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.
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.