Malaysian Courts Research Articles

Power of the Court to Alter the Company Constitution According to Shareholders’ Agreement

Members of a company can vote in general meetings to alter the company’s constitution. The courts can also alter the company’s constitution under section 37(1) of the Companies Act 2016. The problem is that of statutory construction. A literal interpretation means altering the contents of the constitution without voting. A purposive construction entails an alteration of the quorum or procedures to facilitate proper voting. The objective of this paper is to ascertain how the Malaysian courts exercise that power. A comparative research methodology involving a legal doctrinal analysis is employed. Primary and secondary sources of law throughout the commonwealth countries are ascertained as to the effect of the law on the research objectives. The findings reveal that alteration by the court entails a direct alteration of the constitution and not the procedures therein to facilitate proper voting. In the absence of oppression, an alteration is possible to satisfy the legitimate business or management expectations of members, according to a shareholders' agreement. This is true in private companies where shares cannot be transferred to outsiders and quasi-partnership companies. Retrospective alteration and alteration that affects third-party rights cannot be made in the event proper voting can be executed under the existing constitution.

The Role of the Principal-Agent-Client Model in Understanding Corruption in the Public Procurement Sector in Malaysia

Corrupt practices in public procurement in Malaysia are explained in this paper using a principal-agent model. The government leaders, who are typically politicians, ministers, or their relatives, are referred to as the" principal" while the officials who carry out their duties are referred to as "agents". The actors in the model who constitute the third party — the other actor in the cycle of corruption — include clients, customers, and the public at large. The principal-agent-client framework was applied to 18 selected corruption cases in Malaysia to describe and analyse the actors involved in the transgressions and illegal acts in these cases. The cases were investigated by the Malaysian Anti-Corruption Commission (MACC) from 2014 to 2019, charged and found guilty by the courts in Malaysia. The findings show that all the actors in the role of agent were public officials, while the actors in the role of client were from the private sector, and the actors in the role of principal were high-ranking government officials, their relatives, and politicians.

Child Maintenance after Divorce: Review on the practices in Malaysian Shariah Courts

This paper reviews the practices of the Shariah courts in Malaysia in determining child maintenance applications. It adopts the qualitative legal research methodology, where data was collected from international treaties, legislation, and child maintenance cases decided by the courts and analyzed descriptively and thematically. The study reveals the existence of non-standardization practices related to the assessment of the needs of the child and the father's ability due to the general provisions and the absence of guidelines for judges. This study highlights the need for establishing guidelines to ensure children can enjoy a better quality of life even after divorce.

How Can Malaysian Courts Consistently Perform Meaningful Constitutional Rights Review? Lessons from Past Cases and the Way Forward

Abstract In the past, Malaysian courts performing constitutional rights review played a merely clerical role, applying a test that was trivially easy for legislation to pass. Then a more rigorous proportionality test took root. However, the Federal Court in the 2020 case of Letitia Bosman whittled the test down again, and the courts once more played a minimal role in checking state action. The reasons for this cannot be explained merely by diversity in judicial philosophy or political contextual factors. Rather, the near-demise of proportionality (and, with it, robust constitutional review) was made possible by a lack of a clear sense of the doctrinal foundations of proportionality (and, indeed, of constitutional rights review generally), and the relative roles of the courts and the legislature therein. As a result, there is a risk that the courts’ important role in safeguarding constitutional rights has been minimised to near vanishing point. This article aims, through an analysis of the case law and its foundations, to explain how this came to be, and hence highlight important issues which Malaysian constitutional law must grapple with if meaningful rights review is to take place.

Kepastian Hukum dalam Proses Perceraian Talak di Hadapan dan Melalui Izin Mahkamah Negara Bagian dan Wilayah Persekutuan Malaysia

Divorce that occurs outside and without permission from the court raises many legal problems, from the validity of the divorce to the non-fulfillment of the rights and obligations of husband and wife after divorce. Malaysia is a country consisting of states and an alliance area which in its Islamic family law rules regulates divorce before the court to ensure legal certainty. This paper discusses the procedures for the divorce of Malaysian citizens that must be carried out before the Malaysian Court and the rules for registering talak for divorces that have already occurred not in front of and without the permission of the Malaysian Court. The regulations for imposing divorce outside the Malaysian Court also include penalties (punishment) for violators. This paper uses a juridical-philosophical approach to explain the procedure for divorce before the court and the rules related to the registration of divorce that have been carried out outside and without the truth of the court to create legal certainty. This research is a qualitative type of literature research. The conclusion of this paper shows that the rules related to divorce before the Malaysian Court indicate legal certainty because in the process the judge examines the validity of the lafadz talak that the husband has imposed to ensure the validity of the legal status of divorce in Sharia and the state administratively, as well as the fulfillment of the rights and obligations of husband and wife after divorce.

