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Issue #38/2021 23 September 2021

New This Week Case(s) of the Week DATUK SERI ANWAR IBRAHIM v. KERAJAAN MALAYSIA & ANOR [2021] 8 CLJ 511 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2021 Volume 8 (Part 4) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

DATUK SERI ANWAR IBRAHIM v. KERAJAAN MALAYSIA & ANOR [2021] 8 CLJ 511
FEDERAL COURT, PUTRAJAYA
VERNON ONG LAM KIAT FCJ; ZALEHA YUSOF FCJ; ZABARIAH MOHD YUSOF FCJ;
HASNAH MOHAMMED HASHIM FCJ; MARY LIM FCJ; HARMINDAR SINGH DHALIWAL FCJ; RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 06(RS)-1-03-2019(W)]
06 AUGUST 2021

CONSTITUTIONAL LAW: Constitutionality - Constitutionality of s. 12 of Constitution (Amendment) Act 1983, s. 2 of Constitution (Amendment) Act 1984, s. 8 of Constitution (Amendment) Act 1994 - Whether amending Acts had taken requirement of royal assent by Yang di-Pertuan Agong - Whether unconstitutional, null and void and of no effect - Whether violates basic structure of Federal Constitution

CONSTITUTIONAL LAW: Constitutionality - National Security Council Act 2016 - Whether Act enacted pursuant to unconstitutional amendments - Whether enacted in accordance with art. 149 of Federal Constitution - Whether violates freedom of movement guaranteed by art. 9(2) of Federal Constitution - Whether Act unconstitutional, null and void and of no effect

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1. Mohd Faizul Abdul Jalil v. PP [2020] 1 LNS 66 (CA) affirming the High Court case of PP v. Mohd Faizul Abdul Jalil [2018] 1 LNS 2300

2. Okidville Holdings Sdn Bhd v. The Government Of The State Of Sabah & Anor [2019] 1 LNS 1777 (CA) overruling the High Court case of Okidville Holdings Sdn Bhd v. The Government of the State of Sabah & Anor [Originating Summons No: BK1-24NCVC-38/6 of 2014]

