legal issues

BLOG

2008-11-23T19:18:00.000-08:00

Fenomena Blogging telah melanda negara kita sejak tahun 2004.Hampir separuh pengguna internet di Asia mempunyai blog hasil kajian yang dibuat oleh Microsoft.Apakah yang dimaksudkan dengan blog? Blog merupakan singkatan dari “web log” biasanya di selenggara oleh individu dan mengandungi komen-komen, penerangan sesuatu acara atau bahan-bahan seperti gambar-gambar atau video.Terdapat beberapa jenis blog dan setiap jenis adalah berbeza dari segi kandungan,cara penyampaian dan cara penulisan oleh setiap individu.Bloggers telah dianggap sebagai satu cara alternatif penyebaran maklumat atau berita yang tidak diperolehi di dalam media-media mainstream .Sesetengah blog juga dicipta untuk membalas atau memberi penjelasan terhadap bahan-bahan yang telah terdapat didalam suratkhabar mainstream,tv dan juga radio.Di Malaysia,blog berunsurkan politik telah menjadi tumpuan utama tidak seperti negara-negara asia lain yang hanya mempunyai peratusan sebanyak 14% sahaja.56% dari bloggers di negara kita mencipta blog untuk menyatakan dan meluahkan perasaan serta pendapat mereka,manakala selebihnya untuk menceritakan tentang perkembangan diri buat kawan-kawan dan juga keluarga.

Pilihanraya umum ke-12 yang lalu,telah menyaksikan tsunami politik dan menyebabkan perubahan yang ketara dimana pengaruh kerajaan semakin merosot dikalangan rakyat.Antara faktor utama kekalahan teruk kerajaan adalah disebabkan wujudnya blog-blog sebagai sumber alternatif maklumat kepada rakyat.Ini kerana rakyat sudah bosan serta muak dengan sumber maklumat dari media-media utama yang tidak terbuka serta melaporkan secara berat sebelah.Ekoran dari perkembangan yang membimbangkan,kerajaan telah mengguna pakai beberapa undang-undang sedia ada untuk mengaitkan mereka dengan kesalahan-kesalahan berhubung blog.Mereka berpendapat,implikasi undang-undang tidak dihiraukan oleh bloggers dan tindakan harus di ambil di bawah kes jenayah dan kes sivil untuk menyekat para bloggers tersebut.Setakat ini sebanyak 7 kes berhubung dengan kesalahan blog telah didakwa di mahkamah.Undang-undang berkaitan kesalahan-kesalahan blog adalah seperti berikut:

1. Akta Komunikasi dan Multimedia(1998)
2. Akta Hasutan 1948
3. Kanun Keseksaan
4. Akta Keselamatan Dalam Negeri 1960
5. Akta Rahsia Rasmi 1972
6. Akta kesalahan-kesalahan di Luar Negeri 1976

Di bawah Akta Hasutan sekyen 3, bloggers boleh di dakwa atas kesalahan menghasut dengan menimbulkan rasa benci terhadap kerajaan,Raja-raja,Institusi Kehakiman,kaum-kaum serta hak-hak istimewa orang Melayu. Kanun Keseksaan sekyen 298A membolehkan seseorang bloggers didakwa jika menimbulkan kekacauan atas nama agama,manakala sekyen 499 dan 500 memperuntukkan bagi kesalahan fitnah(Defamation).Sekyen 28 Akta Keselamatan Dalam Negeri membolehkan dakwaan dilakukan di atas penyebaran laporan palsu oleh bloggers dan di bawah Akta Komunikasi dan Multimedia sekyen 233 bloggers boleh di dakwa atas kesalahan penyalahgunaan kemudahan network.Ini merangkumi sebarang komen,artikel yang mempunyai sifat yang salah,mengganggu, atau mengugut orang lain.

Kerajaan mengisytiharkan akan menangani gejala blog ini secara serius antaranya dengan mewujudkan program bersama bloggers di RTM dan juga menubuhkan pasukan khas respon terhadap blog yang di anggotai oleh unit khas pihak polis bagi memantau gejala blog ini.Jika dikesan terdapat unsur-unsur kesalahan berhubung blog, pasukan ini akan menangkap bloggers berkenaan dan akan memaksa mereka menutup blog tersebut atau akan didakwa.Ramai yang membantah tindakan ini kerana di bawah Rang Jaminan MSC Malaysia (MSC Malaysia Bill of Guarantees), kerajaan Malaysia berikrar tidak akan menapis Internet.Sekyen 3(3) Akta Komunikasi dan Multimedia 1998 [REPRINT 2002] menyatakan (Nothing in this Act shall be construed as permitting the censorship of the Internet.)

Jurisprudence: Marxist

2006-06-07T00:03:00.000-07:00

Part 1:

Basic Themes in Marxism

.:. Man as Creator of Nature and Culture

Man as a species is a natural being, which develops in the course of world history. Man is primarily a creative being, with desires and powers, faculties, creative abilities, which have their outcome in production. Mankind in its history has transformed the objects of the natural world and has created the entire world of culture. The vast historical and natural accumulation of the material and cultural objects mankind has produced are the manifestations or externalizations or embodiments of man's creative powers. Man actualizes himself in the world. In Marx's own powerful; language:

The whole so-called world history is nothing other than the production of man through human labor [sic]...

Marx firmly believes that the history of the world is the developing process in which human beings have created the great totality of objects in nature and in human culture, and in this process, the human species will find itself objectified and achieve self-realization. So, for example, the whole of modern industry is man's product - industrial mechanization is the externalization of human hands, ears, eyes, brains. Mills, mines, factories and their expanding technologies, have all been produced by human beings and are externalizations of their creative powers. But the n human species does not realize that it is the creator of the world of natural objects and of culture. What man sees when he looks at these objects which he has produced are alien things in "an alien hostile world standing over against him." This is so because man's productive activity is done in servitude to the God money, rather than in spontaneous self-determination. The result has been that the history of human creative production has been a history of man's alienation from his own productive nature.

.:. Alienation

Human alienation takes four main form, according to Marx in the 1844 Manuscripts: Man is alienated from the product of his own work, from the act of producing, from his own social nature, and from his fellow men. First, the worker in industrialized capitalism is alienated from his product, which "exists outside him, independently, as something alien to him...the life which he has conferred on the object confronts him as something hostile and alien." His product is not his own but is utilized by strangers as their private property. And the more the worker produces, the less is his productivity valued. "The worker becomes an even cheaper commodity, the more cheap commodity he creates." The worker's wages are just sufficient to maintain him with what is necessary to keep him working.
Second, the capitalist system alienates man from his productive activity. His activity is not determined by his personal interest or his creativity, but is something which he is compelled to do in order to remain alive. "His labor [sic]...is forced labor [sic]." As a result, in Marx's words, "The worker only feels himself outside his work, and in his work he feels outside himself." The more he works the less human he becomes. He finally feels at home only in the animalian functions of eating, drinking, and sexuality.

Third, capitalist society alienates the worker from the essential qualities of the human species. Unlike animals, says Marx, who produce only for their immediate needs, human produce knowledge and culture (such as art, science, technology) for the whole human race. Humans produce as universal beings for universal ends. But the capitalist system degrades man's urge to produce for all mankind into animal labour, into a mere means to satisfy his personal physical needs.
The fourth form of alienation is the "estrangement of man from man." His fellow man is a stranger competing with him as a worker and for the products of their labour. Moreover, both are estranged from "man's essential nature."

.:. Capitalist System and Exploitation

Capitalism:
Definition: What is capitalism? A capitalist mode of production is one in which a few humans own and control the major forces or means of production as their private property and they employ as workers those who have nothing to sell but their own labor power.

Labour theory of value:
The commodities that the workers produce have a value equivalent to the amount of labour needed to produce them.

Surplus value:
Directly related to Marx's theory of value is his crucial concept of surplus value. This is the concept which explains both the profit of the capitalist and the exploitation of the worker. Marx defines surplus value as the differences between the value of the wages received by the worker and the value of what he has produced. That difference, the difference between what the capitalist must pay the worker as wages and what the capitalist can sell the worker's product for, makes up the capitalist's profit.

Exploitation:
The working class is forced into the position of selling on the market its labour power for the going rate of wages; the capitalist exploits the worker by selling the goods the worker produces form more money than he pays to the workers in wages. Capitalism is a system of exploitation, Marx argues, in which capitalists profiteer by paying the workers only the existing rate of wages in place of the full market value of the products the workers produce.

Marxist part 2

2006-06-06T08:45:00.000-07:00

Historical Materialism

Historical materialism is the central theory in Marx's later writings. Materialism is the name conventionally given in philosophy to any metaphysical theory which claims that theory is material.

Marx believed that his materialism is different from all previous types of materialism (such as mechanistic materialism of Rene Descartes) in its awareness that the reality of material objects is not independent of human beings, but is actually a reality that has been transformed by human labour in the course of history. Marx presents his own conception of historical materialism, as a radically new materialism and as a new way of understanding history.

Society: Economic Base

Marx's historical materialism explains the whole sweep of history by taking man's material production as the base of history and by viewing mental production, man's intellectual and cultural life, as its effect. Marx insists that "in the whole conception of history up to the present this real basis of history" in material production has never before been understood.

The first historical act is thus the production of means to satisfy these needs
['eating and drinking, a habitation, clothing, and many other things'], the production of material life itself. And indeed this is an historical act, a fundamental condition of all history, - which today, as thousand of years ago, must daily and hourly be fulfilled in order to sustain human .life.

What does Marx mean by his view that material production is the real basis of history and that human thought and culture are only its effect? Like Hegel before him, Marx is trying to find a key which will explain the characteristics of individual human societies and also the changes which have taken place in human societies in the course of history. First, with respect to explaining the characteristics of individual human societies, … Marx [points out that] every individual society is an interrelated organic totality, in which no part can be understood in isolation. But for the idealistic philosopher, Hegel, the explanation of the organic unity of a particular society lies in the spirit of the people, which embodies the spirit of the Absolute. In opposition to Hegel's idealism, for Marx's materialism the explanation of the organic unity of a particular society lies in its material economic foundation.

The concept of the economic structure, or economic foundation, of society is crucial to Marx's view of society and history. Marx begins with a fundamental point about the history of human production. Whereas animals satisfy their needs with what nature provides, human beings must themselves produce the foods and clothing and shelter, which will meet basic human needs. Thus, human must produce the means to change what nature provides into things suitable for human needs. And as soon as man's basic needs are satisfied he develops new needs, which he is also increasingly able to satisfy by his productive activity.

Marx's point is that man is thus the producer of his own expanding material life. Man the producer is limitless in the needs he has the power to create and in the instruments he can produce to satisfy those needs. Human nature is expressed in this ongoing productive activity and its creative power, by which man continually transforms the material world and transforms himself.

In Marx's analysis, this process of man's material production consists of three components or factors. Human production is linked, first of all, to the existing conditions of production in the particular society. By the terms conditions of productions Marx means such basic conditions affecting human production as the existing climate, the geography of the society's physical location, the supply of raw materials, the total population. The second component of production Marx calls the forces of production, and by this term he means the types of skills, tools, instruments, and technology as well as the type and size of the labour supply which are available to the society. The third and crucial component Marx calls the relations of production and by this he means the property relations within a society – specifically, the existing social relations according to which the society organizes its conditions and forces of production and distributes the product among the members of society.

In the process of production, human beings do not only enter into relation with nature. They produce only by working together in a specific manner and by reciprocally exchanging their activities. In order to produce, they enter into definite connections and relations with one another, and only within these social connections and relations does their connection with nature, i.e. production, takes place.

The "sum total" of these three components of production in any particular society Marx calls the economic foundation or economic substructure of society and sometimes the mode of production.

Division of labour and Social Classes

The division of labour is a concept which Marx found in his reading of Adam Smith and other economic theorists, for whom it meant that labour becomes specialized in order to perform efficiently the many different skills required in production. But for Marx, the division of labour into specialized jobs has dehumanizing and evil results. It enslaves the worker to a limited and restricting sphere of activity, from which there is no escape. As a result the worker is denied the fulfillment of the totality of his human creative powers, which can never develop under the division of labour. Marx makes this point in a striking way in The German Ideology:

For as soon as labour is distributed, each man has a particular exclusive sphere of activity which is forced upon him and from which he cannot escape. He is a hunter, a fisherman, a shepherd, or a critical critic, and must remain so if he does not want to lose his means of livelihood.

