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Issue #25/2021 24 June 2021

New This Week Case(s) of the Week DATUK SERI ANWAR IBRAHIM v. GOVERNMENT OF MALAYSIA & ANOR [2021] 6 CLJ 1 Appeal Updates Appeal Updates Latest Cases CLJ 2021 Volume 6 (Part 1) Articles CLJ Article(s) LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

DATUK SERI ANWAR IBRAHIM v. GOVERNMENT OF MALAYSIA & ANOR [2021] 6 CLJ 1
FEDERAL COURT, PUTRAJAYA
ABDUL RAHMAN SEBLI FCJ; ZALEHA YUSOF FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ; MARY LIM FCJ; HARMINDAR SINGH DHALIWAL FCJ; RHODZARIAH BUJANG FCJ
[CIVIL APPLICATION REVIEW NO: 08(RS)-1-03-2020(W)]
22 OCTOBER 2020

JURISDICTION: Federal Court – Inherent jurisdiction – Case reference under s. 84 of Courts of Judicature Act 1964 – Whether rare and exceptional circumstances existed to allow exercise of inherent jurisdiction – Denial of right to be heard on issue whether constitutional questions posed were abstract, academic and hypothetical – Whether breached rules of natural justice – Whether applicant left without remedy – Whether caused grave injustice – Whether issue merited full and serious consideration

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1. Nwokedi Chinonso Daniel lwn. PP [2019] 1 LNS 895 (CA) mengesahkan kes mahkamah tinggi PP lwn. Nwokedi Chinonso Daniel [W/Nigeria] [2017] 1 LNS 1824

2. Foo Toon Yeong & Ors v. Jonah Wong Ching Hang [2019] 1 LNS 1353 (CA) affirming the High Court case of Foo Toon Yeong & Ors v. Jonah Wong Ching Hang [Writ No: BA-22NCVC-86-02/2017]

CLJ 2021 Volume 6 (Part 1)

1. Breach of natural justice, whether under the bias or right to be heard rule, ought to be one of the matters to be included in the limited list for the court of last resort to exercise its jurisdiction to review its previous decision. Although it is not in all cases of such breach that the court may grant the exceptional course of reopening a proceeding already heard and decided, an aggrieved applicant may succeed if it is shown that the injustice caused is substantial and he is left with no effective alternative remedy. The court may of course also consider if the outcome would have been the same in any event if the applicant had been granted a full and fair hearing, in which case it may decline to review, it being an exercise in futility. 2. The majority decision of the earlier panel of this court in refusing to hear the applicant on the constitutionality of the National Security Council Act 2016, Acts A566, A584 and A885, and art. 66(4) and (4A) of the Federal Constitution on the grounds that the constitutional questions had become abstract, academic and hypothetical on account of the applicant's failure to show any real and genuine interest in the subject matter which had been adversely affected by the decision, and hence his locus standi, had breached the audi alteram partem rule and resulted in grave injustice to the applicant. The injustice which should be something outside the merits of the case was firmly established when the applicant was denied the notice and opportunity to answer the issues. He also had been left with no other remedy, as an order for re-hearing would be futile and filing any further proceedings thereon would be res judicata. The court, further, was in no position to decide at this point if the outcome would have been the same if the applicant had been heard on the issue. The issue in relation to locus standi having merited serious consideration could not be dismissed offhand, thus, reopening the matter was warranted and it would not have been an exercise in futility.
Datuk Seri Anwar Ibrahim v. Government Of Malaysia & Anor [2021] 6 CLJ 1 [FC]

• SUBJECT
• CORAM
• COUNSEL

A claim for legal costs and disbursements incurred in relation to an application for the removal of caveats, if entered without reasonable cause, falls within the scope of a compensatory head under s. 179 of the Land Code (Sarawak) (Cap 81), and is recoverable provided that it satisfied the reasonable foreseeability test and is not too remote; the proof of actual loss was not the sole conclusive determinant of 'such compensation as may be just'.
MD Biomedical Engineering (M) Sdn Bhd v. Goh Yong Khai [2021] 6 CLJ 30 [CA]

