CASE(S) OF THE WEEK
LIFE PARADISE SDN BHD v.
EXPORT-IMPORT BANK OF MALAYSIA BHD & ANOR AND ANOTHER APPEAL [2022] 2 CLJ 745
COURT OF APPEAL, PUTRAJAYA
LAU BEE LAN JCA; RAVINTHRAN PARAMAGURU JCA; MOHD SOFIAN ABD RAZAK JCA
[CIVIL APPEAL NOS: N-01(NCVC)(A)-646-11-2019 & W-02(NCVC)(A)-2115-11-2019]
27 DECEMBER 2021
When it is established that titles to the lands have been deposited by the proprietor to provide security for loans, even if it is for the purpose of a third party, the bank, as the entity that is entitled to receive the security, is clearly entitled to apply for the entry of a lienholder's caveat on the lands in question. The act of depositing the titles in relation to a loan triggers the operation of ss. 281(1) and 330(1) of the National Land Code.
LAND LAW: Lien - Deposit of title deeds - Whether to provide security for loans granted to third party - Whether bank entitled to apply for entry of lienholder's caveat on lands - Whether proprietor must expressly consent to creation of lien - Whether bank had right to enter lienholder's caveat without approval of proprietor - Whether pre-conditions for creation of statutory lien satisfied - National Land Code, ss. 281 & 330(1)
LAND LAW: Malay reservations - Malay holdings - Whether s. 10 of Malay Reservations Enactment (FMS Cap 142) ('Enactment') prohibited lienholder's caveats as lands are Malay holdings - Whether ss. 10 and 17 of Enactment should be read together with relevant provisions of National Land Code relating to creation of lien - Whether lienholder's caveat part and parcel of statutory lien under National Land Code
JUDICIAL QUOTES
“The defendants argue that only one claim can be brought by the plaintiffs, either under s. 7 (dependency claim) or s. 8 (estate claim) of the Civil Law Act. In other words, the plaintiffs are entitled to one claim only. (See para. 52 of the defendants' written submissions). That is incorrect. The plaintiffs are entitled to bring both a dependency claim under s. 7 of the Civil Law Act as well as an estate claim under s. 8 of the Civil Law Act. Section 8(5) of the Civil Law Act stipulates that the rights thereunder for the benefit of the estate of a deceased person is in addition to and not in derogation of the rights conferred on the dependants of a deceased person under s. 7 of the Civil Law Act.” – Per Quay Chew Soon JC in Janagi Nadarajah & Anor v. Sjn Razali Budin & Ors [2021] 10 CLJ 915
LATEST CASES
Legal Network Series
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[2020] 1 LNS 180
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SIGMA ELEVATOR (M) SDN BHD v. PERBADANAN PENGURUSAN CITY PLAZA & ANOTHER CASE
1. The fact that an adjudicator did not agree with a party or that the adjudication was not in favour of a party's submissions during the adjudication process does not imply that the adjudicator acted impartially or independently. Once an adjudicator has given both parties equal opportunity to present arguments and the adjudicator has considered those arguments and ultimately decided to accept only one argument, irrespective of whether the argument is wrong or right, such decision would not be a breach of natural justice.
2. The termination or acceptance of repudiation of a construction contract does not result in the exclusion of the applicability of the Construction Industry Payment and Adjudication Act 2012, nor does it preclude a claimant from pursuing a claim based on the construction contract under the statutory adjudication regime.