The division of labour chains everyone – labourer, layer, businessman – for life to their respective confining special activities. But the division of labour is responsible for additional evils. It brings into being a slave like state of affairs in which no one any longer controls the means by which he provides for his own subsistence, his own livelihood. Moreover, the relations of production take place of human relations in social life. Individual humans no longer appear to one another as persons but as economic units within the impersonal process of the relations of production in society. Furthermore the division of labour alienates the individual worker from is fellow workers, and sets one against the other, since each is working for increased personal gain and not for a social or human benefit.

Most important, Marx says that "the division of labour implies … the division between capital and labour, and the different forms of property itself." This is the division of labour which occurs in the production process between the producers and the owners of the materials and forces of production. It leads to a situation in which what one man produces, another man appropriates the greater part of as his own private property. Where there is a division of labour between producer and owner, the product of labour no longer belongs to the one who produced it, says Marx, but to the non-productive owner. Thus the division of labour is the source of the institution of private property, and it leads to class division between the class of owners and the class of producers. These two classes are in a master-slave relationship – the class of producers are in the position of slaves to those who own the raw materials and the mills, mines, and factories and are able to appropriate the major share of what the workers produce. Class struggle is the inevitable result of this relationship.

Society: Ideological Superstructure

From his account of the economic foundation, Marx moves on to his explanation of the cultural life of a society. His claim is that the economic foundation of society conditions or determines the entire realm of culture. In a famous passage in the preface to the critique of Political Economy (1850) Marx says:

In the social production of their life, humans enter into definite relations that are indispensable and independent of their will, relations of production which correspond to a definite stage of development of their material productive forces. The sum total of these relations of production constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness. The mode of production in material life determines then general character of the social, political and spiritual processes of life.

Here we have the most Marx's most celebrated formulation of his view that human culture is not governed by ideas, by philosophic or older religious beliefs, as it was for Hegel; it is instead a mere superstructure determined by the existing substructure, the economic mode of production. In Marx's famous words concluded the quotation above:

It is not the consciousness of man that determines their existence, but on the contrary, their social existence determines their consciousness.

All ideas – all human thought in the realms of religion, philosophy, politics, law, and ethics – are conditioned by the economic foundation of society, and specifically by the class division within it. The dominant views in morals, politics, religion, law, philosophy, and art of any society are the ideas of the dominant economic class. Here are Marx’s stinging words from The German Ideology:

The ideas of the ruling class are in every epoch the ruling ideas: i.e., the class, which is the ruling material force of society, is at the same time its ruling intellectual force. The class which has the means of material production at its disposal, has control over the means of mental production … The ruling ideas are nothing more than the ideal expression of the dominant material relationships …

Marx believes that it must be immediately obvious to anyone that what he has discovered is true – that human mental life is nothing but a superstructure which is determined by the real (economic) basis of society, and that in every society in which there is class conflict, the dominant ideas and values of culture are those which reflect the economic interests of the dominant class. He asks:

Does it require deep intuition to comprehend that man's ideas, views, and conceptions, in own word, man's consciousness, changes with every change in the conditions of his material existence, in his social relations, and in his social life?

This conception of the cultural superstructure – religion, philosophy, law, political thought, morality, art – as falsifying and distorting the truth about social reality in the interests of a particular social class is the basis of Marx's tremendously influential concept of ideology.

Ideology

For Marx an ideology may be defined as a system of ideas which is determined by class conflict and which reflects and promotes the interests of the dominant class. Ideologies are thus portrayed as distorting types of consciousness, ways of perceiving the human world which falsify the true reality in order to defend and promoted the economic interests of a social class. All of the claims to truth which philosophies, religions, legal systems, political theories, moral systems have made in history are branded by Marx as ideologies; throughout the historical epochs in which there has been a division of labour and class conflict the dominant cultural beliefs have served the dominant class.

Marx exposes the history of human culture as a history of ideology, of persuasive religions, philosophies, and legal systems which have presented themselves as universal and eternal truths for all mankind, while actually representing the ruling class and legitimating its authority and power. So, for example, the political theory of the rising French bourgeoisie called for freedom and equality, which appeared to be for the benefit of mankind, but in fact served primarily to give the bourgeois class the political power which they lacked. So also Christianity called upon the faithful to obey the word of God and to follow the life of Christ as their model; these ideals which appear to serve only spiritual ends in fact served to promote political quietism and passive obedience to all secular rulers, who are seen to be sanctified by God. All the principal ideas and values of history can be shown, according to Marx, to have functioned defensively to protect class interests, and to have functioned deceptively to keep the truth of the exploitative injustices and the dehumanizing aspects of civil society from being recognized by the exploited class.

The Marxian doctrine of ideology soon entered into the mainstream of twentieth-century thought, and produced anew way of looking at any theory by asking the questions "What class interest does the theory represent?" How is it distorting, twisting, misrepresenting reality in order to defend, protect, promote the interests of some identifiable social group? As one contemporary philosopher has said, since Marx developed the concept of ideology, theory has never recovered from this ideological way of looking at it, this suspicion that all philosophizing, all theorizing is less pure, less universal, less detached, less true than it presents itself as being.
The Marxian ideological way of looking at theory has pervaded twentieth-century intellectual life and has been extended to all elements of culture – novels, films, magazines, the mass media, social organizations, academia, scholarly and technical publications. All such cultural elements are now commonly regarded as potentially bound to the interests of some identifiable social group. For example, when you are solicited to subscribe to a magazine, do you not immediately wonder what social class viewpoint the magazine represents?

Is there no escape from this ideological trap or "false consciousness"? Marx's reply is that the inexorable laws of history offer the only way to overcome the falsifying ideologies of the ruling class. In the coming, inevitable worldwide revolution waged by the proletariat, the economic foundation of world capitalism and its class conflict will be destroyed, and along with it, the cultural superstructure which it conditioned. As Marx says in the Communist Manifesto: "The Communist revolution is the most radical rapture with traditional property relations: no wonder that its development involves the most radical rapture with traditional ideas."

After the totality of Western culture will have been destroyed as capitalist ideology, the proletariat will by stages move toward a classless society in which ideologies with their defenses and deceptions on behalf of a dominant class will have no function and will disappear.

Theory of Historical Change

Marx's theory of history is constructed on the model which Hegel's philosophy of history provided. History is a meaningful single, developmental process; history is a rational structure which unfolds in time according to the laws of dialectic. But whereas for Hegel the individual units of the dialectical historical process were the great nation-stats, each embodying a stage in the progressing consciousness of freedom, for Marx, in contrast, the individual units of the dialectic of history are the economic modes of production.

Like Hegel, Marx is committed to historicism: He believes that one cannot understand economic modes of production abstractly, but only in terms of their historical situation and historical development. Hegel had accounted for the structure of society and for the dialectical process of historical change by the Cunning of Reason, the agency of the Absolute, which used human passions, the nation-state, and the world historical individuals to change ideas, to bring finite spirits to a full consciousness of their freedom. But Marx angrily rejects Hegel's idealistic theory of historical change as the dialectical development of the idea of freedom. For Marx, ideas can explain nothing; ideas are themselves only the effect of the economic basis of society; ideas are only a superstructure which collapses as soon as the economic foundation of society begins to crack up. For Marx, only economic forces are powerful enough to bring about historical change.
How does Marx's materialist dialectic of history explain historical change? Marx explains historical change by a conflict or contradiction which takes place within the triad of the economic foundation of society and shatters it. It is the conflict that develops between the constantly growing forces of production (skills, technology, and inventions) and the existing relations of production, or property relations.

Theory of Revolution

Marx explains this explosive conflict between the constantly developing forces of production and the static relations of production in this way. As man the creative producer works upon nature he transforms production by developing new methods or instruments or technologies of production. In the early stage of a mode of production, the relations of production and their distribution of property aid in the development of these new and improved productive skills and technology. But at a certain point in the latter stages of a mode of production, the growing new forces of production come into conflict with the existing relations of production come into conflict with the existing relations of production and their distribution of property. The interests of the ruling class lead them to resist change and to keep the existing property distribution unchanged, since their dominant position in society depends upon this. The ruling class, which had earlier helped to develop new technologies and forces of production, now fetters them and chains them down from developing further to prevent overproduction and thus to protect their profits and investments.

These relations of production must be "burst asunder" by a revolution to let man's productive forces continue to grow.

From forms of development of the productive forces these relations turn into their fetters. Then comes the period of social revolution.

Why does a social revolution follow this conflict between the forces and the relations of production? It is the producer class, labour, which suffers, through unemployment, underemployment, loss of new types of work, from the fettering, the chaining of the new forces of production. Acting as a class, the producers break the power of the dominant class by a revolution and they themselves become for a time the new dominant class, seizing political power and generating their own mode of production, which will then determine their own forms of thought.

Perkara 121 1 (A) Perlembagaan Persekutuan

2006-03-06T00:14:00.000-08:00

Pengenalan:

Sebelum mencapai kemerdekaan, cuma ada satu sistem mahkamah di negara kita. Ia melaksanakan undang-undang yang dibuat di sini yang berasaskan undang-undang di England di samping memakai 'the common law of England' dan 'the rules of equity'. Mahkamah syariah belum wujud.

Susulan daripada peruntukan Perlembagaan Persekutuan, Jadual Kesembilan, Senarai Kedua, mahkamah-mahkamah syariah ditubuhkan. Maka untuk membezakan mahkamah yang sedia ada daripada mahkamah syariah yang baru ditubuhkan itu, mahkamah yang sedia ada itu mula dipanggil 'mahkamah sivil',

Pada mulanya, bidangkuasa mahkamah syariah hanya terhad kepada undang-undang keluarga.Maka untuk beberapa dekad mahkamah sivil terus menjadi mahkamah utama.

Pindaan Perlembagaan 1988:

Pelbagai konflik telah mula kelihatan.Antaranya ialah wujudnya percanggahan bidangkuasa antara kedua-dua sistem mahkamah itu. Kes yang paling ketara ialah kes Myriam v Mohamed Ariff [1]. Dalam kes itu, hakim mahkamah sivil yang selama ini mempunyai bidangkuasa dalam hal jagaan anak, tidak kira Islam atau bukan Islam, berpendapat bahawa mahkamah sivil masih mempunyai bidangkuasa itu walaupun bidangkuasa itu, mengenai orang-orang Islam, telah diberi kepada mahkamah syariah.Disamping itu juga, Hakim-hakim mahkamah syariah dan pegawai-pegawai syariah mula merasai bahawa kedudukan mahkamah syariah adalah lebih rendah dari kedudukan mahkamah sivil, kedudukan mereka sendiri lebih rendah dari kedudukan hakim-hakim mahkamah sivil. Bidangkuasa mahkamah syariah terhad. Maka mereka mahu kedudukan yang sama, dan tidak kurang pentingnya, gaji yang sama[2].
Untuk menyelesaikan masalah-masalah ini, kerajaan telah mengambil satu inisiatif untuk menaikkan kedudukan mahkamah syariah di mana pada tahun 1988 Perlembagaan Persekutuan telah dipinda di mana Per 121(1A) telah dimasukkan. Peruntukan ini berbunyi:"Mahkamah-mahkamah yang disebut dalam fasal (1) tidaklah mempunyai bidangkuasa berkenaan dengan apa-apa perkara dalam bidangkuasa Mahkamah Syariah".Mahkamah yang dimaksudkan dalam fasal (1) ialah Mahkamah Tinggi dan semua mahkamah di bawahnya iaitu mahkamah majistret dan mahkamah sesyen. Dengan demikian secara automatik, semua perkara yang mahkamah syariah ada bidangkuasa, Mahkamah Tinggi dan semua mahkamah di bawahnya tidak boleh campurtangan dan tiada bidangkuasa[3].

Tafsiran pindaan ini dapat dilihat dalam kes Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib[4] apabila Mahkamah Agung memutuskan bahawa Mahkamah Tinggi tiada bidangkuasa untuk mendengar dan membicarakan suatu permohonan perintah tegahan dari seorang wanita Islam terhadap suaminya yang juga beragama Islam dari menyerang dan mengganggu beliau dan keluarganya. Kes ini menjelaskan bahawa Mahkamah sivil tiada bidangkuasa terhadap perkara-perkara di bawah bidangkuasa Mahkamah Syariah.

