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Issue #21/2020
14 May 2020

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New This Week

CASE(S) OF THE WEEK

MASHYUR MUTIARA SDN BHD v. ABDUL SAMAT ISHAK & ORS AND ANOTHER APPEAL [2020] 4 CLJ 643
HIGH COURT MALAYA, ALOR SETAR
CHAN JIT LI JC
[CIVIL APPEALS NO: 16-5-6-2017 & 16-6-6-2017]
30 JULY 2019

An agreement between an employer and a worker by which the worker promises to refrain from taking any legal action against the employer may be held to be an unlawful restraint on the worker's right to litigation, and thus, void and unenforceable. This said, the Director General of Labour, in exercising the powers conferred upon him by ss. 2, 69(1), 69(B) and 69(C) of the Employment Act 1955, may not only enquire into a wage dispute per se between a worker and his employer, but may preside over complaints or disputes relating to other cash payments such as retrenchment benefits, bonuses et cetera. It thus follows that a complaint lodged by employees of a hotel against their employer in the Labour Tribunal for an alleged failure to pay their remuneration benefits, is perfectly lawful, and competent to be dealt with by the said tribunal.

LABOUR LAW: Employment - Termination - Appeal against award of Labour Court - Employees claimed for remuneration benefits against employer at Labour Court - Labour Court awarded in favour of employees - Whether Labour Court correct in award - Whether employee employed by employer - Whether agreement relied by employee in claim against employer valid and enforceable - Whether Labour Court seized with jurisdiction to hear employees' complaints - Whether Labour Court's quantification of awards correct - Whether employer could succeed in plea of estoppel

LABOUR LAW: Employment - Termination - Claim for remuneration benefits by employees against employer at Labour Court - Employees hired by entity appointed by employer - Whether there was employer-employee relationship between parties - Whether there was principal-agent relationship between employer and entity - Whether employees hired by agent - Whether entity agent/manager of employer - Whether agent had full authority and discretion to hire workers - Whether agent executed contracts of service with employees in capacity of agent/manager of employer - Whether employer employed employee - Employment Act 1955, s. 2 - Contracts Act 1950, s. 179

LABOUR LAW: Jurisdiction - Claim for remuneration benefits by employees against employer at Labour Court - Whether powers of Director General of Labour ('DGL') to inquire limited to disputes on wages only - Whether DGL seized with powers to inquire into employees' complaints - Employment Act 1955, s. 69(1)

CONTRACT: Employment contract - Termination - Estoppel - Termination of employees' employment - Claim for remuneration benefits by employees against employer - Allegation that employees could not take action against employers as employees rejected offer of re-employment and agreed not to take legal action against employer - Whether there was consent signed by employees not to take legal action against employer - Whether employees estopped from taking legal action against employer - Whether consent constituted restraint on employees' right to litigation - Whether consent valid and enforceable - Contracts Act 1950, s. 29


YUSOF HOLMES ABDULLAH v. PP & ANOTHER APPEAL [2020] 4 CLJ 688
HIGH COURT MALAYA, KUALA LUMPUR
COLLIN LAWRENCE SEQUERAH J
[CRIMINAL APPEALS NO: 42(H)-7-01-2017 & 42(S)-8-01-2017]
02 SEPTEMBER 2019

A charge under s. 417 of the Penal Code against an arbitrator for cheating the Director of the KLRCA (the Director) by submitting a false representation in his statement of independence to the Director, having alleged therein that the arbitrator has submitted the said false representation to the Director, that he knew the representation was false, and that it was made with intent to deceive and had indeed deceived the Director, has stated with clarity the essential ingredients of the offence. The failure to state the elements of cheating in s. 415 of the Code, or to particularise the harm or damage suffered by the person deceived, does not make the charge materially flawed and is not fatal to the prosecution's case.

