CASE(S) OF THE WEEK
LKP & ANOR v. PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN, MALAYSIA [2023] 3 CLJ 243
HIGH COURT MALAYA, SHAH ALAM
FAIZAH JAMALUDIN J
[ORIGINATING SUMMONS NO: BA-24-25-08-2019]
31 JANUARY 2023
An adopted child born after Malaysia Day who was registered as a Malaysian citizen, albeit based on false information given by her adoptive parents, meant that it would have been legally impossible for her to have acquired within one year after her birth the citizenship of any other country by virtue of any provision corresponding to s. 1(c) of Part II of the Second Schedule of the Federal Constitution ('FC') or otherwise. Thus, the child was a citizen of Malaysia by operation of law pursuant to art. 14(1)(b) and s. 1(e) and s. 2(3) of Part II of the Second Schedule of the FC.
CONSTITUTIONAL LAW: Citizenship - Citizenship by operation of law - Malaysian citizen couple adopted child - Identity of biological parents unknown - Child registered as Malaysian citizen based on false information and was issued birth certificate stating child as 'citizen' - Whether legally possible for child to acquire within one year of birth citizenship of any other country - Whether child citizen of Malaysia by operation of law pursuant to art. 14(1)(b) and s. 1(e) and s. 2(3) of Part II of Second Schedule of Federal Constitution - Whether child ought to be registered as citizen of Malaysia
MUHAMMED YUSOFF RAWTHER v. DATO' SERI ANWAR IBRAHIM [2023] 3 CLJ 278
HIGH COURT MALAYA, KUALA LUMPUR
JOHAN LEE KIEN HOW JC
[CIVIL SUIT NO: WA-22NCvC-491-07-2021]
22 NOVEMBER 2022
The court, in a striking out application, should not conduct a minute examination of the documents and facts of the case. If the case, on the face of it, raises issues to be tried, the mere fact that the case is weak or that one party believed that the opposing party would likely not be successful in his case, could not be the basis for striking out the pleadings.
CIVIL PROCEDURE: Striking out - Defence - Application to strike out paragraphs in defendant's statement of defence - Whether statements baseless and irrelevant to case - Whether defendant allowed to plead facts deemed necessary for defence - Whether statements intended to shed bad character evidence - Whether statements ought to be expunged - Rules of Court 2012, O. 18 r. 19(1)
CIVIL PROCEDURE: Striking out - Counterclaim - Application to strike out defendant's counterclaim - Whether defendant fulfilled elements for claim of tort of abuse of process - Whether process complained of had been initiated - Whether collateral purpose of counterclaim sufficiently pleaded - Whether reasonable cause of action raised by defendant in counterclaim - Whether there were conflicting facts and serious issues to be tried - Rules of Court 2012, O. 18 r. 19(1)
JUDICIAL QUOTES
“We are of the view that the moment a sum of money is deposited with an investment bank, the bank must find out whose money it is and whether the depositor is already its customer. If it is not then it should verify who the depositor is and the documents substantiating the customer's identity as well as the relevant resolutions for the opening of an account with the investment bank and who are the relevant signatories of the account.
Whilst the presence of an account certainly establishes the person as a bank customer, it may not be the sole consideration. We agree with the plaintiff that the duration of the relationship is not of the essence in establishing if an entity or person is a customer of the bank.
We accept as the correct proposition of law that the test for breach of the duty of care in the context of banking transactions is whether a reasonably prudent banker, faced with the same circumstances, would regard the course of action taken on the facts justifiable.” Per Lee Swee Seng JCA in Koperasi Sahabat Amanah Ikhtiar Bhd v. RHB Investment Bank Bhd [2023] 1 CLJ 495
LATEST CASES
Legal Network Series
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[2022] 1 LNS 50
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SHARMIDA MANSUR v. SURUHANJAYA PERKHIDMATAN PELAJARAN & ANOR
A challenge on the use of the appropriate procedure to commence an action against public authorities is very much fact-based. The test to determine the proper procedure to be adopted is to ascertain whether a public law element exists in the dispute. If the claim is based solely on public law, it must be commenced by way of judicial review under O. 53 of the Rules of Court 2012 ('ROC'). If it is a mixture of public and private law and the public law element is more predominant, it also must be commenced by way of judicial review under O. 53 of ROC.