The Silent Threat: Human Trafficking and Migrant Smuggling Procedures Through the Eyes of the Courts in Malaysia

Human trafficking and migrant smuggling are two severe international crimes. It is a worldwide problem, and it is particularly pernicious. There are many parts to human trafficking, including forced labour, commercial sex, and organ harvesting. Human traffickers are known to use violent, manipulative, and deceptive methods and tactics to lure vulnerable targets into situations of exploitation. In Malaysia, it is estimated that millions of men, women, and children worldwide are victims of these crimes. The international community has adopted the protocols and the United Nations Office on Drugs and Crime in assisting member states to combat these internationally organised crimes. However, there are inadequate laws, both substantive and procedural, in place to deal with those who perpetrate such crimes, to bring them to account for their misdeeds, and to protect the victims of such crimes where such crimes continue to flourish because of the high profits.

Judicial Decisions on Indigenous Peoples’ Land Rights: An Appraisal of Its Effect

This paper highlights the impact of selected judicial decisions on the claims to land rights by the indigenous peoples in Malaysia. A judicial impact study is important because court decisions can alter the status of law that controls social and political behaviour and/or elicit responses from other political actors, thus influencing policy and political outcomes. The Malaysian Courts have played a significant role in developing law that acknowledges indigenous customary rights in Malaysia. For example, the case of Nor Anak Nyawai and Others v Borneo Pulp Plantation Sdn Bhd [2001] 6 MLJ 241 not only clarified the legal position of native customary rights but also had a profound impact in the Malaysian legal system. The judgment had aided in the reoccupation of the Iban’s territories. Sagong bin Tasi & Ors v. Kerajaan Negeri Selangor [2002] 2 CLJ 591 recognised that indigenous customary land rights were of equal legal status to full ownership or title to the land in Peninsular Malaysia. By applying doctrinal legal research, the three cases selected are, first, the landmark case of Director of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors and Other Appeals [2017] 2 MLRA 91 which led to the amendment of the Sarawak Land Code 1958. The second and third cases are claims by the Orang Asli in Pos Dakoh and Pos Belatim against the government of Kelantan and in which consent judgments were entered. This study would be significant in emphasizing the impact of judicial decisions and the need for courts to ensure that the decision is carried out as well. Regardless of the courts’ findings, the government’s implementation of such decisions is still insufficient. Nonetheless, certain indigenous groups have re-occupied their territory without the state’s consent. As a result, the court decisions have provided people with a significant motivation to physically reclaim their land.

Exploring the Potential Use of Holographic Technology Through Remote Communication Technology in the Malaysian Courts: A Legal Perspective?

Exploring the Potential Use of Holographic Technology Through Remote Communication Technology in the Malaysian Courts: A Legal Perspective?

CIVIL FORFEITURE UNDER ANTI-MONEY LAUNDERING LEGISLATION IN MALAYSIA

The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [AMLAFTA] empowers the Malaysian Courts to forfeit any property that is the subject of a money-laundering offence via sections 55 and 56 of the AMLAFTA. The rationale of this empowerment is to ensure that all property used in the commission of a money laundering offence is forfeited. Hence, the criminals do not gain any benefits from their crimes. However, it is observed that the provision related to civil forfeiture, specifically under section 56 of the AMLAFTA appears problematic in many instances due to the requirement attached and the civil standard of proof. As such, this article intends to detail the civil forfeiture mechanisms under the AMLAFTA. This article used the qualitative method in doctrinal legal research to collect and analyse all the information related to the topic from various primary and secondary data such as legal provisions, case laws and secondary sources, namely journals and articles on civil forfeiture, especially when applying the standard of proof. The article analyses the substantive law and procedural requirements for civil forfeitures based on Malaysia’s relevant legal provisions and cases. This article also examines the Malaysian Courts’ trends in deciding civil forfeiture cases and analyses the standard of proof for civil forfeiture. This article suggests amendments to section 56 of the AMLAFTA to introduce a provision on the rebuttable presumption to ensure that the objective of creating the civil forfeiture provision can be achieved.