CRIMINAL LAW: Penal Code - Section 417 - Punishment for cheating - Appointment of arbitrator - Deception in statement of independence - Appeal against conviction and sentence - Whether charge defective - Whether likelihood of damage to reputation sufficient - Whether likelihood of damage to reputation of Kuala Lumpur Regional Centre of Arbitration could be inferred from circumstances of case - Whether testimony of witness sufficiently corroborated - Whether witness an accomplice - Whether accomplice a competent witness - Whether offence serious in nature - Whether custodial sentence merited

EVIDENCE: Presumption - Presumption of fact in publication - E-mail communication - Whether accused registered with network service provider as subscriber of network service - Whether e-mails classified as documents - Whether fulfilled requirements of documents produced by computer - Whether email accounts registered in name of accused - Whether active at material time - Whether accused presumed to have published publication - Whether presumption rebutted - Evidence Act 1950, ss. 3, 90A, 114A


APPEAL UPDATES  
  1. Luo Wenqin lwn. PP [2019] 1 LNS 517 (CA) mengesahkan kes Mahkamah Tinggi PP lwn. Luo Wenqin [Jenayah No: 45A-121-11/2014]

  2. Thameez Nisha Haseem v. Charijah Ameerdin Mohamed Shariff & Anor [2019] 1 LNS 572 (CA) affirming the High Court case of Thameez Nisha Haseem (As the Administrator of the Estate of Bee Fathima, Deceased) v. Charijah Bt Ameerdin Mohamed Shariff & Anor [Suit No: MT4-21-121-2004]

LATEST CASES

Legal Network Series

[2019] 1 LNS 93

S QUARRY SDN BHD v. DESARU DEVELOPMENT CORPORATION SDN BHD & ORS

The plaintiff as an outsider is entitled to enforce a letter of award executed by the defendant's personnel, although the said personnel was not an authorised signatory of the defendant, provided the plaintiff acted in good faith and without notice that the defendant's authority was being abused.

CONTRACT: Termination - Validity - Letter of award to carry out site clearing and excavations works on land - Claim for idling costs, wasted costs, value of stockpiled rock material left at site and total costs incurred as a result of stoppage of work - Defendant alleged letter of award was executed by unauthorised signatory - Whether there was valid and enforceable contract between parties - Whether Turquand rule applies in favour of plaintiff - Whether termination of letter of award was lawful

  • For the appellant - Gopal Sreenevasan, Kelvin Ng & Lee Sze Ying; M/s Vin & Isaac Lee
  • For the respondent - Wong Kah Hui & Emily Chin JS; M/s Kadir, Andri & Partners

[2019] 1 LNS 63

ARRIOLA MAGDALENA lwn. NICOLAS DELMONTE & SATU LAGI

Pihak yang melanggar isyarat lampu merah dan mengakibatkan perlanggaran di persimpangan lampu isyarat adalah bertanggungan 100% atas kemalangan.

LALULINTAS JALAN: Kecuaian - Kemalangan jalan raya - Penentuan liabiliti - Kemalangan di persimpangan lampu isyarat - Tindakan oleh penumpang terhadap pemandu - Kemalangan berlaku akibat pihak ketiga melanggar lampu isyarat - Kemalangan dirakam CCTV - Sama ada pihak ketiga telah melanggar isyarat lampu merah dan mengakibatkan perlanggaran - Sama ada penumpang dan pemandu mempunyai kecuaian sumbangan dalam kemalangan - Sama ada pihak ketiga telah cuai 100% dalam mengakibatkan perlanggaran

GANTIRUGI: Kehilangan pendapatan - Pengiraan perbelanjaan kehidupan - Elaun makanan diberikan majikan - Sama ada elaun makanan wajar ditolak daripada pengiraan perbelanjaan kehidupan

  • Bagi pihak plaintif/perayu - Mariappan Nachimuthu; T/n N Mariappan & Associates
  • Bagi pihak defendan/responden - Muhammad Faizal Mokhtar; T/n Balarajah & Co

[2019] 1 LNS 79

PP lwn. MOHD FARHAN AKMAL MOHAMED NAIN

Kegagalan pihak pendakwaan mengemukakan saksi-saksi yang berada di kawasan serbuan terjumlah kepada penyembunyian keterangan dan niat yang curang. Tindakan sedemikian menyebabkan ketidakadilan kepada tertuduh kerana tidak berpeluang untuk mengemukakan pembelaannya.

