SUBMISSION
SUBMISSION
CENTRE FOR RESEARCH
IN LAW AND DEVELOPMENT IN ASIA
2022
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Sheila Ramalingam, Johan Shamsuddin Sabaruddin and Saroja Dhanapal
Abstract
When Malaysia was formed in 1963, the Malaysia Act 1963 extended the laws of the former Federation of Malaya to Sabah and Sarawak. Be that as it may, many laws remain different between East and West Malaysia. One such law is limitation: the Limitation Act 1953 applies in West Malaysia only, the Limitation Ordinance (Sabah Cap. 72) applies in Sabah and the Limitation Ordinance (Sarawak Cap. 49)applies in Sarawak. The existence of these different statutes on the same subject matter may potentially lead to confusion and inconsistencies in the judicial and legal system in Malaysia, and hardship and injustice to litigants. This article seeks to analyse the similarities and differences in the various limitation statues in West and East Malaysia, with a view to answering the question as to whether there can only be one limitation statute that applies throughout Malaysia, with recognized, modern, relevant and legally enforceable causes of action with realistic limitation periods, bearing in mind the special interests and safeguards afforded to Sabah and Sarawak when Malaysia was formed.
Keywords: Limitation - Causes of action.
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Khairil Azmin and Hani Adhani
Abstract
General elections, which are carried out honestly, fairly, consistently and continuously, are efforts to maintain a democratic climate in every country. As a country that upholds democracy, Indonesia always strives to carry out general elections in an honest, fair, consistent and continuous manner every five years, as mandated by the constitution. In spite of the Coronavirus Disease 2019 (COVID-19) pandemic, Indonesia had conducted regional head elections, namely the election of governors in 9 provinces and of regents/mayors in 261 districts/cities. As the state institution guards the constitution and democracy, the Constitutional Court is obliged to resolve and manage general election disputes even during the pandemic. This paper examines the strategy and management of the Constitutional Court in handling general election dispute cases to regions during the pandemic period while maintaining the independence and impartiality of the Constitutional Court institutions. This study uses primary and secondary data, including the Indonesian Constitution, the regional election law, and other regulations related to handling regional head elections during a pandemic. This study also compares government policies related to handling regional head elections during a pandemic in Indonesia and other countries, especially regarding the rights of the people to still be able to come to Court during a pandemic. Existing data and legal materials related to handling general election disputes during a pandemic are compared and analysed in full and in detail. It is concluded that the management of case admissions and trial management using ICT technology has proven to be effective in minimising the gathering of people so that the Constitutional Court does not become a cluster of coronavirus transmission.
Keywords: Constitutional Court, Dispute Election, Coronavirus, Constitution.
Harpajan Singh
Abstract
The well-being of a profession depends a lot on the favourable perception that it enjoys from all stakeholders, namely the public. As an ‘association’ which is self-regulating, it sets the respective ethical standards and ensures compliance through disciplinary measures. However, the conduct of members of the legal profession over the years have called into question the very basis of this ‘honourable profession’ due to the unethical behaviour of some members of this profession. Although errant lawyers constitute a small percentage of the total number of lawyers in Malaysia, they nonetheless can bring the profession into disrepute with a corresponding decline in respect for the legal profession. The aim of this paper is to examine the ethical conduct of members of the legal profession and to propose measures which can be adopted to arrest ethical lapses in the future.
Keywords: law, legal profession, ethics, lawyers, disciplinary.
Kome Bona-Idollo, Anisah Che Ngah, Saratha Muniandy and Sivashanker Kanagasabapathy
Abstract
The aim of the medical negligence system, particularly to deter negligent behaviour, has created challenges for both patients and medical practitioners who are major stakeholders in health care. Using the breach of duty requirement, its impact on health delivery can be evaluated using the Nigerian and Malaysian health system. In Nigeria, the patients are seen to be impacted more by medical negligence as the Bolam’s principle presents the medical expert witness challenge which adds up to the existing challenges of ignorance and poverty. They are then deterred from reporting the negligent act which could go on with indifferent doctors. Also, in Malaysia, medical doctors are more impacted by medical negligence as the Rogers/Montgomery principle exposes them to possible litigation which creates fear and causes defensive medicine. This act of defensive medicine deters good health practices. Therefore, these effects on both patients and medical doctors put the health system at risk. Mediation has been seen to be a more feasible option to the medical negligence system as it promotes the doctor-patient relationship which is the basis for healthcare. While Court-annexed mediation is preferred in Nigeria, both private mediation and court-annexed mediation exist side by side in Malaysia. However, there is a need to consider the practice of mediation on a federal level in Nigeria and there should be a standardised practice for all mediation forms in Malaysia.
Keywords: breach of duty, healthcare, mediation, medical negligence, standard of care.