CIVIL PROCEDURE: Striking out - Originating summons - Action filed to quash decision of public authority - Wrong mode of commencement - Issue relating to dismissal of plaintiff - Action against wrong party - Whether dismissal of plaintiff was done in accordance to statutory laws - Whether dismissal of plaintiff involved element of public law - Whether action ought to be commenced by way of judicial review under O. 53 of Rules of Court 2012 ('ROC') - Whether action commenced was an attempt to circumvent stringent requirement in O. 53 r. 3(6) of ROC - Whether action commenced was an abuse of process of court
- For the plaintiff - Abd Shukor Tokachil; M/s Shukor & Associates
- For the defendants - Krishna Priya Venugopal, Federal Counsel; Civil Division, Attorney General's Chambers
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[2022] 1 LNS 60
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MALPAKAT LEISURE GROUP SDN BHD v. EASTERN GLOBAL SUMMIT SDN BHD
There is a need for contemporaneous protests if the contents of invoices for work done are disputed during the period of subsistence of the contract in question. Failure to detail the sum disputed and the reasons may give rise to estoppel against the party that had, by design or default, chosen to placidly hold its peace.
CIVIL PROCEDURE: Summary judgment - Claim for work done - Claim for outstanding sum owed for installation services provided - Allegation of contra payment and delay in providing services - Whether there were sufficient particulars provided on contra payment agreement - Whether documentary evidence required to support averments in defence - Whether bare averments could give rise to a triable issue - Whether defendant's averments an afterthought - Whether defendant was estopped from raising any issues regarding services provided by plaintiff - Whether imposition of interest on overdue payment gives rise to a triable issue - Whether there was bona fide defence
- For the appellant/defendant - Lim Seah Le; M/s KF Low & Co
- For the respondent/plaintiff - K Vinodhan; M/s Vinodhan Kuppusamy
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[2022] 1 LNS 63
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GROUP SEVEN SDN BHD v. LAMAN PESONA SDN BHD
A party intending to raise a preliminary objection must inform his opponent of his intention to raise the preliminary objection, not by a mere statement in the affidavit. Failure to do so could result in the said party waiving his right to object.
CIVIL PROCEDURE: Affidavits - Use of affidavit - Reliance of affidavit filed in different application but involving same case - Affidavit filed for injunction application used to strike out application - Objection raised by way of preliminary objection - Whether affidavit filed had caused prejudice to other party - Whether there was proper notice of preliminary objection - Whether right to raise objection had been waived
CIVIL PROCEDURE: Striking out - Action - Dispute relating to contractual relationship - Absence of any written contract to confirm existence of contractual relationship - Whether there was contract between parties - Whether plaintiff has any cause of action against defendant - Whether action ought to be dismissed
- For the plaintiff - Jacky Loi & Lim Jin Wen; M/s T Y TEH & Partners
- For the defendant - Kennie Ang, Yin Yin & Jaryne Lam; M/s Ang & Lau Puchong
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[2021] 1 LNS 1311
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ERMA RAHAYU ABD RAZAK & YANG LAIN lwn. MUHAMAD DANISH HARIRI AZUAN & SATU LAGI
1. Sesuatu awad perlu mengambil kira peredaran masa. Justeru, apabila merujuk kepada kes-kes yang agak lama dalam memberikan awad gantirugi, mahkamah perlu mengambil kira faktor inflasi dan membuat perubahan yang sewajarnya. Kegagalan berbuat demikian mewajarkan satu campur tangan rayuan.