PROSEDUR JENAYAH: Pendakwaan - Kes pendakwaan - Kelompangan - Kegagalan memanggil saksi-saksi di tempat kejadian - Identiti tertuduh dipersoalkan - Sama ada kegagalan memanggil orang-orang yang berada di kawasan serbuan telah menyebabkan berlakunya kesenjangan kepada rantaian keterangan kes pendakwaan - Sama ada wujud penyembunyian keterangan dan niat curang oleh pihak pendakwaan - Sama ada telah menyebabkan ketidakadilan kepada tertuduh - Sama ada inferen bertentangan wajar dibangkitkan terhadap pihak pendakwaan

  • Bagi pihak pendakwaan - T/n Azrul Faidz Abdul Razak, Timbalan Pendakwa Raya
  • Bagi pihak pembelaan - Charan Singh; T/n Nurul Charan & Co

[2019] 1 LNS 99

KESATUAN KEBANGSAAN PEKERJA-PEKERJA BANK SEMENANJUNG MALAYSIA v. MALAYAN COMMERCIAL BANK'S ASSOCIATION & ORS

1. It is not open to a trade union to adduce evidence before the Industrial Court after having failed to file its statement of case setting out the facts and/or arguments relied on. To allow the trade union to adduce evidence without filing of statement of case would amount to a breach of natural justice to the other party.

2. An application for interpretation of a collective agreement is not proper without stating undisputed facts upon which the application for interpretation is made.

ADMINISTRATIVE LAW: Judicial review - Certiorari - Application by trade union to quash award of Industrial Court - Interpretation of collective agreement - Union's application to adduce oral and documentary evidence was denied by Industrial Court - Union failed to file statement of case - Union failed to state underlying undisputed facts upon which the application for interpretation is made - Whether allowing union to adduce evidence in court would amount to breach of natural justice to other party - Whether application for interpretation of collective agreement is proper without undisputed facts

  • For the applicant - VK Raj & Ravindra Murugavell; M/s P Kuppusamy & Co
  • For the 1st & 2nd respondents - N Sivabalah & Nadia Abu Bakar; M/s Shearn Delamore & Co

[2019] 1 LNS 100

MAT SAAT AHMAD & ORS v. LINFOX TRANSPORT SDN BHD & ANOR

The Industrial Court is seized with jurisdiction from a reference of the Minister of Human Resources and such reference will not be wrong merely on the basis that the date of dismissal in the reference was incorrect. It is not the Minister but the Industrial Court that has to determine the correct date of dismissal after hearing all the evidence.

ADMINISTRATIVE LAW: Judicial review - Certiorari - Application to quash award of Industrial Court on jurisdictional issue - Industrial Court's finding on date of dismissal was different from Minister's reference - Whether Industrial Court has jurisdiction to determine reference made by Minister when date of dismissal in Minister's reference was wrong - Whether Industrial Court or Minister has to ascertain actual date of dismissal - Whether Industrial Court has made any error in law when it decided that date of dismissal is different from that in Minister's reference

  • For the applicant - Ramdhari JBS; M/s P Kuppusamy & Co
  • For the 1st respondent - Rejinder Singh; M/s Rejinder Singh & Associates

CLJ 2020 Volume 4 (Part 5)

A child born overseas and out of wedlock to a non-citizen mother, notwithstanding the subsequent marriage of his parents, cannot be regarded as a legitimate child for the purpose of art. 14(1)(b) of the Federal Constitution. And, since his citizenship status is determined by his mother's citizenship status, he cannot also be regarded as a citizen of Malaysia by operation of law under the same constitutional provision; a fortiori if he has already obtained a foreign citizenship and has used his foreign passport for his travelling.
Chan Tai Ern Bermillo & Anor v. Ketua PengarahPendaftaran Negara, Malaysia & Ors [2020] 4 CLJ 597 [CA]

CONSTITUTIONAL LAW: Citizenship - Application - Illegitimate child - Child born to Malaysian father and non-citizen mother - Whether 'father' under s. 17 of Part III of Federal Constitution ('FC') refers to mother - Whether mother's non-citizenship impediment to application - Whether child lacked requisite qualification to acquire citizenship 'by operation of law' - Whether child born out of wedlock could be regarded as legitimate child for purpose of art. 14(1)(b) of FC once his parents marry each other after his birth - Whether s. 17 of Part III of Second Schedule of FC applicable - Whether child who obtained foreign citizenship deprived of Malaysian citizenship

 

 

