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Issue #27/2021 08 July 2021

New This Week Case(s) of the Week PP v. SUDESH RATNARAJAH & ORS [2021] 6 CLJ 333 DATO' SRI MOHD NAJIB HJ ABDUL RAZAK v. PP [2021] 6 CLJ 574 GOVERNMENT OF STATE OF SARAWAK v. DATO' SRI WONG SOON KOH [2021] 6 CLJ 587 JUDICIAL QUOTES  Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2021 Volume 6 (Part 3) CLJ 2021 Volume 6 (Part 4) Articles CLJ Article(s) LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

PP v. SUDESH RATNARAJAH & ORS [2021] 6 CLJ 333
COURT OF APPEAL, PUTRAJAYA
SURAYA OTHMAN JCA; ABU BAKAR JAIS JCA; AHMAD NASFY YASIN JCA
[CRIMINAL APPEAL NO: W-05-234-05-2019]
26 MARCH 2021

CRIMINAL PROCEDURE: Forfeiture - Principles governing - Notice to third parties under s. 61(1) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ('AMLATFPUA') - Application for representative action and return of forfeited monies - Whether all requirements under s. 61(4)(a) to (e) of AMLATFPUA have to be fulfilled - Whether court to scrutinise and determine nature and extent of interest of each individual person - Whether representative action ought to be allowed

JURISDICTION: Courts - Court of Appeal - Criminal appeal related to criminal application at High Court - Whether Court of Appeal given wide discretion to make any order - Whether case could be remitted to High Court to be concluded - Guiding principles in remission of case - Whether based on nature of misdirection and/or omission by court below - Courts of Judicature Act 1964, s. 69

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DATO' SRI MOHD NAJIB HJ ABDUL RAZAK v. PP [2021] 6 CLJ 574
HIGH COURT MALAYA, KUALA LUMPUR
MOHAMED ZAINI MAZLAN J
[CRIMINAL APPLICATION NO: WA-44-108-06-2020]
30 MARCH 2021

CRIMINAL PROCEDURE: Prosecution - Prosecuting officer - Deputy Public Prosecutor ('DPP') - Appointment of, whether legally tainted - Whether DPP biased or entertained preconceived notions about accused's guilt - Whether involved in investigation of cases against accused - Whether having mala fide intents - Whether to be disqualified - Criminal Procedure Code, s. 376(3) - Federal Constitution, art. 145(3)

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GOVERNMENT OF STATE OF SARAWAK v. DATO' SRI WONG SOON KOH [2021] 6 CLJ 587
HIGH COURT SABAH & SARAWAK, SIBU
CHRISTOPHER CHIN SOO YIN JC
[CASE NO: SBW-21NCVC-3-6-2020]
13 APRIL 2021

CIVIL PROCEDURE: Subpoena - Setting aside - Application for - Application to set aside subpoena to testify and produce documents - Whether applicant compelled to testify and produce documents - Whether applicant had personal knowledge - Whether evidence were 'affairs of State', privileged from disclosure under ss. 123 & 162 of Evidence Act 1950 - Whether evidence sought related to 'affairs of State' - Whether dispute ought to be resolved in accordance with rules of politics or rules of court - Rules of Court 2012, O. 92 r. 4

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“Reading s. 165 PC can be daunting, as all the elements of the offence are set out in one long paragraph. It has been the subject of numerous cases. I shall however, refer to Federal Court and the Court of Appeal's judgment in the leading case of Mohd Khir Toyo v. PP^[14], where both courts have set out the elements as follows: (i) That the accused is a public servant; (ii) That he has accepted or obtained for himself a valuable thing; (iii) That he gave no consideration for the valuable thing, or gave a consideration that he knew to be inadequate; and (iv) That the accused knew that the person from whom he accepted the valuable thing had connections, or likely to be concerned in any proceedings or business transacted with his official functions as a public servant, or of any public servant that he is subordinate to, or from a person known to the accused to be interested in, or related to the person concerned”– per Mohd Zaini Mazlan J in PP v. Tengku Adnan Tengku Mansor [2021] 4 CLJ 668

