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.
5/27/2020 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.