ABDUL RAHMAN SEBLI JCA
ZALEHA YUSOF JCA
RHODZARIAH BUJANG JCA

  • For the appellant - M/s Francis Pereira & Shan
  • For the respondent - SFC

The defence of innocent carrier to a charge of trafficking in dangerous drugs under s. 39B(1)(a) of the Dangerous Drugs Act 1952 may not be taken as an afterthought if it was put to witnesses and suggestions and challenges made to such witnesses on such defence. It is also notable that when the same matters were reiterated by the accused in his testimony on oath, the suggestions would crystallise into evidence which the trial judge is duty bound to consider and assess. Failure to so address the evidence may gravely prejudice the accused, or entail a non-direction which amounts to a misdirection, and may justify his acquittal of the charge.
Luke Nnaemeka Ugwu v. PP [2020] 4 CLJ 607 [CA]

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CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Accused charged for offence of trafficking in dangerous drugs - Drugs found concealed in bag - Whether accused had knowledge of drugs - Whether accused's defence of innocent carrier probable

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused convicted for offence of trafficking in dangerous drugs - Drugs found concealed in bag - Accused sentenced to death - Whether accused had knowledge of drugs - Whether accused innocent carrier - Whether there was wilful blindness - Whether accused's defence of innocent carrier probable - Whether conviction and sentence safe - Dangerous Drugs Act 1952, s. 39B(1)(a)

EVIDENCE: Adverse inference - Non-production of witness - Accused charged for offence of trafficking in dangerous drugs - Drugs found concealed in bag - Prosecution failed to secure attendance of witness offered to defence - Prosecution failed to tender witness' statement made pursuant to s. 112 of Criminal Procedure Code - Whether adverse inference ought be invoked against prosecution - Evidence Act 1950, s. 114(g)

UMI KALTHUM ABDUL MAJID JCA
HARMINDAR SINGH DHALIWAL JCA
STEPHEN CHUNG JCA

  • For the appellant - Wan Azwan Aiman & Aiman Ariff Abdul Aziz; M/s Azwan Aiman Forsberg & Co
  • For the respondent - Syarifuddin Abdul Rasa; DPP

The convening of an Extraordinary General Meeting of a company upon a requisition by a corporate representative and the resolutions passed thereat to remove its directors is valid if it complies with its articles of association and no impropriety or lack of bona fides is shown for the removal. Section 147 of the Companies Act 1965 does not proscribe a corporate representative from doing any other act which the company may authorise him to perform, and further, requisitioning an EGM on behalf of a corporate member is not an act that offends corporate representation at meetings so adverted to in s. 147(3).
Low Thiam Hoe & Anor v. Sri Serdang Sdn Bhd & Ors [2020] 4 CLJ 618 [HC]

COMPANY LAW: Directors - Removal - Removal pursuant to resolutions passed at extraordinary general meeting ('EGM') - Whether EGM validly convened - Whether requisition for EGM valid - Whether there was element of discrimination against directors sought to be removed - Whether resolutions validly passed at board meeting - Whether board meetings may only be convened when all board directors available - Whether 'special notice' required to remove directors - Whether removal under s. 206 of Companies Act 2016 or article of association of company - Whether removal of directors were lawful - Companies Act 2016, ss. 310 & 311

 

 

DARRYL GOON SIEW CHYE J

  • For the plaintiffs - P Gananathan & Iris Tan Li Chie; M/s Gananathan Loh
  • For the 1st to 7th defendants - Leong Wai Hong, Anita Natalia & Alya Hazira; M/s Skrine
  • For the 8th to 9th defendants - Gopal Sreenevasan & PL Leong; M/s Sreenevasan Young

An agreement between an employer and a worker by which the worker promises to refrain from taking any legal action against the employer may be held to be an unlawful restraint on the worker's right to litigation, and thus, void and unenforceable. This said, the Director General of Labour, in exercising the powers conferred upon him by ss. 2, 69(1), 69(B) and 69(C) of the Employment Act 1955, may not only enquire into a wage dispute per se between a worker and his employer, but may preside over complaints or disputes relating to other cash payments such as retrenchment benefits, bonuses et cetera. It thus follows that a complaint lodged by employees of a hotel against their employer in the Labour Tribunal for an alleged failure to pay their remuneration benefits, is perfectly lawful, and competent to be dealt with by the said tribunal.
Mashyur Mutiara Sdn Bhd v. Abdul Samat Ishak& Ors And Another Appeal [2020] 4 CLJ 643 [HC]

