many think that both are one and the same, but inherently they are different. More efforts should be made to recognise this problem and to engage in it directly.
Microplastics are scientifically defined as plastic fragments that are less than 5mm or, in simpler terms, they are equivalent to tiny pieces of plastic that pollute the environment. Most do not know that microplastics can be further classified into two, which are primary and secondary microplastics.
9/16/2019 2 Comments
A banker’s duty of secrecy has been statutorily codified even in predecessing statutes prior to the coming into force of the Financial Services Act 2013 ('FSA'). The FSA has allowed for a wide scope of permitted disclosures of customer information, and this superficially constitutes a major inroad into the duty of secrecy owed by bankers to their customers.
Swift fly the years, it is 2019 and the Financial Services Act 2013 (‘FSA’) has just celebrated its sixth birthday. This piece of legislation was intended to boost Malaysia’s financial sector, which encompasses the banking system, the financial markets and other financial intermediaries. Over the past six years, we have seen the gradually robust implementation of the FSA.
However, lurking in the shadow is the issue of a banker’s duty of secrecy towards customers, which received statutory codification way back in the FSA’s predecessor statutes. The coming into force of the FSA allowed for a wide scope of permitted disclosures of customer information, and this superficially constitutes a major inroad into the duty of secrecy owed by bankers to their customers. Yet, the government and other stakeholders of the financial sector are always quick to assure the masses that such dilution is justified and necessary.
Therefore, this article seeks to examine the current legal position on the banker’s duty of secrecy under the FSA and scrutinise the prescribed permitted disclosures. The author will then analyse whether the considerable amount of statutory exceptions dilute the duty of secrecy and whether there are justifiable grounds for such dilution. Before concluding the article, the author will also briefly look into the Personal Data Protection Act 2010 to see whether it addresses or exacerbates the dilution. It must be noted that the focus of this article is only on the FSA and does not include the relevant provisions in the Islamic Financial Services Act 2013.
Digital States, where nationalities are forged by ideology rather than geography.
The modern notion of statehood as we know it is rooted in the Treaty of Westphalia that concluded the European religious wars in 1648. Statehood is the core of the current international legal system, because the entire international legal system was originally conceived as a system of rules governing the relations of states.
However, the world has changed tremendously since 1648. We have gone through three industrial revolutions and the incoming fourth industrial revolution is already blurring the lines between the physical and digital worlds. Technological revolution today gives rise to a new concept of a “Digital State”, which is an idea of building states online which are not geographically demarcated. The idea is not entirely novel, but it has resurged recently given the advancement in our technological capabilities as well as the change in the political and environmental climate that the world is currently facing.
We are witnessing increasing movement of people across countries due to globalisation and humanitarian crises. It is estimated that there could be as many as 200 million climate-change refugees by 2050. At the same time, a substantial number of people are connected to each other via the internet. Hence, the question arises as to whether it is possible to build a state that is based on proximity of ideas on cyberspace instead of a traditional state that is build on proximity of distance?
8/4/2019 1 Comment
Malaysians' right to freedom of assembly, although cemented in the Federal Constitution, is a qualified right which may be restricted by the Parliament. The Peaceful Assembly (Amendment) Bill 2019 represented an opportunity for the rakyat to be better protected and secured in exercising their right to assemble.
Malaysians’ right to freedom of assembly is cemented in Article 10(1)(b) of the Federal Constitution. Nevertheless, it is a qualified right whereby the supreme law of the land permits the Parliament to enact laws imposing restrictions on two permissible grounds—national security and public order. In 2012, the Peaceful Assembly Act 2012 (“PAA 2012”) was passed, seeking to assure an individual’s right to assemble peacefully as part of the right of expression enshrined in the Federal Constitution. However, this piece of legislation was criticised as a “flawed law that operates on a skewed premise”. Besides, the chorus of calls for major amendments or a total overhaul of the Act have been heard for some time, and some members of the public even advocated for the Act to be repealed altogether.
On 4 July 2019, the Peaceful Assembly (Amendment) Bill2019 (“Amendment Bill 2019”), tabled by Home Minister Tan Sri Muhyiddin Yassin, was passed by the Dewan Rakyat. Subsequently, on 24 July 2019, the Amendment Bill 2019 was passed by the Dewan Negara. The amendment represented an opportunity for the rakyat to be better protected and secured in exercising their right to peaceful assembly. Therefore, this article seeks to determine whether such chance is utilised or lost by evaluating the salient features of the Amendment Bill 2019.
7/14/2019 1 Comment
The war against drugs is far from over but the Federal Court has nevertheless stepped in to put an end to the reign of double presumptions in drug trafficking cases.
Malaysia’s commitment to fighting drugs has always been associated with its draconian drug laws, known to be one of the strictest in the world. However, a perusal of those laws would lead to a finding that one of the many fundamental ideals inherent in the rule of law, viz., the presumption of innocence, seems to be undermined. The Dangerous Drugs Act 1952 (‘DDA’), the primary law governing drug offences in Malaysia, via Section 37A (‘s.37A’) allows the use of double presumptions, viz., the presumptions under Section 37(d) (‘s.37(d)’) and Section 37(da) (‘s.37(da)’) of the DDA could be used together to prove “possession and knowledge” and thereafter to prove “drug trafficking”. Hence, the DDA has transferred the onus of proof so that, once the facts necessary to constitute the crime is proven, the accused will be held to be guilty unless he can disprove the presumptions. This serves as a powerful tool for the prosecution.
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 2 Comments
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.