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Putrajaya: Peguam PAS ikrar lawan habis-habisan

Posted on the February 19th, 2012 under Politik by admin

SHAH ALAM, 19 Feb: Lajnah Undang-undang PASPusat dengan kerjasama Jabatan Undang-undang dan Hak Asasi Manusia (Juham) Dewan Pemuda PAS Malaysia melakar sejarah apabila berjaya menghimpunkan lebih daripada 130 orang peguam PAS dari seluruh negara sempena Konvensyen Pilihan raya Peguam PAS 2012 yang berlangsung di sini, malam semalam.
Menurut Ketua Pengarah Konvensyen, Abang Ahmad Kerdee Abang Masagus (gambar), program itu bertujuan sebagai persediaan terakhir peguam PAS bagi menghadapi Pilihan raya Umum ke-13 yang dijangka akan diadakan pada tahun ini.
“Komitmen yang diberikan oleh rakan peguam dari seluruh negara termasuk Sabah dan Sarawak juga di luar jangkaan.
“Pada asalnya kita mensasarkan hanya 80 orang peguam sahaja yang akan hadir, namun jumlah tersebut semakin bertambah sehingga tarikh penyertaan terpaksa ditutup lebih awal,” katanya yang juga Ahli Jawatankuasa Kerja PAS Pusat.


Katanya, konvensyen tersebut bermula dengan majlis perasmian dan makan malam bersama Presiden PAS, Datuk Seri Tuan Guru Abdul Hadi Awang. Pesuruhjaya PAS Selangor, Dr Abdul Rani Osman turut hadir selaku tuan rumah.
Menurutnya, Tuan Guru Abdul Hadi melahirkan kebanggaan di atas kejayaan pihak penganjur menghimpunkan para peguam PAS kerana peranan mereka secara keseluruhannya amat penting di dalam merealisasikan hasrat PAS dan Pakatan Rakyat untuk menawan Putrajaya pada PRU13.
Katanya, konvensyen tersebut mencapai enam resolusi dan resolusi yang menjadi keutamaan adalah peserta bertekad sekurang-kurangnya seorang peguam akan ditugaskan di setiap kerusi parlimen yang PAS akan bertanding dalam PRU13 kelak.
“Tindakan tegas menurut batas undang-undang sedia ada akan diambil ke atas mana-mana musuh Pakatan Rakyat yang melanggar mana-mana peraturan pilihan raya,” katanya.
Di samping itu, ujarnya para peserta juga turut mencapai resolusi untuk memberikan khidmat guaman pasca pilihan raya itu sendiri iaitu dalam soal petisyen pilihan raya.
Beliau berkata, bagi perjalanan yang melibatkan pihak SPR pula, peguam PAS akan memantau segala aduan berkaitan salah laku pegawai SPR di sepanjang pilihan raya berlangsung.
Jelasnya, peguam PAS juga mengingatkan para pegawai SPR bahawa segala tindakan mereka yang melanggar peraturan adalah satu kesalahan jenayah.
Oleh itu, katanya dengan tenaga peguam seramai 130 orang itu, PAS akan melangkah teguh menghadapi gelombang PRU13 bagi merealisasikan tekad Pakatan Rakyat untuk menakluki Putrajaya.
Konvensyen berakhir dengan sesi khas bersama Timbalan Presiden PAS, Mohamad Sabu dan AJK PAS Pusat, Mohamed Hanipa Maidin.
“Insya Allah di pihak Lajnah Undang-Undang PAS Pusat kita mensasarkan 150 peguam PAS akan bertugas di semua negeri jika dilihat daripada kehadiran pada hari ini.
“We will fight at all costs! Tumbang BN, negara selamat,” ujarnya pada akhir majlis.
Harakahdaily.net

Nafi hudud dalam al-Quran bermakna tolak al-Quran

Posted on the March 2nd, 2012 under Tempatan by admin

KUALA LUMPUR, 2 Mac: Menyatakan bahawa hukum hudud tidak terdapat dalam al-Quran dan hanya ciptaan manusia boleh menjejaskan aqidah.
Menurut Yang Dipertua Persatuan Ulama’ Malaysia (PUM), Datuk Sheikh Abdul Halim Abdul Kadir, kenyataan seperti itu juga bermaksud menolak al-Quran itu sendiri.
“Hukum hudud ini ditentukan oleh Allah, dalam al-Quran disebut secara jelas. Sepakat ulama juga tetap bahawa hukum hudud ada dalam al-Quran seperti hukum potong tangan dan bunuh balas (qisas).
“Sesiapa yang menidakkan hudud dalam al-Quran, maksudnya dia tolak al-Quran,” tegasnya ketika dihubungi Harakahdaily.
Sedangkan katanya rukun iman yang keempat adalah percaya kepada kitab Allah termasuk al-Quran.
 


Beliau yang juga bekas Mufti Kerajaan Terengganu berkata demikian ketika diminta memberi pandangan terhadap kenyataan mantan Perdana Menteri, Tun Dr Mahathir Mohamad dalam satu program bersama mahasiswa baru-baru ini bahawa hudud tidak ada dalam al-Quran dan perlaksanaannya tidak adil.
Rakaman video ucapan Mahathir itu juga kini disebar meluas di internet khususnya di Youtube.
Dalam perkembangan lain, AJK PAS Pusat, Datuk Abu Bakar Chik turut menggesa para alim ulama, mufti hingga ke Majlis Raja-Raja Melayu menegur Mahathir yang juga mantan Presiden Umno itu.
Ini kerana kenyataan Mahathir itu bukan sahaja boleh disifatkan teroesong dari ajaran Islam malah boleh mengelirukan umat Islam seluruhnya.
“Kenyataan Tun Dr Mahathir ini ‘besar’ (salah) apabila menafikan hudud atau mengatakan hudud tidak ada dalam al-Quran. Sedangkan perkataan hudud itu sendiri jelas disebut dalam al-Quran.
“Hukum hudud bermakna hukum-hukum yang telah ditetapkan oleh al-Quran secara nas qat’ie iaitu nas yang putus seperti hukum mencuri, hukum berzina ada dalam al-Quran.
“Begitu juga dengan nas yang berhubung dengan murtad, nas berhubung dengan arak, qazaf dan semuanya ada jelas dalam al-Quran,” jelasnya.
Dalam pada itu, Dewan Pemuda PAS Pusat pula akan membincangkan perkara itu dalam mesyuarat mereka minggu depan.
“Insyaallah, minggu depan meeting DPPM, saya akan bincang dgn rakan-rakan bentuk tindakan wajar dan sesuai ke atas Tun Mahathir atas istiqamah kenyataannya yg menolak hukum hudud dan menyebutnya ia tdk terdapat di dalam al quran.
“Mungkin DPPM akan request untuk bertemu Tun Mahathir bagi menyampaikan betul duduk hukum hudud,” kata ketuanya Nasruddin Hassan di laman Facebooknya.

