ARTICLES

 

2021

Abstract
Secondary education more so than primary education, plays a crucial role in the redistribution of income, growth and reducing poverty. So crucial is the role of secondary education that countries that have invested in secondary education show faster economic growth. Despite the significance of secondary education, education is only compulsory in Malaysia from the age of 6 until 11 with no compulsory secondary education required. Research shows that only 95.25% of children enrol in lower secondary school education. This percentage drops significantly to 86.46% enrolled in upper secondary school. While there have been calls to review the Education Act to make secondary education compulsory in Malaysia, there has been no shift to make that change. This study aims to look at the right to secondary education within the legal sphere, reviewing not only domestic laws but also against Malaysia’s international obligation with the potential of being recognized as a stand-alone right within the domestic and international system of law. It finds that through liberal reading of the Federal Constitution, the right to secondary education could be recognized. This recognition is in line with Malaysia’s international obligation. However, despite the possible recognition of the right, this paper finds that there is no provision in any Malaysian laws to provide for the right to secondary education.


Keywords: right to secondary education, human rights.

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Mark Goh Wah Seng

Abstract
Whilst calls to uphold and protect our constitutional rights have so often been raised, the legal position is far from the truth. An examination of the constitution reveals that Part II of the Federal Constitution declares our fundamental rights without restricting its enforcement between individuals per se. Despite the absence of such limitations, the Malaysian courts have consistently rejected the horizontal enforcement of constitutional rights, thereby rendering the individual’s constitutional rights largely illusory. Given the constraint, this article aims to explain why our constitutional rights should be enforced horizontally and suggest a proper method which the courts can adopt to enforce these rights horizontally.


Keywords: Federal Constitution; constitutional rights; public and private divide; horizontal enforcement; individuals; illusion

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Tamara Joan Duraisingam & Nakeeran Kumar s/o Kanthavel

Abstract
The rule of law according to Lon Fuller focusses on the ‘morality of the law’. Thus, a government must seek to provide an environment in which each citizen may realize to his or her maximum potential the rational plan of life to which he or she aspires. Society must be free and directed to the good of each of its members. Any government which fails, in a material degree, to meet these requirements may fail to deserve the label of a ‘legal system’. The term rule of law, however, has been a term used by politicians to secure political mileage during election campaign periods and continues to be used upon formation of a new government. In Tun Mahathir’s inaugural speech to his ‘rakyat’ on 10 May 2018, the term ‘rule of law’ was used at least 3 times. Within the domestic sphere, the Federal Constitution of Malaysia provides through Article 8 that all persons are equal before the law and entitled to the equal protection of the law. The terminology used is ‘all persons’ and not ‘all citizens’ which seems to uphold the Diceyan postulate of equality before the law. Regardless of its transcendent nature and noble assurance of a government of laws and not men, there would be gaps in the usage of the term ‘rule of law’ as it does not reach all levels of community. This paper critically appraises the concept of rule of law in Malaysia as it was and how it seems to be evolving under the current constitutional post-pandemic landscape.


Keywords: rule of law, equality.

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Chong Wei Li

Abstract

COVID-19 had far-reaching economic and social consequences which stunned the rate of globalisation. The emergence of COVID-19 within China and the Chinese government’s failure to promptly and transparently provide needed information to the international community raises the question whether the Chinese government and/or its officials could be held civilly or criminally liable under international law or domestic law. In the United States, several individuals, small businesses and States have filed a total of at least 14 different suits against China (and affiliated entities and officials) based on its perceived culpability in causing the pandemic. This article explores which court has the competence and jurisdiction to deal with the international responsibility of the Chinese government. This article discusses four possible scenarios under both national courts and international forums for a lawsuit against China. Specifically, the author also analyses the Malaysian position on the possible legal actions against China.


Keywords: International law, sovereign immunity, COVID-19, liability, Foreign Sovereign Immunity Act, arbitration, China, Malaysian perspective.

Abstract
In drafting the constitution, the Reid Report stated that the Federal Constitution defines the rights of both States and the Federation, and that there should be power to annul these rights. Article 4(1) of the Federal Constitution states that the highest law of the Federation is the Constitution. However, Parliament has the power to amend the Constitution, subject to certain limits. This article attempts to look at the limitations to constitutional amendments, the development of the basic structure doctrine in Malaysia and the applicability of the doctrine in the Malaysian context.


Keywords: Constitutional Law, Federal Constitution, Basic Structure Doctrine, Malaysian Constitutional Law.

2020

Abstract
Education is one of the most empowering rights to set a person up for success throughout his or her life. Studies have revealed that early childhood education is a very important aspect of developmental growth that leads to a marked increase in qualifications and earnings. However, neither domestic nor international law focuses on the right to early childhood education. This research analyses the various international and domestic laws in relation to the right to early childhood education and its potential of being recognised as a stand-alone right within domestic and international systems of law.