CONSTRUCTION LAW: Adjudication - Setting aside - Adjudication decision premised on a claim for refurbishment work - Whether adjudicator had acted in excess of jurisdiction by deciding on an unenforceable contract - Whether adjudicator had acted impartially and independently when agreed and accepted with one party's submissions and documents - Whether adjudicator had acted in breach of natural justice when did not accept argument of a party during adjudication process - Whether adjudicator had justified her decision - Whether adjudication decision made on a contract that has been terminated was sustainable
CONSTRUCTION LAW: Adjudication - Stay - Stay application premised on ground that applicant was facing serious cash-flow problem - Whether financial status of applicant could be valid reason to grant stay of adjudication decision - Whether allegation that applicant has good chance to succeed in any court suit filed by it could be valid reason for court to stay adjudication decision - Whether application for stay intended to further delay honouring adjudication decision - Construction Industry Payment and Adjudication Act 2012, s. 16
CONTRACT: Formation - Consideration - Valid and binding contract - Common construction contract - Contract for refurbishment of elevators - Property owner alleged contract parties had entered into was illegal - Allegation that unauthorized person entered into contract and further instructed architect to issue letter of award - Several progressive payments had been honoured by property owner earlier - Whether object of contract was forbidden by law and of such nature that if permitted would defeat any law - Whether consideration of contract was valid and enforceable - Whether assertion that contact was illegal tenable when several progressive payments were made in accordance with contract
- For City Plaza - CY Ong; M/s CY Ong & Co
- For Sigma Elevator - Deepak Mahaderan; M/s Azmi Fadzly Maha & Sim
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[2020] 1 LNS 182
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WONG CHONG KIEW v. LEE HOCK SENG
1. A party who feels that the maintenance sum prayed in the petition would not be sufficient as a result of a material change in the circumstances that had happened between the filing of the petition and trial must do so before the completion of the trial or else the said party is not entitled to amend the maintenance sum once the decree nisi is granted.
2. The Court is empowered to order a husband to pay maintenance to his ex-wife after granting a divorce decree provided that an application for ancillary relief is filed by the petitioning wife with the leave of the Court. The Court is unable to exercise its discretion to entertain an application to order the husband to pay maintenance after granting the decree if the said application is filed without leave of the Court.
FAMILY LAW: Decree nisi - Variation - Maintenance for children - Change in circumstances happened between filing of petition and trial - Petitioner wife sought to vary maintenance sum for child on basis that she had moved out of matrimonial home and her employment has been terminated - Allegation that maintenance sum granted in decree nisi was insufficient - Petitioner did not seek to amend amount of maintenance prior to trial - Whether Court had ventilated changes complained of during trial - Whether there were material changes in circumstances - Whether petitioner is entitled to amend maintenance sum once decree nisi granted - Law Reform Act (Marriage and Divorce) Act 1976, s. 96
FAMILY LAW: Divorce - Ancillary relief - Maintenance for wife - Petitioner wife applied for maintenance after decree nisi - Petitioner did not apply for maintenance in divorce petition - Court previously dismissed petitioner's application to amend divorce petition to include a prayer for maintenance before trial and no appeal was filed thereafter - Application filed without leave of Court under r. 56(2)(a) of Divorce and Matrimonial Proceedings Rules 1980 - Whether Court was functus officio - Whether issue relating to petitioner maintenance is res judicata - Whether Court could exercise discretion to allow application for maintenance
- For the petitioner - Rajindar Singh Veriah & Clinton Gomez; M/s Rajindar Singh Veriah & Co
- For the respondent - James Chow, Aaron Wong PDK & Ngoh Si Jing PDK; M/s Chow Kok Leong & Co
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[2020] 1 LNS 183
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PP v. BENEDICT CHAI JUN SIANG
For cases under s. 12 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, the prosecution must produce a witness who can testify that the prostitution activity occurred when the raid was conducted as well as other supporting evidence found at the scene of the prostitution activity, to support the testimonies of the trafficked persons that they were sexually exploited.