Rakyat Kelantan sambut ‘meriah’ kedatangan Najib

Posted on the March 3rd, 2012 under Politik by admin

KOTA BHARU, 2 Mac: Kedatangan Perdana Menteri, Datuk Seri Najib Razak ke Kelantan disambut meriah oleh rakyat negeri itu termasuk mengantung banner.
Di Jeli, tempat Najib dibawa oleh Datuk Mustapha Mohamad bertemu rakyat, kain-kain pemidang dinaikkan oleh rakyat kawasan itu.
Najib dalam rangka lawatannya ke Kelantan hari ini dijangka akan bertemu rakyat di Jeli, kawasan Parlimen pengerusi perhubungan Umno Kelantan.
Lawatan terakhir Najib ke Kelantan adalah Julai tahun lalu di mana beliau telah melawat daerah Pasir Puteh, Machang dan Kota Bharu.
 

Di Pasir Puteh, beliau telah melawat stesen teksi Pasir Puteh dan berjanji akan membina stesen teksi baru di situ.
Untuk lawatan kali ini, Perdana Menteri akan memulakan lawatan kerjanya dengan menghadiri Majlis Ramah Mesra Bersama Anggota Tentera dan keluarga Rejimen Sempadan 2 di Batu Melintang, Jeli.
Menurut kenyataan yang dikeluarkan Jabatan Pembangunan Persekutuan (JPP) Kelantan, Perdana Menteri kemudiannya akan menghadiri Majlis Pemimpin Bersama Rakyat di Universiti Malaysia Kelantan (UMK) kampus Jeli.
Menteri Perdagangan Antarabangsa dan Industri Datuk Seri Mustapa Mohamed, merangkap Pengerusi Majlis Tindakan Persekutuan Negeri Kelantan dan Pengerusi Badan Perhubungan Umno Kelantan, akan mengiringi lawatan Perdana Menteri itu.

Harakahdaily.net

PTPTN: Misteri ‘kehilangan’ RM500

Posted on the March 5th, 2012 under Tempatan by admin/harakahDaily

Rata-rata mahasiswa IPTA mahupun IPTS adalah peminjam Perbadanan Tabung Pendidikan Tinggi Nasional ( PTPTN ) untuk meneruskan pengajian di peringkat yang lebih tinggi. Pelbagai isu yang dipaparkan di media termasuklah berkaitan dengan tindakan peminjam yang gagal membayar balik pinjaman akan disenarai hitam dan dikenakan tindakan mahkamah.
Satu tindakan yang serius apabila PTPTN mengambil langkah membenarkan Lembaga Hasil Dalam Negeri (LHDN) melaksanakan skim potongan gaji secara automatik terhadap peminjam Perbadanan Tabung Pendidikan Tinggi Nasional (PTPTN) mulai 1 Januari, 2012. ( Berita Harian Metro )
Dalam perkara ini juga, terlalu dimaklumkan bahawa kegagalan pihak PTPTN memasukkan wang kepada akaun pelajar juga suatu perkara yang tidak boleh diketepikan di antara peminjam dan pihak yang member pinjaman.
Selaku badan tertinggi pelajar Universiti Kebangsaan Malaysia, PMUKM akan terkejut dengan aduan yang banyak pada semester ini berkaitan dengan wang yang dimasukkan ke akaun pelajar adalah tidak cukup sebanyak RM500 seperti dalam perjanjian. Ini menyebabkan mahasiswa mula tertanya-tanya ke manakah hilangnya duit mereka.

Najib: Lynas Corp would not be licensed if Govt was not convinced

Monday, 27 February 2012 10:21am

©The Star (Used by permission) SEKINCHAN: Lynas Corp's rare earth plant in Gebeng has been reviewed by the Government and found to be safe, said Prime Minister Datuk Seri Najib Tun Razak. He also said they were looking for an uninhabited location to place the waste material from the Lynas plant although it was scientifically safe. “This move is to bring relief to the local community. Although it is safe scientifically, it may haunt the community psychologically and that must be taken into account,” he told reporters at the ground-breaking ceremony at SJK (C) Yoke Kuan here for the school's new building block. Najib said the plant would not have received an operating licence if the Government was not convinced that it was safe. “But if there are people who object for political reasons, there is nothing we can do about it. Opposition parties will look for issues like this as capital to garner the support of the local community. But they are not finding a solution,” he said. He added that the Government wanted a solution, which would be acceptable to the people without affecting investments, particularly if the investment is not dangerous or harmful to the local community. In Kuala Lumpur, MCA president Datuk Seri Dr Chua Soi Lek said the party only supported facts and recommendations by the International Atomic Energy Agency. He said it was not fair that Pakatan Rakyat had politicised the project and undermined the nation's image. In Kuantan, Pahang Mentri Besar Datuk Seri Adnan Yaakob, in a press statement, praised the anti-Lynas Himpunan Hijau 2.0 rally for “generating income” for the town's businesses, calling it demo-tourism. Adnan added that the rally was proof of the healthy practice of democracy in the country as anyone could assemble and voice their dissatisfaction as long as they do not break the law. Meanwhile, Himpunan Hijau 2.0 chairman Wong Tack threatened to hold another anti-Lynas rally if the Government did not respond within 24 hours. Wong also brushed aside Kuantan OCPD ACP Mohd Jasmani Yusoff's statement that the organisers had violated several conditions, saying it was irrelevant.

MACC revamp doesn’t need two-thirds parliamentary majority, says Pakatan, Bar chief