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1. PP v. Prince Uzoma Nwaoguegbe [2019] 1 LNS 1344 (CA) overruling the High Court case of PP v. Prince Uzoma Nwaoguegbe [Criminal Trial No 45A-74-08/2014]

2. Lopatkina Klavdiia (N/Ukraine) v. PP [2019] 1 LNS 1336 (CA) affirming the High Court case of PP v. Lopatkina Klavdiia [2017] 1 LNS 2089

Legal Network Series

[2019] 1 LNS 1195	PP lwn. AL HAZIQ ZHARIF ABD ZAFFAR & SATU LAGI 1. Bagi membolehkan tertuduh-tertuduh disabitkan dengan kesalahan rompak berkumpulan dengan menggunakan senjata, mangsa harus secara positif mengenal pasti identiti dan peranan tertuduh-tertuduh secara positif, terutama suspek yang mengacukan senjata kepada mangsa semasa kejadian. Percanggahan keterangan berkenaan dengan pengecaman oleh mangsa-mangsa terhadap suspek yang mengacukan senjata kepada mangsa adalah amat material dan percanggahan tersebut akan menjejaskan kes pendakwaan. 2. Sesuatu pengecaman terhadap tertuduh-tertuduh yang dibuat oleh mangsa-mangsa harus disokong oleh keterangan yang lain. Kegagalan mengemukakan keterangan sokongan yang lain akan menjejaskan pembuktian kes pendakwaan. PROSEDUR JENAYAH: Rayuan - Rayuan terhadap pelepasan dan pembebasan - Pelepasan dan pembebasan di akhir kes pendakwaan - Pertuduhan rompak berkumpulan dengan bersenjata - Keraguan dalam pengecaman identiti tertuduh oleh mangsa - Percanggahan yang material dalam keterangan mangsa-mangsa berkenaan identiti dan peranan tertuduh-tertuduh - Mangsa-mangsa tidak pasti identiti suspek yang mengacukan senjata - Sama ada kelemahan dan kecacatan dalam proses kawad cam dan pengecaman tertuduh-tertuduh telah menjejaskan kes pendakwaan - Sama ada identiti suspek yang telah mengacukan senjata kepada mangsa semasa kejadian gagal dibuktikan - Sama ada keterangan mangsa-mangsa telah gagal menunjukkan penglibatan tertuduh-tertuduh dengan niat bersama dalam melakukan rompakan berkumpulan semasa kejadian - Sama ada satu kes prima facie telah dibuktikan - Sama ada tertuduh wajar dilepaskan dan dibebaskan KETERANGAN: Keterangan pengecaman - Keraguan - Identiti dan peranan tertuduh - Hanya mangsa-mangsa membuat pengecaman - Pertuduhan rompak berkumpulan dengan bersenjata - Jurugambar menyatakan keadaan pencahayaan di tempat kejadian adalah gelap - Pengecaman muka tertuduh-tertuduh melalui sesi kawad cam dibuat oleh mangsa-mangsa kurang daripada 1 minit - Mangsa telah berjumpa tertuduh di balai polis 2 hari sebelum sesi kawad cam - Sama ada wujud percanggahan yang material dalam keterangan mangsa-mangsa berkenaan identiti dan peranan tertuduh-tertuduh - Sama ada pengecaman identiti tertuduh yang dibuat oleh mangsa adalah diragukan dan selamat diterima - Sama ada sesi kawad cam yang diadakan adalah diragui - Sama ada terdapat keterangan sokongan yang menyokong pengecaman yang dibuat oleh mangsa-mangsa KETERANGAN: Keterangan pengecaman - Keterangan sokongan - Pertuduhan rompak berkumpulan dengan bersenjata - Barang mangsa yang dirompak tidak dijumpai dalam milikan tertuduh semasa tangkapan - Senjata yang digunakan tidak dikemukakan semasa bicara - Kenderaan yang dirampas tidak mempunyai kaitan dengan kenderaan yang digunakan dalam kejadian rompakan - Sama ada pihak pendakwaan telah gagal mengemukakan keterangan lain yang dapat menyokong keterangan pengecaman mangsa-mangsa Bagi pihak perayu - TPR Mohd Raimi Mohd Ramli; Bahagian Pendakwaan, Jabatan Peguam Negara, Pusat Pentadbiran Kerajaan Persekutuan Bagi pihak responden - Izleen Ismail; T/n Izleen