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LABOUR LAW: Employment - Termination - Appeal against award of Labour Court - Employees claimed for remuneration benefits against employer at Labour Court - Labour Court awarded in favour of employees - Whether Labour Court correct in award - Whether employee employed by employer - Whether agreement relied by employee in claim against employer valid and enforceable - Whether Labour Court seized with jurisdiction to hear employees' complaints - Whether Labour Court's quantification of awards correct - Whether employer could succeed in plea of estoppel

LABOUR LAW: Employment - Termination - Claim for remuneration benefits by employees against employer at Labour Court - Employees hired by entity appointed by employer - Whether there was employer-employee relationship between parties - Whether there was principal-agent relationship between employer and entity - Whether employees hired by agent - Whether entity agent/manager of employer - Whether agent had full authority and discretion to hire workers - Whether agent executed contracts of service with employees in capacity of agent/manager of employer - Whether employer employed employee - Employment Act 1955, s. 2 - Contracts Act 1950, s. 179

LABOUR LAW: Jurisdiction - Claim for remuneration benefits by employees against employer at Labour Court - Whether powers of Director General of Labour ('DGL') to inquire limited to disputes on wages only - Whether DGL seized with powers to inquire into employees' complaints - Employment Act 1955, s. 69(1)

CONTRACT: Employment contract - Termination - Estoppel - Termination of employees' employment - Claim for remuneration benefits by employees against employer - Allegation that employees could not take action against employers as employees rejected offer of re-employment and agreed not to take legal action against employer - Whether there was consent signed by employees not to take legal action against employer - Whether employees estopped from taking legal action against employer - Whether consent constituted restraint on employees' right to litigation - Whether consent valid and enforceable - Contracts Act 1950, s. 29

 

CHAN JIT LI JC

  • For the appellant - Darshan Singh Aulakh; M/s Darshan & Jaswant
  • For the respondents - Arun Kumar S Kanesin; M/s Arun Kumar & Assocs

A running account may be enforced under the Contracts Act 1950 because there is nothing in the Act which, either expressly or by necessary implication, prohibits the enforceability of such account. Running accounts have also been applied in the borderless world of commerce, and to assert that they are not enforceable under the Contracts Act is not only anomalous but unjust to the business community in this country.
Pos Logistics Bhd v.Kumpulan Perubatan Smarthealth Sdn Bhd [2020] 4 CLJ 670 [HC]

CONTRACT: Service contract - Termination - Plaintiff provided medical out-patient services to employees of defendant - Defendant's failure to pay total outstanding balance - Whether plaintiff could enforce running account against defendant in respect of services under Contracts Act 1950 - Whether plaintiff proved total outstanding balance due from defendant to plaintiff - Whether defendant paid all invoiced sums - Whether defendant's redaction attracted adverse inference under s. 114(g) of Evidence Act 1950 - Whether plaintiff entitled to charge late fee interest due - Whether there was course of dealing between plaintiff and defendant - Whether defendant estopped from denying total outstanding balance

 

 

WONG KIAN KHEONG J

  • For the appellant - Nadzarin Wok Nordin & Tan Lay Kuan; M/s Nadzarin Kuok Puthucheary & Tan
  • For the respondent - Mohd Hisham Mohd Nazir & Ilyasa Iqbal Abu Bakar; M/s Hisham Nazir & Co

A charge under s. 417 of the Penal Code against an arbitrator for cheating the Director of the KLRCA (the Director) by submitting a false representation in his statement of independence to the Director, having alleged therein that the arbitrator has submitted the said false representation to the Director, that he knew the representation was false, and that it was made with intent to deceive and had indeed deceived the Director, has stated with clarity the essential ingredients of the offence. The failure to state the elements of cheating in s. 415 of the Code, or to particularise the harm or damage suffered by the person deceived, does not make the charge materially flawed and is not fatal to the prosecution's case.
Yusof Holmes Abdullah v. PP & Another Appeal [2020] 4 CLJ 688 [HC]

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CRIMINAL LAW: Penal Code - Section 417 - Punishment for cheating - Appointment of arbitrator - Deception in statement of independence - Appeal against conviction and sentence - Whether charge defective - Whether likelihood of damage to reputation sufficient - Whether likelihood of damage to reputation of Kuala Lumpur Regional Centre of Arbitration could be inferred from circumstances of case - Whether testimony of witness sufficiently corroborated - Whether witness an accomplice - Whether accomplice a competent witness - Whether offence serious in nature - Whether custodial sentence merited

