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.
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.