Konflik selepas pindaan:

Memang benar pindaan diatas telah menjelaskan beberapa kekeliruan yang terjadi. Walaubagaimanapun, pindaan itu sendiri tidak dapat menyelesaikan beberapa masalah yang lainnya dan telah mengakibatkan beberapa konflik terjadi.

Mari kita lihat. Pertama, dalam sesuatu kes mungkin terdapat persoalan mengenai undang-undang tanah yang merupakan undang-undang sivil dan 'common law of England' yang terletak di bawah bidangkuasa mahkamah sivil dan dalam kes yang sama terdapat juga persoalan seperti wakaf yang terletak dalam bidangkuasa mahkamah syariah.

Kedua, beberapa undang-undang baru telah dibuat di bawah enakmen-enakmen negeri dan dilaksanakan oleh mahkamah syariah mengandungi peruntukan-peruntukan kesalahan jenayah yang bertindih dengan kesalahan-kesalahan yang serupa yang telah sedia wujud dalam Kanun Kesiksaan dan Akta-Akta lain.Sebagai contoh, Kesalahan Jenayah Syariah (Negeri Pulau Pinang) 1996 yang digubal selepas pindaan perkara 121 1(A) memperkenalkan kesalahan baru seperti perjudian, sumbang-mahram, pelacuran dan liwat.Ini dilihat bertindih dengan kesalahan-kesalahan yang telah sedia ada didalam kanun kesiksaan. Konflik ini dapat dilihat terjadi didalam kes liwat Sukma Darmawan[5].

Ketiga,'subject matter' dalam sesuatu kes itu mungkin terletak dalam bidangkuasa mahkamah syariah, tetapi salah satu pihak yang terlibat mungkin seorang bukan Islam, sedangkan mahkamah syariah tidak mempunyai bidangkuasa terhadap orang bukan Islam. Jadi, kemanakah pihak yang terlibat hendak pergi untuk mendapatkan keadilan?
Sebagai contoh, masalah untuk menentukan status agama seseorang atau yang melibatkan pertukaran agama dari agama Islam ke agama lain. Contoh yang terdekat ialah apa yang telah berlaku didalam kes Moorthy. “Subject Matter” di dalam kes ini terletak didalam bidangkuasa Mahkamah Syariah, tetapi pihak yang terlibat terdiri daripada bukan Islam(balu Moorthy,S. Kaliammal).

Terdapat juga kes-kes murtad (apostacy) sering dibawa ke Mahkamah Tinggi Sivil,seperti didalam kes Soon Singh Bikar Singh v PERKIM, Kedah & Anor [6] dan Mahkamah Tinggi telah acapkali mengatakan bahawa dalam hal-hal yang melibatkan kesahihan samada seseorang itu masih Islam atau pun tidak, ia adalah di bawah bidangkuasa Mahkamah Syariah walaupun tiada enakmen murtad secara spesifik diluluskan oleh mana-mana Dewan Undangan Negeri. Sedangkan, di dalam kes Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam & Anor [7] tidak menetapkan prinsip bahawa Mahkamah Sivil tidak boleh memutuskan isu sama ada seseorang itu beragama Islam atau tidak.

Masalah juga bertambah rumit apabila kes-kes berkenaan murtad dan juga kesahihan samada seseorang itu Islam atau pun tidak, dirujuk kepada Mahkamah Syariah. Ini kerana 'in reality', Mahkamah syariah tidak pernah membuat keputusan untuk membenarkan seseorang itu keluar dari Islam atau pun mengistiharkan status seseorang itu sebagai tidak Islam. Sebagai contoh apa yang terjadi didalam kes Moorty,Dalip Kaur,Soon Singh, Lina Joy, Mamat Daud dan sebagainya. Tetapi di dalam kes Nyonya Tahir[8], buat pertama kalinya sebuah Mahkamah Syariah di Seremban telah mengistiharkan status seseorang itu sebagai tidak Islam dimana keputusan ini dibuat selepas kontroversi Moorthy berlaku.

Resolusi persidangan Meja Bulat Lim Kit Siang:
Resolution 1
Mengembalikan Perkara 121 Perlembagaan Persekutuan ke maksud asalnya pada tahun 1988 sebelum dipinda.
Resolution 2
Mendesak Perdana Menteri menubuhkan JK Terpilih Parlimen untuk membincangkan masalah yang ditimbulkan oleh Perkara 121 (1) (A)
Resolution 3
Masyarakat kebanyakkan merasa bimbang dan tidak berpuas hati terhadap penafian keadilan dalam kes Moorthy dan kes-kes lain seumpamanya.
Resolution 4
Forum ini merakamkan kebimbangannya terhadap sikap kebanyakkan pihak berkuasa agama negeri-negeri dalam perlaksanaan undag-undang Islam khasnya yang melibatkan masyarakat bukan Islam.
Resolution 5
Mendesak agar Peguam Negara bertindak demi kepentingan masyarakat ramai dalam kes Moorthy dan kes-kes seumpamanya bagi mencerminkan hak persamaan semua rakyat dengan mengambil kira nilai-nilai persamaan tanpa mengira kaum dan agama yang dijamin oleh perlembagaan persekutuan.

MEMORANDUM DEWAN PEMUDA PAS(DPP)

DPP melahirkan kebimbangan di atas percubaan pihak-pihak tertentu yang mendesak kerajaan supaya meminda Perkara 121(1A) Perlembagaan Persekutuan bagi membolehkan Mahkamah Sivil mencampuri urusan Mahkamah Syariah [9]. DPP membuat satu memorandum mendesak tindakan Suhakam terhadap usaha menafikan hak Mahkamah Syariah dengan alasan seperti di bawah:

i. Hak Mahkamah Syariah sebagai satu sistem kehakiman yang diiktiraf oleh Perlembagaan akan terpinggir sekiranya Mahkamah Sivil diberi kuasa untuk campur tangan terhadap keputusan Mahkamah Syariah;
ii. Umat Islam dalam apa keadaan sekalipun mesti diberikan hak menguruskan soal-soal agama mereka dalam kerangka kehakiman sendiri, dan kehakiman Islam mestilah mempunyai taraf yang tinggi dan tidak boleh diganggu-gugat oleh mahkamah lain;
iii. Tindakan menyekat kebebasan Mahkamah Syariah boleh membangkitkan rasa tidak puas hati dan memungkinkan wujud anasir-anasir negatif bagi mengembalikan hak Mahkamah Syariah; dan
iv. Percubaan untuk menundukkan Mahkamah Syariah di bawah Mahkamah Sivil boleh mengundang krisis agama dan perkauman yang boleh menjejaskan hak-hak awam di negara ini.
SATU CADANGAN:

Kita telah lihat konflik terjadi didalam kes Moorthy, apabila 'subject matter' berada didalam bidangkuasa Mahkamah Syariah, tetapi terdapat pihak yang terlibat mungkin seorang bukan Islam dimana Mahkamah Syariah tiada bidangkuasa keatasnya. Untuk mengatasi masalah ini, kes-kes seumpama ini hendaklah dibicarakan di hadapan Hakim Mahkamah Sivil yang duduk bersama Hakim Mahkamah Syariah. Hakim Mahkamah Syariah akan menentukan isu berkenaan undang-undang Islam dan keputusannya akan binding keatas Hakim Mahkamah Sivil.Hakim Mahkamah Sivil membuat keputusan ke atas isu-isu yang lain serta kes tersebut.

[1] [1971] 1 MLJ 265
[2] [2001] 4 MLJ clxxx
[3] [2004] 3 MLJ xxxiv
[4] [1992] 2 MLJ 793
[5] Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia [1999] 1 MLJ 266
[6] [1999] 1 MLJ 489
[7] [1992] 1 MLJ 1
[8] “A religious court has ruled that an ethnic Malay woman raised by her Muslim grandmother died a Buddhist in a case hailed as a first in Malaysia.”(http://www.malaysiakini.com/news/46151) 4th Feb 2006.
[9] “Memorandum Mendesak Tindakan Suhakam Terhadap Usaha Menafikan Hak Mahkamah Syari”,4th Feb 2006, http://www.tranungkite.net/modules.php?name=News&file=article&sid=4397

Land Law : Charge

2006-02-07T20:38:00.000-08:00

QUESTION:

You act for Bani bin Abu Hashim who comes to your office and relates to you as follows:

My late father, Abu Hashim and his youngest brother, Abu Hisham were co-propriertor of a piece of land in Kuala Perlis. Abu Hashim had eye problems and became blind in 1990.
In January 1992, Abu Hisham became a director of Kembara Sdn. Bhd. (Kembara). Abu hisham Approached Bank Bulan which agreed to grant a loan of
RM 3000, 000 to Kembara, provided that Abu Hisham become guarantor and a piece of land is provided as security.
Abu Hisham decided to charge the land that he shared with Abu Hashim to Bank Bulan but Bank Bulan insisted that Abu Hisham should first obtain the written consent of his co- proprietor to do so.
Hence, in June 1992, Abu Hisham went to see Abu Hashim and told him to affix his thumbprint on a document which he claimed to be Abu Hashim’s consent to allow Abu Hisham to construct a house on the said land.
Unknown to Abu Hashim, the document was his consent to allow Abu Hisham to charge the said land in favour of Bank Bulan.
Bank Bulan disbursed the loan to Kembara upon registration of the charge in January 1993. However, in January 1994, Kembara defaulted in repaying the loan instalments. Bank Bulan is now seeking for an order for sale of the land by virtue of the provisions of the National Land Code 1965.
Advise Bani as to the effect of the charge created by Bank Bulan and the legal action that you can take to safeguard his father's estate in the land concerned.

ANSWER:

In the question, there are 2 issues. First issue is whether charge created by Bank Bulan defeasible or not. Second issues is whether Bani can take any legal act against Bank Bulan.
According to section 340 (1) of NLC when title of interest is registered shall be indefeasible but subject to the following of this section. Section 340 (2) stated the circumstances that title of interest can be challenge. They are fraud, misrepresentation, forgery, void instrument and title of interest that unlawfully acquired. As in the case of OCBC bank v Lee Lee Fah[1], Dato Siti Norma Yaakob held that the only way title can be challenge is for respondent to establish any circumstances in section 340 (2) of NLC.

Generally in the case of fraud, the title shall not be indefeasible. Fraud mean dishonest of some sought. In the case of Waimiha Saw mill v Wai One Timber[2] stated that it is also fraudulent act if it is establish by deliberate and dishonest trip causing an interest not to be registered. Fraud means actual fraud as mention in the case of Asset Co. Ltd. V Mere Roihi[3] . in order to prove fraud, 2 stage must be fulfill. Firstly conduct must be in definition of fraud that is actual fraud. Secondly fraud must be committed by person or his agent and as a result, his name was registered in the title. If the person is not a party within the fraud, then the title shall be indefeasible.

In the question, Abu Hisham went to see Abu Hashim and told him to affix his thumbprint on a document which he claimed to be Abu Hashim’s consent to allow Abu Hisham to construct a house on the land. Abu Hashim had eye problems and blind. Unknown to Abu Hashim the document was his consent to allow Abu Hisham to charge the said land in favour of Bank Bulan.
Thus, we can see that the conduct of Abu Hisham was in definition of fraud that is actual fraud as he dishonestly cheated Abu Hashim that the document he presented to Abu Hashim was actually charge document not document to allow him to build a house on the said land. Abu Hisham also was the party within the fraud and as a result charge was created over the land. Therefore an actual fraud had been committed by Abu Hisham. By virtue section 340 (2) (a) title is defeasible if there is fraud. Similarly in the case of Haji Aishah Bt Lebai Itam v Yah Bt Taib[4] where in this case an illiterate woman was induce to sign a transfer form by one party. The fraud alleged was a fraudulent misrepresentation by Haji Musa to the plaintiff to the effect that the transfer to him which she executed not a transfer but a charge for the amount she owed. The court held that this amount to fraudulent act and the title of the land shall be defeasible.

However there is exception to the exception of defeasibility. According to provision in section 340 (3) "provided that nothing in this sub-section shall effect any title of interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such purchaser." This mean that if plaintiff can prove there is bona fide purchaser for valuable consideration, then the title shall become indefeasible again. In order to determine bona fide purchaser for valuable consideration, 2 factors must be fulfill. Firstly, person who has pays valuable consideration. If no consideration, he becomes a volunteer and not bona fide purchaser. Consideration must come by the registered proprietor. It is sufficient if has consideration and not need to be adequate. Secondly the person must acts in good faith, means that he has no knowledge whether actual or constructive that the title or interest that he acquired is bad in law.