The Interpretation of Age of Criminal Responsibility for Juvenile Offenders from the Perspectives of Islamic Jurisprudence (Fiqh) and Malaysian Law

Criminal offences still exist in Malaysia, whether minor or severe, including offences under Sharia law such as khalwat (close proximity) and civil offenses like causing harm to others. The issue of crime becomes even more concerning for society when it involves offenders among children. Therefore, the provisions for punishment of these offenses constitute one of the government's efforts to reduce the crime rate. Consequently, the minimum age of criminal responsibility needs to be thoroughly examined to ensure the well-being of these juvenile offenders is preserved in accordance with the age limits stipulated by the United Nations. In addition to reviewing the age limit of juvenile offenders from the perspective of Malaysian law, the determination of age limits from the standpoint of Islamic Sharia law (fiqh) is also examined. To this end, a qualitative method using documentary analysis will be employed. Data analysis will be conducted descriptively and thematically. The study's findings indicate various opinions regarding determining the age limit for child offenders. Inconsistencies in this age limit occur between Sharia and civil courts in Malaysia. Differences in assessing the age of children can also be observed when compared with fiqh provisions, namely the views of the four primary schools of thought. Therefore, it is crucial to ensure that the age limit for children, which lacks harmonisation, does not lead to any injustice within the legal framework.

Agreements Forbidden by Law vis-à-vis Agreements to Defeat the Law: How Are They Different?

AbstractThis article seeks to ascertain the difference between the agreements forbidden by law under section 24(a) and those intended to defeat the law under section 24(b) of the Malaysian Contracts Act 1950. Even though both subsections (a) and (b) cater to different types of illegality, the courts in Malaysia have often been applying them together without giving reasons why they do so. Their conjoined application prevails perhaps because there has been no convincing explanation of their differences, particularly when considered in the context of the common law doctrine of sham. This article attempts to fill that gap. The article suggests that 24(a) deals with the agreements that are expressly or impliedly forbidden by law, while 24(b) applies to sham contracts. This proposition is based on the analysis of the common law doctrine of sham and recent court decisions.

An Analysis of Harta Sepencarian Cases in the Syariah High Court of Ipoh

Disputes over matrimonial assets, or harta sepencarian, as it is commonly known in Malaysia, are among the financial cases filed in the Syariah High Court of Ipoh. Although there are specific provisions in the Islamic Family Law Enactment (Perak) 2004 on the division of harta sepencarian, there are some questions, particularly regarding the judicial approach used by judges in determining which parties are entitled to make claims, categories of assets that are considered to be part of harta sepencarian, the interpretation of matters related to the direct and indirect contribution, as well as the proportion of distribution of the assets. This study applies document analysis techniques by referring to the files of the related cases recorded from 2011 - 2016 at the Syariah High Court of Ipoh, and also cases that were reported in law journals as a basis for comparison to clarify the issues discussed. The findings show that although the decisions of the Syariah High Court of Ipoh on issues raised in such cases are not much different from what is decided in the cases reported in the law journals or other Syariah Courts in Malaysia, there are several other aspects, namely on the matter of EPF savings, gratuity, and insurance compensation, where the decisions held by the Syariah High Court of Ipoh are different from existing fatwas (legal opinions on Islamic law) and approaches taken by other Syariah Courts in Malaysia. The different approaches are also noted in cases where the disputing parties have children. Although the rights of disputing parties are properly considered in deciding the cases, in certain cases priority is given to the welfare of the children, and the Court grants property rights to the children.