2. Penjagaan oleh ahli keluarga tidak terjumlah kepada satu pekerjaan yang boleh dibuat perbandingan dengan skim gaji minimum yang ditetapkan oleh kerajaan. Justeru, gaji minimum tidak boleh dijadikan penanda aras dalam menentukan kos penjagaan yang dituntut oleh ahli keluarga.
GANTI RUGI: Kecederaan diri - Kecederaan otak - Ketidakupayaan berkekalan - Plaintif memerlukan jururawat bertauliah 24 jam sehingga akhir hayat - Sama ada awad ganti rugi perlu mengambil kira peredaran masa - Sama ada faktor inflasi perlu diambil kira dalam merujuk kes-kes lama
GANTI RUGI: Ganti rugi khas - Kos perjalanan - Kos perjalanan untuk mendapatkan rawatan pesakit luar - Kos penggunaan ambulans - Plaintif mengalami kecederaan otak kekal - Sama ada terdapat keterangan yang mencukupi untuk mengawadkan kos perjalanan
GANTI RUGI: Kecederaan diri - Kos penjagaan - Kos penjagaan pra-bicara - Tuntutan oleh suami plaintif - Penentuan kos - Gaji minimum - Sama ada gaji minimum boleh dijadikan penanda aras - Sama ada penjagaan oleh ahli keluarga terjumlah kepada satu pekerjaan
- Bagi pihak perayu - Ganesan & Kameshwary; T/n Kames Associates
- Bagi pihak responden - Aisyah Basirah Mohd Nooruldeen; T/n Othman Hashim & Co
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[2021] 1 LNS 1315
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SHAHARUDIN YAAKOB lwn. PENS INDUSTRIES SDN BHD & SATU LAGI
Mahkamah Perusahaan dalam membuat keputusannya perlu menyatakan dan menunjukkan bahawa ia telah mengambil kira dan memberi pertimbangan yang adil dan sewajarnya bagi setiap isu di mana awad yang telah diberikan dan kegagalan berbuat sedemikian mewajarkan pembatalan awad tersebut melalui suatu perintah certiorari.
UNDANG-UNDANG PENTADBIRAN: Semakan kehakiman - Certiorari - Permohonan untuk membatalkan awad Mahkamah Perusahaan yang mengesahkan pemecatan pemohon oleh majikannya - Pemohon dipecat kerana terlibat dalam salah laku konflik kepentingan dengan menandatangani borang pesanan bagi syarikat milik penuh isterinya - Mahkamah Perusahaan hanya memberikan alasan awad yang ringkas - Sama ada hukuman pemecatan kerja adalah setimpal dengan salah laku yang didakwa - Sama ada Mahkamah Perusahaan gagal mempertimbangkan hukuman alternatif yang lain - Sama ada Mahkamah Perusahaan telah mengguna pakai prinsip beban pembuktian dengan betul - Sama ada awad Mahkamah Perusahaan wajar dibatalkan melalui perintah certiorari
- Bagi pihak pemohon - H Y Loo; T/n Y.K. Loo & Co
- Bagi pihak responden - Siti Rafidah Abdul Raof & Nurul Najiha Pazil; T/n Aswandi Hashim & Company
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CLJ 2023 Volume 3 (Part 1)
Mahkamah, dalam tindakan terhadap tohmahan lisan, perlu mempertimbangkan keseluruhan kenyataan yang diadukan sebagai memfitnah dan mengguna pakai ujian objektif, iaitu, memberi maksud yang difahami oleh seorang yang munasabah. Bukan hanya perkataan yang digunakan, malahan, punca dan antidot ucapan yang dikatakan memfitnah perlu dipertimbangkan secara keseluruhannya sebelum kes itu diputuskan.