In the question, Bank Bulan agreed to grant a loan of RM 300,000 to Kembara Sdn. Bhd which Abu Hisham become a director of that company provided that Abu Hisham becomes a guarantor and a piece of land is provided as security. Moreover, Bank Bulan had asked Abu Hisham to obtain the written consent from his co-proprietor who is Abu Hashim in order for him to get the loan.

Bank Bulan can be said to be a bona fide purchaser as the bank had pay a consideration when they disbursed the loan to Kembara upon registration of the charge in January 1993. Bank Bulan also act in good faith since they had no knowledge that the title is bad in law as Abu Hisham had commit a fraudulent act in order to get the consent from his co-proprietor, Abu Hashim. Since Bank Bulan had fulfilled the 2 factors, Bank Bulan can be said as bona fide purchaser for valuable consideration. Similarly in the case of Owe Then Kooi v Au Thiam Seng[5] where the land was transferred to transferee by way of fraud. Subsequently the land was charged to the bank. It was held that the interest which was obtained by the chargee was indeafisible. Abdul Malek Judge stated that "in the event of fraud, the title or interest may be set a side by any person or body to whom it may subsequently vested. 'Subsequently' must mean after the event of the fraud and in our present situation, it is the second defendant in whom the interest is subsequently granted". This case showed that bona fide purchaser for valuable consideration also includes chargee, lessee and easement.

CONCLUSION

As for conclusion, the charge created by Bank Bulan to the land owned by Abu Hisham and Bani's late father, Abu Hashim is defeasible. This is because an actual fraud had been committed by Abu Hisham in obtaining consent from his co-proprietor who was Abu Hashim. However, since Bank Bulan is a bona fide purchaser for valuable consideration because of the bank had paid a consideration and acted in good faith thus the title shall become indefeasible. This means that Bani can not take any legal action against Bank Bulan since the interest title fall in bona fide purchaser for valuable consideration.

[1] (2000) 1 MLJ 134
[2] (1923) NZLR 1137
[3] (1905) Ac 176
[4] (1949) 1 MLJ 128
[5] (1990) 1MLJ 234

Student's Tribunal

2006-01-15T19:56:00.000-08:00

Series 4

4.0 UiTM's Disciplinary Tribunal

Tribunal is a body set up by legislation to adjudicate upon disputes in a specific area and which enjoys a degree of autonomy. A tribunal is an important and the best form in settling dispute outside the court system. This is because tribunals enable an ordinary man to obtain a cheap, fair and impartial hearing when he is affected by administrative action.One situation where such an occasion arises relates to disciplinary actions in universities. UiTM is one of the universities in Malaysia that uses a tribunal in handling students' disciplinary matters. UiTM is Malaysia's largest institution of higher learning that has experienced a phenomenal growth since its inception in 1956.Presently, the University has expanded nationwide with three satellite campuses, 14 branch campuses, six city campuses, 25 franchise colleges and a smart campus for the future.This large students population size inevitably raises, among others, disciplinary problems. Accordingly, this calls for a need to set up a proper process or procedure to handle the problems. UiTM Students’ Disciplinary Tribunal was created by virtue of the Educational Institutions (Disciplinary) Act 1976 (Act 174). Under this Act, an officer of the University is empowered by the Minister to carry out proceedings in the Students' Disciplinary Tribunal, and further the said officer could delegate his authority for the said purpose to other officers in the University. Currently, the officer in charge of this tribunal is one from the Hal Ehwal Pelajar (HEP) office.

4.1 The Rules

The Malaysian public universities are generally paternalistic in nature. This is reflected in the offences under the Educational Institutions (Disciplinary) Act 1976. The offences could be largely categorized into several categories namely, main, general, hostel and traffic offences. The main offences are contained in Part IV of the said Act. One of the offences under the main category is where a student becomes a member of any local or foreign political party or workers union or non-governmental organizations without obtaining a prior approval from the Education Minister. This prohibition is extended to acts of having any arrangements with the said organizations, and showing support or doing anything that could be interpreted as to show support to the said organizations. As for the general offences, these are contained in the Educational Institutions (Discipline of Students) Rules 1976 in the Second Schedule of the Act. Among them are prohibitions against gambling, pornographic materials, possession of drugs and drug use. The hostel rules are contained in Part III of the Rules, which seek to safeguard the decorum of the occupants by providing prohibition against such matters as vandalism and nuisance.

Traffic rules are contained in Part IV of the Rules and these rules aim to regulate the conduct of the motor vehicle users on campus, for instance, the registration of the motor vehicle by the owner, obedience of the speed limits, and the parking of the vehicles in the appropriate places. Students are also bound by any other written law of Malaysia. When a student is charged in a Court of Law for transgressing of any law, he or she would be automatically suspended from the University, and automatic expulsion would follow from a conviction.

4.2 The Procedures

The Educational Institutions (Disciplinary) Act 1976 (Act 174) provides guidelines on the procedures regarding Student Disciplinary Tribunal. When the Tribunal is convened, the Secretary of the Board, who is usually the Executive Officer from the Students Affairs Department, will read out the charge against the student, and the student would be asked whether he understands the charge which is laid out against him. If the answer were in the affirmative, he would be asked for his plea. If the student were to plead guilty to the charge, the Board would once again explain the particulars of the charge to him; and if the student pleads guilty to it again, the Board would declare a finding of "guilty". Sentencing does not take place automatically at this point. The student would be asked to present any mitigating factors, after which the Board would discuss the appropriate punishment to be given. If the student were to present a plea of not guilty, a mini trial would be commenced and the Board would call the witnesses for the Board to present evidence against the student. The student would be asked to cross-examine the said witnesses, following which the Board would reexamine its own witnesses.Next, the student would be asked to present his defence and he could call any witness for his side to present evidence before the Board, and the same process of cross-examination and reexamination would follow. If the Board makes a finding of guilt, the student would then be asked to present a case for mitigation.

The punishment can be one or any combination of the following: a warning; a fine not exceeding RM 200.00; suspension for a certain period; exclusion from any parts of the University for a certain period, and expulsion. In practice, the University has issued a guideline for the minimum and maximum limits of punishment that the Board could pass. For instance, the maximum penalty for the offence of possession of cigarettes is a fine of RM50.00.

A student who is dissatisfied with the decision of the Tribunal could lodge a written notice of appeal to the Secretary of the Tribunal within five days of the decision of the Tribunal and the said officer would then forward the notice to the Education Minister together with the records of the proceedings.

Civil Law System in South East Asian

2005-12-29T07:50:00.000-08:00

"The claim that civil law system is being practiced in some of the South East Asian States is rather an exaggeration, and in fact a misconception. The truth of the matter is that apart from the fact that some of the major areas of law in these States are codified, nothing else resembles the system as found either in France or in Germany."

The Civil Law system is said to be practiced in many countries in the world. However, there is a claim that the practice of this system in some of the South East Asian states is rather an exaggeration. It is said that there is nothing else that resembles the system as found either in France or Germany apart from the fact that some of the major areas of law in these states are codified.

The meaning of Civil Law is the entire system of law that currently applies to most Western European countries, Latin America, countries of the Near East, large parts of Africa, Indonesia and Japan. It is derived from ancient Roman law, and originated in Europe on the basis of the Roman jus civile, which is the private law that was applicable to the citizen and between citizens within the boundaries of a State in a domestic context. It was also called the jus quiritum, as opposed to the jus gentium, which is the law applied internationally, that is between States.

There are many features of Civil Law system. The first feature is the creation of doctrine of binding precedent. The authority of binding precedent is attributed in Federal Germany to the decisions of the Federal Constitutional Court the decisions of which for this reason are published in the official Federal Journal (Bundesgesetzblatt). In contrast, the doctrine in the French Legal System is not a binding authority on the courts, or a binding guide to the decision.

This is because the doctrine places court decisions in their proper perspective and indicates the policies underlying legislation. This means it has merely persuasive authority. Per se judicial decisions are not binding. However, they have de facto authority.

The second feature is codification. In Civil Law system, code is an authoritative, comprehensive and systematic collection of general clauses and legal principles, divided into Books or Parts dealing in a logical fashion with the law relating thereto. Civil codes are thereto regarded as the primary sources of law to which other sources are subordinate and often the only source of law on a particular matter. However, the codification movement was not wholly beneficial even with respect to the cohesion of the system. The "perfection of reason" achieved in the form of the civil codes of France (1804) and Germany (1896).

Next, the third feature is the doctrine of legal writing, the styles of doctrinal writing in France and Germany are, it would seem, more approximate now than at one time. The annotated codes (Kommentare) are now more often discursive and critical in approach, and German manuals or treaties (Lehrbucher) deal more with decided cases and aspects of actual practice than they once did.

The fourth feature is the court system. The Civil Law system has separate court system to trial different types of cases. The German Civil System has Ordentliche Gerichtsbarkeit (court with ordinary jurisdiction), Arbeitgerichtsbarkeit (employment law jurisdiction), Sozialgerichtsbarkeit (social jurisdiction), Finanzgerichtsbarkeit (fiscal jurisdiction), Verwaltungsgerictsbarkeit (administrative jurisdiction) and the Verfassungsgerichtsbarkeit, dealing with constitutional cases. The French Courts are organized on the basis of general and limited jurisdiction. The system has a dual court system. There are ordinary courts (the ordre judiciaire) and administrative courts (ordre administrative). The Supreme Administrative Court, known as the Conseil d’Etat. However, the Administrative Court more likely to belong to the executive, and it is only the ordinary court that can really be regarded as having its judicial functions, its autorite judiciare- the judicial power.

The hierarchy of courts is divided in a three- tier level, where in the lower tier, there is tribunaux d’instance, and also tribunaux de commerce. Together with the two courts are tribunals; those are social security tribunals, employment tribunals, and Landlord and tenant tribunals. In the second tier level, is the tribunaux de grande instance, which can try both civil and criminal matters, do not have any appellate jurisdiction, and functions as a regional court. Finally, at the top of the hierarchy is the cour d’appel, which hear appeal cases. The cour d’appel is divided into several divisions and do not simply try any kind of cases.

Eventually, the final feature is the difference between public and private law. In the French Civil system, the establishment of the courts, which governed the private and public matters distinctively, noted as a different feature as compared to the English Common Law. Those courts are Supreme Court, (cour de’cassation) which deal with private law (droit prive); while the Conseil d'Etat handle concerns about the public law (droit public). The droit prive handle private matters, the rights and duties of private persons. Public law on the other hand, would govern disputes involving States as one of the parties.

After identifying all the features of Civil Law system, we will then compare Indonesia, Thailand and Philippines to all those features mentioned. First, let's take a look at Indonesia law system. The main and most important source of the Indonesian National Law is the philosophy of Pancasila, as contained in the Preamble to the 1945 Constitution. Pancasila consists of five main principles, which are belief in the one supreme God, humanity, national unity, deliberations (musyawarah) towards consensus (mufakat) or democracy, and social justice. The Pancasila is regarded as the grundnorm or rechtsidee of the Indonesian Law, so that any law or regulation is expected to conform to this philosophy in its details. The policy of 'partial' codification has been developed, meaning that specific parts of the Civil or Commercial Courts are promulgated separately from time to time, as was the case with the new Company Law. A special body was established with the task of legal reform.

This body, named the Lembaga Pembinaan Hukum Nasional (or Institute for the Development of the National Law) was placed under the authority of the Prime Minister and consisted of representatives of political parties and law professors. Moreover, the Civil Code comprise of systematic laws, whereby the contract law is part of the Civil Court.

The structure of the Indonesian Courts is the general court is executed by the District Court (Pengadilan Negeri) and High Court (Pengadilan Tinggi) at the summit at the juridical system is the Supreme Court, the country’s highest juridical body. The judges and those involved in the lawsuit have direct contact with each other. In addition, Indonesia does not have binding precedents doctrine as in Malaysia.