Tuesday, 28 February 2012 09:32am

©The Malaysian Insider (Used by permission) by Shazwan Mustafa Kamal and Mohd Farhan Darwis KUALA LUMPUR, Feb 28 — The ruling Barisan Nasional (BN) does not need to win two-thirds control of Parliament to improve the Malaysian Anti-Corruption Commission (MACC) as such plans would not necessarily be opposed by Pakatan Rakyat (PR), say its lawmakers. Opposition lawmakers told The Malaysian Insider that any steps to improve the efficiency and accountability of the anti-graft body should be welcomed, and that they will be open to debating the matter in Parliament at its next sitting. Bar Council president Lim Chee Wee said there should be no reason why MPs “across the floor” would not vote in favour of amendments to the Federal Constitution if it was done in the interest of the nation. They were responding to Datuk Seri Najib Razak, who pledged yesterday to give more freedom to the MACC in the appointment of its officers if BN wins two-thirds control of Parliament in the next general election. DAP international secretary Liew Chin Tong rubbished the prime minister’s remarks, saying that there should be a proper level of consultation with opposition lawmakers on the matter. “This is nonsense. In principle we agree on empowering the MACC for the betterment of the public. There is no question on needing a two-thirds majority. “In principle we agree, and think that the MACC should be placed under the jurisdiction of Parliament, and not the Prime Minister’s Office,” he told The Malaysian Insider. The Bukit Bendera MP said that in any mature democracy where laws are made, proper consultation on all levels needs to take place. He said Najib was presumptuous to think PR lawmakers would not agree to some of the recommendations of the advisory panel. “The opposition is happy to be consulted,” he added. PAS central committee member Dr Mujahid Yusof Rawa stressed that past amendments to the purpose and function of the MACC had already “empowered” the commission, and that the real problem was ensuring the anti-graft body was free from “political interference.” “You don’t need two thirds. Issue is not about strengthening, but more of allowing autonomy to MACC to carry out its duties,” he told The Malaysian Insider. “Pakatan Rakyat has agreed to reform measures for the MACC, based on proposals by the advisory panel,” the PAS leader added. PKR vice-president Nurul Izzah Anwar told The Malaysian Insider that Najib’s remarks were an admission that the MACC did not have enough clout to tackle corruption in the country. “The people should reject this kind political motivation from a leader. History has shown that when BN rules with a bigger majority, they are not afraid to abuse their powers,” she said. The Bar Council’s Lim pointed out that both BN and PR MPs had demonstrated “some amount of maturity” with regards to the bipartisan Parliamentary Select Committee (PSC) on electoral reforms. “Thus there is no reason why this cannot equally be the case with necessary and advantageous amendments to the Federal Constitution,” he said. The lawyer however questioned Najib’s mention of a proposal to elevate the status of the MACC chief commissioner to a standing equal to the Attorney-General or Auditor-General, stating that both had different limits to their jurisdiction. “A question which arises from the PM’s statement is the meaning of equal standing of the chief commissioner of MACC to the Honourable Attorney-General and Auditor-General. “The former has unfettered discretion to prosecute, making him probably the most powerful man in Malaysia. Whilst the latter’s powers, duties are prescribed the Audit Act 1957,” said the Bar Council president.

Seragam undang-undang murtad

Tuesday, 28 February 2012 09:15am

©Berita Harian (Digunakan dengan kebenaran) Oleh Norhidayah Che Din KUALA LUMPUR: Undang-undang murtad yang seragam di seluruh negara perlu digubal dalam usaha membendung penularan gejala berkenaan.  Ini berikutan peruntukan undang-undang sedia ada antara negeri tidak selaras, menyebabkan berlaku beberapa peruntukan longgar mengenai isu murtad hingga usaha membanteras gejala itu gagal dilaksanakan secara berkesan. Setiausaha Agung Majlis Perundingan Pertubuhan Islam Malaysia (MAPIM), Mohd Azmi Abdul Hamid, berkata satu akta khusus dan seragam berkaitan murtad juga perlu digubal supaya permohonan menukar agama daripada Islam kepada agama lain dapat dihalang. Katanya, undang-undang baru berkenaan perlu dikuatkuasakan pihak berkuasa agama dan dibicarakan di Mahkamah Syariah.  Setakat ini, enakmen negeri mengenai murtad sudah diwujudkan, kecuali beberapa negeri yang masih belum menggubal undang-undang berkenaan.  Sehubungan itu, kami merayu Majlis Raja-raja Melayu mengadakan sidang khas bagi mewujudkan undang-undang murtad yang digubal secara seragam di seluruh negara dalam usaha membendung penularan gejala berkenaan, katanya dalam kenyataan media di sini, semalam.  Beliau berkata, kesalahan menjalankan kegiatan untuk memurtadkan umat Islam selama ini sepatutnya boleh didakwa di mahkamah sivil, tetapi sehingga kini penguatkuasaannya masih menjadi tanda tanya.  Justeru, katanya, tindakan mewujudkan undang-undang murtad perlu segera diambil bagi memperkemaskan peruntukan dalam undang-undang, sekali gus mengekang gejala murtad.  Mengulas lanjut perkara itu, Mohd Azmi berkata kelemahan penguatkuasaan undang-undang berkaitan murtad mengakibatkan umat Islam di negara ini terdedah kepada agenda pihak tertentu yang sentiasa mencari peluang menyesatkan umat Islam.  Katanya, MAPIM merayu Majlis Raja-Raja Melayu memberi perhatian serius kerana pegangan aqidah umat Islam bukan saja perlu dilindungi dengan pendidikan dan kesedaran, malah diperkukuhkan melalui perundangan kerana Islam menganggap murtad adalah perbuatan jenayah.  Beliau berkata, penyelarasan undang-undang murtad perlu segera dilaksanakan bagi memastikan tidak ada negeri di negara ini yang membolehkan seseorang itu mengisytiharkan dirinya keluar daripada agama Islam.

Criminal Law Committee [2011/2012]

Tuesday, 07 June 2011 02:18pm

Chairperson Rajpal Singh s/o Mukthiar Singh Members 1 Abu Daud Bin Abd Rahim 2 Adzly Ab.Manas 3 Amrit Pal Singh 4 Azmi Bin Abdullah 5 Baljit Singh Sidhu 6 Daljit Kaur A/P Gurbakhash Singh 7 Devkumar Kumaraendran 8 Haezreena Begum Binti Abdul Hamid 9 Harmesh Singh 10 Hisyham Teh Poh Teik 11 Ho Peng Kwang 12 J. Christopher @ Anthony 13 Jagdish Kaur 14 Jayamurugan Vadivelu 15 Kuldeep Kumar A/L Jamna Dass 16 Mad Diah Bin Endut 17 Martin Tay Tze Chian 18 Muhammad Hasif Bin Hasan 19 Dato' Naranya Singh A/L Asa Singh 20 Nik Asma' Bahrum Bin Nik Abdullah 21 Noorfajri Bin Ismail 22 Norah Binti Abu Bakar 23 Ragumaren A/L Gopal 24 Rejinder Singh 25 Roger Chan Weng Keng 26 Salim Bashir Bhaskaran 27 Suraj Singh 28 Thirukumar S/O Vadiveloo 29 V.Parthipan 30 V Sithambaram