• SUBJECT
• CORAM
• COUNSEL

It is not for the court to decide how a liquidator carries out his investigation and the relevancy and adequacy of the documents to be considered in his investigation before he makes his finding and decision. Otherwise, the court would be seen as usurping the function of the liquidator or interfering with the conduct or decision of the liquidator in discharging his role and function in company liquidation.
Sunrise Megaway Sdn Bhd (In Liquidation) v. Kathryn Ma Wai Fong [2021] 6 CLJ 39 [CA]

• SUBJECT
• CORAM
• COUNSEL

In defamation actions, damages are awarded to compensate the plaintiff for the injury to his reputation and the hurt to his feelings. The factors considered in assessing damages include (i) the gravity of the allegation; (ii) the size and influence of the circulation; (iii) the effect of the publication; (iv) the extent and nature of the claimant's reputation; (v) the behaviour of the claimant and the defendants; and (vi) the trend of awards.
Hisham Tan Sri Halim v. Teh Faridah Ahmad Norizan & Anor [2021] 6 CLJ 56 [HC]

• SUBJECT
• CORAM
• COUNSEL

The seminal opinion of Justice Abdul Malek Ahmad in PP v. Mohd Radzi Abu Bakar, where His Lordship stated that '... any decision made, without the necessity of a prospective ruling, can apply only to pending cases ... it certainly does not apply to cases already disposed or at the highest appellate level ...' was not obiter or had not been made en passant. Thus, when the adjudication decisions have been allowed by the court, and the plaintiff had paid the defendant accordingly, there was, in other words, no pending court challenge in respect of the adjudication decisions. Consequently, the retrospectivity effect of the cases of Jack-In-Pile (M) Sdn Bhd v. Bauer (Malaysia) Sdn Bhd and Ireka Engineering & Construction Sdn Bhd v. PWC Corporation Sdn Bhd neither applied nor affected the adjudication decisions. The plaintiff's application to set aside the adjudication decisions made under the Construction Industry Payment and Adjudication Act 2012 ('CIPAA') in favour of the defendant by contending that the contract between the parties did not fall within the ambit of the CIPAA was, on final analysis, unmeritorious.
Majlis Perbandaran Kuantan v. Kining Exeton Sdn Bhd [2021] 6 CLJ 88 [FC]

• SUBJECT
• CORAM
• COUNSEL

Applying the principle in the maxim, 'generalia specialibus non derogant', the court may exercise its discretion whether to grant bail under s. 13 of the Security Offences (Special Measures) Act 2012 ("SOSMA") in respect of a security offence and in doing so, depart from the decision in Saminathan Ganesan v. PP which held s. 13 of SOSMA unconstitutional. Notwithstanding, in the absence of any exceptions under s. 13(2) of SOSMA, the court may, in exercise of its discretion, refuse bail for charges of smuggling migrants under s. 26A of the Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007, a security offence.
Md Nasir Uddin v. PP [2021] 6 CLJ 105 [HC]

• SUBJECT
• CORAM
• COUNSEL

An advocate and solicitor should not act for a party where it is incompatible with the best interest of the administration of justice. Where an advocate and solicitor acts or continues to act for a party which would involve a breach, or likely breach of the confidence reposed in him by his existing client or his previous client, the law intervenes to preserve such confidence by disqualifying the advocate and solicitor from acting or continuing to act in such a situation.
Panetra Parking Services Sdn Bhd & Ors v. TTDI Harta Sdn Bhd & Another Application [2021] 6 CLJ 129 [HC]

• SUBJECT
• CORAM
• COUNSEL

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CLJ Article(s)