Dato’ Profesor Hj Mahamad Naser Disa lwn. YB Khalid Abdul Samad [2023] 3 CLJ 1 [CA]
TORT
TORT: Fitnah - Tohmahan lisan - Sama ada mengandungi tuduhan melulu berniat jahat terhadap Ahli Parlimen ('MP') - Sama ada perkataan-perkataan diterbitkan kepada orang awam - Sama ada keseluruhan artikel dipertimbangkan - Sama ada mempunyai konotasi atau membawa makna MP hilang integriti, berlaku korup, tidak jujur atau melakukan salah laku dalam perjawatan - Sama ada elemen asas pembuktian bawah s. 5 Akta Fitnah 1957 dibuktikan - Sama ada perkataan-perkataan yang diadukan membawa makna lazim dan semulajadi bersifat defamatori - Sama ada 'penerbitan' kepada pihak ketiga dibuktikan secukupnya
NOR BEE ARIFFIN HMR
VAZEER ALAM MYDIN MEERA HMR
MARIANA YAHYA HMR
- Bagi pihak perayu - Hasnal Rezua Merican & Muzammil Merican Hasnal Rezua Merican; T/n The Chambers of Kamarul Hisham & Hasnai Rezua
- Bagi pihak responden - Muhammad Faiz Fadzil & Mohd Faizal Abdullah; T/n Faiz Fadzil & Co
Order 14 of the Rules of Court 2012 is not applicable to contest probate matters which are governed exclusively by O. 72 and which must ordinarily be dealt with at a full trial. The only occasion when a contentious probate may be disposed of summarily is via the procedure as prescribed and on the occasion when O. 71 r. 38(1) and (2) applies.
Lee Ah Sin v. Wasunan Tonrab & Anor [2023] 3 CLJ 23 [CA]
CIVIL PROCEDURE
CIVIL PROCEDURE: Judgments and orders - Summary judgment - Probate action - Disputes regarding validity of wills - Whether matter could be decided summarily by affidavits - Whether there were contentious issues that must be dealt with at trial - Whether summary judgment procedure applicable to probate action - Rules of Court 2012, O. 14, O. 72
AZIZAH NAWAWI JCA
S NANTHA BALAN JCA
DARRYL GOON SIEW CHYE JCA
- For the appellants - Nurashidah Md Razip & Mohd Amirul Asyraf Bini Mazuri; M/s Chiong & Partners
- For the respondents - Clarence Edwin, R Paramanandan & S Humah Devi; M/s Clarence Edwin Law Offices
A stay of proceedings pending reference of a dispute to arbitration ought not to be allowed when it prevents an aggrieved party from proceeding to trial to prove its claim on triable issues. As the issues that the arbitral proceedings will deal with and the issues that the court is to determine are different, arbitral proceedings can proceed concurrently with the court proceedings. Neither the 'rare and compelling circumstances' test or the traditional special circumstances test are satisfied herein to warrant the grant of a stay.
Abdul Latiff Hj Mohaideen v. Measat Broadcast Network Systems Sdn Bhd [2023] 3 CLJ 54 [HC]
CIVIL PROCEDURE
CIVIL PROCEDURE: Stay of proceedings - Appeal against - Appeal against stay of proceedings pending reference of dispute to arbitration - Whether claim premature - Whether there would be multiplicity of proceedings if arbitral proceedings proceeded at same time with court proceedings against director of company - Whether there would be risk of conflicting decisions - Whether rare and compelling circumstances test or special circumstances test satisfied - Whether stay ought to be granted
- For the appellant - K Shanti Mogan & Denise Choo; M/s Shearn Delamore & Co
- For the respondent - Faisal Moideen & Julian Ch'ng; M/s Moideen & Max
(i) As the property buyer had full knowledge of the extension of time for vacant possession obtained by the housing developer from the Controller of Housing at the time it signed the sales and purchase agreement, it was therefore bound by it. There was much force for the doctrine of estoppel to apply; (ii) An O. 14 summary judgment application for liquidated damages based on the alleged delay in delivery of vacant possession ought to also be dismissed if the opposing party has successfully raised triable issues.