Keywords: education, early childhood

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Ambikai S Thuraisingam & Sivashanker V Kanagasabapathy 

Abstract
This is a conceptual paper to analyse the patient-centred decision-making approach adopted in healthcare in Malaysia. This study reviews literature on the history of patient-centeredness and the requirement of shared decision-making and its consequences in healthcare practice. It aims to evaluate the crucial elements of shared decision-making particularly the factors that affect the voluntariness and informed consent in medical practice. This paper reviews the existing literature surrounding the phenomenon of shared decision-making for medical treatment in the healthcare, particularly giving importance to the patients’ views and how it plays a role in shared decision-making. This study provides an overview of the perplexing concept of shared decision-making and the various concerns that have surrounded the topic leading to its recognition. Hence in Malaysia, there is no specific law that governs the provisions for shared decision-making approach in the healthcare practice. This study aims to explore the Malaysian Medical Council Guideline on Consent for Treatment of Patients by Registered Medical Practitioner (MMC Guideline on Consent) and the current Malaysian laws to determine whether they are sufficient to address the element of informed consent requirement in shared decision. Finally, lack of empirical evidence is recognised in this paper and several suggestions are made for future research and recommendations for the enactment of new provisions pertaining to medical treatment.


Keywords: patient-centred approach, shared decision-making, informed consent

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Nakeeran Kumar s/o Kanthavel & Tamara Joan Duraisingam 

Abstract
The rule of law is one of the key constitutional law concepts that one would have to appreciate in great depth within the study of constitutional law. There is however a varied approach to defining Rule of Law. Different systems of law may view the concept differently. Within a single system of law, the views of one constitutional player may differ to another. In view of the gap in terms of disparity of understanding that exists, this study attempts to scientifically analyse the term through a thematic analysis of case law in Malaysia in order to extract the emerging theme from the cases. This method of analysis is a purely clinical method without recourse to ratio or facts of cases. An understanding of the chronological development of an emerging theme from case law may be useful in demonstrating a trajectory that other institutions may appreciate and apply within their own administrative decision making, leading to a more consistent application of the rule within intra-state institutions.


Keywords: rule of law, basic structure doctrine

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Liew Hong Wei 

Abstract
The Foss v Harbottle rule is under Common Law. In light of the Companies Act 2016, this article traces the development of the common law principles and discusses the possible current application of the said principles in conjunction with the Companies Act 2016. This article subsequently evaluates the sufficiency of the current jurisprudence in Malaysia.


Keywords: Minority shareholders, lifting the corporate veil, Foss v Harbottle, Companies Act 2016, derivative action, corporate governance

Abstract
The overwhelming majority of corporate killing cases in Malaysia have attracted no criminal justice attention. Are corporations free to kill? Unrestricted corporate power generates immeasurable social damage. What can be done to curtail the reckless, negligent, and immoral practices by these corporations? While legislative and regulatory mechanisms currently exist, they are simply insufficient and ill-fitting. This paper focuses on criminal liability for manslaughter arising out of work-related deaths caused by corporations, referred to as corporate killing. Specifically examining fatal accident cases in the Malaysian construction industry, the author seeks to assess the possible application of corporate killing in Malaysia. Ultimately, this paper argues that Malaysia should incorporate corporate killing legislation to pave the way for more accurate, effective, and fair prosecutions of corporations for their acts of killing.


Keywords: Corporate Killing - OSHA 1994 - Corporate Criminal Liability - Workplace Deaths - Construction Industry.

2019

Abstract
This conceptual paper analyses the role of various institutions, be it governmental or non-governmental, regional or municipal, which through their actions may propel the Federal Government of Malaysia to consider protecting stateless persons who reside in Malaysia through the incorporation and application of international law domestically. Practices within the United Kingdom and the United States of America are evaluated to determine whether long-term solutions can take the form of supranational organizations. These states are selected as Malaysia shares characteristics of both states in its practices relating to stateless persons.


Keywords: Stateless, refugees, monism, dualism.

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Siti Zufina binti Abd Samah, Kuek Tee Say

Abstract
The healthcare sector in Malaysia is facing many changes and influences that pose new challenges to the government and private healthcare organizations. Malaysia is a dynamic, rapidly progressing, multicultural country and constantly undergoing evolution from every aspect of its development, specifically the healthcare industry. Like many countries in the world, Malaysia is also facing healthcare issues and challenges. These challenges from pre-independence era have morphed into global issues which are more complicated as the country moves into the millennial age. Inevitably, the healthcare system will collapse in the future unless the government proactively tackles the challenges now. A healthcare system has been defined by WHO as all the activities whose primary purpose is to promote, restore or maintain health. This article has identified the major issues plaguing the healthcare system in Malaysia under the various headings: governance, economic and social challenges. The authors have also put forward various proposals to the meet the challenges.