[2019] 1 LNS 1197	PP lwn. SUKHEAIRY KAMAL KAMARUL BAHARIN Keterangan saksi kanak-kanak dalam kes kesalahan seksual memerlukan keterangan sokongan. Kegagalan pihak pendakwaan memanggil saksi-saksi yang material untuk menyokong keterangan saksi kanak-kanak menyebabkan inferen bertentangan terpakai terhadap kes pendakwaan dan seterusnya mewujudkan satu kelompangan yang menjejaskan kes pendakwaan. Keterangan saksi kanak-kanak yang tidak disokong oleh keterangan yang lain adalah tidak selamat untuk diterima untuk mensabitkan tertuduh. PROSEDUR JENAYAH: Rayuan - Rayuan terhadap pelepasan dan pembebasan - Kesalahan seksual terhadap kanak-kanak - Keterangan sokongan - Kejadian berlaku di dalam van sekolah - Penumpang lain dalam van sekolah serta pembantu rumah mangsa yang telah menyambut mangsa tidak dipanggil untuk memberikan keterangan - Sama ada pihak pendakwaan telah gagal mengemukakan sebarang keterangan sokongan yang dapat menyokong keterangan mangsa - Sama ada inferen bertentangan adalah terpakai dan telah menjejaskan kes pendakwaan - Sama ada pihak pendakwaan telah gagal menutup lompang yang material dalam kes pendakwaan - Sama ada keterangan mangsa yang menimbulkan keraguan adalah selamat untuk diterima untuk mensabitkan tertuduh - Sama ada tertuduh wajar dilepaskan dan dibebaskan daripada pertuduhan KETERANGAN: Sokongan - Kesalahan seksual - Mangsa seorang kanak-kanak - Sama ada keterangan mangsa kanak-kanak dalam kes-kes kesalahan seksual memerlukan sokongan - Sama ada keterangan saksi kanak-kanak memerlukan keterangan sokongan sebelum tertuduh boleh disabitkan - Akta Keterangan 1950, s. 133A Bagi pihak perayu - TPR Anis Wahidah Muhammad, Bahagian Pendakwaan; Jabatan Peguam Negara, Pusat Pentadbiran Kerajaan Persekutuan Bagi pihak responden - Sreekant Pillai; T/n Sreekant Pillai
[2019] 1 LNS 1819	KHATIJAH MD IBRAHIM & ORS v. ALLEN CHOONG CHING YET & ORS 1. A defendant is entitled to invoke the doctrine of issue estoppel and res judicata to bar the plaintiff from re-litigating the same issues that have been decided or ought to have been decided in an earlier action although the defendant was not a party in that earlier action. 2. An action commenced to re-litigate or contradict a final judgment in an earlier action and to recover losses naturally incurred due to losing the earlier action amounts to an abuse of process of the court. The court has the inherent power to prevent misuse of its process by striking out an action that would bring the administration of justice into disrepute. CIVIL PROCEDURE: Striking out - Res judicata - Doctrine of issue estoppel and cause of action estoppel - Present action commenced against same party as in earlier action together with additional parties - Correctness of determination of crucial issues in earlier action challenged and re-litigated in present action based on same evidence and witnesses - Whether there was real or practical difference between issues to be litigated in present action with issues already decided in earlier action - Whether issues raised in present action ought to have been raised in earlier action - Whether present action was caught by issue estoppel and cause of action estoppel - Whether res judicata established - Whether action ought to be struck out CIVIL PROCEDURE: Striking out - Abuse of process of court - Inherent power of court of justice to prevent misuse of its process - Present action sought to re-litigate or contradict final judgment in earlier action and to recover losses naturally incurred due to losing case - Present action commenced to recover or recoup legal costs and expenses of earlier action - Whether commencement of present action amounts to collateral attack on final judgment in earlier action - Whether present action was an abuse of process - Whether present action would bring administration of justice into disrepute CIVIL PROCEDURE: Striking out - Limitation - Cause of action premised on law of tort - Whether action was caught by limitation - Limitation Act 1950, s. 6(1) For the plaintiff - Andrian Selvarajoo & Elfina Roselini; M/s Ramli Yusuff & Co. For the defendant - Saw Lim Khai; M/s Chooi, Saw & Lim; Khoo Boon Yen; M/s The Chambers of B.Y. Khoo; Ramsun Ho; M/s See Ramsun & Tan; Daphne Choy; M/s Choy & Associates; Anoop Singh & Devodjit Singh; M/s Anoop & See