Termination of Bankruptcy

Tuesday, 07 February 2006 12:14am

©By Fiona Lee It is not the intention of the bankruptcy legislation to imprison a man within its confines forever [Anandarajah, Parwani, Chan, Subramanian, Law and Practice of Bankruptcy in Singapore and Malaysia, 1999]. As explained by the court in Re Stern, ex parte Kayser Ullman & Ors [1982] 2 ALL ER 600, the underlying principle in bankruptcy is: "The modern law of bankruptcy has its origins in a number of Victorian statutes which were intended to relieve those in financial difficulties from the burden of debt and the possibilities of loss of liberty in a debtors' prison and to enable them to make a fresh start free from debt. The price they had to pay for these benefits was the surrender to their creditors of all their property save the tools, if any, of their trade and the wearing apparel, and bedding of themselves and their families. It was recognised, however, that not all debtors were victims of misfortune. Some were rogues, some were fools and some were willing to risk other people's money when trying to make their own misfortunes. For over a hundred years, the law has required the bankruptcy court to consider whether the conduct of the bankrupt has been such that the public ought to be protected against his further operations for a period of time or even permanently." Thus, bankruptcy terminates either upon the annulment of the bankruptcy order or upon the bankrupt obtaining a discharge from bankruptcy. ANNULMENT OF BANKRUPTCY ORDER The power to annul bankruptcy orders vests in the court. The exercise of that power is discretionary and this is evident from the use of the word 'may' in the sections on the court's power to annul bankruptcy orders. The court may annul a bankruptcy order on the following grounds: 1. if the bankruptcy order ought not to have been made [s 105(1) Bankruptcy Act 1967]; 2. if the bankrupt has settled his debts in full [s 105(1) Bankruptcy Act 1967]; 3. if proceedings are pending in the Republic of Singapore for distribution of assets ought to be under the bankruptcy or insolvency laws of the Republic of Singapore [s 105(1) Bankruptcy Act 1967]; 4. if the bankrupt's offer of composition or scheme of arrangement has been accepted by creditors and approved by the court [s 26(2) Bankruptcy Act 1967]; or Under Section 105 (1) of the Bankruptcy Act 1967, the onus is on the bankrupt to satisfy the court that he ought not to have been made a bankrupt. Accordingly, the court may annul the bankruptcy order on the ground that it ought not to have been made, in the following cases: 1. where the bankruptcy proceedings constituted an abuse of process; 2. where the basis of the bankruptcy petition or the evidence upon which bankruptcy order was made turned out to be untrue; 3. where the debtor was a minor when the bankruptcy order was made. In the recent case of Bungsar Hill Holdings Sdn Bhd v. Dr Amir Farid Datuk Isahak [2005] 2 AMR 749, the Federal Court dismissed the appeal by the judgment creditor against the decision of the Court of Appeal in upholding the decision of the learned High Court Judge in annulling the adjudication order and rescinding the receiving order. The learned High Court Judge made it clear that he was exercising his discretionary power under the first limb of s 105(1) of the Bankruptcy Act 1967 ("the Act") when he said: "On that premises, I came to the conclusion that the debtor ought not to have been adjudged bankrupt because, at the time that he was adjudged a bankrupt, he was a person who was able to pay his debts, which is a ground under sub-section (3) of s 6 for refusing a petition. I was of the view that a debtor is able to pay his debts for the purposes of sub-section (3) of s 6 if he is solvent, that is to say, he has enough assets to meet his debts because that would be as good as requiring that he actually settles his debts to prove that he is able to pay his debts. But it must be borne in mind that when a petition is dismissed under sub-section (3) of s 6 on the ground that the debtor is able to pay his debts, he would not have actually paid his debts." Abdul Hamid b Mohamad, FCJ in delivering the judgment of the Federal Court held, "To summarise I would answer the more important questions posed this way: (a) the phrase "where in the opinion of the court a debtor ought not to have been adjudged bankrupt, ..." covers not only purely technical grounds like defective service of the bankruptcy notice or the creditor's petition but also covers other legal grounds like an abuse of the process of the court. (b) While the debtor's "ability to pay his debt" may not be a "technical ground", it is a "legal ground" which falls within the scope of the said phrase; (c) In the circumstances of this case, the fact that the debtor did not appear at the hearing to contest the petition does not disqualify him from applying for the annulment of the adjudication order pursuant to s 105(1) of the Act; (d) On the facts of this case, there is no reason for this court to interfere with the findings of fact of the Learned judge that the respondent was solvent and was able to pay his debt or with the exercise of his discretion." DISCHARGE FROM BANKRUPTCY Section 33 of the Act provides for a discharge by the Court. It is therefore provided that at any time after the making of the bankruptcy order, the bankrupt may apply to court for an order of discharge. A bankrupt intending to apply for his discharge shall produce to the court a certificate from the. Director General of Insolvency [DGI] specifying the number of creditors of whom the bankrupt has notice, whether the creditors have proved or not. The court shall appoint a day for the hearing of the application. The registrar shall 28 days before the hearing of the application give notice of the time and place of the hearing to the DGI. The registrar shall forthwith send a copy of such notice to each creditor who has proved within 14 days before the hearing. If a creditor who has proved intends to oppose the discharge of a bankrupt, he shall give notice of the intended opposition stating the grounds thereof to the DGI at least three days before the date of hearing of the discharge application. At the hearing of the application, the court shall take into consideration a report of the DGI as to the bankrupt's conduct and affairs including a report as to the bankrupt's conduct during the proceedings under his bankruptcy. The granting of a discharge is entirely at the discretion of the court. The court shall have to take into consideration the said DGI's report, where the contents of the report of the DGI is prima facie evidence of the statements therein. In all cases where it is proved to the satisfaction of the court that the bankrupt has committed an offence under the Act or under any written law repealed by it, or under sections 421 - 424 of the Penal Code, the court shall, unless for special reasons it determines otherwise, either refuse the discharge or suspend the operation of the order until a dividend of not less than 50% has been paid to the creditors and on proof of any of the facts mentioned in section 33(6) of the Act, the court shall either: 1. refuse the order; or 2. suspend the operation of the order for a specified time; or 3. suspend the operation of the order until a dividend of not less than 50% has been paid to the creditors; or 4. grant an order of discharge subject to such conditions as aforesaid. The conditions that may be imposed include conditions in respect of post-discharge income received or property acquired by the bankrupt. The offences referred to under Sections 421, 422, 423 and 424 of the Penal Code includes dishonestly or fraudulently removing or concealing property to prevent it from distribution among creditors; dishonestly or fraudulently preventing any debt or demand due from being made available according to law for payment of debts; and dishonestly or fraudulently executes a deed of transfer which contains false statement of consideration. Examples of the facts referred to in section 33(6) of the Act includes a bankrupt who omits to keep such books of account ' as will sufficiently disclose his business transactions and financial position within 3 years immediately preceding his bankruptcy, or within such shorter period immediately preceding that event as the court deems reasonable in the circumstances; or a bankrupt who continues to trade after knowing, or having reason to believe, himself to be insolvent; or a bankrupt who has within 3 months preceding the date of the receiving order, when unable to pay his debts as they become due, given an undue preference to any of his creditors. In the exercise of its discretion under section 33 of the Act, the court must have regard to the following factors: 1. Public interest and commercial morality. 2. The interests of the bankrupt and his creditors. 3. The bankrupt's conduct prior to and during his bankruptcy. 4. Whether the bankrupt has committed any offence under the Act. 5. Whether the bankrupt has committed an offence under sections 421 - 424 of the Penal Code. 6. Whether the bankrupt has done any of the acts specified under section 33(6) of the Act (Re Mohana Sundari D/O M Subramaniam; Ex p United Prime Corp Bhd [2004] 5 MLJ 227). In addition, the court may also take into account the following factors: 1. The age of the bankrupt. 2. The period of bankruptcy. 3. The cause of the bankrupt's insolvency and his 'culpability' in the incurring of his debts. 4. The magnitude of the deficiency in the bankruptcy estate, that is, the value of the bankrupt's assets against his total liabilities. 5. The number of creditors. 6. Objections to the application. 7. Bankrupt's domestic, social and financial circumstances. 8. Contributions made by the bankrupt for the benefit of his creditors. In the recent High Court decision of Public Bank v. Kok Lee Wah [2004] 4 MLJ 433, the decision of the Senior Assistant Registrar for an absolute discharge when some debts was still unpaid was upheld by the court. Suriyadi J held that the bankruptcy was brought about by circumstances beyond the Bankrupt's control and the unfortunate factor which was instrumental for her misfortune not be held against her but should instead be viewed as a plus factor in her attempt to get back on her feet. Section 33A of the Act provides that the DGI may, in his discretion but subject to objection by the creditors, issue a certificate discharging a bankrupt from bankruptcy, after a period of 5 years has lapsed since the date the receiving order and the order by which he was adjudged a bankrupt were made. Notice of every discharge under section 33A of the Act shall be given by the DGI to the registrar and the DGI shall advertise the notice in a local newspaper. Section 33B of the Act provides that before issuing a certificate of discharge under section 33A, the DGI shall serve on each creditor who has filed a proof of debt a notice of his intention to issue the certificate. A creditor who has been served with the said notice and who wishes to object to the issuance of a certificate discharging the bankrupt shall, within 21 days from the date of service of the notice, furnish a notice of objection stating the grounds of objection. Failure to furnish such a notice of objection by a creditor shall be deemed to have no objection to the discharge. If the notice of objection has been rejected by the DGI, the creditor shall have 21 days to make an application to the court for an order prohibiting the DGI from issuing a certificate of discharge. The court, on hearing such an application by the creditor whose notice of objection has been rejected by the DGI, shall hear the DGI and the bankrupt before making an order on the application. The court may, if it thinks it just and expedient either dismiss the application or make an order that for a period not exceeding 2 years a certificate of discharge shall not be issued by the DGI. CONCLUSION After reading the cases referred to above, one can easily see that the courts are more willing to step in to annul an adjudication order, rescind a receiving order or even discharge a bankrupt from bankruptcy as long as the bankrupt is able to show either that he is able to pay his debts, although he would not have actually paid his debts or the bankruptcy was brought about by circumstances beyond the Bankrupt's control, as in the latter case. It is foreseeable, unless the Federal Court steps in and distinguished the judgment in the Bungsar Hill Holding's Sdn Bhd case, there will be more and more bankrupts flooding the courts with applications for annulment of the adjudication orders made against them just by showing that they were solvent i.e. some money tied up somewhere, at the time the adjudication orders were made against them, and just because they are unable to currently repay the debts, they should not be adjudged bankrupt.