Next, we will look into the country of Thailand. The sources of law are Code of Manu (Dharmasastera), which is the ancient Hindu Jurisprudence and Dhammasattham, which is the fundamental law of individual liberty and private rights dealing with both civil and criminal matters. The court system in Thailand commonly known as the 'Law of the three Great Seals', was more restatement of the prevailing Penal and Civil Law. It contained not only the Dhammasattham but also the existing royal decrees and edicts. In 1891, the Ministry of Justice controlled the courts. The Courts of Justice are divided into three-tiers, namely the Courts of First Instance that are divided into Courts of First Instance in Bangkok Metropolis and the Courts of First Instance in the province. Next are the Court of Appeal and the Regional Court of Appeal and the highest Court of Justice is the Supreme Court.

Finally, we will take a look in the Philippines law system. The main sources of Philippines law are the Constitution, statutes, treaties and conventions, and judicial decisions. The Constitution is the fundamental law of the land and as such, it is authority of the highest order against which no other authority can prevail. In addition, Philippines law is also derived from cases because the Civil Court provides that 'judicial decisions applying to or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Only decisions of its Supreme Court established jurisprudence and are binding on all other courts. The judge may still apply the customs of the place or, in its default, the general principles of law in the absence of any statutes governing the point in controversy. The Civil Court also provides that 'customs which are contrary to law, public order or public policy shall not be countenanced', and 'a custom must be proved as a fact according to the rules of the evidence'. Thus, Philippines law takes cognizance of customs, which may be considered, as supplementary sources of the law.

The five principles in the Constitution, which are regarded as the New Charter is described as 'pro-life, pro-people, pro-poor, pro-Filipino and anti-dictatorship'. There is a formal separation of powers between legislative, executive and judiciary. The judicial system of the Philippines consists of a hierarchy of courts with the Supreme Court at the apex. Under the Judicial Reorganization Act, the other courts are one Court Of Appeals; Regional Trial Courts divided into 13 judicial regions, composing a total of 950 branches; and 82 Metropolitan Trial Courts, 124 Municipal Trial Courts in Cities and 438 Municipal Trial Courts and 480 Municipal Circuit Trial Courts.

For Muslims, there are 51 shari'a circuit and 5 shari'a district courts. Aside form these tribunals, there are Special Courts, namely, the Court of Tax Appeals and the Sandiganbayan. The highest court in the judicial system of the Philippines is the Supreme Court. The cases that are heard and decided by the Supreme Court en banc are those involving the constitutionality of a treaty, executive agreement or law. Law doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

The Civil Code was drafted by a Code Commission and came into effect on 1 July 1950, replacing the Spanish Civil Court 1889. It includes new rules aimed at incorporating Filipino customs and new rights in courses of action such as civil actions for obstruction on civil liberty, moral and nominal damages. There are 27 Codes in force in the Philippines.

As a conclusion, there are some of the features in the Civil Law system of Germany and France, which can be found in the South East Asian States that include Indonesia, Thailand and Philippines. Therefore, we cannot say it as merely an exaggeration and misconception.

Law of Contract: Contract made in the internet

2005-12-17T03:13:00.000-08:00

QUESTION:

Karim, a 17 year-old student from College Paladium Shah alam was browsing the internet with his friend, Awang in Buang Masa Cybercafe when he saw a site, run by Rekod Labu Labi Sdn Bhd, which was offering a set of CDs of the complete P.Ramlee's last concert at a price of RM100. in compliance with the information on the set, Karim immediately sent an e-mail to Rekod Labu Labi ordering a set of the CDs, and giving his credit card details.

About 5 minutes later, Awang found another site run by Saloma Moden Sdn. Bhd a rival company of Rekod LAbu Labi offering the same set of CDs for RM75. Karim immediately moved to Saloma Moden's website and selected this set.He was asked to fill out a form giving his details of his orders and requiring him to click on the confirmation order icon if he wishes to purchase the item. Karim did so. He then immediately sent second email to Rekod Labu Labi canceling his previous order. 10 minutes later he received an e-mail, from Rekod Labu Labi in response to his original email informing him that his order had been accepted and was being processed.

Karim was also interested in purchasing a mobile hand phone through email order. He browsed the internet on email order and saw the site run by Global Mobile Company offering cheap mobile hand phones at RM300 each for students. He immediately made the order and filled out the form as required in the email. A few minutes later Karim received an email form Global Company confirming their acceptance of Karim's order.

The next day Karim received an email from Saloma Moden explaining that the price of RM75 was wrongly quoted and that the real price was RM150. Subsequently he received a further email from Rekod Labu Labi stating that his second email had come too late and that he will charge with RM 100. Karim wishes to hold Saloma Moden to the price stated on the website and does not wish to proceed with the transaction with Rekod Labu Labi. Karim also wishes to return the mobile hand phone to Global Company when he found out the heavy maintenance fees of the phone.

Advise Karim

ANSWER:

Based on the facts given in the question above, we can highlight some main issues in order to advise Karim. Firstly the issues are whether there are legally agreement between Karim and Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd, Global Mobile Company. Secondly, whether Karim can hold Saloma Moden Sdn Bhd to the price stated on website, whether revocation of offer by Karim to Labu Labi Sdn Bhd will take effective or not and lastly whether Karim can get back his money by return back the mobile phone that he had brought from Global Mobile Company.

A contract maybe defines as an agreement between two or more parties that is intended to be legally binding. The first requisite of any contract is an agreement consisting of an offer and acceptance. At least two parties are required. One of them, the offeror which makes an offer and the other is offeree which accepts the offer. According to sec 2a of Contract Act 1950, an offer is an expression of willingness to contract made with the intention that it shall become binding on the offeror as soon as it is accepted by the offeree.

A genuine offer is different from what is known as "invitation to treat" where a party is merely inviting offers which is then free to accept or reject. Invitation to treat also can be define as invitation to enter into negotiation. There are differences between offer and invitation to treat. When offer is made by a party, he intend and legally bound by his offer but when the invitation to treat is made by a party, he does not intend and legally bound by his invitation to treat. Thus, the acceptance of an offer can form a contract while acceptance of an invitation to treat does not result in contract.

Based on the fact of the question, Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd and Global Mobile Company had advertised their product in the internet. Advertisements of goods for sale are normally interpreted as invitation to treat. This was illustrated in the case of Partriedge v Crittenden where the appellant inserted an advertisement in a periodical a notice "bramblefinch cocks and hens 25s each". It appeared under general heading 'classified advertisement' and words offer for sale were not used. He was charged with unlawfully offering for sale a wildlife bird contrary to the provision of the Protection of Birds Act 1954.It was held that there had been no offer for sale. When one is dealing with advertisement and circulars, there is business sense in their being construct as invitation to treat.

So, Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd and Global Mobile Company advertise their goods in order to invite buyers to enter into negotiation or make an offer to them. The acceptance of invitation to treat is when Karim submit an orders to buy CD from Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd and mobile phone from Global Mobile Company. At this moment also, Karim is said to make an offer to them.

An acceptance is a final and unqualified acceptance of the terms of an offer. To make a binding contract, the acceptance must exactly match the offer. The offeree must accept all the terms of the offer. According to section 2 (b) of Contract Act 1950, when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal, when accepted become a promise. In section 3 of the same act stated that the communication of offer, acceptance of an offer and revocation of offer or acceptance are deemed to be made by any act of party offering, accepting and revoking by which he intends to communicate the offer, acceptance or revocation or which has the effect of communicating it. And based on section 7 (a) same act the acceptance must be absolute and unqualified. Acceptance must be communicated. Communications of an acceptance take place when it is brought to the knowledge of offeror. Refer to the question, the email by internet services is practically an instantaneous means of communication. It enables a massage to be dispatch by an email operated like a typewriter in one country and almost instantaneously received and type in another.

In the case of Entores Limited v Miles Far East Corporation, the plaintiffs in London made an offer to the defendants in Amsterdam. The defendants accepted by telex. The question was whether was the contract entered into in Amsterdam where the telex was sent or in London where it was received. Court of Appeal held that the contract was only complete when acceptance was received by the plaintiffs in London.

The first issues are whether there is a legally agreement between Karim and Saloma Moden Sdn Bhd and wheter Karim can hold Saloma Moden Sdn Bhd to the price stated on website. When Saloma Moden Sdn Bhd make an advertisement, they is said to make an invitation to treat. Karim accept the invitation to treat and make an offer by sent an order form through email to the company. The acceptance by Karim does not amount into contract. This is because when Saloma Moden Sdn Bhd make an invitation to treat, they does not intend and legally bound by their invitation to treat. Furthermore, in the question it is not stated that Saloma Moden Sdn Bhd had accept offer made by Karim to them.

So, since there is no acceptance at all, then there is no legal agreement between Saloma Moden Sdn Bhd and Karim. As the result of this, Saloma Moden Sdn Bhd can change the original price of the product and Karim can not hold Saloma Moden Sdn Bhd to the price stated on the website. However, if Saloma Moden Sdn Bhd had accept the offer made by Karim by reply their acceptance through email, then there is a legally contract between them and Saloma Moden Sdn Bhd can not change the original price that stated on the website. Same as Malaysian case of Coelho v Public Services Commission, where the respondent advertised in the Malay Mail inviting applications for the post of an Assistant Passport Officer. The applicant applied was subsequently accepted. Later, due to misconduct, the applicant was informed that his appointment on probation to be terminated. Judge Ong held that the advertisement was an invitation to treat and the resulting applications were offer. The respondent’s acceptance of the applicant’s application was unqualified and there was no question that his appointment was on probation. Therefore, the respondent was wrong in terminating his employment in the manner applicable to officers on probation.

The second issues are whether there are legally agreement between Karim and Rekod Labu Labi Sdn Bhd and, whether revocation of offer by Karim to Labu Labi Sdn Bhd will take effective or not. Here, when Karim made offer to buy CD form Labu Labi Sdn Bhd he is now known as offeror and the other party known as offeree. Same as in the case of Entores v Miles Far East, the question is when the acceptance was completed and where the contract was made between Karim and the company. The communication of acceptance was complete when it is brought to the knowledge of offeror (Karim) and the contract was made at the place where the acceptance was received. However, Karim had made a revocation to his offer 5 minutes after he offer to buy the CD. 10 minutes after he made the offer, he received an email from Labu Labi Sdn Bhd informing him that his order had been accepted.

Unfortunately, the next day he received a further email from Labu Labi Sdn Bhd stating that his second email which contains revocation of his offer had come too late. In this situation, the contract between these parties is made when Karim received an email from Labu Labi Sdn Bhd informing him that his order had been accepted. According to the section 4 (3) (b) of Contract Act 1950 the communication of a revocation is complete as against the person to whom it is made, when it comes to his knowledge. And by refer to section 5(1) of the same act stated that a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. As in the case of Byrne v Van Tienhoven(1880) where on October1, the defendants posted a letter in Cardiff to the plaintiffs in New York offering to sell them tin plates. On October 8, the defendants revoked their offer by post. On October 11, the plaintiffs accepted the offer by telegraph, and confirm their acceptance by a letter dated October 15. on October 20, the plaintiff received the defendant’s letter of revocation. It was held that the revocation of the offer was not effective because it was only communicated on October 20, which was after the acceptance of the offer on October 11.

By apply the law into this circumstances, Karim's revocation of offer will not take effective at all. This is because the email consist of the revocation only come to the knowledge of Labu Labi Sdn Bhd after the acceptance had been made which means the revocation come to the knowledge of offeree afterwards the acceptance being made. Thus, there is a contract between them and since the revocation of offer is not effective then Karim was entitled to pay RM100 to Labu Labi Sdn Bhd. But if the email of revocation came before the acceptance of the offer being made, then Karim is not enforceable to pay RM100 as the revocation of offer will take effective.

The third issues are whether there are legally agreements between Karim and Global Mobile Company and whether he can get back his money by return back the mobile phone that he had brought from Global Mobile Company. According to the question, there is a contract between Karim and Global Mobile Company when Karim's offer had been accepted by Global Mobile Company and in fact Karim had received the mobile phone and had used it. So, Karim cannot return back the mobile hand phone to the company because he had entered into contract with the company and the contract between them is valid. The reason of heavy maintenance fees of the phone will not make their contract become void. Unless there are undue influence, coercion, mistake and misrepresentation then the contract is said to become void or viodable. It is up to the innocent party ( Karim) to continue the contract or not. Thus, Karim cannot return the phone and cannot get back his money.

However, in section 10 (1) of Contract Act 1950 said that all agreement are contract if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declare to be void.