Legal Network Series

[2019] 1 LNS 968	HADZRAWIAH ABU KASIM lwn. PEJABAT TANAH DAN DAERAH PERAK TENGAH Perbezaan ketara dalam nilai tanah akan wujud apabila jarak tanah-tanah yang dimasukkan dalam kaedah perbandingan adalah terlalu jauh dari kedudukan tanah yang diambil. Tanah-tanah yang diperbandingkan dengan ciri-ciri yang berbeza tidak sewajarnya dijadikan panduan dalam kaedah perbandingan. UNDANG-UNDANG TANAH: Pengambilan tanah - Pampasan - Penentuan nilai pasaran - Kaedah perbandingan - Tanah-tanah yang dimasukkan ke dalam perbandingan berada dalam kedudukan yang sangat jauh - Sama ada jarak tanah perbandingan yang jauh akan mewujudkan suatu perbezaan yang ketara - Sama ada tanah-tanah yang mempunyai ciri-ciri yang berbeza wajar dijadikan panduan - Sama ada jumlah nilai pasaran yang diberikan oleh pentadbir tanah adalah munasabah Bagi pihak pemohon - N Selvarajah; T/n Sri Ling & Associates Bagi pihak responden - SFC Suhaila Haron; Pejabat Penasihat Undang-Undang Negeri Perak, Jabatan Peguam Negara
[2019] 1 LNS 971	ZULKEFLI DOLLAH lwn. PP Saksi kanak-kanak yang berupaya memahami soalan serta memberikan jawapan yang rasional boleh memberikan keterangan bersumpah berdasarkan s. 118 Akta Keterangan 1950 tanpa keperluan untuk mengikuti prosedur yang dinyatakan di bawah s. 133A Akta Keterangan 1950 termasuk siasatan awal untuk menguji kompetensi saksi tersebut. KETERANGAN: Saksi - Saksi kanak-kanak - Keterangan bersumpah - Saksi berumur 16 tahun ketika perbicaraan - Saksi boleh memahami soalan dan memberikan jawapan yang rasional - Sama ada saksi merupakan seorang kanak-kanak yang masih mentah - Sama ada saksi kanak-kanak yang memahami erti sumpah boleh memberikan keterangan di bawah s. 118 Akta Keterangan 1950 - Sama ada keperluan untuk mengikuti prosedur yang dinyatakan di bawah s. 133A Akta Keterangan 1950 terpakai - Sama ada peruntukan s. 133A hanya beroperasi jika kanak-kanak masih mentah dan tidak memahami akibat daripada pengangkatan sumpah - Sama ada keterangan bersumpah saksi boleh berdiri dengan sendiri PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Hukuman penjara 24 tahun dan 16 sebatan bagi setiap kesalahan sumbang mahram - Mangsa adalah anak kandung tertuduh - Sama ada hukuman yang telah dijatuhkan adalah wajar - Sama ada hukuman yang telah dijatuhkan menyebabkan ketidakadilan yang memerlukan campur tangan mahkamah di peringkat rayuan Bagi pihak perayu - Firdaus Mohd Yusof; T/n Firdaus & Partners Bagi pihak responden - TPR, Nor Hamizah Ghazali; Pejabat Penasihat Undang-Undang Negeri Kelantan
[2020] 1 LNS 59	ZULKARNAIN MALIK v. ONG SWEE LONG & ANOR A proceeding yet to reach an advanced stage can be withdrawn with liberty to file afresh by a plaintiff due to a wrong mode of commencement of action provided that the plaintiff had not gained any advantage between the commencement of the action and at the point of time when the plaintiff sought to withdraw the action. CIVIL PROCEDURE: Action - Discontinuance - Application to withdraw writ and statement of claim with liberty to file afresh - Plaintiff decided to withdraw action due to a wrong mode of commencement of action - Withdrawal sought before decision on defendants' striking out applications and plaintiff's summary judgment application - Whether defendants could be considered dominant party - Whether plaintiff had obtained an advantage in proceedings - Whether granting of leave to withdraw action would deprive defendants - Whether plaintiff was entitled to liberty to file afresh - Rules of Court 2012, O. 21 r. 3 For the plaintiff - V Prem; M/s Lewis & Co For the defendants - Chan Shao Kang; M/s Armiy Rais
[2020] 1 LNS 60	MUTIARA GEMILANG ENGINEERING SDN BHD v. UNIVERSITI TEKNOLOGI MARA & ANOR The Court has discretionary power to grant a conditional stay of execution of a judgment pending disposal of an appeal against such judgment if public interest consideration exists. A conditional stay order can be granted even though the Court has refused to grant an absolute stay of execution of the judgment due to the absence of special circumstances. CIVIL PROCEDURE: Stay - Application for - Ad interim stay - Exercise of discretionary power and inherent jurisdiction of Court - Conditional stay - Monetary judgment - Public interest consideration - Whether there was basis for Court to exercise discretion to grant absolute stay of execution of judgment pending disposal of appeal - Whether Court could grant conditional stay in absence of special circumstances - Whether conditional stay could be granted on public interest consideration - Whether granting of conditional stay would cause prejudice to plaintiff For the plaintiff - Ismail Mohamed Arifin & Nidzuwan Abdul Latip; M/s Ram Reza & Muhammad For the defendant - Muhammad Azwar Abdul Manab & Muhammad Azrul Haziq Khirullah; M/s Azwar & Partners
[2020] 1 LNS 62	SOHA BETA v. PP 1. A defence of alibi will not prevail over the positive identification of an accused person by credible witnesses who have no ill motives in testifying against the accused. 2. Common intention is a question of fact and can be proven through inference from the circumstances of a case, such as the conduct of the accused and the manner in which the accused arrived at the scene. The togetherness of accused persons is sufficient to establish a common intention between them to commit a crime beyond reasonable doubt. CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Murder - Prosecution relied on circumstantial evidence - Accused was positively identified by witness - Accused behaved aggressively and tried to escape - Whether defect in identification parade had any impact on finding of guilt against accused - Whether witness who identified accused had ulterior motive to implicate accused of crime - Whether conduct of accused at time of arrest militates against claim of innocence CRIMINAL PROCEDURE: Defence - Alibi - Offence of murder - Accused was seen at crime scene by witness - Accused was positively identified by witness - Whether defence of alibi could prevail over positive identification of accused CRIMINAL LAW: Murder - Common intention - Circumstantial evidence - Murder of baby - Both accused were last persons seen alive with baby - Sequence of events as per defence shows that both accused were together - Whether there was sufficient evidence to establish beyond reasonable doubt of common intention between both accused persons to commit crime For the appellant in Q-05(M)-124-02/2018 - Ranbir Singh Sangha; M/s Ranbir S. Sangha & Co For the respondent in Q-05(M)-124-02/2018 - Tengku Intan Suraya Binti Tengku Ismail; Attorney General's Chambers For the appellant in Q-05(LB)-125-02/2018 - Tengku Intan Suraya Binti Tengku Ismail; Attorney General's Chambers For the respondent in Q-05(LB)-125-02/2018 - Ranbir Singh Sangha; M/s Ranbir S. Sangha & Co