The Proper Approach to Applications for Summary Judgment

Friday, 31 March 2006 10:56pm

By Puthan Perumal* In Ng Hee Thoong v Public Bank Bhd (1995) 1 MLJ 281, Gopal Sri Ram JCA at page 281 had this to say:-  I am conscious of the more robust approach to applications for summary judgment that has been adopted by our courts more recently. (See the majority judgment in Bank Negara Malaysia v Mohd Ismail & Ors (1992) 1 MLJ 400). But I think that in the process the cautionary words of Thompson CJ in Syn Lee (1961) MLJ 87 to which emphasis has been supplied may have been overlooked. It is my respectful view that the passage in the opinion of Lord Diplock in Eng Mee Yong v Letchumanan (1980) AC 331; (1979) 2 MLJ 212 that was quoted by Macdonald J in Bank of British Columbia (1985) 57 BCLR 350 and relied upon by the majority in Bank Negara is entirely irrelevant to an application for summary judgment. Although the majority decision of the Supreme Court may plainly bind us, I cannot escape the feeling that the minority judgment of Gunn Chit Tuan SCJ (later CJ (Malaya)) and the approach taken by him truly represents the law. It is neither open to me nor is it my place to say anything more about the rather novel decision in Bank Negara, but the time may come when the approach there adopted by the majority may have to be reconsidered by the Federal Court in an appropriate case. The cautionary words of Thomson C.J in Syn Lee & Co Ltd v Bank of China (1961) 27 MLJ 87, referred to by Gopal Sri Ram JCA appear at page 87 as follows:- With great respect it seems to me there may have been some slight misapprehension on the part of the Assistant Registrar and on the part of the trial Judge as to the proper approach. It is not quite the same as the problem with which we are always being faced in the Chancery side of the Court of trying issues on affidavit evidence. In a case of this sort it is not a case of trying the issues on affidavit evidence, it is rather a question of deciding on affidavit evidence whether there is a moral improbability of a very high degree that the defendant can possibly succeed. It would seem that Thomson CJ in Syn Lee has made a clear demarcation between matters that are disposed off on affidavit evidence and matters that are not, and an application for summary judgment, according to Thomson CJ, would fall under the latter category. The case of Eng Mee Yong v Letchumanan (1979) 2 MLJ 212 was an appeal to the Privy Council from a judgment of the Federal Court of Malaysia in proceedings brought in the High Court in Malaya at Seremban under Section 327(1) of the National Land Code, claiming the removal of a private caveat which had been entered on the register document of title to land under section 322 of the said Code. Lord Diplock, at page 217, held:- Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as he “may think just” the judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth. Now, beside the fact of the nature of proceedings in Eng Mee Yong being worlds apart from that of a summary judgment application, it is clear that an application for removal of a caveat is a case of trying issues on affidavit evidence. Therefore, the question that arises is this: is an application for summary judgment a case for trying issues on affidavit evidence? Mohamed Azmi SCJ, delivering the majority judgment of the Supreme Court in Bank Negara v Mohd Ismail & Ors [1992] 1 MLJ 400, seems to answer that questions in the positive. At page 408, Mohamed Azmi SCJ held:- In our view, basic to the application of all those legal propositions, is the requirement under O 14 for the court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law from each case as disclosed in the affidavit evidence before the court. At this juncture, the approach adopted by Mohamed Azmi SCJ, seem to be the proper one. However, he goes on to say:- On the treatment of conflict of evidence on affidavits, Lord Diplock speaking in the Privy Council on Eng Mee Yong & Ord v Letchumanan had this to say at p 217: Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. Although Lord Diplock was dealing with an application for removal of caveat in that particular case, we are of the view that the above principle of law is relevant and applicable in all cases where a judge has to decide a case or matter on affidavit evidence. Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertions, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertions or denial, thereby rendering the issue not triable. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application. The words “Although Lord Diplock was dealing with an application for removal of caveat in that particular case, we are of the view that the above principle of law is relevant and applicable in all cases where a judge has to decide a case or matter on affidavit evidence” in Bank Negara (supra) seem to contradict the words of Thomson CJ in Syn Lee (supra) which states “In a case of this sort it is not a case of trying the issues on affidavit evidence, it is rather a question of deciding on affidavit evidence whether there is a moral improbability of a very high degree that the defendant can possibly succeed…..”. Let us then look into a series of cases which have dealt with an application for summary judgment and determine the approach that the Courts have taken over the years. In Ford v Harvey & Ors (1893) 9 TLR 328, it was reported at page 3298, with Mr. Justice Hawkins concurring with Lord Coleridge:- Lord Coleridge, in giving judgment, said some portions of the case had struck him. It was sufficient, however, to say that there was a bona-fide complaint on the part of the defendants of the conduct of the late Mr. Ford. Whether, or how far, those were well founded, it was not necessary to inquire. It was enough to say that it was clear that there was a bona-fide counter-claim and defence; and that very serious questions might arise which ought to go before a jury. In The Electric and General Contract Corporation v The Thomson-Houston Electric Company 10 TLR 103, it was reported at page 103, with Mr. Justice Wright concurring with Mr. Justice Wills:- Mr. Justice Wills said he came to the conclusion that the order at Chambers was right. He did not think that Order XIV., providing for summary judgment, applied to cases like this, raising what might turn out to be a difficult question of law. It was never intended to throw on the Judge as Chambers such a burden. It was impossible that such questions could be satisfactorily be dealt with summarily at Chambers. This very case has been so argued as to occupy about two hours, and yet no time was wasted. Such questions were not meant to be dealt with summarily at Chambers. And on that ground alone he should uphold the order, allowing leave to defend. In Manger and Another, Syndics Under the Bankruptcy of N Rodrigues Et Cie v Cash (1889) 5 TLR 271, it was reported at page 271, with Mr.Justice Manisty concurring with Mr.Justice Denman:- Mr. Justice Denman, in giving judgment, said the action was rather a peculiar nature, not like an ordinary action, but one which might involve some consideration of difficulty. It was an action on a foreign judgment for a very large amount, and the defence in substance was that it had been obtained by fraud…..Now, his opinion was that a plaintiff’s right to have summary judgment under Order XIV was not absolute merely because the defendant’s affidavits as to his defence are not completely satisfactory. The jurisdiction was one to be exercised with great care, so as not to preclude a party from raising any defence he may really have. The Judge was not to make the order if either he was satisfied that there was a defence, or that the defendant should be allowed to defend. In the English Court of Appeal case of Cow v Casey (1949) 1 KB 474, the legal question contended by the defence to be reasonably arguable was the point of law on sub-tenancy and the protection of the Rent Restriction Acts. Lord Greene M.R said at page 481:- If a point taken under the Rent Restriction Act is quite obviously an unarguable point, the court has precisely the same duty under O 14 as it has in any other case. It may take a little longer to understand the point and to be quite sure that one has seen all round it in a case under the Rent Restriction Acts than in other cases, but when the point is understood and the court is satisfied that it is really unarguable, then the court has the duty to apply the rule, and, in my opinion, the master was perfectly right, and the appeal should be dismissed. In the Court of Appeal case of Ho Chooi Soon v The Indian Overseas Bank Ltd (1961) 27 MLJ 86, Thomson CJ held at page 87:- For myself I fail to detect any special circumstances in the present case, and in thinking that they are certainly no such circumstances which would justify us in interfering I am fortified by the observations of Mr. Justice Wills in the case of The Electric & General Contract Corporation v The Thomson-Houston Electric Co where his Lordship said that he did not think Order 14 applied to cases raising what might turn out to be a difficult question of law. Such questions could not be satisfactorily dealt with at Chambers. In my view, in the present case, there were not only certain issues of fact on which the parties were far from being agreed but there was also a question of law on which I would express no opinion whatsoever beyond the opinion that it was not a simple straightforward question of law. In Miles v Bull (1968) 3 All ER 632, Megarry J held at page 637 para G:- Under r.3 and r.4 of the present R.S.C., Ord.14, the defendant can obtain leave to defend if (and I read from r.3(1)) the defendant satisfies the court “that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial”. These last words seem to me to be very wide. They also seem to me to have special significance where (as here) most or all of the relevant facts are under the control of the plaintiff, and the defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which will aid her. If the defendant cannot point to a specific issue which ought to be tried, but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff. In