[2020] 1 LNS 3	PUBLIC BANK BERHAD v. LH BINTANG DEVELOPMENT SDN BHD & ANOR A restriction in interest endorsed on the register document of title of land is conclusive and the transfer of the land to the successful bidders at an auction will be effective subject to such restriction in interest. The reserve price for the land as stated in the order for directions after considering the existence of such restriction on the land ought not to be disturbed. LAND LAW: Charge - Sale of land - Auction - Order for directions - Reserve price disputed by beneficial owner - Lands endorsed with a restriction in interest - Bumiputera restriction - Defendant asserted reserve price ought to be higher as lands no longer subject to Bumiputera restriction - Searches conducted on lands disclosed that lands were still subject to restriction - Whether restriction in interest remained on register document of title of lands - Whether restriction was conclusive - Whether reserve price ought to be disturbed - Whether transfer of lands to successful bidder subject to restriction in interest For the appellant/second defendant - Nalani Murugiah; M/s Thangaraj & Associates For the respondent/plaintiff - Sanjiv Naddan; M/s Shook Lin & Bok
[2020] 1 LNS 11	LOW SONG KIM v. PP Exhibits are not required to be labelled and marked in the presence of the accused before they are removed from the crime scene. Removing the exhibits before labelling and marking them in the presence of the accused does not break the chain of evidence. CRIMINAL PROCEDURE: Exhibits - Break in chain of evidence - Offence of trafficking dangerous drugs - Drugs found on a table in a sitting room of a house where accused was arrested - Raiding officer seized drugs and put them in a box - Photographs taken at scene did not show existence of drugs seized - Whether there was break in chain of evidence - Whether there were legal requirements for labelling and marking of exhibits before removal from crime scene - Whether labelling and marking of exhibits should be done in presence of accused CRIMINAL PROCEDURE: Defence - Denial - Offence of trafficking dangerous drugs - Drugs found on a table in a sitting room of a house where accused was arrested - Accused denied possession of drugs - Accused claimed to be only looking after house on behalf of an individual but failed to provide full details of that individual during remand - Whether defence of accused was logical - Whether defence of accused was merely a denial and an afterthought EVIDENCE: Statement - Admissibility - Statement of person who could not be called as witness - Witness could not be traced despite serious effort made - Several persons named in statement were not called by prosecution to testify - Trial judge warned himself to only give light weight to evidence - Whether failure to call maker of statement and several other persons named in statement was fatal to prosecution's case - Evidence Act 1950, s. 32(1)(i) For the appellant - Rosal Azimin Ahmad, Diar Isda Yasmin, Luqman Mazlan & Nur Syakirah Abdullah; M/s Shamsuddin & Co For the respondent - Nahra Dollah, Deputy Public Prosecutor; Attorney-General Chambers