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CLJ 2021 Volume 8 (Part 4)

1. The courts, the apex court especially, must not be turned into an answering post or a debating club or an advisory bureau or made obliged to answer questions when there is no dispute or lis involved, and should certainly not be called upon to answer questions which are abstract, academic or hypothetical.
2. The argument that the National Security Council Act 2016 (NSCA) was unconstitutional as its founding law, namely the Constitution (Amendment) Act 1983, the Constitution (Amendment) Act 1984 and the Constitution (Amendment) Act 1994 were unconstitutional for having removed the royal assent and violated the basic structure doctrine, and for further being inconsistent with art. 149 of the Federal Constitution, is bereft of any constitutional thrust or merit. Sections 12, 2 and 8 respectively of these amending Acts do not at all serve to remove royal assent, as a bill must still be presented to the King under art. 66(4) of the Federal Constitution for the purpose of royal assent. The Acts, in short, only sought to expedite the passing of laws and clarify and define the procedure involving the Yang di-Pertuan Agong in the law-making process. The trigger point in art. 149 cannot also be possibly satisfied as the NSCA was never meant to be enacted under that Article. Article 149 was meant to curb prescribed activities undertaken by 'a substantial body of persons' whereas the NSCA is much wider than that; the NSCA seeks to also cover other matters such as disasters and infectious diseases which undeniably could affect national security.
Datuk Seri Anwar Ibrahim v. Kerajaan Malaysia & Anor [2021] 8 CLJ 511 [FC]

• SUBJECT
• CORAM
• COUNSEL

A Local Authority, in seeking to issue a Valuation List and imposing rates on holdings which were hitherto excluded from its jurisdiction, must abide by the rules of due process; in particular, it must comply with the procedural requirements of ss. 137 and 141 of the Local Government Act 1967. Where, in seeking to impose such rates on such holdings, it runs afoul of the statutory strictures, for example, when it fails to prepare and complete a New Valuation List every five years or seeks to use a Valuation List indefinitely, then its purported exercise to realign its jurisdictional boundary so as to include the new holding - whether by way of a Notice to Amend its existing Valuation List or otherwise - must be held to be against the law and is liable to be declared null and void.
Majlis Daerah Hulu Selangor v. United Plantations Bhd [2021] 8 CLJ 590 [FC]

• SUBJECT
• CORAM
• COUNSEL

There is no provision in the Law Reform (Marriage and Divorce) Act 1976 for the rescinding or setting aside of a decree nisi that had already been made absolute. It is the intention of Parliament to preserve the integrity and finality of a decree nisi that has already been made absolute after three months. As such, parties are not allowed to freely apply to the court, at any time, to rescind or set it aside unless for very good reasons or in exceptional circumstances.
Hung Moy v. Ang Cha Hooi [2021] 8 CLJ 616 [CA]

• SUBJECT
• CORAM
• COUNSEL

A party with no direct interest or legal relationship with another party has no right to interfere or to be joined as a party in a judicial review proceeding filed under O. 53 r. 8(1) of the Rules of Court.
Semantan Estate (1952) Sdn Bhd v. Kerajaan Malaysia & Ors [2021] 8 CLJ 627 [CA]

• SUBJECT
• CORAM
• COUNSEL

The plaintiff's action as a judgment debtor in transferring his shares to the defendant and not disclosing the same to avoid his creditors and to deceive the Director General of Insolvency is a contravention of s. 109(1) of the Bankruptcy Act 1967 and s. 422 of the Penal Code. The illegality in the arrangement between the plaintiff and the defendant was the very act that was prohibited by the statutory provisions. As the court should not lend its hand in aid of the plaintiff's claims, this was a plain and obvious case for the court to allow the defendant's application to strike out the plaintiff's suit for the return of the shares under O. 18 r. 19(1)(a), (b) and (d) of the Rules of Court 2012.
Lau Kok Loon v. Low Yee Meng [2021] 8 CLJ 643 [HC]