the Federal Court case of Voo Min En & Ors v Leong Chung Fatt (1982) 2 MLJ 241, Salleh Abas FJ held at page 243 para E:- That being the case, it is not enough for the respondent in answer to the appellants’ application to sign final judgment, to raise an issue, or any issue. He must, however, raise such issue as would require a trial in order to determine it. In other words, the issue raised must be an arguable issue. But where the issue raised is irrelevant and ineffective, or to use the words of Lord Greene M.R. in Cow v Casey “ when the point is understood and the court is satisfied that it is really unarguable”, the appellant should be entitled to what they prayed for in the summons-in –chambers. In the English Court of Appeal case of European Asian Bank AG v Punjab and Sind Bank (1983) 2 All ER 508, Robert Goff LJ held at page 516 para a:- Moreover, at least since Cow v Casey (1949) 1 All ER 197, (1949) 1 KB 474, this Court has made it plain that it will not hesitate, in an appropriate case, to decide questions of law under Ord 14, even if the question of law is at first blush of some complexity and therefore takes ‘a little longer to understand’. It may offend against the whole purpose of Ord 14 not to decide a case which raises a clear-cut issue, when full arguments has been addressed to the court, and the only result of not deciding it will be that the case will go for trial and the argument will be rehearsed all over again before a judge, with the possibility of yet another appeal. The policy of Ord 14 is to prevent delay in cases where there is no defence; and this policy is, if anything, reinforced in a case such as the present, concerned as it is with a claim by a negotiating bank under a letter of credit. In the Federal Court case of United Malayan Banking Corporation Bhd v Palm & Vegetable Oils (M) Sdn Bhd (1983) 1 MLJ 206, Raja Azlan Shah Ag L.P., held at page 208 para G:- We have not dealt in any detail with the facts and particulars of the several allegations made on both sides as it is not our province to touch on the merits of the issues involved. We only need to consider whether or not there are issues or questions in dispute which ought to be tried. Summary judgment is only given in a plain and obvious case. This is certainly not one. We find as we have indicated that there are in fact triable issues and this is substantiated by the necessity for applications for the admission of Queen’s Counsel in this appeal on the grounds of the complexity of the case which involves difficult questions of fact and law and also the voluminous affidavits and exhibits put in and the arguments presented before us over a period of two days. In the Privy Council appeal case of Syarikat Bunga Raya Timor Jauh Sdn Bhd & Anor v Tractors Malaysia Bhd (1983) 1 MLJ 121, Lord Fraser of Tullybelton held at page 122 para H:- The application for summary judgment was resisted on the ground inter alia that the agreements were in reality hire purchase agreements. In support of that contention the first appellant (defendants) relied on a letter dated August 21, 1975 from the respondents to them. Koh Kim Chai, who is a director of both appellants, swore an affidavit dated September 11, 1978 in which he stated his belief that they had a good defence. And further at page 123 para I to 124 para A, it was held:- The affidavit is somewhat lacking in particularity, and it unfortunately does not give a full explanation of the reasons for the various provisions in the agreements and the letter, but their Lordships are of the opinion that it gives just enough to show that a triable issue exists. In Percetakan Solai Sdn Bhd v Kin Kwok Daily News Sdn Bhd & Anor (1986) 1 MLJ 240, George J held at page 244 para I:- Now, on a general principle where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence he ought to be given leave to defend (Saw v Hakim). A defendant should not be shut out from defending unless it is a very clear indeed that he has no case in the action under discussion (Sheppards v Wilkinson). The power to give summary judgment under Order 14 is “intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment and where therefore it is inexpedient to allow a defendant to defend for mere purposes of delay” (Jones v Stone).Where there is any serious conflict as to matters of law arises, summary judgment under Order 14 should not be granted. (Electric & General Corpn v Thomson-Houston Electric). But, however difficult the point of law is, once it is understood and the Court is satisfied that it is really unarguable it will give final judgment (Cow v Casey). In the instant case the claim based on the agreement of November 20, 1980 turns on the true construction of the provisions of the agreement which boils down to the question whether the defendants can be allowed to rely on their contention that their accounts had not been audited. All the necessary evidence necessary to adjudge the issue was before the Court and the law to be applied is really trite. In the Supreme Court case of Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd (1987) 2 MLJ 183, the late Hashim Yeop A. Sani SCJ held at page 184 para D:- What is involved in the present appeal is the other principle considered I European Asian Bank by Goff LJ (as he then was) that is, what happens when a legal issue is raised by the defence in an Order 14 application. In this regards several principles are involved. First, the court hearing an Order 14 application should work within the framework of Order 14 and not embark on an exercise under Order 33 rule 2 which empowers the court to determine any question or issue arising in a cause or matter whether of fact or law or partly of fact or partly of law before trial of the cause or matter. Order 33 rule 2 is entirely for a different purpose. Secondly, where the issue raised is solely a question of law pure and simple without reference to any facts or where the facts are clear and undisputed the court should exercise its duty under Order 14 as in any other cases and decide on the question of law. This is so even if the issue of law raised is a difficult one. If the court after considering the argument is satisfied that it is really unarguable then the court should grant summary judgment. At page 186, it was further held:- The underlying philosophy in the Order 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases. In the Supreme Court case of Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd (1987) 2 MLJ 332, Wan Suleiman SCJ, held at page 336 para E:- What is clear to us is that there appears to be a plentitude of triable issues. It is trite law that leave to defend must be given unless it is clear that there is no real substantial question to be tried (Codd v Delap) or unless there is no dispute as to facts or law which raises a reasonable doubt that plaintiff is entitled to judgment. Finally, for the purposes of discussion here, let us look into the dissenting judgment of Gunn Chit Tuan SCJ in the case of Bank Negara (supra). The relevant portion of the judgment is found at page 414 to 415, which states:- The scope of O 14 proceedings meant for cases which are virtually uncontested or uncontestable is now determined by the Rules of the High Court 1980. Generally where a defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases (Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd, Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd). It was held in the well known House of Lords’ case of Jacob v Booths’s Distillery Co that a complete defence need not be shown. The defence need only show there there is a triable issue or question or that for some other reason there ought to be a trial, and leave to defend ought to be given. In fact, even though the defence is not clearly established, but only reasonable probability of there being a real defence, leave to defend should be given (Manger v Cash). From a reading of all the abovementioned cases and their relevant passages in relation to the principle applicable in approaching an application for summary judgment, it would appear, now, that the majority judgment in Bank Negara has departed from a long line of cases and the principles set forth therein whereas the minority judgment seems to be in accordance with them. Surely, we must now take cognizance of what was said by Gopal Sri Ram JCA in Ng Hee Thoong. The principle applicable in summary judgment applications are trite. The Courts do not have the room to delve into the truth of assertions in conflicting affidavits which raise conflicting evidence. This is because it is not within the scope of the Courts to decide a case or matter outright through an application for summary judgment. The Courts must decide whether the defendants should be given leave to defend or not. However, the mere production of conflicting affidavits does not automatically raise a triable issue. Issues are not triable if they are irrelevant, unarguable, ineffective or do not require further investigation OR they do not raise any difficult or arguable points or questions of law. In such circumstances, summary judgment should be allowed. It is important here to reproduce and reiterate the relevant passage by Raja Azlan Shah Ag L.P in United Malayan Banking Corporation Bhd v Palm & Vegetable Oils (M) Sdn Bhd (supra) :- We have not dealt in any detail with the facts and particulars of the several allegations made on both sides as it is not our province to touch on the merits of the issues involved. We only need to consider whether or not there are issues or questions in dispute which ought to be tried. Summary judgment is only given in a plain and obvious case. To conclude, it is now safe to say that an application for summary judgment is not a method for a case or a matter to be decided and disposed off on affidavit evidence. It is a method to ascertain and determine whether a defendant in a particular claim ought to be given leave to defend that claim or not. In deciding that, the Courts must see whether there exist issues that ought to be tried, in other words, issues that can only be determined at full trial. Foot Notes  *  Advocate & Solicitor of the High Court of Malaya