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CLJ 2021 Volume 6 (Part 3)

The principle of natural justice dictates that no man shall be condemned unheard. A finding of contempt, prima facie or otherwise, must only be made after opportunity to be heard is given. Although no formal notice of charge is required, the alleged contemnor must first understand the offence and be given the opportunity to defend himself before a finding is made.
Dr Sim Kui Hian v. Chong Chieng Jen & Other Appeals [2021] 6 CLJ 305 [CA]

• SUBJECT
• CORAM
• COUNSEL

In construing the true construction of an agreement, the court may not take into consideration the oral testimonies of witnesses but may rely instead on the clauses of the agreement itself; further, in determining the true import of the agreement, emphasis may be had to its natural, ordinary and contextual meaning.
Majlis Agama Islam Selangor & Anor v. Bank Muamalat Malaysia Bhd [2021] 6 CLJ 319 [CA]

• SUBJECT
• CORAM
• COUNSEL

The applicability of a representative procedure or action is not confined to civil cases alone but encompasses criminal and quasi-criminal cases as well, including cases pertaining to s. 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, and cases where notices under s. 61 thereof had been issued against several parties. Given a common interest and a common grievance among the parties, a representative suit should very much be in order, more so when the requirements in s. 61(4)(a) and (b) of the Act had been satisfied with. A representative procedure is also especially suitable in s. 56 as it will achieve the objective of saving judicial time and accords with the concept of access to justice encapsulated in arts. 5 and 8 of the Federal Constitution. It must further go, on the facts and in the circumstances, that 'the physical presence of the applicants' as spoken of in s. 61 cannot stand in the way of the action.
PP v. Sudesh Ratnarajah & Ors [2021] 6 CLJ 333 [CA]

• SUBJECT
• CORAM
• COUNSEL

The fundamental legal principles governing a Malaysian court's jurisdiction over a non-resident defendant are: (i) jurisdiction is conferred on the court by O. 11 of the ROC and/or s. 23 of the CJA ; (ii) when determining whether it has jurisdiction over a non-resident defendant, the court must assume that the plaintiff's allegations in its statement of claim are true; and (iii) after ruling that it has the jurisdiction to hear the plaintiff's claim against the defendant, the court must next decide, pursuant to the doctrine of forum non conveniens, the appropriate forum to litigate the plaintiff's claim against the defendant.
Alupanorama Metals Sdn Bhd & Anor v. Okaya International (H.K.) Ltd & Anor [2021] 6 CLJ 346 [HC]

• SUBJECT
• CORAM
• COUNSEL

The remedies available in a civil suit for wrongful dismissal must be distinguished from the remedies available in the Industrial Court in a claim for unfair dismissal under s. 20 of the Industrial Relations Act 1967 ('IRA'). Under the IRA, the Industrial Court, upon finding a dismissal to be unfair, has the powers to order (i) back wages up to 24 months to be paid to the employee; (ii) the employee be reinstated; or (iii) the employee be compensated in lieu of reinstatement, usually at the rate of one month's remuneration for each year of completed service. The remedies vested in the Industrial Court are statutory creation and have no place in common law and civil courts.
Malayan Banking Bhd v. Prabanah Manogaran Sultan [2021] 6 CLJ 370 [HC]

• SUBJECT
• CORAM
• COUNSEL

In a charge of being in possession of an offensive weapon, the inconsistencies given by a sole witness on where the offensive weapon is found, is not trivial in nature and goes to the root of the entire case. The prosecution needs to provide the details of the 'public place' that the offensive weapon was found to be in the possession of the accused, and not base it on guesswork or assumptions. The court could not unjustly assume that it is indeed a public place as it would only constitute an offence if the offensive weapon was to be possessed in a public place.
Mohd Faisa Ismail v. PP [2021] 6 CLJ 380 [HC]