Engaged Social Anthropology and Indigenous Land Claims in Malaysia

ABSTRACT The use of litigation has become an important strategy for customary land claims for the Orang Asli, the aboriginal people of Peninsular Malaysia. Increasing displacement from their customary territories, and having exhausted other official avenues, the Orang Asli are resorting to legal measures to protect their rights. Several landmark cases in the Malaysian courts favouring Orang Asli rights have given the Indigenous People hope in the legal system. However, lawsuits are risky, require an enormous amount of time and resources, and take a toll on the communities and others involved in the process. Relying on the court process risks reifying state power, reinscribing unequal power dynamics, and reinforcing essentialised notions of indigenous ‘culture’ and ‘tradition’. In this article, I draw upon my long-term research on Orang Asli activism and my experience serving as an expert witness in several Orang Asli customary land claims to discuss the limits and possibilities of social anthropological knowledge in the legal arena. Focusing on the Malaysian context, I reflect upon the challenges of speaking across different fields, translating social anthropological research into a form legible to the legal process, and the dilemma of being complicit in reifying hierarchies of knowledge. I consider how social anthropologists in their cultural expertise role might use the legal space to centre Indigenous knowledge, and challenge the more static understanding of indigenous culture and tradition.

Stay of Execution under Special Circumstances: A Comparative Analysis between Malaysia and United Kingdom

In Civil Litigation, a stay of execution is like a pause button used by the applicant to restrain the execution of the court judgement from being carried out by the opposing party. Fundamentally, for an application for a stay to succeed, the applicant must show special circumstances to justify the grant of a stay. This article will identify and comparatively appraise the procedures to apply for a stay of execution in Malaysia and the United Kingdom. This article will also examine the principles and factors considered by the courts in Malaysia and the United Kingdom in granting a stay of execution. In light of the global impact of the COVID-19 pandemic, this article will also study whether the courts consider COVID-19 as a special circumstance, warranting a stay of execution. In order to achieve these objectives, the methodology used by the researchers is pure legal research and comparative analysis. The findings of this article show that Civil Courts in both Malaysia and the United Kingdom have unqualified discretion to determine the application for a stay of execution. In addition, the onus is on the applicant to demonstrate the existence of special circumstances to justify the grant of a stay of execution in Malaysia and the United Kingdom. The courts will only grant a stay if there are special circumstances.

The Legal and Practical Issues Related to the System of Two High Courts in Malaysia

Malaysia was formed on 16 September 1963 when among others, the two states in East Malaysia (Sabah and Sarawak) were federated with West Malaysia or Peninsula Malaysia (then known as the Federation of Malaya). The Federal Constitution of the Federation of Malaya was then extensively amended to accommodate the creation of the new Federation of Malaysia. However, as a compromise for the states of Sabah and Sarawak to join Malaya and become the Federation of Malaysia, many aspects of the judicial and legal system, as it was before the formation of Malaysia, were maintained. This included, among others, having two High Courts of co-ordinate jurisdiction and status, namely the High Court in Malaya for West Malaysia and the High Court in Sabah and Sarawak for East Malaysia, the use of different languages in both these courts, separate legal profession for West Malaysia, Sabah and Sarawak respectively, and different laws on the same subject matter between East and West Malaysia. Although this system has been in place now for over five decades, it has given rise to various legal and practical issues which have remained unresolved up till now. This paper seeks to highlight some of these issues.

An Overview of Judicial Review in The Malaysian Court

Judicial review is the power of court to revise the decision and act of the administrative power and legislative action which had acted in exceeds of their power. However, interpretation of ‘exceeding their power’ may differ from one case to another to which the courts are given the discretionary power to decide. This leave uncertainty on the interpretation of the judiciary power to review and may lead to the collapse of the rule of check and balance and the concept of good governance. This study aims to examine the principles and approaches adopted in the judicial review process in Malaysia. These concepts and theories serve as the threshold to the cases of judicial review in Malaysia. The study adopts a qualitative method utilising doctrinal and case study. Analysing cases decided by the Malaysian court on Judicial Review forms a major part of the data analysis. The study found that the Malaysian judiciary has made significant efforts to preserve the rule of law, protect the fundamental rights of the people, and uphold the good governance concept through the function of judicial review. The principles of cases involving judicial review in Malaysia have served as a guideline in describing the rules and restrictions that a judge should follow when exercising the judicial review function. The findings of the study may form a summarised development of judicial review in Malaysia that may be referred to by the policymakers, academicians, and future researchers.