CRIMINAL LAW: Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Section 12 - Accused brought victims to church and embassy - Victims were rescued at quarters after they sought help from embassy - Victims holds keys to their quarters - Victims had mobile phones and personal computers - Whether accused had any nexus with person who brought victims to Malaysia - Whether accused was responsible to arrange sexual activities - Whether movement of victims was restrained by accused - Whether there was sufficient evidence to show that trafficked persons were coerced to perform sexual activities
CRIMINAL PROCEDURE: Appeal - Appeal against acquittal - Offence of human trafficking for purpose of sexual exploitation purposes - Prosecution merely relied on testimonies of trafficked person - Prosecution failed to tender other supporting evidence found at scene of prostitution activity - Absence of evidence from raiding officer - Whether accused managed to cast reasonable doubts on prosecution's case - Whether decision of trial judge warrant interference by appellate court - Whether order for acquittal was justified
- For the appellant - Public Prosecutor
- For the respondent - M/s Michael Denis Tan & Co
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[2020] 1 LNS 2297
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PACIFIC & ORIENT INSURANCE CO BERHAD lwn. TAN CHOON SIN & YANG LAIN
Pihak insuran perlu mendapatkan suatu deklarasi melalui s. 96(3) Akta Pengangkutan Jalan 1987 sekiranya pihak insuran ingin melepaskan diri daripada liabiliti bagi polisi yang dikeluarkan olehnya. Tanpa deklarasi sedemikian, pihak insuran masih bertanggungan terhadap tuntutan pihak ketiga walaupun kenderaan yang dilindungi insurans telah dicuri atau ketiadaan kebenaran oleh tuan punya kenderaan untuk penggunaan kenderaan pada masa kemalangan tersebut berlaku.
INSURAN: Insuran motor - Tanggungan - Permohonan untuk mengelakkan tanggungan pihak ketiga - Kenderaan yang dilindungi insurans telah dicuri pada masa kemalangan - Sama ada polisi insurans masih berkuatkuasa pada masa kemalangan - Sama ada pihak insuran bertanggungan untuk membuat bayaran ganti rugi bagi tuntutan kemalangan yang melibatkan kenderaan yang telah dicuri - Sama ada pihak insuran masih bertanggungan walaupun tiada kebenaran diberikan oleh tuan punya kenderaan - Sama ada pihak insuran boleh lepas daripada liabiliti bawah polisi insuran tanpa mendapatkan deklarasi untuk mengelak tanggungan - Akta Pengangkutan Jalan 1987, s. 96(3)
- Bagi pihak perayu - Vinod Kamalananthan; T/n Vinod Kamalananthan & Associates
- Bagi pihak responden pertama & kedua - Ooi Kim Ing; T/n Manjit & Co
- Bagi pihak responden ketiga - Hanis Nabila; T/n K Suganthi & Co
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[2020] 1 LNS 2298
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5 STAR ROOM HOTEL SDN BHD & SATU LAGI lwn. BANK ISLAM MALAYSIA BERHAD
Suatu pihak yang hendak mengemukakan transkrip rakaman perbualan telefon harus mengemukakan transkrip tersebut bersama-sama salinan rakaman perbualan telefon dan sijil perakuan bawah s. 90A Akta Keterangan 1950. Kegagalan mengemukakan sijil perakuan serta salinan rakaman perbualan telefon akan menyebabkan transkrip tersebut tidak mempunyai sebarang nilai probatif.
PROSEDUR SIVIL: Pembatalan - Tindakan - Locus standi - Penyalahgunaan proses Mahkamah - Tuntutan terhadap bank oleh entiti yang berasingan - Bank meluluskan penjadualan semula kemudahan oleh satu peminjam dan menolak permohonan untuk kemudahan tambahan oleh peminjam yang lain - Peminjam-peminjam memfailkan tindakan terhadap bank atas penolakan kemudahan tambahan - Sama ada penolakan kemudahan berkaitan satu peminjam memberi kesan kepada peminjam yang lain - Sama ada tuntutan boleh dipertahankan apabila peminjam-peminjam gagal menunjukkan kewujudan perhubungan antara mereka - Sama ada tindakan adalah suatu yang mengaibkan, remeh dan menyusahkan serta suatu penyalahgunaan proses Mahkamah
KETERANGAN: Keterangan dokumen - Rakaman - Kebolehterimaan - Transkrip rakaman perbualan telefon - Rakaman perbualan tidak dikemukakan bersama-sama sijil perakuan bawah s. 90A Akta Keterangan 1950 - Sama ada kesahihan dan ketepatan transkrip telah dibuktikan - Sama ada transkrip mempunyai sebarang nilai probatif - Sama ada transkrip wajar diterima sebagai keterangan dan dipertimbangkan
- Bagi pihak plaintif - T/n Ahmad Farid & Associates
- Bagi pihak defendan - T/n Sidek Teoh Wong & Dennis
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CLJ 2022 Volume 2 (Part 4)
Electrical structures/machineries do not fall under the definition of 'land' or 'building' under s. 2 of the Local Government Act 1976; They are movable and do not form part of a land or building. The High Court, in this case, thus erred in affirming the decision of the local authority in considering the electrical structures/machineries together with the land and building in assessing the improved value rate payable.