Who are competent to contract? According to section 11 of the same act, every person is competent to contract who is of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. Further in section 2 of Age of Majority Act 1971 stated that a person of majority is 18 years old. Below 18 years old can be label as minor. In English Law, a minor does not have the full capacity to enter into contracts and the contract entered into by minor can be divided in to 3 part which are valid (where contract for necessaries), voidable and unenforceable (contract for luxury goods).

However this is different in the Indian case of Mohori Bibee v Dhurmodas Ghose (1903). In this case it was held that contract enter by minor is void. A minor cannot enter contract with adults. An infant would not be able to obtain any damages for breach of contract.

In Malaysia, the Mohari Bibee case was followed in the case of Tan Hee Juan v Teh Boon Kiat (1934). Plaintiff who is a minor said that contract that involved a minor is said to be void. So there is no contract at all. So it was held that the plaintiff succeeds in his claimed and therefore Tan Hee Juan should not have to pay back to the defendant.

Later, in 1950 Contract Act had been made and in the section 69 of the Act provides that if a person, incapable of entering contract or anyone whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitle to be reimbursed from property of such incapable person. But the word necessary is not defined in the Act. But later, in the case of Government of Malaysia v Gucharan Singh & Ors, Judge Chang Min Tat concluded the word necessaries must be construed broadly and in any decision involving whether what are supplied are or are not necessaries, it is incumbent to have regard to the facts of the case, the conditions and circumstances in which the supply was made and the purposed which is served. Thus an infant is totally incompetent and incapable of entering into contract and there is no contract on which he can be sued.

By applying the law into the question, it was stated that Karim is 17 years old and he is a minor. When Karim cannot enter contact of buying CDs from Saloma Moden Sdn Bhd, Rekod Labu Labi Sdn Bhd and mobile hand phone from Global Mobile Company because he is an infant or minor. As the result, if Karim enter into these contracts, those contracts will become void. The main question regarding this circumstance is whether what is supplied is a necessary to the infant's condition in life. Based on the facts in this case, CDs and mobile hand phone are not necessaries to the minor's condition in life.

So, the contract between Karim and Global Mobile Company is said to be void.
When the contract between them in void, then Karim can return back the mobile hand phone and receive back his money. This is because under minor’s contract, the property transferred can be recovery. In section 66 of Contract Act 1950, when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it. This section had been used is the case of Leha bte v Awang Johari bin Hasim ( 1978) where it is the minor who has paid money in pursuance of a contract then it enables the minor to recover the money upon returning the property transferred to him. Apply to this condition, the Global Mobile Company have to give back money to Karim because the company had received advantages under the agreement.

Lastly, as the conclusion of the questions, there are contract between Karim and Rekod Labu Labi Sdn Bhd, Global Mobile Company but those contracts had become void as Karim is a minor. So, Rekod Labu Labi cannot enforce Karim to pay RM100 for the CD. As for Global Mobile Company, they are liable to give back Karim's money. Meanwhile, there is no contract between Karim and Saloma Moden Sdn Bhd. This is because there is no acceptance at all. So, Saloma Moden Sdn Bhd can change the original price and Karim cannot hold the company to the price stated on the website.

Intellectual Property: Copyright

2005-12-12T06:25:00.000-08:00

What Is Copyright?
Copyright is the exclusive right given to the owner of a copyright for a specific period. Copyright protection in Malaysia is governed by the Copyright Act 1987. There is no system of registration for copyright in Malaysia. A work that is eligible is protected automatically

What Does Copyright Protect?
Works eligible for protection are:

literary works; musical works; artistic works; films; sound recordings; broadcasts; and
derivative works.

These works shall be protected irrespective of their quality and purpose for which they were created. However, the copyright protection shall only extend to expression and not ideas, procedures, methods of operation or mathematical concepts as such.

Who Owns Copyright?
Copyrights in a work vests initially in the author (writer, composer, maker of the work, etc). However, where the making of a work is made by an employee in the course of his employment, unless there is any contrary agreement, the copyright in the work shall be deemed to vest in the person who commissioned the work or the employer. The author's right is transferable by assignment, testamentary disposition or by operation of law, in which case the assignee shall be the owner.

How long does copyright last?

Literary, Musical or Artistic Works

Generally, copyright in any literary, musical or artistic work shall subsist during the life of the author plus 50 years after his death. However, if a work has not been published during the lifetime of the author, copyright in the work continues to subsist until the expiration of 50 years, following the year in which the work was first published. In the case of a work with joint authorship, the life of the author who dies last is used for the purpose of calculating the copyright duration of the work.

Sound Recordings

The copyright in sound recordings shall subsist until the expiry of a period of 50 years computed from the beginning of the calendar year next following the year in which the recording was first published or, if the sound recording has not been published, from the beginning of the calendar year following the year of fixation.

Broadcasts

For the copyright in broadcasts, the duration shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the broadcasts was first made.

Films

The duration of the copyright in films shall continue to subsist for a period of fifty years computed from the beginning of the calendar year next following the year in which the film was first published or first made available to the public or made, whichever is the last.

Government Works

Copyright in works of Government, Government organizations and international bodies shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the work was first published.

What Are The Legal Rights Of Copyright Owners?
Generally, owners of copyright works in literary, musical or artistic works, films and sound recordings have the exclusive rights to control:
i) the reproduction of the works in any form (including photocopying, recording etc);
ii) the performing, showing or playing to the public;
iii) the communication to the public;
iv) the distribution of copies to the public by sale or other transfer of ownership; and
v) the commercial rental to the public.

These exclusive rights apply irrespective of whether the works are copied partly or wholly. Thus, infringement of copyright occurs if the person claiming can show that the defendant has done such an act. In other words, the burden of proof lies on the person claiming that his/her work has been infringed.

Copyright in Broadcasts
For the copyright in a broadcast, there shall be exclusive rights to control the recording, the reproduction, and the rebroadcasting of the whole or a substantial part of the broadcast. The show or the play must be made in public and in a place where an admission fee is charged for the whole or a substantial part of the broadcast either in its original form or in any way recognizably derived from the original. The copyright in a television broadcast shall include the right to control the taking of still photographs from such broadcasts.

Economic Rights
Economic rights are exercised during the period of protection. These rights are exercised by the owners while alive, and upon death, for a period of 50 years by their heirs.

Moral Rights
Besides the economic rights, copyright protection also includes moral rights. The moral rights are basically the rights to oppose changes in the copyright that could harm the reputation of the creator.

What Constitutes Copyright Infringement?

The copyright in a work infringed when a person who, not being owner of the copyright, and without license from the owner, violated the right.

What Is Copyright Tribunal?

The Malaysian Copyright Act provides for a Copyright Tribunal whose function is to grant licenses to produce and publish in the National Language a translation of a literary work written in any other language and arbitration of disputes relating to use of copyright works.

Criminal : Snatch Theft

2005-12-09T01:57:00.000-08:00

Snatch theft is becoming a serious issue nowadays. During the months of June and July 2004, the local media, especially the press, have been replete with reports of crime and violence in Malaysia. There have been many reports of snatch thefts which has given a great impact to the society. Police statistics on these crimes indicate that they are on the rise. Therefore, there is a sense of anxiety, even panic and fear in the air.

The seriousness of this crime can be proven when on January 29th, 2005, the Prime Minister, Datuk Seri Abdullah Ahmad Badawi himself has addressed throughout the country his curious concern on the rise of the crime and the need to implement more severe punishments.
There are lots of articles in the newspapers and on the internet to show the seriousness of the offence of snatch theft. On January 30th 2005, our nation's leading newspapers, namely Berita Minggu and The Star had reported snatch theft crimes, which had happened near Ipoh, Perak. The suspect had snatched the bag from a sixty year old woman at a shopping mall at Jalan Kampar, as the woman was walking to her car. The twenty year old thief, who had tried to escape in his car, also knocked down a man, who suffered minor injuries. The suspect ran through the traffic lights and collided with two cars. This has caused him to lose control of his vehicle, which then hit the road sign. The suspect then was detained.

The second example of this snatch theft crime happened on January 9th 2005. Berita Minggu had reported another snatch theft incident, where two female students were injured after their motorcycle crashed into a concrete drain while escaping from a snatch criminal. The suspect had followed the girls with a motorcycle on their way after attending tuition class.
In another case, on June 10th 2004, Ros Saliza Burhan, a factory worker on her way waiting for the bus was followed by two men on a motorcycle. Failed to snatch the victim’s bag, the criminal had used force against her by stabbing her three times so that she will release her bag. The victim fainted because of the injury.

Those were just among a few cases occur in our country. There are other cases, which cause a more terrifying result such as death, grievous hurt, shocked and so forth. The seriousness of this offence can be seen when Chin Wai Fong died in Brickfields in May when she fought back against a snatch thief. Then Chong Fee Cheng fell, went into a coma and died while resisting a snatch thief in Johor Baru in mid-June. This was followed by the killing of Rosli Mohamed Saad who had gone to the aid of an Indonesian woman whose bag was snatched in Ampang in June 29.
The newspapers also carried statistics on the number of snatch thefts. Relying on police statistics, Penang Chief Minister Tan Sri Dr Koh Tsu Koon revealed that there had been a total of 515 cases of snatch thefts in Penang between January and May 2004. Meanwhile the Perak Chief Police Officer reported a total of 374 cases of snatch thefts in his state during January to May 2004.

With all the examples and discussions given, the issue of whether or not the crime of "snatch theft" should be separated from the offence of "theft" and "robbery" will impose a lot of legal discussion in order to ensure public safety.
The main and crucial issue to be discussed here is that whether the offence of "theft" and "robbery" sufficiently address the offence of "snatch theft". In other words, whether or not the elements of the two offences, which are already in the Penal Code are sufficient to be raised for a person who commits snatch theft. In order to tackle this issue, the elements of "theft", which is under section 378 of the Penal Code and the elements of "robbery" which is under section 390 of the Penal Code have to be analyzed one by one.
First and foremost, we would like to discuss the elements of "theft" which is under section 378 of the Penal Code. The said provision defines theft as "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft". Basically, from the definition, there are five elements of "theft".

The first element is dishonesty. It is defined under section 24 of the Penal Code as "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, irrespective of whether the act causes actual wrongful loss or gain, is said to do that thing "dishonestly"." This shows that the important thing is to determine whether or not there is an intention to cause wrongful gain or wrongful loss to the other person.
What is "wrongful gain" and "wrongful loss" then? It is further defined in section 23 of the Penal Code, whereby a person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of the property. Since dishonesty requires the intention to wrongfully gain or lose, the intention must exist at the time of moving of the property. This is because, it is not theft if there is no intention at the time of taking of the property .

The authority for the first element can be seen in the case of Raja Mohamed v. R whereby the principle is that there must be an intention to take dishonestly any movable property out of the possession of another person without that person's consent in order to constitute theft. Meaning to say, it is sufficient that the person, who has such dishonest intention moves the property in order to such taking. In addition, it is not necessary to move such property in order to move out of the possession of the other person.

Next, the second element is that the person must take without consent. It means that there must be an intention to take another's property without consent. The important point here is how the accused conceives of the situation whether or not the person whose property is taken would consent to it. In other words, this element depends on the mind of the owner of the property. In the situation when a person consents, then the actus reus of theft is not fulfilled and therefore there is no theft.

The third element is to take out of possession. It means that the property must be taken or moved out of the possession. If the accused has a dishonest intention and moves the property, then he is said to move the property out of possession. It is to be noted here that theft is an offence against possession and not of ownership. Therefore, the offence is against the person who is in possession. A possession for the purpose of theft relates to movable property and movable property, which is lost or abandoned may not be in any possession of any person. However, when it is neither lost nor abandoned, even if it is then placed in the possession of someone else, the possession may still remain with the true owner.

Subsequently, the fourth element is movable property. What is "movable property" is defined under section 22 of the Penal Code, which states that the words "movable property" are intended to include corporeal property of every description. Except land and things attached to the earth, or permanently fastened to anything which is attached to the earth. It means that as long as the thing is attached to the earth, therefore it is not movable.