Avantgarde Arena Sdn Bhd v. Prema Bonanza Sdn Bhd [2023] 3 CLJ 68 [HC]
CIVIL PROCEDURE | LAND LAW
CIVIL PROCEDURE: Summary judgment - Appeal for - Filing for O. 14 judgment for liquidated damages based on late delivery of vacant possession - Whether plaintiff had full knowledge of extension of time obtained by defendant at time of signing of sale and purchase agreement - Whether filing of suit time-barred - Triable issues - Whether arose
LAND LAW: Housing developers - Vacant possession - Late delivery of - Whether plaintiff had full knowledge of extension of time obtained by defendant at time of signing of sale and purchase agreement - Whether filing of suit time-barred - Triable issues - Whether arose - Whether summary judgment application ought to be dismissed
- For the appellant - Lim Kien Huat & Nihad Alwi (Pupil In Chambar); M/s Lee & Lim
- For the respondent - Lai Chee Hoe & Ooi Xin Yi; M/s Chee Hoe & Assoc
Upon his discharge from bankruptcy, a bankrupt is released from all debts provable in bankruptcy except for: (i) any debt due to the Government of Malaysia or any State; (ii) any debt which the bankrupt may be chargeable under any written law relating to public revenue ie, the Income Tax 1967 or a bail bond he had entered into; (iii) any provable debt which he incurred in respect of, or forbearance in respect of which was secured by means of, any fraud or fraudulent breach of trust to which he was party; or (iv) any liability he incurred in respect of a fine imposed for an offence.
Mohd Sofi Abdul Ghafar v. Ketua Pengarah Insolvensi & Anor [2023] 3 CLJ 82 [HC]
BANKRUPTCY | TORT
BANKRUPTCY: Discharge - Discharge of bankrupt - Creditors, including Inland Revenue Board ('IRB'), filed proofs of debt after bankrupt adjudged bankrupt - Director General of Insolvency ('DGI') discharged bankrupt from bankruptcy and issued certificate of discharge from bankruptcy - DGI intended to distribute proceeds of property in bankrupt's estate in bankruptcy through payment of dividends in pari passu to creditors, after payment of sums owing to IRB - Whether bankrupt released from all debts provable in bankruptcy upon certificate being issued - Whether all debts owing wiped out - Whether creditors had right to receive dividends from bankrupt's estate in bankruptcy - Insolvency Act 1967, ss. 33A, 35, 43 & 105(2)
TORT: Misfeasance - Misfeasance in public office - Discharge of bankrupt - Creditors, including Inland Revenue Board ('IRB'), filed proofs of debt after bankrupt adjudged bankrupt - Director General of Insolvency ('DGI') discharged bankrupt from bankruptcy and issued certificate of discharge from bankruptcy - DGI intended to distribute proceeds of property in bankrupt's estate in bankruptcy through payment of dividends in pari passu to creditors, after payment of sums owing to IRB - Whether DGI mismanaged bankrupt's estate in bankruptcy - Whether there was misfeasance in public office - Whether there was abuse of power in bad faith - Whether Government of Malaysia vicariously liable for tort allegedly committed by DGI
- For the plaintiff - Krishna Roy Sreenivasan; M/s Lachman Lalchand & Assocs
- For the defendants - Mohd Azhar Hamzah; SFC
The COVID-19 pandemic hit the entire world, resulting in the imposition of a total lockdown by the Government, causing disruptions to many activities. The COVID-19 Act 2020 ('Act') came into force providing temporary measures to reduce the effects of the COVID-19 disease, including modifying related provisions in several Acts. Whilst matters relating to the National Land Code ('NLC') were not included in the Act, the court may, in order to preserve the intention and aspirations of the Act, ie, to help reduce the effects and impact, in particular, on matters involving legal obligations and rights of the people and affected parties, exercise its inherent powers to allow suspension of time during the total lockdown period to be excluded in the computation of time period in the NLC, in this case, under s. 257(1)(g) of the NLC.