1. THE PROCLAMATION OF EMERGENCY 2021 And THE RULE OF LAW ^{[Read excerpt]}
   by Kevin De Rozario* [2021] 6 CLJ(A) i

[2021] 6 CLJ(A) i



MALAYSIA

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THE PROCLAMATION OF EMERGENCY 2021 And THE RULE OF LAW

by
Kevin De Rozario*

Introduction

On 11 January 2021, the Prime Minister of Malaysia YAB Tan Sri Dato' Hj Muhyiddin bin Hj Mohd Yassin ('PM') sought an audience with his Majesty the Yang di-Pertuan Agong ('YDPA') of Malaysia to present the advice by the Cabinet for the YDPA to issue a Proclamation of Emergency ('proclamation') in accordance with art. 150(1) of the Federal Constitution, ('FC') to declare a state of Emergency for the whole Federation effective from 11 January 2021 to 1 August 2021. Subsequent to the said proclamation, the Emergency (Essential Powers) Ordinance 2021 ('the 2021 Ordinance') came into force. The reasons for the said proclamation, amongst others is to afford the Government certain powers to ensure that this pandemic can be curbed more effectively and that the health services provided to the people are not crippled.

History On Previous Major Emergency Ordinances

(i) Emergency (Essential Powers) Act 1964 which was declared during the Malaysia and Indonesia Confrontation;

(ii) Emergency Ordinance 1966 (Emergency (Federal Constitution and Constitution of Sarawak)) Act 1966 following the political crisis involving the Federal Government and the Sarawak Chief Minister;

(iii) Emergency (Essential Powers) Ordinance 1969 (No 1);

(iv) Emergency (Essential Powers) Ordinance 1969 (No 2);

(v) Emergency (Public Order and Prevention of Crime) Ordinance 1969 (No 5);

(vi) Emergency (Essential Powers) Ordinance of 1969 (No 6). All four of these Ordinances were proclaimed by the then YDPA because of the race riots that had taken place in the aftermath of the General Elections; and

(vii) Emergency Ordinance 1977 (Emergency Powers (Kelantan)) Act 1977 was made following the political crisis of the Menteri Besar of Kelantan.

. . .

* Partner, M/s Khairuddin Ngiam & Tan

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LNS Article(s)

1. IMPACT OF COVID-19 ON THE ISLAMIC BANKING INDUSTRY* ^{[Read excerpt]}
   by Mohammad Mahbubi Ali [2021] 1 LNS(A) lxxix

[2021] 1 LNS(A) lxxix



MALAYSIA

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IMPACT OF COVID-19 ON THE ISLAMIC BANKING INDUSTRY*

by
Mohammad Mahbubi Ali

The COVID-19 outbreak was first identified on December 31, 2019, in Wuhan, a city in China with a population of around 11 million, before it escalated into a worldwide pandemic. As of July 20, 2020, more than 14.5 million people (14.64m) around the world have been infected by the virus with a total death toll of 608,991. As of now, 8.7 million people have recovered, representing approximately 60% of total infected cases, leaving 5.3 million active cases globally.

As the global health crisis peaked, movement lockdowns have been the preferred mechanism to reduce the infection rate of the virus. Imposing a lockdown necessitates the closure of economic and business activities, including the restriction of travel between borders.

. . .

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

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2. A CRITICAL EXAMINATION OF THE CRIMINAL AND QUASI-CRIMINAL OFFENCES CREATED UNDER THE NEW COMPANIES AND ALLIED MATTERS ACT, 2020 ^{[Read excerpt]}
   by A.F. Afolayan^[i] S.A. Osamolu^[ii] Dr Emmanuel Olowononi^[iii] [2021] 1 LNS(A) lxxx

[2021] 1 LNS(A) lxxx



NIGERIA

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A CRITICAL EXAMINATION OF THE CRIMINAL AND QUASI-CRIMINAL
OFFENCES CREATED UNDER THE NEW COMPANIES AND
ALLIED MATTERS ACT, 2020

by
A.F. Afolayan^[i]
S.A. Osamolu^[ii]
Dr Emmanuel Olowononi^[iii]

Abstract

The purpose of this paper is to critically examine the various Criminal and Quasi-Criminal Offences created under the new Companies and Allied Matters Act, 2020, the punitive measures introduced under it as well as the classification of offences into criminal and quasi-criminal offences. The paper identifies those who may be liable and the extent of the power of the Corporate Affairs Commission to sanction offenders. Furthermore, the paper contributes to existing literature by canvassing for courts with jurisdictions to try some of these offences. The paper concludes with recommendations.