• SUBJECT
• CORAM
• COUNSEL

(1) An application by the Muslim applicants which only concerned the registration of the Muslim child's name in the register in respect of adoption and certification of adoption, and which did not call into question the religion of the child or the legitimacy of the adoption, is a matter that does not fall under the purview of the Syariah Court. As the matter concerned the registration of an adopted child arising from the Federal List in which the civil court has jurisdiction, art. 121(1A) of the Federal Constitution empowers a civil court to hear such application.
(2) The overriding principle in cases involving a child or minor is that the 'best interests of the child' is paramount. If by having 'Bin Abdullah' in an adopted Muslim's child's name would cause the child to carry a stigma that he is either illegitimate or adopted, and that such label would deprive him of his fundamental right of being equal in the eyes of the law under the Federal Constitution, this goes against the universal principle that the best interests of the child should prevail.
Mohd Shafiee Arshad & Anor v. District Officer Sibu [2021] 6 CLJ 403 [HC]

• SUBJECT
• CORAM
• COUNSEL

(i) Judicial admission of facts in an affidavit in subsequent proceedings, and which was not available in previous proceedings, proves that there was a change in circumstances, and thereby allows the court to summarily dispose of the case;
(ii) Certification jurat, an essential requirement under O. 41 r. 3 of the Rules of Court, must be attached on an affidavit, and the breach of the same is not a curable irregularity and renders the affidavit inadmissible.
(iii) Upon the abandonment of the grounds for caveating the land, the caveat ought not to remain and must be removed.
N Vasantha Rajan Nagarajan v. Yeoh Soon Peng & Anor [2021] 6 CLJ 421 [HC]

• SUBJECT
• CORAM
• COUNSEL

After having compensated the parcel owners of strata units for the market values of their respective strata units, the acquisition authority cannot acquire the common property in the same strata development in the same process without paying any value to the management corporation of the strata development irrespective of the facts and circumstances of the strata development. Depending on the facts and circumstances of each case, there are two possible components to the market value of common property in a strata development: (i) lease or rental income or the potential of such income; and (ii) re-development potential in the future in the event of an en block sale or in the event of the cancellation of the subdivision upon total destruction of the strata building.
Perbadanan Pengurusan Ara Ampang v. Pentadbir Tanah Daerah Hulu Langat [2021] 6 CLJ 441 [HC]

• SUBJECT
• CORAM
• COUNSEL

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CLJ 2021 Volume 6 (Part 4)

Once art. 14(1)(b) and s. 1(b) of Part II of the Second Schedule of the Federal Constitution ('FC') is read together with the interpretation provision in the FC, in particular s. 17 of Part III of the Second Schedule in order to determine the qualifications necessary for the acquisition of citizenship by operation of law of an illegitimate child born out of the Federation, there is no necessity to adopt any other requirement to construe the provisions. Hence, the Legitimacy Act or any other law is therefore not to be read into the provisions as there is no mention made for the rights of citizenship in the Legitimacy Act and no corresponding provision in the FC that deems legitimisation confers the right to citizenship. The qualification of acquiring citizenship by operation of law must be met at birth. If the qualifications are not met, the court was not at liberty to add and subtract any other or qualifications which the FC states otherwise. There is no judicial supremacy articulated in the FC and the power to amend the Constitution rests solely with the Parliament. The court should not endeavour to achieve any fanciful meaning against the clear letter of the law.
CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 6 CLJ 471 [FC]

• SUBJECT
• CORAM
• COUNSEL

A revision filed pursuant to ss. 31 and 35 of the Courts of Judicature Act 1964 is applied to avoid grave injustice from happening considering the exigency of time and is not meant to be applied when there is already an appeal pending as happened here. Filing such a revision may amount to a backdoor application to question the conviction and sentence and undermine the administration of justice. The court will therefore examine such application with vigilance and scrutiny and may altogether dismiss the application.
Low Thiam Hock v. PP [2021] 6 CLJ 556 [CA]