Public Islamic Bank Bhd v. Fadhil Husseiin Ishak Yassin Mansor; MS Citajaya Sdn Bhd (Proposed Intervener) [2023] 3 CLJ 102 [HC]
LAND LAW
LAND LAW: Order for sale - Extension of time - Payment of balance purchase price - Computation of 120 days under s. 257(1)(g) of National Land Code - Whether court empowered to allow suspension of time during total lockdown announced by Government during COVID-19 pandemic - Whether purchaser purely precluded under conditions beyond their control - Whether court could intervene to prevent injustice
- For the plaintiff - Ahmad Zamri Asaad Khuzami & Ahmad Dzulhaziq Ahmad Mahmod; M/s Che Mokhtar & Ling
- For the defendant - Fadhil Husseiin Ishak Yassin Mansor; In person
- For the proposed intervener - Suhaida Mohd Esa; M/s Azri, Lee Swee Seng & Co
A hakam, as an officer of the Syariah Court who executes the lawful orders of the Syariah Court Judge, is entitled to judicial immunity under s. 14(1) and (2) of the Courts of Judicature Act 1964.
Tan Sri Rozali Ismail v. Abdul Hadi Hamad & Anor [2023] 3 CLJ 113 [HC]
ISLAMIC LAW
ISLAMIC LAW: Syariah Court - Hakam - Immunity - Complaints against court-appointed hakams - Allegations that hakams issued malicious and false statements in Syariah divorce proceedings and negligently breached duties - Hakams allegedly led Syariah Lower Court to order divorce and caused pecuniary damages and/or losses - Whether hakams protected by judicial immunity - Whether hakams enjoyed judicial/courtroom privilege - Courts of Judicature Act 1964, ss. 14(1) & (2)
- For the appellant - Abdul Razak Muhidin, Lim Choon Khim, Nini Shirma Rahmat, Chin Yan Leng & Elyazura Md Shaarani; M/s CK Lim Law Chambers
- For the respondent - Mohd Ashraf Abd Hamid; FC
The provisions of the Law Reform (Marriage and Divorce) Act 1976 ('LRA') were discussed, deliberated and determined during a time when the demarcation of the roles of husband and wife were clear where most women were stay-home mothers and were financially dependent on their husbands who were breadwinners for the family. However, a whole generation had transitioned since the LRA was enacted and along with it, the traditional roles of husband and wife have evolved. As such, there is no automatic right for a woman to claim maintenance from her husband.
YAY v. WHO & Anor [2023] 3 CLJ 135 [HC]
FAMILY LAW
FAMILY LAW: Children - Guardianship - Sole guardianship - Petition for divorce filed by wife against husband - Wife applied for sole guardianship of child - Whether wife ought to be granted sole guardianship of child - Whether parties should co-parent - Guardianship of Infants Act 1961, s. 3
FAMILY LAW: Divorce - Petition - Petition for divorce - Marriage broken down - Allegations of adultery - Whether adultery proven - Whether adultery cause of breakdown of marriage - Whether circumstantial evidence may be relied upon to establish adultery - Whether petitioner entitled to damages arising from adultery - Law Reform (Marriage and Divorce) Act 1976, ss. 53 & 54(1), (b)
FAMILY LAW: Maintenance - Child's maintenance - Claim for - Petition for divorce filed by wife against husband - Whether husband ought to pay maintenance of child
FAMILY LAW: Maintenance - Spousal maintenance - Claim for - Petition for divorce filed by petitioner wife against husband - Whether petitioner wife entitled to spousal maintenance - Whether husband must maintain wife - 'Means and needs' test - Law Reform (Marriage and Divorce) Act 1976, ss. 77(1), 78
FAMILY LAW: Matrimonial assets - Claim for - Petition for divorce filed by wife against husband - Short period of marriage - Whether petitioner wife entitled to division of matrimonial assets
- For the petitioner - Bernard Scott; M/s Sault, Scott & Co
- For the respondent - April Tay; M/s Chow Kok Leong & Co
- For the co-respondent - April Tay; M/s Chow Kok Leong & Co
ARTICLES
CLJ Article(s)
HAS THE DERBYSHIRE PRINCIPLE FOUND ITS WAY INTO MALAYSIAN JURISDICTION? [Read excerpt]
by MOHD TAUFIK MOHD YUSOFF* [2023] 3 CLJ(A) i
[2023] 3 CLJ(A) i
MALAYSIA
HAS THE DERBYSHIRE PRINCIPLE FOUND ITS WAY INTO MALAYSIAN JURISDICTION?