Furthermore, a thing attached to the earth is not movable and cannot be a subject of theft until it has been severed from the earth. Land within the meaning of section 22 of the Penal Code does not include soil from the land. However, when it is dug out of the land, it is then known as movable property. In the case of Lim Soon Gong & Ors., the respondents were charged with committing theft of sand from the foreshore. The principle of this case regarding the fourth element is that sand, which has been dug out from the foreshore is a movable property.
Eventually, the final element of theft is there must be a moving of the property. It means that the property must be moved out of possession. This can be seen in the authority of Raja Mohamed v. R, the accused had removed boxes containing two dozens of glasses from the company's ground floor storeroom. He was charged of convicting theft. The principle of this case is that it is sufficient if the person had formed a dishonest intention and moves the property in order to such taking. Moreover, it is not necessary to move the property fully out of possession in order to commit theft.

Having fulfilled all the five elements under section 378 of the Penal Code, the accused then can be held liable for committing theft. Section 379 of the Penal Code further provides the punishment for theft, whereby one can be punished with imprisonment for a term which may extend to seven years or with fine or both. It further adds that for a second or subsequent offence, one shall be punished with imprisonment and also be liable to fine or whipping.
The question to be asked is whether the offence of "snatch theft" can fall under the offence of "theft" under section 378 of the Penal Code. It seems like it is insufficient as when snatch theft is committed, there will be the element of force on the person who is being snatched, whereas the elements of theft are more mild in the sense that there is nothing in the provision states that there is a use of force or further may result to a more critical situation such as death.
Thus, this will make the punishment for theft does not suit the offence of snatch theft. Snatch theft as being said earlier can cause injury to the other person and it can even come to the extent of causing death to the other person. Besides that, there also should be an element of force. These elements seem do not present in the elements of theft. Thus, we submit that the offence of "theft" does not sufficiently address the offence snatch theft as snatch theft is more serious and causes more severe injury as compared to theft.

Having discussed the elements of "theft", we will go into details the offence of "robbery" in order to come to the conclusion of whether or not it is sufficiently address the offence of snatch theft.
Section 390 of the Penal Code which is regarding the offence of "robbery" will be analyzed. Clause (1) of the said provision states that in all robbery there is either theft or extortion. In other words, for the offence of robbery to arise, either the two main elements, which are theft or extortion has to exist.

Section 390(2) states that theft is "robbery" if, in order to commit theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or of instant wrongful restraint.
Section 390(3) defines extortion as robbery, if the offender, at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

In other words, robbery is theft or extortion in an aggravated form. Hence, the elements of theft or extortion must be present in addition to the aggravated circumstances set out in robbery.
Section 390 provides for the circumstances when theft constitutes robbery. The words "for that end" in section 390 must relate to the commission of theft. Hence where an assault has no relation to the theft, robbery is not committed. If, for example, the accused first assaulted the complainant and then subsequently formed an intention to take his watch, he cannot be liable for robbery but only for theft.

The crucial point under the offence of robbery is to determine the meaning of the word "for that end". The force or threat of force must be for the purpose of committing theft and carrying away the property. In Karuppa Gounden, it was held that "the word 'for that end' in section 390, Penal Code, cannot be read as meaning in those circumstances". It was held by the Lahore Court in Karmun that,
"…before a person can be convicted of robbery the prosecution must prove that hurt was caused in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away the property obtained by the theft. The hurt contemplated must be a conscious and voluntary act on the part of the thief for the purpose of overpowering resistance on the part of the victim, quite separate and distinct from the act of theft itself..."

In the other case of Bishambhar Nath v. Emperor AIR, the principle is that in order to commit theft of the cash or in committing the theft of cash for carrying away or attempting to carry away property obtained by the theft, the accused for the theft voluntarily caused or attempted to cause hurt.

The word "for that end" clearly means that the hurt caused by the offender must be with the express object of facilitating the commission of theft or hurt must be caused while the offender was committing theft or in carrying away or in attempting to carry away the property obtained by the theft. It does not mean that the assault or hurt must be caused in the same transaction or in the same circumstances.
In Nga Po Thet, the essence of robbery is that the offender must cause death, hurt or wrongful restraint or fear of death, hurt or wrongful restraint in the commission of theft or in carrying away the property obtained by theft.
The punishment for robbery is stated in section 392 of the Penal Code, whereby it shall be punished for a term which may extend to ten years and shall be liable to fine. In addition, if the robbery is committed between sunset and sunrise, the imprisonment may be extended to fourteen years and shall also be liable to fine or whipping.

From the discussion of robbery as in section 390 of the Penal Code, the offence of robbery seems to satisfy some elements of snatch theft. As what has been said earlier, the offence of snatch theft involves the elements of force and the consequences of the act will lead to a severe injury to the victim and sometimes it may lead to death of the victim. In fact, section 390 is being used for the time being as to replace the offence of snatch theft which is not in the Penal Code yet. This shows that snatch theft is very dangerous to the public at large as the offence is nearly similar to the elements of the offence of robbery under section 390. The punishment for snatch theft is as the same as the punishment for robbery under section 392. This again proves that snatch theft is a serious crime.

However, we strongly think that there must be an element of force in snatch theft. This is because when a person snatches another person's handbag, there is an existence of force used against the other person. This is because, when a person wants to grab the other person's bag, it will happen fast. When this happens, the other person will be hurt and injured as there is force used against him or her. In other words, force and hurt will tend to exist simultaneously when a person commits the offence of snatch theft.

In the current situation, the Deputy Internal Security Affairs Minister Datuk Noh Omar has clarified in Parliament that the Police, since early 2004, had resorted to using the Emergency Ordinance (Crime Prevention & Public Safety) 1969 against snatch thieves "if the Police is convinced that the suspects had committed the offence". Under the Ordinance, those suspected may be held for sixty days after which the Internal Security Minister could decide to detain them for up to two years without trial.
The Deputy Internal Security Affairs Minister further clarified that the Police would also charge snatch thieves under sections 392, 394 and 397 of the Penal Code, which allows for caning, jail terms (up to twenty years if armed, under section 394), apart from imposing fines. This last step is in line with the suggestions of another politician, Karpal Singh, who called for amendments to sections 392 and 394 of the Penal Code to impose mandatory whipping of not less than six strokes. It was also the suggestion of Wong Sulong in his Editorial in The Star on June 15th, 2004.

Since there is still no laws imposed on snatch theft, it is to be tabled in the year 2005. The Minister in the Prime Minister's Department, Datuk Mohd Radzi Sheikh Ahmad said a Bill dealing specifically with snatch theft offences would be tabled in Parliament in July, 2005. He added that, under the new law, the offenders could be imprisoned between seven and twenty years and whipping could be included as part of the punishment.
Currently in the Penal Code, there is no special provision for snatch theft besides the separate charges for theft and robbery, which carry a maximum jail sentence of seven and twenty years respectively. He further added that the law would be effective by the end of the year 2005 if everything goes smoothly.
The need of having a special law for snatch theft is due to the many reported cases of victims being killed or seriously injured. This shows that the offence of snatch theft is indeed a serious crime.

CONCLUSION
The offence of "theft" and "robbery" do not sufficiently address the offence of "snatch theft". This is because only some of the elements of snatch theft matches the offence of theft and robbery.
The public views snatch theft as being more dangerous than theft and robbery as it can happen anywhere at anytime. The victims are normally among the women as women carry handbags on their arms and this allows the other to snatch their bags easily with the use of force and violence against the women, which will lead to injury and to some extent cause death. Force is usually easily used by the men to the women as the women seldom fight back.
Eventhough the elements of crime in "snatch theft" could be found in the offence of "theft" or "robbery" but the consequences of the crime are unpredictable. Some victims may have escaped without any injury but then they will suffer trauma, and some victims may have died because of the crime. Therefore, in order to provide sufficient punishment and to address the crime of "snatch theft", a specific provision in the Penal Code should be implemented to successfully overcome this problem.
Consequently, we strongly agree that there should be a separate offence and punishment for snatch theft in the Penal Code so as to give more severe and reasonable punishment for the offence which had been done.

- Malaysian Constitution -

2005-12-04T05:03:00.000-08:00

The success of our constitution in bringing about peace and stability despite the existence of three major races among its population is remarkable. This is due to a sensible and practical government that has been able to bring about increased prosperity and the genius of the people to tolerate the co-existence of different religions and languages, customs and cultures.
Constitutional law deals with the foundations and bedrock of a particular country. The term 'constitution', in any country, basically refers to a set of rules which determines, among others, the manner the institution are to be set up, the powers to be distributed and the justice to be administered.

"The attempt to embody the fundamental institutions of a State in a single document or small groups of documents," says Lowell, "is rarely, if ever, successful; and even if the constitution when framed covers all the main principles on which the government is based, if often happens that they become modified in practice, fully with the actual government of the country."
A constitution is "[a] charter of government deriving its whole authority from the governed" (Black's Law Dictionary). The constitution sets out the form of the government. It specifies the purpose of the government, the power of each department of the government, the state-society relationship, the relationship between various governmental institutions, and the limits of the government. The classic liberalism posits that the state and society can be viewed as a big social contract. If so, in a liberal democratic country, the constitution is the fundamental part of the social contract; it is a fundamental contract between the state and the civil society.
Bryce defines it as "the aggregate of laws and customs under which the life of the State goes on"; "or the complex totality of laws embodying the principles and rules whereby the community is organized, governed, and held together."

Gilchrist writes that the constitution consists of "that body of rules or laws written or unwritten, which determine the organization of government, the distribution of powers to the various organs of government, and the general principles on which these powers are to be exercised."
'Constitutionalism' – democratic government, the rule of the law, the separation of powers, and the observance of fundamental human rights and liberties. These concepts were enshrined in the Constitution of the Federation of Malaya in 1957, and still can be seen in the present Federal Constitution of Malaysia which has evolved over 46 years from that important document.
Constitutionalism is comprised of ideas and theories that essentially put limitations on Political power in general.Government's sway over citizen's in particular.Montesquieu said that "there is no word that admits of more various significations, and has made more different impressions on the human mind than that of liberty."

Constitutionalism established substantive aspects of political liberalism such asSystems of rights designed to protect individuals against the state.The philosophy of limited government.The universal application of rules and so on.
Two key elements of constitutionalismRights provision – safeguards for political rights, for example, freedom of speech.Structural provision – separation of power, representative system.
Rousseau said, "What a man loses by the social contract is his natural liberty and an unlimited right to anything that tempts him, which he can obtain."
Rights provision is to ensure limitation on dangers of democracy by expelling certain issues from the political agenda together. Meanwhile, structural provision is to limit potential threats to democracy through political process.
M.P. Jain explained the distinction between constitution and constitutionalism. He put forward the view that a country may have a constitution but not necessarily constitutionalism. This is because, constitutionalism denotes a constitution not only of powers but of restraint as well, or simple in term, not only the engine but some brakes as well.
Constitutionalism concepts: Doctrine of separation of power.Rule of law.Limited government.Check and balancesMore recent concepts:Good governance.Transparency.Accountability.Call for democracy and respect for human rights.
Dicey defined Rule of Law:Supremacy of regular laws over arbitrary power.Former legal equality before the law.The constitution that is defined and enforced by regular courts.
The emphasis of the contemporary writes is on constitutionalism rather than on constitution. This is made clear by Carter and Herz themselves. They say, "Genuine constitutionalism is likewise absent when constitutions are forever made and remade, changed and abolished so as to fit the political needs of the respective holders…"

Like liberty or democracy, "constitutionalism" is also a fuzzy word, and different people have different ideas about what constitutionalism means. Giovanni Sartori defines liberal constitutionalism as constituting the following elements: 1. There is a higher law, either written or unwritten, called constitution; 2. There is judicial review; 3. There is an independent judiciary comprised of independent judges dedicated to legal reasoning; 4. Possibly, there is due process of law; and, most basically, 5. There is a binding procedure establishing the method of law-making which remains an effective brake on the bare-will conception of law (Sartori, 1987, p. 309). Sartori's definition emphasizes the "rule of law" side of liberal constitutionalism.