Artificial Intelligence in Malaysian Courts: PP v Denis P Modili

This case commentary examines a seminal judgment on the application of artificial intelligence in criminal sentencing in Malaysia: PP v Denis P Modili. It hypothesises what the basic components of this AI system may consist of and discusses some technical points based on the disclosure made about the AI system in the judgment. Two types of machine learning algorithms, namely linear regression and logistic regression, are introduced. Possible machine learning features and their treatment, and what the ‘recommended percentage’ as described in the judgment could be are investigated.

Vasanta a/l Amarasekera v Public Prosecutor: Extending the Debate on Whether Statements Made by Witnesses to Police are Absolute Privilege

The High Court in Vasanta a/l Amarasekera v PP has decided that an accused person can be supplied with statements made by witnesses to the police during the investigation process, who are not called by the prosecution and subsequently offered to the defence. The importance of this case is that the High Court has the benefit of analysing two recent conflicting decisions of the Court of Appeal on this issue. First, the Court of Appeal’s decision in Siti Aisyah v PP in 2019 which ruled that the statements are not absolutely privileged. In so doing, the Court did not follow the earlier decision of the Federal Court in Husdi v PP in 1980, which declared the statements as absolutely privileged. The second is the Court of Appeal’s decision in 2022 in the case of Dato’ Sri Mohd Najib bin Hj Abd Razak v PP where it stated that it is bound by the decision of the Federal Court in Husdi’s case. This case commentary critically analyses the rationale behind the High Court’s decision in following Siti Aisyah’s case, thus, making it as a new addition to the list of recent Malaysian courts which have decided that such statements are not absolutely privileged.

IS THERE A PRIVATE RIGHT TO PRIVACY IN MALAYSIA?

Despite widespread recognition as a fundamental human right across common law and civil law jurisdictions, the right to privacy remains a novel concept yet to be fully defined in Malaysia. Due to the absence of written law, Malaysian courts remain starkly divided on whether the right to privacy can sustain a free-standing cause of action enforceable between individuals in civil actions distinct from trespass, nuisance and breach of confidence. To resolve this legal conundrum, this article examines the current state of Malaysian law in recognising invasion of privacy as an actionable tort based on conventional norms. Reference will be made to primary sources of law, i.e., the Federal Constitution, statutes, and judicial decisions, as well as secondary sources of law inclusive of scholarly writings and judicial decisions from foreign common law jurisdictions where laws on privacy have ripened, i.e. the US, UK, New Zealand, and Canada. The article consists of three parts. the first part provides a summary of normative values of privacy. Second, examination of the judicial decisions by the Malaysian Federal Court, Court of Appeal, and High Court on the right to privacy. Third, evaluation of alternative sources of written law and the common law tests to establish the tort of invasion of privacy. This article concludes that a fresh paradigm is required to develop the Malaysian legal framework on privacy to ensure coherence with its normative origins and consistency with the legal standards of other common law jurisdictions.

Constitutional Statecraft in Malaysian Courts: A Naive ‘Schmittian’ Misappropriation

AbstractIn her recent book, Constitutional Statecraft in Asian Courts, Yvonne Tew develops an ambitious argument for empowering Malaysian judges to promote constitutional democracy. Her arguments rely on the idea of an unamendable constitutional ‘basic structure’ or ‘meta-Constitution’ expressive of that ideal. I argue that her proposals are normatively inadequate to this task because Tew relies on resources in constitutional theory traceable to the conservative German thinker Carl Schmitt, whose views about constitutional legitimacy and limits to constitutional amendment form part of an authoritarian political logic designed to subvert constitutional democracy that subordinates legality to power politics. I then argue that Tew's proposals, if applied to Malaysia, risk feeding into elements of Schmittian authoritarian logic that plausibly underwrite Malaysia's ethnocratic context, and conjecture (through case-analysis) that authoritarian judges could easily reconfigure her proposals to legitimate ethno-authoritarian rule. Conversely, conscientious judges who defend constitutional democracy would adopt a non-Schmittian approach that emphasises the normative priority of legality as a constraint on political power to counter ethno-authoritarian rule. Consequently, despite Tew's aspiration to equip judges with tools to defend constitutional democracy, the tools she provides threaten to undermine this aspiration such that her proposals may be characterised as a naïve Schmittian misappropriation.