EVIDENCE: Presumption - Presumption of fact in publication - E-mail communication - Whether accused registered with network service provider as subscriber of network service - Whether e-mails classified as documents - Whether fulfilled requirements of documents produced by computer - Whether email accounts registered in name of accused - Whether active at material time - Whether accused presumed to have published publication - Whether presumption rebutted - Evidence Act 1950, ss. 3, 90A, 114A

 

COLLIN LAWRENCE SEQUERAH J

  • For the applicant - Alex De Silva, Amer Hamzah, Joshua Tay & Quek Yiing Hue; M/s Bodipalar Ponnudurai De Silva
  • For the respondent - Gan Peng Kun & Amira Sariaty Zainal; DPP

ARTICLES

CLJ Article(s)

  1. SYARIE LEGAL PROFESSION: WITH REFERENCE TO SYARIE LEGAL PROFESSION (FEDERAL TERRITORIES) ACT 2019 [Read excerpt]
    by PROFESSOR DATO' SRI DR ASHGAR ALI ALI MOHAMED* [2020] 4 CLJ(A) v

  2. [2020] 4 CLJ(A) v
    logo
    MALAYSIA

    SYARIE LEGAL PROFESSION: WITH REFERENCE TO SYARIE LEGAL PROFESSION (FEDERAL TERRITORIES) ACT 2019

    by
    PROFESSOR DATO' SRI DR ASHGAR ALI ALI MOHAMED*

    Introduction

    In Islam, the disputants and their legal representatives are entrusted with the obligation of upholding absolute justice and this is ordained by Allah (swt) in several verses of the Quran. Suffice at this juncture to quote one verse where Allah (swt) proclaims: 'O ye who believe! Stand out firmly for justice, as witnesses to Allah even against yourselves or your parents or your kin and - whether it be (against) rich or poor. For Allah can best protect both. Follow not the lusts (of your hearts) lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.'[1] Success in a trial means success in upholding justice and rendering what is right to the rightful person. A Syarie lawyer representing a disputant is entrusted with the task of assisting the judge in arriving at a just and fair decision irrespective of the outcome of the trial, even if the decision is against the interest of his client. There may be instance where a lawyer's eloquent argument may persuade the judge in making a decision in his favour although his conscience dictates that righteousness was not on his side. In such a situation, the lawyer might have only managed to do an evil act and thus, incurred sin.[2]

    . . .

    * Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia


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LNS Article(s)

  1. A BUNDLING DILEMMA [Read excerpt]
    by Tasha Chandra* [2020] 1 LNS(A) li

  2. [2020] 1 LNS(A) li
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    MALAYSIA

    A BUNDLING DILEMMA

    by
    Tasha Chandra*

    Introduction

    The recent Federal Court decision in the case of Melawangi Sdn. Bhd. v. Tiow Weng Theong[1] has garnered mixed reactions from the legal fraternity as to its impact on the legal status of documents filed as part of the bundles of documents in a civil trial. Although the said case involved several legal and factual issues, the main issues that will be discussed here are the legal implications and effects of documents placed in the various bundles of documents, that is Parts A, B and C that are to be filed in court prior to trial.

    As a quick refresher, once pleadings have closed, the court will fix case management with the parties to, amongst others, enquire about any matters arising in the action, confirm that there has been compliance with court’s directions and generally, to give directions as to the future course of the case. This is known as pre-trial case management which can be found under Order 34 of the Rules of Court 2012.

    . . .

    * Sole Proprietor of Messrs K. Chandra & Co.


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  3. THE PRINCIPLE OF LEGALITY IN SHARIAH LAW* [Read excerpt]
    by MOHAMMAD HASHIM KAMALI [2020] 1 LNS(A) lii

  4. [2020] 1 LNS(A) lii
    logo
    MALAYSIA

    THE PRINCIPLE OF LEGALITY IN SHARIAH LAW*

    by
    MOHAMMAD HASHIM KAMALI

    The principle of legality in crime and punishment is an entrenched aspect of modern constitutional law, and what it basically means is that there shall be no crime and no punishment unless the text of the law says so. Hence no one can be arrested nor punished unless the conduct at issue constitutes a crime under the applied law. Another aspect of the same principle is that of non-retroactivity, which means that the law cannot be applied retroactively to acts which are committed before the law came into force – unless Parliament specifically says so.