Keywords: healthcare, healthcare system, issues and challenges, governance, proposals.

Abstract
Despite being created with the purpose of ensuring oversight upon the popularly elected Dewan Rakyat, the Dewan Negara has been reduced to a mere rubber stamp over the decades. In order to reform the upper house and return it to a position of potency, this paper lays out several recommendations to improve upon the current system of senatorial appointment. This paper employs a legal doctrinal research methodology drawing from primary and secondary sources from a variety of legal jurisdictions, including a comparative legal analysis with the Republic of Ireland. First, the appointments made at the state level (which are currently done by the State Legislative Assemblies) are examined, and a system of direct elections is proposed as an alternative. Next, the paper focuses on the appointments made by the Yang di-Pertuan Agong (King) - which are currently done upon the advice of the Prime Minister and the Cabinet of Ministers - and explains why these should be done using the Irish specialist vocational panel system instead.


Keywords: Dewan Negara, Senate, elections, political reform, federalism.

Abstract
The plurality of the Malaysian Legal System has brought both a richer expanse of law, and a cross-jurisdictional conflict in the realm of personal law. This is demonstrated in wavering judicial judgements that have been passed over time. The contention between the Syariah and Civil Courts; the requirement of consent from both parents when converting minors and the protection of judicial independence and the separation of powers are areas of the law which have either been in doubt or conflict before the Federal Court decision in the case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak (Indira Gandhi’s case).
Firstly, the Article provides for an overview of the case of Indira Gandhi; the facts, issues and the judicial development that led to the Federal Court decision. Secondly, the Article analyses and elucidates the rationality behind the Federal Court decision and explains why the decision of this case has impacted and changed the Malaysian legal framework for the better.


Keywords: Jurisdiction, Syariah Courts, Civil Courts, Basic structure doctrine, constitution, Judicial review, constitutionality of religious conversion.

2018

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Dato’ Mohd Hishamudin Yunus

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Harcharan Singh Ujagar Singh

Abstract
In a landmark decision, a full bench of nine Justices of the United Kingdom Supreme Court in Patel v Mirza [2016] UKSC 42, [2017] AC 467 reviewed the proper approach to be taken by courts when confronted with a defence of illegality in private law claims. The claim in question was for the restitution of unjust enrichment arising out of a failed contract in which the claimant had paid a sum of money to the defendant pursuant to an illegal purpose that did not materialise. The Supreme Court unanimously allowed restitution, but there was a sharp difference in opinion on the proper approach to be adopted towards the illegality defence. A majority of the Supreme Court prescribed a new approach which the minority rejected. Whilst the new approach was formulated in the context of a claim for the restitution of unjust enrichment, it is arguable that the majority intended it to apply in all the other areas of private law involving the illegality defence. This paper seeks to examine how, if at all, the new approach has settled or clarified English law in the confused and confusing area of illegality.


Keywords: defence of illegality, recovery claims, rejection of rule-based approach, trio of considerations, proportionate response.

Abstract

Communities have been identified as being at risk of statelessness In Malaysia. Massey’s definition of de facto statelessness is used to provide an understanding of how communities in Sabah are potentially de facto stateless. The article will touch on the history of migration and relate it to how migration from Philippines and Indonesia has brought about this situation of statelessness in Sabah. The article delves into the causes of statelessness in general and the Sabah stateless in particular. The consequences of being stateless will then be analysed. The article concludes with suggestions on how to move forward in terms of Sabah including how incorporation of International Law and the liberal interpretation of the Federal Constitution of Malaysia can assist in providing status to the Sabah stateless.


Keywords: de facto, de jure, stateless.

Abstract
The offence of rape is provided for in section 375 of the Penal Code. This paper seeks to first identify what are the elements that make up the offence of rape. After identifying the elements and looking at the relevant case law, this paper will discuss if the law is satisfactory or not. Specifically, this paper will discuss if there is a need for the law to be gender specific, if rape should only be limited to vaginal sexual intercourse, are the 7 circumstances provided in section 375 necessary, should the age of consent be amended, should the exception remain and should there be a specific reference to the mental element of the perpetrator. In examining these issues, reference will also be made to the law on rape in neighbouring countries like Singapore and Thailand, as well as the law in India (as the Penal Code is based on the Indian Penal Code) and in the United Kingdom.