by
MOHD TAUFIK MOHD YUSOFF*
Introduction
In England, prior to the seminal decision by the House of Lords in Derbyshire Country Council v. Times Newspapers Ltd [1993] AC 534 ('Derbyshire'), the common law on the issue of whether a local authority may sue a private citizen for defamation was uncertain. The House of Lords has overruled Bognor Regis Urban District Council v. Campion [1972] 2 QB 169, which had decided that a local authority may sue for defamation against a private citizen. The House of Lords has pronounced a crucial decision that has affected the rights of the democratically elected governmental body, or any governmental body, to sue for defamation against a private citizen, as it is contrary to public interest to do so.
This principle has also been applied and considered in several other jurisdictions such as in India[1], Hong Kong[2], Australia[3] and New Zealand[4].
. . .
LNS Article(s)
MAJLIS ANGKATAN TENTERA MALAYSIA & ANOR v. MEJAR FADZIL ARSHAD [2012] 4 CLJ 748: THE ARMED FORCES AND NATURAL JUSTICE* [Read excerpt]
by Edyn Gan Ee Ling** [2023] 1 LNS(A) xxi
[2023] 1 LNS(A) xxi
MALAYSIA
MAJLIS ANGKATAN TENTERA MALAYSIA & ANOR v. MEJAR FADZIL ARSHAD [2012] 4 CLJ 748:
THE ARMED FORCES AND NATURAL JUSTICE*
by
Edyn Gan Ee Ling**
INTRODUCTION
In modern society, where war is no longer a norm in most countries, the armed forces nevertheless still play an essential role in ensuring a safe environment that enables citizens to enjoy their fundamental freedoms and rights. In the context of Malaysian society, the question arises as to whether armed forces personnel should be accorded the same fundamental rights as every other Malaysian. In Malaysia, the armed forces are bound by the Federal Constitution and the Armed Forces Act 1972 ('the Act') in exercising their rights and performing their duties. But are their rights always guaranteed under the Constitution and the Act?
. . .