New Ruling Made Under Section 57(a) of the Legal Profession Act 1976: Service of Written Submission

Tuesday, 21 February 2012 09:56am

Circular No 029/2012  Dated 20 Feb 2012 To all Members of the Malaysian Bar New Ruling Made Under Section 57(a) of the Legal Profession Act 1976: Service of Written Submission Pursuant to section 57(a) of the Legal Profession Act 1976, Bar Council, at its recent meeting, decided to enforce the following new ruling: Bar Council Ruling 11.09: Service of Written Submission (1) Except where a solicitor is acting ex-parte, and the solicitor files/tenders any written submission in court, he/she shall serve a copy of the same on the other solicitor at the same time notwithstanding the absence of any such direction by the court. (2) Nothing in this Ruling affects the general discretion of the court, tribunal or other body to deal with matters relating to exchange of submission including making orders on adjournment or costs. The rationale for the abovementioned ruling is as follows: The existing Bar Council Ruling 11.05 requires the exchange of authorities by solicitors and this new ruling fills a lacuna.  The Bar Council Ruling 11.09 is also necessary to avoid any element of surprise and unfair advantage in favour of any solicitor.  There should be transparency among Members of the Bar in respect of all documents filed or tendered in court.  Please be informed that the ruling will take effect immediately. Please do not hesitate to contact Christina Gomez by telephone at 03-2050 2087, or by email at christina@malaysianbar.org.my, should you have any queries. Thank you.   Tony Woon Yeow Thong Secretary Malaysian Bar

The Malaysian Bar’s Request for Amendment to Article 121(1) of the Federal Constitution