Keywords: criminal law, sexual offences, rape

2017

Abstract
Stateless persons are categorised as de facto or de jure. The de jure stateless person has convention rights assured by virtue of the provisions within the Stateless Persons Convention 1954. As such international law comes to the aid of the de jure stateless person. The de facto stateless person however is not similarly protected by any convention. Although there is mention of inclusion of de facto statelessness in the Stateless Persons Convention 1954 and the Reduction of Statelessness Convention 1961, this inclusion of de facto statelessness is located within the Final Acts of both conventions and is therefore non-binding. There is in fact no clear definition of who a de facto stateless person is. Nevertheless, regardless of whether a stateless person is de facto or de jure, the consequences of statelessness are indeed grave. In Malaysia there are communities that have de facto stateless persons in their midst. These communities include the stateless children of Sabah, the undocumented Orang Asli and Indians in Peninsular Malaysia amongst others. Traditional approaches to de facto statelessness have been more inclusive compared to the more recent attempts at defining this category of statelessness. The contemporary exclusive approach leaves quite a few groups of de facto stateless persons out of this category of statelessness and as such they do not fall within the purview of international law. The paper examines both traditional and contemporary approaches to de facto statelessness within the Malaysian context and provides justification for a more inclusive definition of de facto statelessness, thereby allowing more stateless persons within a municipal system to benefit from international law protection.


Keywords: stateless; de facto stateless; de jure stateless; refugees; jus sanguinis

Abstract
Most of the International Sale contracts are formed by electronic means of communication in today’s international business and trade. Sharp development of modern electronic communication technologies provides a challenge to the traditional rules of contract law. Formation of contract in international sale is similar to the rules of traditional contract formation rules. Application of the provisions of the UN Convention for the International Sale of Goods 1980 (CISG) are analysed in this article in relation to the usage of these methods of electronic communications technologies. The different approaches to the time and place of contracting as well as the formalities required are discussed and applied in this context. The research has discovered that the CISG forms a coherent body of uniform contract law in international sale world-wide, well suited to deal adequately with the modern electronic communications technologies.


Keywords: CISG, international sale, electronic communication, formation of contract, Dispatch Theory.

Abstract
Ready-Made Garment (RMG) industry in Bangladesh has started its rapid growth since the 1980’s establishing itself as second highest exporter of RMG products in the world. This industry has made a substantial contribution to the economy of the country by creating employment opportunity for approximately above four million workers of which mostly women. However, working conditions in this vital sector are poor. RMG industries fall short of OHS compliance in relation to the labour practices that ensure the social welfare of their employees. This article investigates the current status quo on working conditions in RMG sector and the failure of its existing labour laws. It will examine three different authorities (Bangladesh Garment Manufacturers and Exporters Association (BGMEA), The Government and its relevant agencies and International buyers and brand retailers) who shall be responsible for any shortcoming of maintaining the rules and practices in the RMG industries in Bangladesh. Further, it will discuss the reason behind the major incidents and will provide probable solutions towards improving the situations in the RMG industry in Bangladesh.


Keywords: RMG, Occupational Health and Safety, BGMEA, ILO, Fair Labour practices, Working environment, Labour Law.

Abstract
The implementation of Islamic law in Malaysia has many times been questioned and challenged. The Islamic authorities and scholars are not only faced with criticisms with regards to its implementation and enforcement locally but also internationally. There are two clear examples whereby the implementation of Islamic law through Shariah court has been negatively criticized by the public namely the case of Lina Joy and the recent case of Indira Gandhi. It is pointed out that globalization has played a major role in causing an uproar relating to Islamic law in a secular state. The purpose of this paper is to understand the relationship between globalization and Malaysia. In doing so, the paper will highlight the consequences of globalization focusing on the issues of migration, education, culture and human rights groups. This paper will highlight that these issues (amongst many) are the cause of tension between the non-muslims and the Islamic authorities. By understanding the root of the problem, this paper will seek to propose solutions in clearing the negative perceptions on Islamic law.


Keywords: Globalization, Islamic law, Migration, Education, Culture, Human Rights, Conversion.

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Assaduzzaman, Neoh Joon Kee

Abstract
A contractual obligation requires both buyer and seller to make payment for and to deliver the goods, respectively. Failure to comply these obligations by either party, principle of equity requires that the other party is able to compel the party found to be in non-compliance to accomplish the same. Similar obligation is to be observed in relation to the sale of property in goods which requires failure to transfer the ownership has to be remedied. Malaysian law requires the delivery of property in goods to the buyer, failure to do so the buyer may sue the seller for damages for non-delivery. However, there may be situations where both parties performed their obligations respectively but neither payment nor property in goods is recoverable. This paper is going to examine whether existing law provides any remedies relating to the above issue or equitable principle shall be applicable in providing the remedies.


Keywords: Ubi jus ibi remedium, Sale of Bulk Goods, Role of Equity, Contractual Obligations, Passing of Property.