    The question has often been raised as to whether or not the principle of legality also stands valid under shariah law. Different answers are given sometimes based on opinion or on secondary sources. The response we provide below looks into the source evidence, mainly the Qur’an, which is clearly affirmative on both the legality and non-retroactivity aspects of the principle under review.

    . . .

    * Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. (www.iais.org.my).


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  5. PARLIAMENT SHOULD NOT SIT IN VAIN* [Read excerpt]
    by Datuk Joy Appukuttan** [2020] 1 LNS(A) liii

  6. [2020] 1 LNS(A) liii
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    MALAYSIA

    PARLIAMENT SHOULD NOT SIT IN VAIN*

    by
    Datuk Joy Appukuttan**

    A. Introduction

    It is reported that the Dewan Rakyat will convene on 18th May 2020 but for only one day. The sitting is being held only to discuss government bills and matters.[1] The report apparently also states that there will be no oral and written question sessions or motions in light of the Covid 19 pandemic.

    On Parliament's portal, it states the Parliament's business[2] for the 18th May 2020 includes the Royal Address during the Opening Ceremony of Parliament and Bills, and other government business.

    It is now reported that several motions have been submitted by Members of Parliament.[3] One of such motion is to extend the Dewan Rakyat's sitting by 8 days, which motion has been accepted for debate.[4]

    Wikipedia describes that the term 'Parliament' comes from the 11th century old French word, "parlement", from "parler", meaning "to talk".

    . . .

    *Assistance and research are attributed to my colleagues, Kelvynn Foo Wai Tzen & Joycelyn Keziah. Article created on 8/5/2020.

    ** Barrister At Law (Middle Temple), Advocate & Solicitor (Malaya) & Advocate & Solicitor (Singapore)(Non-Practising).


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  7. OBJECTION(S) IN RESPONSE TO DISCOVERIES AND THE PROHIBITION OF EXTRANEOUS MATTERS IN AFFIDAVITS IN NIGERIA: A COMPARATIVE REVIEW [Read excerpt]
    by Salmanu Mohammed Rilwanu* Dewan Dauda Umaru** Amana Mohammed Yusuf*** [2020] 1 LNS(A) l

  8. [2020] 1 LNS(A) l
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    NIGERIA

    OBJECTION(S) IN RESPONSE TO DISCOVERIES AND THE PROHIBITION OF EXTRANEOUS
    MATTERS IN AFFIDAVITS IN NIGERIA: A COMPARATIVE REVIEW


    by
    Salmanu Mohammed Rilwanu*
    Dewan Dauda Umaru**
    Amana Mohammed Yusuf***

    Abstract

    Discoveries are means through which parties to civil actions strengthen their cases, by way of eliciting admissions of fact or inquiring about documents from the opposing party to the case at the close of pleadings and before commencement of trial. In response to Interrogatories [facts] or Discovery of Documents [documents], the interrogated party, under the rules, is required to answer on oath by way of an affidavit. Though an interrogated party is not obliged to answer irrelevant or scandalous questions, the rules of most High courts in Nigeria provide that objections in such a case be raised in the affidavit in answer, even though the rules in another part, also provide that the rules on affidavits apply to the rules. The law is trite that extraneous matters; such as objections and conclusions should not be included in affidavits. Sections 79 to 90 of the Evidence Act, 2011, (Nigeria) are instructive here. A critical examination was undertaken on the laws relating to Discoveries under some of the High Court civil procedure rules in Nigeria (Federal Capital Territory, Abuja, Kano and Lagos States) and the law on deposition in affidavits. 

    . . .

    * LL.M [A.B.U.] BL, Lecturer, Nigerian Law School, Abuja, Nigeria- rilwanu71@gmail.com.

    ** LL.M [JOS] BL, Lecturer, Nigerian Law School, Kano Campus, Bagauda, Kano State, Nigeria.

    *** LL.M (BUK) BL, Lecturer, Department of International Law & Jurisprudence, Faculty of Law, Bayero University Kano, Nigeria +234 (8033340192), myamana.ilj@buk.edu.ng.