• SUBJECT
• CORAM
• COUNSEL

The plaintiffs' originating summons seeking a declaration that art. 14(1)(b) of the Federal Constitution ('FC'), which relates to citizenship by operation of law, should be read harmoniously with art. 8 of the FC and ought not to be struck out. As much as citizenship provisions are important, so are provisions of fundamental liberties. In the citizenship provisions itself, there seems to be inconsistency in the application of the provision between the child born in the Federation and the child born out of the Federation. Justifications must be shown not only to convince the court of the necessity to maintain the distinctions but also to determine whether the plaintiff had a legitimate expectation of citizenship despite being born out of the Federation. As the plaintiffs have shown themselves to be affected parties and had established interest in the matter to bring this matter to court, the plaintiffs had the locus to bring this action. This was, therefore, not a proper case to be summarily dismissed under O. 18 r. 19 of the Rules of Court 2012 without a proper evaluation of all the facts and evidence.
Suriani Kempe & Ors v. Kerajaan Malaysia & Ors [2021] 8 CLJ 666 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. LAW ON WITNESSING SIGNATURES VIA VIDEO CONFERENCING IN THE NEW NORM ^{[Read excerpt]}
   by Venetia Wong Shin Yee* [2021] 1 LNS(A) cxvii

[2021] 1 LNS(A) cxvii



MALAYSIA

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LAW ON WITNESSING SIGNATURES VIA VIDEO CONFERENCING IN THE NEW NORM

by
Venetia Wong Shin Yee*

Covid-19 has plagued us since 2020 and continues to do so recently in the spike of cases throughout the globe, taking lives and forcing governments to implement strict quarantines.

With the Malaysian Government embracing the new norm and enforcing strict social distancing measures, we are to radically change and adapt almost everything we do to deal with this pandemic since last year.

Without a doubt, Covid-19 has cast a societal shift overnight that helped to accelerate digital transformation. Everyone in the world is forced to embrace digitalisation in every aspect of their daily lives, which includes online shopping for clothes, essential items, groceries, and even fresh produce! Board meetings are no longer physical, and conferences are held virtually.

. . .

*LLB, University of Liverpool, Certificate of Legal Practice. Venetia practices Conveyancing, Corporate and Commercial law at Messrs. Rosli Dahlan Saravana Partnership.

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2. MANDATING MEDIATION IN RESOLVING FAMILY DISPUTES IN THE MALAYSIAN CIVIL COURTS ^{[Read excerpt]}
   by HEAMA LATHA NAIR* [2021] 1 LNS(A) cxviii

[2021] 1 LNS(A) cxviii



MALAYSIA

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MANDATING MEDIATION IN RESOLVING FAMILY DISPUTES IN THE MALAYSIAN CIVIL COURTS

by
HEAMA LATHA NAIR*

ABSTRACT

Family law disputes, unlike a normal civil dispute, are future-focused and addresses very delicate and sensitive issues, namely, divorce, custody of minor children, maintenance of spouses and children, division of matrimonial properties, and matters incidental thereto. The current trend in resolving family disputes under the civil law legal system in Malaysia is via litigation, which is very adversarial, time-consuming and traumatic for all parties in the dispute. Although mediation is offered as an option under the civil law legal system and encouraged by the courts to resolve family disputes and Mediation Centres have been established within the civil court premises, namely, at the Kuala Lumpur High Court and Shah Alam High Courts, respectively, statistics reveal that its reception is unsatisfactory. Hence, this paper will address the current mediation proceedings under the civil law legal framework, the reception and shortcomings and advocate mandating mediation in resolving family disputes by proposing amendments to current legal provisions and Practice Direction to achieve a more holistic and family-friendly outcome for the benefit of the disputants and all stakeholders involved in the dispute.

. . .

Note: This article is extracted and forms part of the researcher's PhD thesis.

*Senior Lecturer, PhD in law (UM), LLM (UKM), LLB. Hons (East London, UK), Advocate & Solicitor of the High Court of Malaya (Non-Practicing), Barrister-at-Law (Lincoln's Inn, UK), Mediator (Certified by Accord Group Australia), Faculty of Business & Law, Taylor's University, Lakeside Campus, Selangor Darul Ehsan.

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