Tenaga Nasional Bhd v. Majlis Daerah Segamat [2022] 2 CLJ 497 [FC]
LOCAL GOVERNMENT | WORDS & PHRASES
LOCAL GOVERNMENT: Rates - Assessment - Imposition of 'improved value' rate on holdings - Whether ultra vires s. 129 of Local Government Act 1976 ('LGA') - Whether electrical structures/machineries could be included in valuation - Whether 'machineries' part of building - Whether fell under definition of 'land' or 'building' under s. 2 of LGA - Whether became part of land or building - Whether 'machineries' movable and detachable and stand on its own - Whether electrical structures/machineries rateable
WORDS & PHRASES: 'building' - Local Government Act 1976, s. 2 - Whether electrical structures/machineries included in definition - Whether word 'structure' in definition of 'building' part of specific descriptions or things comprising 'building' - Whether 'noscitur a sociis' rule applicable - Whether word 'structure' to be read in context of giving 'support' or 'foundation' to building - Whether electrical structures/machineries part of building
WORDS & PHRASES: 'land' - Local Government Act 1976, s. 2 - Whether 'machineries' fell within definition of 'land' - Whether movable and detachable - Whether permanently fastened - Whether rateable
AZAHAR MOHAMED CJ (MALAYA)
MOHD ZAWAWI SALLEH FCJ
ABDUL RAHMAN SEBLI FCJ
- For the appellant - Cyrus V Das, Gurmel Singh Jit Singh & David Dinesh Mathew; M/s Kenth Partnership
- For the respondent - Mohd Radzi Yatiman; M/s Rahim & Lawrnee
An application for extension of time to file a statement of defence is 'a step in the proceedings' within the meaning of s. 10(1) of the Arbitration Act 2005. It follows that the second defendant, in requesting for such extension of time, had taken a step in the proceedings. It follows further that the High Court had erred in deciding otherwise, and in granting stay and invoking the section.
IFCI Ltd v. Archipelago Insurance Ltd [2022] 2 CLJ 535 [CA]
CIVIL PROCEDURE | WORDS & PHRASES
CIVIL PROCEDURE: Appeal - Appeal against High Court judgment - Setting aside High Court decision allowing stay of proceedings on ground matter to be referred to arbitration - Whether party sought dispute to be referred to arbitration had taken 'steps in the proceedings' - Whether request for extension of time in filing statement of defence amounted to 'steps in the proceedings' - Arbitration Act 2005, s. 10(1)
WORDS & PHRASES: 'Steps in the proceedings' - Arbitration Act 2005, s. 10(1) - Whether request for extension of time for filing statement of defence amounted to 'steps in the proceedings'
NOR BEE ARIFFIN JCA
NORDIN HASSAN JCA
SEE MEE CHUN JCA
- For the appellant - Vijay Raj & Ng Kar Man; M/s Skrine
- For the respondent - Trevor George De Silva & Wong Leong Hong; M/s The Law Office of LH Wang
In a drug trafficking case, merely proving the element of physical custody without showing further the mental element of knowledge equates to failing to prove possession and is fatal to the charge. Hence, the learned trial judge in this case erred when, after accepting the appellant's defence that he had no knowledge of the existence of the drugs, concluded nonetheless that the appellant was in 'passive possession' of the offensive drugs. The appellant ought not to have been found guilty of the charge; he ought to have been acquitted and discharged.
