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.
9/16/2019 0 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 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.