Thursday, 23 February 2012 09:40am

Explanatory Statement Foreword The purpose of this proposed Amendment to Article 121 of the Federal Constitution is to affirm the doctrine of separation of powers and to ensure that the sovereignty of the judicial arm of government is inextricably infused within the basic structure of the Constitution. 1.  Malaysia and the elements of a constitutional democracy 1.1 Malaysia is a constitutional democracy. The integral elements of every constitutional democracy are the separation of its sovereign authority between different arms of Government and the vesting of powers in each arm of Government to check or oversee the exercise of the authority of the other arms.  These elements are referred to as the doctrine of separation of powers and the system of check and balance.  1.2 The doctrine of separation of powers provides that executive power will be exercised by a body separate from the legislative authority, both of which would be separate from judicial authority.   1.3 The system of check and balance allows the three bodies to oversee the exercise of authority vested in each other to prevent abuse. Such check and balance is essential to the health of a constitutional democracy, to uphold and safeguard the rights of the citizens, and to ensure that all acts undertaken within Malaysia are consistent with the Federal Constitution. 1.4 Malaya in 1957 was founded on the doctrine of separation of powers and the system of check and balance, which were encapsulated in the distribution of sovereign authority and division of powers between the Executive, Legislature and Judiciary under the Federal Constitution enacted at its independence in 1957 in amongst others, Article 39 (executive authority), Article 66 (legislative authority) and Article 121 (judicial power).1    1.5 The separation of the exercise of judicial powers from the Legislature and Executive and the vesting of judicial power in the Judiciary which allowed it to act as an efficient check and balance on the other arms of Government, are fundamental to the rule of law.  The preservation of this separation of powers and system of check and balance is essential to the functionality and survival of our constitutional democracy.  2. Article 121(1) prior to 1988 2.1 Prior to 1988, Article 121(1) of the Federal Constitution provided as follows:  Subject to Clause (2) the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status, namely— (a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur; and   (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Borneo and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;   (c) (Repealed), and in such inferior courts as may be provided by federal law. 2.2 While it is impossible to formulate an exhaustive definition of the term, ‘judicial power’ has been broadly defined as follows: (a) The power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.2  (b) The power to examine the questions submitted for determination with a view to the pronouncement of an authoritative decision as to rights and liabilities of one or more parties.3  2.3 Given that the Federation’s judicial power was expressly vested in the High Court, it was indisputable that the High Court had supervisory jurisdiction over all inferior tribunals. In its exercise of its supervisory jurisdiction, the High Court has the right to conduct judicial review “over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.”4 2.4 Equally important, with the express vesting of judicial power in the High Court under Article 121(1), it was indisputable that the High Court retained an inherent jurisdiction over and above any express jurisdiction conferred by statutory law. Inherent jurisdiction refers to the “common law powers of the court, which are residuary or reserve powers and a separate and distinct source of jurisdiction from the statutory powers of the court.”5 This is by far the most important aspect of judicial power.  The High Court’s powers are not limited only to those granted to it by federal laws passed by Parliament; rather, it can assume jurisdiction over matters even where no statute has conferred jurisdiction on it. 2.5 In summary, judicial power enables the court, amongst others: (a) to judicially review any and all matters, including the exercise of state powers; (b) to make and develop common law;  (c) to do justice as the case requires: and (d) to ascertain the rights of litigants wherever there is a lacuna in the law. 3. The 1988 amendment to Article 121(1) and its impact 3.1 On 10 June 1988, Article 121(1) was amended to remove the words “the judicial power of the Federation shall be vested in two High Courts” from that Article, thus deleting the provision that the judicial power of the Federation vested in the Judiciary. Instead, it was stipulated that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law”. 3.2 The amended Article 121(1) reads: There shall be two High Courts of co-ordinate jurisdiction and status, namely— (a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and (b) one in the States of Sabah and Sarawak, which shall be known as  the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;  (c) (Repealed), and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law. 3.3 The removal of the phrase “the judicial power of the Federation shall be vested in two High Courts” and the inclusion of the phrase “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law” have caused confusion in the Judiciary,6 the Executive7 and the general public as having divested the courts of judicial power, leaving them with only such powers as are given by Parliament. Professor Emeritus Datuk Dr Shad Saleem Faruqi, in his column entitled Reflecting on the Law in The Star on 16 April 2008 summed up the situation as follows: The amendment to Article 121(1) has created the wrong perception that the Malaysian Executive wishes to silence the Judiciary. All Judges feel humiliated. Some have accepted their truncated role as mere agents of Parliament and not as independent pillars of the Federal Constitution. Others insist that their review powers are intact. There is division within the ranks. 3.4 The confusion generated by the 1988 amendment to Article 121(1) has created the belief or proliferated the misconception by some quarters that:  (a) the courts are powerless to address issues and do justice wherever there is a lacuna in the law;  (b) the courts are confined to merely interpreting and implementing acts of Parliament;  (c) the courts are no longer able to make and develop common law;  (d) the courts are deprived of their inherent jurisdiction, along with their inherent right to exercise judicial review over the decisions of public bodies and Executive functions. 3.5 All of the above has brought about the perception that the Judiciary is subservient to the Executive, and this has led to a serious deterioration in public confidence in the Judiciary. It is also inevitable that investor confidence would also be affected if investors are of the view that the Judiciary is not able to do justice as best as it could.  3.6 However, judicial power is a power that Malaysia, as a sovereign state, must possess in order to “decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property”, and such power must therefore be vested in an arm of Government in order that it can be exercised. As the Federation of Malaysia is a constitutional democracy in which the doctrine of separation of powers is inherent, the overriding judicial power of the Federation must and continues to be vested in the Judiciary, for it has not been and cannot be vested in either the Executive or the Legislature. In recent judicial decisions, a number of eminent Judges have held that the 1988 amendment to Article 121(1) does not or cannot have the effect of divesting the courts of the judicial power of the Federation.8 4. The proposed amendment – substantial restoration of Article 121(1) to its pre-1988 position 4.1 It is against this background of prevailing confusion and misconception that the amendment to the existing Article 121(1) of the Federal Constitution is being proposed.  4.2 The proposed amendment is to: (a) remove the words “There shall be” at the beginning of the Clause and to insert in its place the words “The judicial power of the Federation shall be vested in”; and  (b) delete the words “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law” appearing at the end of the Clause. 4.3 The purpose of the amendment is to: (a) Reaffirm the principle of separation of powers and the sovereignty of the Judiciary; (b) Dispel any notion that the court does not possess judicial power and inherent jurisdiction;  (c) Avoid further confusion as to the inherent jurisdiction of the courts to make orders as the justice of the case requires; and (d) Avoid conflicting judicial decisions. 4.4 The proposed amendment would also give effect to one of the recommendations of the Royal Commission of Enquiry on the Video Clip Recording Images of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges (popularly knowing as the ‘Lingam Royal Commission’). In its report dated 9 May 2008, the Royal Commission recommended that Article 121(1) of the Federal Constitution be re-amended to its original form “so that the Judiciary is free once again to live up to the highest expectations of society for all time. There will be no room for concern on the judicial power issue.” 4.5 The proposed amendment to Article 121(1) to its pre-1988 position however, does not make any changes to the remaining Clauses of Article 121. Bar Council Malaysia 22 February 2012