Sri Ganesh Jaya Balan v. PP & Another Appeals [2022] 2 CLJ 546 [CA]
CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused persons each carried bag containing 3,024g and 7,033g of cannabis - First accused convicted for offence under s. 39B(1)(a) of Dangerous Drugs Act 1952 ('DDA') and sentenced to death - Second accused convicted for offence of possession under s. 39A(2) of DDA and sentenced to ten years imprisonment and ten lashes of whip - Whether first accused in actual possession of drugs - Whether second accused had knowledge of drugs - Whether conviction and sentence of accused persons safe
CRIMINAL PROCEDURE: Sentence - Appeal - Appeal against sentence - Accused carried bag containing 7,033g of cannabis - Accused convicted for offence of possession under s. 39A(2) of Dangerous Drugs Act 1952 and sentenced to ten years imprisonment and ten lashes of whip - Whether sentence adequate in view of weight of cannabis accused found to be in possession of
LAU BEE LAN JCA
RAVINTHRAN PARAMAGURU JCA
SUPANG LIAN JCA
(Criminal No: B-05(M)-120-03-2019)
- For the appellant - Geetham Ram Vincent & Aliff Bolkin; M/s Geethan Ram
- For the respondent - Mohd Dusuki Mokhtar & Mohd Azmi Mashud; DPPs
(Criminal No: B-05(SH)-121-03-2019)
- For the appellant - Hisham Teh Poh Teik, Kee Wei Lon & Low Wei Loke; M/s Teh Poh Teik & Co
- For the respondent - Mohd Dusuki Mokhtar & Mohd Azmi Mashud; DPPs
(Criminal No: B-05(H)-145-03-2019)
- For the appellant - Mohd Dusuki Mokhtar & Mohd Azmi Mashud; DPPs
- For the respondent - Hisham Teh Poh Teik, Kee Wei Lon & Low Wei Loke; M/s Teh Poh Teik & Co
An insurer or insurance company cannot avoid an insurance policy, even when an insured vehicle has been sold, if the insured's name remains on the registration card of the vehicle. This includes where the insured vehicle is driven by an unauthorised driver.
AmGeneral Insurance Bhd v. Mohamad Kassim Saad & Ors [2022] 2 CLJ 565 [HC]
INSURANCE
INSURANCE: Policy - Liability - Road accident - Insured vehicle involved in accident - Claim by third party against insured and insurer - Allegation that vehicle had been sold - Whether insured vehicle had actually been sold - Whether insurable interest of insured or insurance policy affected if insured vehicle had been sold - Whether insurer could avoid insurance policy - Road Transport Act 1987
WAN MUHAMMAD AMIN WAN YAHYA JC
- For the plaintiff - Melvin Selvam & Serena Azizuddin; M/s Sabarudin Othman & Ho
- For the 3rd defendant - Adrian Thambyrajah & Marsila; M/s Saleha Tahir & Partners
It is within the legitimate right of an advocate and solicitor who has applied to be restored to the Roll to file a claim against the Bar for alleged mala fide act and loss of opportunity to earn a living as an advocate and solicitor. Merely exercising such right does not equate to the advocate showing no repentance, remorse or penitence as would bar him from coming back to practice his trade. The applicant here has taken care of his personal behaviour and conduct in society for more than 32 years since his striking off; he is thus a fit and proper person to be re-admitted to the Roll.
Che Man Che Mud v. Majlis Peguam Malaysia [2022] 2 CLJ 585 [HC]
LEGAL PROFESSION
LEGAL PROFESSION: Roll of Advocates and Solicitors - Restoration on Roll - Application for - Fair and reasonable test - Whether applicant truly penitent and made restitution - Whether fit and proper person to resume practice at Bar - Legal Profession Act 1976, s. 107
- For the appellant - In person
- For the respondent - Heng Yee Keat & Joseph Khor; M/s Christopher & Lee Ong
A judgment in default, entered following the failure of one party to enter appearance, ought to be set aside if it was incorrectly addressed and if the intended recipient did not receive the writ and judgment in default. Such judgment in default is irregular as the writ and statement of claim is regarded as not properly served.