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 827 Currency Act 2020 Not Yet In Force -
ACT 826 Food Donors Protection Act 2020 31 March 2020 [PU(B) 166/2020] -
ACT 825 Anti-Fake News (Repeal) Act 2020 31 January 2020 -
ACT 824 Malaysian Health Promotion Board (Dissolution) Act 2019 1 April 2020 [PU(B) 119/2020] -
ACT 823 Finance Act 2019 Income Tax Act 1967 [Act 53] see s 3, Real Property Gains Tax Act 1976 [Act 169] see s 22, Stamp Act 1949 [Act 378] see s 27, Petroleum (Income Tax) Act 1967 [Act 543] see s 29, Sales Tax Act 2018 [Act 806] see s 35, Finance Act 2010 [Act 702] see s 37 and the Finance Act 2018 [Act 812] see s 39 -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1617 Franchise (Amendment) Act 2020 Not Yet In Force ACT 590
ACT A1616 Central Bank of Malaysia (Amendment) Act 2020 Not Yet In Force ACT 701
ACT A1615 Industrial Relations (Amendment) Act 2020 Not Yet In Force ACT 177
ACT A1614 Labuan Business Activity Tax (Amendment) Act 2020 10 February 2020 - para 2(a) and s 13 and 15; Year of assessment 2020 and subsequent years of assessment - para 2(b) and s 3, 4, 5, 6, 7, 9, 10, 11, 12 and 14; 1 January 2019 - s 8 ACT 445
ACT A1613 Carriage of Goods by Sea (Amendment) Act 2020 Not Yet In Foce ACT 527

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 151/2020 Service Tax (Person Exempted from Payment of Tax) (Amendment) Order 2020 13 May 2020 14 May 2020 PU(A) 380/2018
PU(A) 150/2020 Service Tax (Digital Service) (Amendment) Regulations 2020 13 May 2020 14 May 2020 PU(A) 269/2019
PU(A) 149/2020 Service Tax Regulations (Amendment) 2020 13 May 2020 14 May 2020 PU(A) 214/2018
PU(A) 148/2020 Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) (No. 6) Regulations 2020 12 May 2020 13 May 2020 PU(A) 327/1993
PU(A) 147/2020 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (No. 6) Regulations 2020 12 May 2020 13 May 2020 to 9 June 2020 ACT 342

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 219/2020 Declaration of Quarantine Stations (No. 13) 2020 8 May 2020 9 May 2020 ACT 342
PU(B) 218/2020 Notification of Values of Crude Petroleum Oil Under Section 12 5 May 2020 8 May 2020 to 21 May 2020 ACT 235
PU(B) 217/2020 Notification of Values of Imported Completely Built-Up Motor Vehicles (New) Under Section 12 28 April 2020 30 April 2020 ACT 235
PU(B) 216/2020 List of Licensees 28 April 2020 29 April 2020 ACT 731
PU(B) 215/2020 Notification of Values of Palm Kernel Under Section 12 24 April 2020 1 May 2020 to 31 May 2020 ACT 235

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 269/2019 Peraturan-Peraturan Cukai Perkhidmatan (Perkhidmatan Digital) 2019 PU(A) 150/2020 14 Mei 2020 Bahagian baharu IIA
PU(A) 214/2018 Peraturan-Peraturan Cukai Perkhidmatan 2018 PU(A) 149/2020 14 Mei 2020 Jadual Pertama
PU(A) 380/2018 Service Tax (Persons Exempted From Payment of Tax) Order 2018 PU(A) 151/2020 14 May 2020 Schedule
PU(A) 269/2019 Service Tax (Digital Services) Regulations 2019 PU(A) 150/2020 14 May 2020 New Part IIA
PU(A) 214/2018 Service Tax Regulations 2018 PU(A) 149/2020 14 May 2020 First Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 133/2020 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (No. 4) 2020 [Dibatalkan Oleh Pu(A) 136/2020] PU(A) 136/2020 4 Mei 2020 hingga 12 Mei 2020
PU(B) 80/2019 Notification of Values of Imported Completely Built-Up Motor Vehicles (New) Under Section 12 PU(B) 217/2020 30 April 2020
PU(A) 136/2012 Malaysia Deposit Insurance Corporation (Payment of Annual Premium in Respect of Insurer Members) Order 2012 PU(A) 131/2020 29 April 2020
PU(A) 30/2011 Malaysia Deposit Insurance Corporation (Payment of Annual Premium in Respect of Deposit-Taking Members) Order 2011 PU(A) 130/2020 29 April 2020
PU(A) 122/2020 Companies (Exemption) Order 2020 PU(A) 123/2020 24 April 2020