Introduction

The introduction of the new Companies and Allied Matters Act (CAMA), 2020 (“the Act”) has been greeted with mixed feelings by different stakeholders in the corporate industry and the non-profit governmental organizations due to its innovations. One of the innovations in the new CAMA is the introduction of several offences, which can be committed by corporate and non-governmental organizations in the management of their organizations.

. . .

[i] A.F. Afolayan (LL.M, BL) Barrister and Solicitor of the Supreme Court of Nigeria, Director Academic and Head of Criminal Litigation, Nigerian Law School, Headquarters, Abuja.

[ii] S.A. Osamolu (LL.M, BL) is a Barrister and Solicitor of the Supreme Court of Nigeria, Director Academic, Head of Corporate Law Department & Head of Academics, Nigerian Law School, Headquarters, Abuja, Nigeria.

[iii] E.O. Olowononi (PhD, LL.M, BL) is a Barrister, Solicitor and Notary Public of the Supreme Court of Nigeria, Senior Lecturer, Corporate Law Department, Nigerian Law School, Headquarters, Abuja, FCT.

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3. PROTECTING DATA PRIVACY: WHAT'S LAW GOT TO DO WITH IT? ^{[Read excerpt]}
   by Mohd Bahrin Othman^[i] Zaiton Hamin^[ii] Rafiza Abu Hassan^[iii] Wan Rosalili Wan Rosli[iv] Ahmad Ridhwan Abd Rani^[v] [2021] 1 LNS(A) lxxxi

[2021] 1 LNS(A) lxxxi



MALAYSIA

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PROTECTING DATA PRIVACY: WHAT'S LAW GOT TO DO WITH IT?

by
Mohd Bahrin Othman^[i]
Zaiton Hamin^[ii]
Rafiza Abu Hassan^[iii]
Wan Rosalili Wan Rosli[iv]
Ahmad Ridhwan Abd Rani^[v]

Abstract

The advances in information and communications technology (ICT) have seriously endangered data privacy. In the information society, personal data of an individual is perceived as an invaluable raw material for commercial entities. Data privacy must be safeguarded against the increased collection, retention, and processing of an individual's personal data due to the advances in ICT. Accordingly, legislators the world over have been challenged to ensure that data privacy is not lost in the ICT phenomenon and find themselves constantly revisiting data privacy legislation. Hence, how the government protects data privacy and governs the data protection law is crucial. The issue on a viable legislative model for a data protection legal framework should be a national concern. It may be government-regulated, sectoral-regulated, industry self-regulated, or government and industry co-regulated. On the one hand, strong data protection laws provide strong data privacy rights but restrict the potential availability of highly relevant information. On the other hand, weak data protection laws enable businesses to make more informed choices and create mass customization of products, but it provides weak data privacy rights. The various forms of legislative models on data protection are proof that data privacy can be governed in many ways. Hence, this paper seeks to examine the data protection legal models that could best safeguard data privacy in any jurisdiction, including Malaysia.

. . .

[i] [iv] [v] Senior Lecturer, Faculty of Law, UiTM Shah Alam, Malaysia.

[ii] Associate Professor, Faculty of Law, UiTM Shah Alam, Malaysia.

[iii] Deputy Dean (Academic Affairs) Faculty of Law, UiTM Shah Alam, Malaysia mohdb916@uitm.edu.my.

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