Darshan, Syed, Amarjit & Partners v. Saniah Sabri [2022] 2 CLJ 598 [HC]
CIVIL PROCEDURE
CIVIL PROCEDURE: Judgment - Judgment in default - Setting aside - Allegation of non-receipt of writ and statement of claim - Writ and statement of claim incorrectly addressed - Whether properly served - Intended recipient denied receiving writ and statement of claim and did not enter appearance - Judgment in default entered against intended recipient - Whether judgment in default irregular - Whether ought to be set aside
- For the appellant - Darshan Singh Gill; M/s Darshan, Syed, Amarjit & Partners
- For the respondent - Adelina Shamini D'Cruz & Hambhika Nair; M/s Adel D'Cruz & Partners
An accused who was charged with an offence under s. 26 of the Anti-trafficking in Persons and Anti-Smuggling of Migrants Act 2007 for smuggling a migrant must be proved to have committed any of the acts mentioned or listed in s. 2 thereof. The accused who was proved to have facilitated a migrant to travel by air from Kota Kinabalu to Kuala Lumpur, cannot however be said to have committed an offence under the Act or the section, as the migrant was proved to have been a resident in Sabah since the 1960s and had entered Malaysia on her own freewill and not smuggled in; under no account could the accused then be said to have 'smuggled the immigrant unlawfully or illegally into any part of Malaysia or out of Malaysia'.
PP v. Jasnih Ot Ali [2022] 2 CLJ 611 [HC]
CRIMINAL LAW
CRIMINAL LAW: Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Section 26A - Allegation that accused carried out smuggling of Filipino and undocumented migrants - Whether elements of charge proved - Whether accused arranged, facilitated or organised for illegal or unlawful migrants/foreigners to travel by air - Whether migrants had entered into Malaysia long before arrest/detention - Whether accused let migrants pass through departure hall - Whether migrants fell under definition of s. 2 of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Whether elements of actus reus and mens rea fulfilled - Whether prima facie case made out
- For the prosecution - Mohd Khairuddin Idris; DPP
- For the accused - Hamid Ismail; M/s Hamid & Co
An 'unless order' by the court is made to direct a party to perform some process requirement by a specified date and provides for the consequences of transgression. Any wilful disobedience thereto may derail the smooth administration of court proceedings and hinder the fair trial of the litigation. Hence, once a breach of the order is proven, the court may exercise its powers under O. 24 r. 16(1) of the Rules of Court 2012 and impose the sanctions as provided thereunder.
Sitrac Corporation Sdn Bhd & Anor v. Dato’ Syed Hamzah Syed Abu Bakar (Deceased) & Ors [2022] 2 CLJ 641 [HC]
CIVIL PROCEDURE
CIVIL PROCEDURE: Judgments and orders - Unless orders - Whether must be strictly complied with - Breach of - Whether non-compliance automatically attracts penalty prescribed in order - Whether blatant non-compliance shows disrespect to orders - Factors considered by court in evaluating reasons for breach of unless orders - Whether non-compliance gave rise to substantial risk that not possible to have fair trial - Whether defence ought to be struck out - Rules of Court 2012, O. 24 r. 16
- For the plaintiff - Lim Kian Leong & Jessica Chong; M/s Lim Kian Leong & Co
- For the 1st defendant - Mak Lin Kum, Layyin Teh Hassan & Kavenesh (Pdk); M/s Syed Ibrahim & Co
- For the 2nd defendant - Zuriatul Mida Nor Azmi & Nor Syairah Sulaiman; Suruhanjaya Syarikat Malaysia
- For the 3rd defendant - Jeyakumar Palakrishnar & Barry Boey Chee Wai; M/s Zahir Jeya & Zainal
ARTICLES
LNS Article(s)
THE 2021 ISRAELI-PALESTINIAN CONFLICT AND CHALLENGES TO INTERNATIONAL HUMANITARIAN LAW: AN OVERVIEW [Read excerpt]
by Nehaluddin Ahmad[i] Mohammad Abul Fadle Mohiddin[ii] Muhammad Azim bin Lakar[iii] Muhammad Faiz bin Muhammad Fadhilah[iv] [2022] 1 LNS(A) xx
[2022] 1 LNS(A) xx
INTERNATIONAL
THE 2021 ISRAELI-PALESTINIAN CONFLICT AND CHALLENGES TO INTERNATIONAL HUMANITARIAN LAW: AN OVERVIEW
by
Nehaluddin Ahmad[i]
Mohammad Abul Fadle Mohiddin[ii]
Muhammad Azim bin Lakar[iii]
Muhammad Faiz bin Muhammad Fadhilah[iv]
ABSTRACT
The Israeli-Palestinian conflict arose as a result of Israel's occupation of the West Bank and Gaza Strip. Israel's claims are based on public declarations of entitlements to a Jewish homeland in Palestine during the Balfour Declaration, which followed the British government's mandate of Palestine. This paper will focus on the chronology of historical events surrounding the Ottoman Empire's demise, which resulted in the Middle East losing such provinces to western powers as mandate states. Following the aftermath of 1948, Israel gained independence, raising questions about whether it upheld international humanitarian law and how it adheres to the four Geneva Conventions and their Additional Protocols. It also investigates whether the prolonged occupation of Israel is permissible under international law. The paper would also cover the policies and practices of Israel of territorial occupation, the status of the Palestinian occupied territories, the changes in the governmental system in the Palestinian occupied territories, laws applicable to the occupied territories, and its legality by the International Courts of Justice. It will also discuss how the current Israel hostility in May 2021 has breached the international humanitarian law. Commentary and analysis will be made conclusively on Israel's adherence to international humanitarian law and the concepts of jus ad bellum and jus in bello principles.