• SUBJECT
• CORAM
• COUNSEL

The application to challenge the legality of the appointment of the ad hoc Senior Deputy Public Prosecutor in this case on the grounds that he was involved in the investigation process, was biased, had preconceived notions of the accused's guilt and had mala fide intents against the accused cannot possibly succeed. The allegation that the Senior DPP was involved in the investigation process cannot hold much water as such involvement, if any, was limited to directing the relevant investigating authorities to conduct further investigations if need be; and the allegation that he was prejudging the accused's guilt by calling him 'Criminal Najib' and having mala fide intents equally have little probative traction, as he was entitled to his private opinions so long as it did not impinge on his duties and so long as he was not openly biased when acting as a prosecutor. The Senior DPP, further, was merely a cog in the wheel and it would be a disservice to the Attorney General's Chambers and its officers to suggest that he alone would have absolute control over the prosecution of the accused and could manipulate the conduct of the prosecution's case to fit his agenda.
Dato’ Sri Mohd Najib Hj Abdul Razak v. PP [2021] 6 CLJ 574 [HC]

• SUBJECT
• CORAM
• COUNSEL

(i) A party cannot assert that a confidential document or information in its possession relates to the 'affairs of State' and thus privileged from disclosure under ss. 123 and 162 of the Evidence Act 1950 without any supporting evidence to sustain the assertion; (ii) a Chairman to a Board of Directors cannot be said to have no personal knowledge regarding negotiations entered into by the company, more so when such negotiations involved a large sum of money paid or payable to another party, as, following the basic corporate governance precepts, the final decision to proceed with the payment must have been voted by the Board chaired by the Chairman; and (iii) a resolution passed by a Board of Directors cannot hearsay to its Chairman.
Government Of State Of Sarawak v. Dato’ Sri Wong Soon Koh [2021] 6 CLJ 587 [HC]

• SUBJECT
• CORAM
• COUNSEL

A joint management body does not have the power under the Strata Management Act 2013 to assume the rights of the purchasers in a housing development project upon the winding-up of the development company; it is the liquidators who will step into the shoes of the company under the Housing Development (Control and Licensing) Act 1966 to carry out the duties and obligations of the company.
Re Bandar Kinrara Properties Sdn Bhd (In Liquidation) [2021] 6 CLJ 599 [HC]

• SUBJECT
• CORAM
• COUNSEL

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CLJ Article(s)

1. SOCIAL JUSTICE IS THE NUCLEUS OF THE UN CHARTER: IS THE RULE OF LAW FOR INTERNATIONAL LAW INTACT?^{[1] [Read excerpt]}
   by DATUK DR HJ HAMID SULTAN ABU BACKER* & MATTHEW JEROME VAN HUIZEN** [2016] 3 ILR(A) xix

[2016] 3 ILR(A) xix



MALAYSIA

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SOCIAL JUSTICE IS THE NUCLEUS OF THE UN CHARTER: IS THE RULE OF LAW FOR INTERNATIONAL LAW INTACT?^[1]

by
DATUK DR HJ HAMID SULTAN ABU BACKER* & MATTHEW JEROME VAN HUIZEN**

Abstract

The rule of law is the foundation to achieve social justice within the compass of a civilised State.^[2] International Law which is said to be the law of nations, originated to deal with the international relations among nations to conduct its affairs in a civilised manner. Social justice was not its founding principles. Neither was there any mechanism to adjudicate on any breach of international law and enforce the order against the recalcitrant State. The inability led jurists to assert international law in the writer's words to be a 'toothless tiger.^[3]'

This article will argue how, in the last two or three centuries, sovereign States have moved to recognise the concept of social justice to be part of international law and for that purpose have created the methodology and framework by way of conventions, treaties, agreements, etc. inclusive of dispute resolution institutions. And finally with the UN Charter to provide an enforcement mechanism to sustain not only world peace but to ensure that all States conduct its affairs in a civilised manner, recognising the basic human rights as well as dignity, inclusive of protection of the environment, etc. to sustain not only life but the quality of life in uncompromising terms.

. . .

* Justice, Court of Appeal, Malaysia.