DEVELOPMENT OF CONFLICT OF JURISDICTION BETWEEN CIVIL AND SYARIAH COURT [Read excerpt]
by Zubli Quzairyl Zubli[i] Ainul Mardhiyyah Tajudin[ii] Norsyazrah Zulkifli[iii] Imran Alli Mohd Razz Rozzfaisal[iv] Nur Dalili Fahimah Nuradli Ridzwan Shah[v] Ameer Mikhail Suhaimi[vi] [2023] 1 LNS(A) xxii
[2023] 1 LNS(A) xxii
MALAYSIA
DEVELOPMENT OF CONFLICT OF JURISDICTION BETWEEN CIVIL AND SYARIAH COURT
by
Zubli Quzairyl Zubli[i]
Ainul Mardhiyyah Tajudin[ii]
Norsyazrah Zulkifli[iii]
Imran Alli Mohd Razz Rozzfaisal[iv]
Nur Dalili Fahimah Nuradli Ridzwan Shah[v]
Ameer Mikhail Suhaimi[vi]
ABSTRACT
The conflict between civil and Syariah courts is a long-standing issue even before the insertion of clause (1A) of Article 121 of the Federal Constitution. It seems that the civil court had encroached on the jurisdiction of the Syariah court in most of the decided cases. Needless to say, the amendment of the Federal Constitution in 1988 had separated the jurisdiction of the civil and Syariah court, whereby both courts cannot interfere and encroach on the other jurisdiction. After 1988, several cases went to the apex court to determine whether such cases fell under the civil or Syariah court jurisdiction. Therefore, this paper aims to analyse the development of conflict of jurisdiction between civil and Syariah courts as separated by Article 121(1A) of the Federal Constitution, particularly by looking closely into the new development of cases such as the case of Iki Putra Mubarrak v. Kerajaan Negeri Selangor [2020] 6 CLJ 133. Apart from the discussion, a conclusion and recommendations to reduce the tension and conflict between civil and Syariah court will be made to uphold Article 121(1A). Considering that Malaysia is a dualistic country that practices civil and Syariah litigation, such conflict might lead to a floodgate of unwanted cases when the civil court encroaches on the Syariah court's jurisdiction.
. . .
LEGISLATION HIGHLIGHTS
Principal Acts
| Number |
Title |
In force from |
Repealed |
Superseded |
| ACT 843 |
Preservation of Public Security (Sabah) Act 1962 (Revised 2023) |
1 March 2023 Date appointed for coming into operation of this revised edition pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 15 February 2023; First enacted in 1962 as Sabah Ordinance No 6 of 1962 |
Emergency Powers Ordinance
[Sabah Cap. 41] |
Preservation of Public Security Ordinance, 1962
[Sabah Ordinance No. 6 of 1962] |
| ACT 842 |
Penang Free School Act 1920 (Revised 2023) |
1 March 2023 Date appointed for coming into operation of this revised edition pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 15 February 2023; First enacted in 1920 as Straits Settlement Cap 259 |
- |
Penang Free School Ordinance, 1920
[S.S. Cap. 259] |
| ACT 841 |
Pensions Act 1951 (Revised 2022) |
15 November 2022 Date appointed for coming into operation of this revised edition pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2022; First enacted in 1951 as Ordinance No 1 of 1951 |
- |
- |
| ACT 840 |
Anti-Sexual Harassment Act 2022 |
Not Yet Inforce |
- |
- |
| ACT 839 |
Independent Police Conduct Commission Act 2022 |
1 July 2023 [PU(B) 574/2022] |
- |
- |
Amending Acts
PU(A)
PU(B)
Legislation Alert
Updated
Revoked
| Act/Principal No. |
Title |
Revoked by |
In force from |
| PU(A) 358/2022 |
Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 17) Order 2022 |
PU(A) 49/2023 |
28 February 2023 |
| PU(A) 370/2022 |
Perintah Menteri-Menteri Kerajaan Persekutuan 2022 |
PU(A) 27/2023 |
Lihat perenggan 1(2) |
| PU(A) 370/2022 |
Ministers of the Federal Government Order 2022 |
PU(A) 27/2023 |
See paragraph 1(2) of this Order |
| PU(A) 373/2022 |
Perintah Kawalan Harga Dan Antipencatutan (Penentuan Harga Maksimum) (No. 15) 2022 |
PU(A) 5/2023 |
8 Januari 2023 hingga 7 Februari 2023 |
| PU(A) 373/2022 |
Price Control and Anti-Profiteering (Determination of Maximum Price) (No. 15) Order 2022 |
PU(A) 5/2023 |
8 January 2023 to 7 February 2023 |
| PU(A) 286/2022 |
Perintah Pengangkutan Jalan (Larangan Penggunaan Jalan) (Jalan Persekutuan) (No. 15) 2022 |
PU(A) 378/2022 |
15 Disember 2022 |
|