. . .
THE INTOLERANCE OF MALAYSIAN GOVERNMENT ON LGBT COMMUNITY: RIGHT OR WRONG? [Read excerpt]
by Emilia Ting Nguong Xue[i]Nabeel Mahdi Althabhawi[ii] [2022] 1 LNS(A) xix
[2022] 1 LNS(A) xix
MALAYSIA
THE INTOLERANCE OF MALAYSIAN GOVERNMENT ON LGBT COMMUNITY: RIGHT OR WRONG?
by
Emilia Ting Nguong Xue[i]
Nabeel Mahdi Althabhawi[ii]
In recent years, same-sex relations, activity, and marriage have been legalized in several countries such as Argentina, Australia, Canada, France, Germany, and New Zealand. Legalizing indicates that people's acceptance of LGBT (lesbian, gay, bisexual, and transgender) has increased globally. Nevertheless, the debate among human rights activists and the government on the issues of LGBT is not uncommon anymore in Malaysia. The problem was further heated recently when Malaysian transgender entrepreneur Nur Sajat fled to Thailand and Australia to escape from the conviction by the religious authorities. Nur Sajat is wanted by the Malaysian government as she is accused of insulting Islam by dressing as a woman. Nur Sajat's case has highlighted the intolerance of the Malaysian government on the issues of LGBT. The human rights activists have made a strong stand against the government's action to pursue Nur Sajat and criminalize same-sex relations and gender non-conformity. They believe that everyone is equal and that everyone has the same rights. However, despite receiving strong objections, the government still held its stance when the Perlis Islamic authority decided to prohibit transgender people from entering mosques for worship. The government believe that criminalizing LGBT is a solution that curbs the problem, and they are merely upholding religious beliefs in the country, which is in line with the Syariah. It might sound ridiculous to justify the government's action and it is may appear unreasonable to impose harsher punishment on them, but, from the opinions of natural law school, it is understandable and acceptable.
. . .