** Advocate & Solicitor of the High Court of Malaya.

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LNS Article(s)

1. LEGAL AND SHARIAH GOVERNANCE FRAMEWORK FOR ISLAMIC FINANCIAL SERVICES IN LUXEMBOURG* ^{[Read excerpt]}
   by Apnizan Abdullah [2021] 1 LNS(A) lxxxix

[2021] 1 LNS(A) lxxxix



MALAYSIA

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LEGAL AND SHARIAH GOVERNANCE FRAMEWORK FOR ISLAMIC FINANCIAL SERVICES IN LUXEMBOURG*

by
Apnizan Abdullah

Islamic finance has been embraced by the Grand Duchy of Luxembourg (Luxembourg) on 13 November 1978 through the incorporation of the Islamic Banking System (later renamed as Islamic Finance House Universal Holdings). The establishment has become the first Islamic financial institution in a Western country that aimed at servicing individuals of high net worth using shariah-compliant avenues. This was followed by the setting up of its first Islamic bank in 1980, namely the International Islamic Bank of Investment and Development. In 1983, the Bahraini Solidarity Group became the first Islamic insurance company in Europe. Apart from these milestones, Luxembourg has become the first stock exchange to list sukuk in Europe in 2002. Realising the auspicious potentials of Islamic finance services, the government has set up a special task force in 2008 to promote Islamic finance in Luxembourg.

. . .

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

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2. JUDGING THE JUDGES: REMOVAL MECHANISMS IN THE HIGHER COURTS ^{[Read excerpt]}
   by Jenita Kanapathy* Dr. Nadhratul Wardah Salman** [2021] 1 LNS(A) xc

[2021] 1 LNS(A) xc



INTERNATIONAL

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JUDGING THE JUDGES: REMOVAL MECHANISMS IN THE HIGHER COURTS

by
Jenita Kanapathy*
Dr. Nadhratul Wardah Salman**

ABSTRACT

Removal of judges from office is a serious form of judicial accountability. As such, international instruments, and declarations on the independence of the judiciary have expressed three principles on the substantive grounds for removal of judges. Firstly, the grounds of removal must be apparent, secondly, judges should only be removed on grounds of incapacity or misconduct and thirdly, there must be gravity of misconduct warranting the removal of a judge. Around the world, there are a few types of removal mechanisms for judges in the higher courts. The most common type of removal mechanism is by ad hoc tribunal or parliament. Most commonwealth countries, including Malaysia, have adopted the ad hoc tribunal system. This article provides an overview of the different types of removal mechanisms adopted by commonwealth countries in removing judges from the higher courts, in particular the United Kingdom, South Africa and Malaysia.

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*Ms. Jenita Kanapathy is a Senior Lecturer at Taylor's Law School. She graduated from University of Malaya with a LLB honours degree in 2001 and was admitted to the Malaysian Bar the following year. Her professional career as a litigation lawyer spanned over 10 years. In 2012, she completed her Master of Laws in University Malaya. In the same year, Ms. Jenita joined Taylor's University as a law lecturer in pursuit of her passion for teaching. In 2019, she was elevated to the position of Senior Lecturer. Ms. Jenita has published numerous papers relating to Public Law, Human Rights and Labour & Industrial Relations Laws. She also contributed a chapter in a book entitled "Elder Abuse and Neglect in selected Asian Countries" published in 2019. Ms Jenita has also presented many papers in both local and international conferences. She is currently pursuing her PhD in Law at her alma mater.

** Dr. Nadhratul Wardah Salman graduated with a Bachelor of Laws from the International Islamic University, Malaysia in 1995 and subsequently pursued Master in Sports Policy at Leeds Metropolitan University, UK. She went on to do her Master of Laws (LL.M) at the University of Malaya, Malaysia. In 2005, she completed her Ph.D. in Sports Law at Manchester Metropolitan University, UK. She is currently serving as a Senior Lecturer as well as holding an administrative position as the Deputy Dean at the Faculty of Law, University of Malaya. Her areas of teaching and research include Sports Law, Law of Tort, Malaysian Legal System, Fundamental Liberties and Community Engagement.

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