LEGISLATION HIGHLIGHTS
Principal Acts
| Number |
Title |
In force from |
Repealed |
Superseded |
| ACT 834 |
Malaysian Space Board Act 2022 |
Not Yet In Force |
- |
- |
| ACT 833 |
Finance Act 2021 |
The Income Tax Act 1967 [Act 53] see s 3; the Real Property Gains Tax Act 1976 [Act 169] see s 29; the Stamp Act 1949 [Act 378] see s 36; the Petroleum (Income Tax) Act 1967 [Act 543] see s 45; the Labuan Business Activity Tax Act 1990 [Act 445] see s 52; the Promotion of Investments Act 1986 [Act 327] see s 59; the Finance Act 2012 [Act 742] see s 64 and the Finance Act 2018 [Act 812] see s 66 |
- |
- |
| ACT 832 |
Societies Act 1966 (Revised 2021) |
1 December 2021 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 14 November 2021; First enacted in 1966 as Act of Parliament No 13 of 1966; First Revision - 1987 (Act 335 wef 19 October 1987) |
- |
Societies Act 1966
(Revised 1987)
[ACT 335] |
| ACT 831 |
Finance Act 2020 |
The Income Tax Act 1967 [Act 53] see s 3, the Real Property Gains Tax Act 1976 [Act 169] see s 31, the Stamp Act 1949 [Act 378] see s 39, the Petroleum (Income Tax) Act 1967 [Act 543] see s 51, the Labuan Business Activity Tax Act 1990 [Act 445] see s 55, the Finance Act 2012 [Act 742] see s 63 and the Finance Act 2018 [Act 812] see s 65 |
- |
- |
| ACT 830 |
Temporary Measures For Government Financing (Coronavirus Disease 2019 (COVID-19)) Act 2020 |
27 February 2020 until 31 December 2022 except s 3; 26 October 2020 until 31 December 2022 - s 3 |
- |
- |
Amending Acts
| Number |
Title |
In force from |
Principal/Amending Act No |
| ACT A1647 |
Malaysia Deposit Insurance Corporation (Amendment) Act 2022 |
22 February 2022 [PU(B) 120/2022] except sections 12, 13, 14, 15, 16, 17, 22, 23, 24, 25, 26 and 27 |
ACT 720 |
| ACT A1646 |
Wildlife Conservation (Amendment) Act 2022 |
Not Yet In Force |
ACT 716 |
| ACT A1645 |
Copyright (Amendment) Act 2022 |
Not Yet In Force |
ACT 332 |
| ACT A1644 |
Anti-Trafficking In Persons and Anti-Smuggling of Migrants (Amendment) Act 2022 |
22 February 2022 [PU(B) 116/2022] |
ACT 670 |
| ACT A1643 |
Small Estates (Distribution) (Amendment) Act 2022 |
Not Yet In Force |
ACT 98 |
PU(A)
PU(B)
Legislation Alert
Updated
| Act/Principal No. |
Title |
Amended by |
In force from |
Section amended |
| AKTA 720 |
Akta Perbadanan Insurans Deposit Malaysia 2011 |
AKTA A1647 |
22 Februari 2022 [PU(B) 120/2022] kecuali seksyen 12, 13, 14, 15, 16, 17, 22, 23, 24, 25, 26 dan 27 |
Seksyen 2, 11, 12, 13, 16, 18, 28, 34, 41, 54, 63, 67, 69, 78, 93, 97A, 102, 129, 131A, 131B, 132, 133, 134, 134A, 134B, 137 - 139, 142A, 142B, 144, 146, 150, 160, 181, 182, 186, 207A, 209, Jadual Kedua dan Jadual Ketiga |
| ACT 720 |
Malaysia Deposit Insurance Corporation Act 2011 |
ACT A1647 |
22 February 2022 [PU(B) 120/2022] except sections 12, 13, 14, 15, 16, 17, 22, 23, 24, 25, 26 and 27 |
Sections 2, 11, 12, 13, 16, 18, 28, 34, 41, 54, 63, 67, 69, 78, 93, 97A, 102, 129, 131A, 131B, 132, 133, 134, 134A, 134B, 137 - 139, 142A, 142B, 144, 146, 150, 160, 181, 182, 186, 207A, 209, Second and Third Schedule |
| AKTA 670 |
Akta Antipemerdagangan Orang Dan Antipenyeludupan Migran 2007 |
AKTA A1644 |
22 Februari 2022 [PU(B) 116/2022] |
Seksyen 2, 6, 12, 13, 14, 15A, 19, 26A - 26C, 27, 42, 43, 51, 54, 57 dan 66 |
| ACT 670 |
Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 |
ACT A1644 |
22 February 2022 [PU(B) 116/2022] |
Sections 2, 6, 12, 13, 14, 15A, 19, 26A - 26C, 27, 42, 43, 51, 54, 57 and 66 |
| AKTA 505 |
Akta Pentadbiran Undang-Undang Islam (Wilayah-Wilayah Persekutuan) 1993 |
PU(B) 93/2022 |
12 Februari 2022 |
Jadual Ketiga |
Revoked
|