Louis Henkin defines constitutionalism as constituting the following elements: 1. Government according to the constitution; 2. Separation of power; 3. Sovereignty of the people and democratic government; 4. Constitutional review; 5. Independent judiciary; 6. Limited government subject to a bill of individual rights; 7. Controlling the police; 8. Civilian control of the military; and 9. No state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.
Traditionally the theory of constitutionalism and the related jurisprudence of human rights emphasized the protection of the individual against arbitrary powers of the states. But is now being increasingly recognized that private and commercial centers of power and many traditional structures of society pose as much a threat to human dignity and personal liberty as abuse of power by the functionaries of the State. A new jurisprudence is emerging in which the indispensability of safeguards against all forms of tyranny- whether by public authorities or private wielders of despotic power is being felt.
Turning to law making, of the 900 odd Acts of Parliament passed since Merdeka, there are at least 14 statutes (all presented by the Executive) which cause severe inroads, and, for practical purposes, abrogate constitutionally protected fundamental rights. 1. Public Order (Preservation) Act, 1958. 2. Prevention of Crime Act, 1959 3. Trade Union Act, 1959. 4. Immigration Act, 1959 5. Internal Security Act, 1960. 6. Societies Act, 1966. 7. Police Act, 1967. 8. Emergency (Public Order and Prevention of Crime) Ordinance, 1969 9. Universities and University Colleges Act, 1971. 10. Official Secrets Act, 1972 11. Sedition Act, 1972. 12. Essential (Security Cases) Regulations, 1975. 13. Printing Presses and Publicity Act, 1984. 14. Dangerous Drugs (Special Preventive Measures) Act, 1975
A government that respects constitutionalism will govern the country according to the power provided in the constitution. Our country does practice doctrine of separation power. The executive, Federal Legislature and the judiciary. A matter regarding elections clearly stated in Part VIII in the Federal Constitution. Human rights or fundamental liberties is well defined under Part II. But, in the same document itself put some limitation or could be harshly said to violate our human rights.

The major human rights cases in the 1960's were Stephen Kalong Ningkan, Assa Singh and Karam Singh. In each case executive action based on laws which were clearly inconsistent with the letter and spirit of the fundamental liberties enshrined in Part P of the Federal Constitution was upheld. The Karam Singh case, in particular, was a dangerous precedent; it approved the entirely subjective discretion of a detaining authority which meant that such discretion could not be reviewed by Court, thereby eroding the liberty of an individual (protected by Article 5).
The most pernicious legislation is the Internal Security Act (ISA) which gives sweeping powers to the Executive, (the police and the Minister of Home Affairs) to arrest and detain any person for a period of 60 days; thereafter the Minister can order that person to remain in detention for a further two years, which detention can be renewed indefinitely every two years. Preventive detention is terribly insidious because a person's liberty is deprived without trial. Other extraordinary powers extend to prohibiting meetings and banning publications, books and periodicals. When presenting the Bill in Parliament on 21 June 1960, the then Deputy Prime Minister and Home Minister, Tun Razak stated that as there were still 583 armed terrorists in Northern Malaya there was still a need for the people "to be protected from communists subversion." He also gave the assurance that the ISA would be used with the utmost care so as to avoid the abuse. Despite that assurance, more than 20,000 people had been detained during the period 1960 to 1990 under the ISA for diverse reasons which have nothing to do with communist subversion. With the signing of a formal peace treaty with exiled remnants of the Communist Party of Malaysia in Thailand in 1989, reliance no longer seems to be placed by the Executive on communism as a ground for detention. As with other restrictive laws in Malaysia, the ISA, already a powerful weapon in the armoury of the Executive, through a series of amendments, has incrementally extended executive powers, while stripping away the scant judicial safeguards designed to protect against their abuse. Now, the reality is that once a person is detained under the ISA, he or she has no effective recourse to legal protection nor any opportunity to establish his or her innocence of the accusations made against them. As such, the ISA is contrary to the Part II fundamental liberties and core principles of international law, including the right to liberty of the person, to freedom from arbitrary arrest, to be informed of the reason for arrest, to the presumption of innocence and to a fair and open trial in a court of law. In fact, it would be impossible to find any scholar of worth or independence prepared to argue the contrary.

A government that respects constitution will also govern the country according to the power provided in the constitution. For example in the Proclamation of emergency. In order to ensure security against subversion, organized violence, and crimes prejudicial to the public and emergency powers. The first Emergency, which ended after the 12-year communist insurgency on 31 July 1960, was followed by the Second Emergency, which was declared on 3 September 1964 for the whole of Malaya by reason of Indonesian Confrontation. The Third Emergency, limited to the State of Sarawak, was declared on 14 September 1960 by reason of the events surrounding the dismissal from office of the Chief Minister, Stephen Kalong Ningkan. The 13 May 1969 riots led to the declaration of the Fourth Emergency for the whole nation on 15 May 1969. Finally, on 8 November 1977, the Fifth Emergency, limited to the State of Kelantan, was declared to deal with a political crisis there. The Second to Fifth Emergencies have yet to be revoked.

The issue is whether the proclamation itself is justiciable. Prior to 1979, it was not quite clear whether it was. The Privy Council in Ningkan's case. in 1968, had found it necessary to decide whether such power existed, although the Federal Court in the same case had said a proclamation was not justiciable. Later judicial pronouncement in Malaysian courts appeared, nonetheless, to indicate that it might be held to be justiciable.
The Constitution itself subjects government to certain principles which cannot be ignored. It not only disperses power among the federal and state governments, and between the legislative executive and judicial branches: it also provides fundamental liberties as criteria for the treatment of individual citizens. It lays down norms for the public service: the Public Service Commission ensures that the recruitment, conditions and discipline of public servants is independent of the government of the day, and applies the standard of recruitment and promotion according to merit. The Constitution also enshrines the basic conventions of the Westminster-model system of government, such as ministerial responsibility, both collective and individual. The structure of Malaysian government is also broadly similar or analogous to that obtaining in Westminster.

When a constitution is in flux there may not be constitutionalism, but the constitution is there. India amended her constitution nineteen times in six years and the forty-second amendment alone covered 59 clauses of the existing Constitution and the forty-fourth amendment also did not lag behind. Article 31 has been amended and re amended five times in this process. Now there is a rapid succession of amendments; a total of 74 and many more are awaiting completion of the process.
Admittedly, whether the frequency amendment is necessarily a bad thing is difficult to say. Or whether the constitutional amendments thus far have changed the original nature of the Malaysian Constitution. But whatever one has to say one has to begin by looking at the number of amendments that have been made since 1957. On the record we have had some 44 amendments. This may create the impression that the Federal Constitution has been amended so often so much so that the existing constitution is different from the one accepted on 31st August 1957. more so when one compares that with the American constitution, which began operation 1787, but has only been amended 27 times in the period of more than 200 years.
The growth of political parties, with rigid organizational discipline, the need for rational action in the interest of the public, and the urgency of dispatch in military and foreign affairs, in brief, have resulted in the shift of leadership in all modern democracies. Executive leadership has, in fact, at all times been essential to the success of government. But "constitutionalism and constitutional democracy," observes Carl Friedrich, "have been confronted with a most delicate task: how to discover institutional patterns which would provide vigorous and effective action, without allowing those who are called upon to take such action to turn into irresponsible despots."

Another important general feature of the constitution is the relationship between Islam and the constitution. Freedom of religion is both of importance in it self in a multi-religious society such as Malaysia, and that this principle is in no way contrary to the principle that Islam is the religion of federation. Therefore, it is expected that freedom of religion is specifically safeguard in the constitution. Article 11(1) says that every person has the right to process and practice his religion and subject to clause 4, to propagate it. Article 11 (4) allow States to legislate for the control or restriction of the propagation of any religious doctrine among person professing Islam. Article 11 (5) creates further restriction on freedom of religion by providing that Article 11 does not authorize any act contrary to any general law relating to public order, health or morality.
Freedom of religion is however bolstered by other provision. Article 11 (2) says, no person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposed of a religion other than his own. The issues of religion matters were explored in the important case of Halimatussaadiah v Public Services Commission, Malaysia and Anor, where the plaintiff worked with the government since 1973. In 1985, the government issued a serviced circular on the subject of dress code for government officers. The circular mentioned that a female officer could not wear anything that covers her face. At that time plaintiff wore purdah to work. She was later dismissed for not complying with the circular.
Plaintiff seeking "inter alia" a declaration that circular which in effect prohibits the wearing of purdah is null and void in contravention of Article 11. Court held that this article protects absolutely the religious beliefs of the people but in exercising religious practices, Article 11 (5) also clearly forbid any act which may lead to public disorder, affect public health or morality. Her practice of wearing purdah to work is not a practice of her religion of Islam but only a customary dress worn by Arab Ladies. What plaintiff claimed to be practice of the religion of Islam is a threat to public order in the circumstances she was in where her work required her to handle files relating to government secrets. The identity of the public officer handling these files should and must determine to avoid dangerous and disastrous results. Contras in the case of Meor Atiqulrahman Bin Ishak & Ors v Fatimah Bte. Sihi & Ors, where plaintiff claimed to have dismissed from school for wearing turbans in school besides wearing school uniform. Plaintiff also seeks for court to declare that their expulsion from school was void and null and no effect. Meanwhile, defendant claimed that contended that plaintiff in wearing turbans had breach Article 3 (5) (v) of the School Rules 1997, prepared by the school headmasters according to the Ikhtisas Circular Letter no.9 (1975) Ministry of Education. The main issues are whether the headmaster had the jurisdiction to prevent all pupils from wearing turbans and whether the rule preventing pupil wearing turbans are null and void according to the constitution. The school rule is declared void and null by virtue of Article 11 (1) of Federal Constitution unless it relates to the general law of public order, public health and morality under Article 11 (5) which overrides Article 3 and 11. Moreover, wearing a turban is valid according to hukum syarak, and not void under civil law for Muslim and non-Muslims. Therefore, the wearing of turban is valid according to the constitution.
In conclusion, after through a lot of discussion above, a clear distinctive line could not be distinguished among the government that respects constitution nor constitutionalism. In some cases, government act may differ from the principle hold by the constitution or perhaps require in constitutionalism. In other popular words, the issue discuss here in all respects difficult to be put in black or white.

Student's Tribunal

2005-12-03T04:31:00.000-08:00

Series 3:

The rules

The Malaysian public universities are generally paternalistic in nature. This is reflected in the offences under the Educational Institutions (Disciplinary) Act 1976. The offences could be largely categorized into several categories namely, main, general, hostel and traffic offences. The main offences are contained in Part IV of the said Act. One of the offences under the main category is where a student becomes a member of any local or foreign political party or workers union or non-governmental organizations without obtaining a prior approval from the Education Minister. This prohibition is extended to acts of having any arrangements with the said organizations, and showing support or doing anything that could be interpreted as to show support to the said organizations. As for the general offences, these are contained in the Educational Institutions (Discipline of Students) Rules 1976 in the Second Schedule of the Act. Among them are prohibitions against gambling, pornographic materials, possession of drugs and drug use. The hostel rules are contained in Part III of the Rules, and these rules that seek to safeguard the decorum of the occupants, and among them are prohibition against vandalism and nuisance.
Traffic rules are contained in Part IV of the Rules and these rules seek to regulate the conduct of the motor vehicle users on campus for instance, the registration of the motor vehicle by the owner, obedience of the speed limits, and the parking of the vehicles in the appropriate places. Students are also bound by any other written law of Malaysia. When a student is charged in a Court of Law for transgressing of any law, he or she would be automatically suspended from the University, and automatic expulsion would follow from a conviction.

The procedures

The Educational Institutions (Disciplinary) Act 1976 (Act 174) gives guidelines on the procedures regarding Student Disciplinary Tribunal. When the tribunal is convened, the Secretary of the Board who is usally the Executive Officer from the Students Affairs Department, will read out the charge against the student, and the student would be asked whether he understands the charge which is laid out against him. If the answer is in the affirmative, he would be asked for his plea. If the student were to plead guilty to the charge, the Board would once again explain the particulars of the charge to him, and if the student pleads guilty to it again, the Board would declare a finding of guilty. Sentencing does not take place automatically at this point. The student would be asked to present any mitigating factors, after which the Board would discuss the appropriate punishment to be given. If the student were to present a plea of not guilty, a mini trial would be commenced and the Board would call the witnesses for the Board to present evidence against the student. The student would be asked to cross-examine the said witnesses, following which the Board would reexamine its own witnesses.
Next, the student would be asked to present his defence and he could call any witnesses for his side to present evidence before the Board, and the same process of cross examination and reexamination would follow. If the Board makes a finding of guilt, the student would then be asked to present a case for mitigation. The punishments are one or any combinations; there are a warning; a fine not exceeding RM 200.00; suspension for a certain period; exclusion from any parts of the University for a certain period and expulsion.
In practice, the University has issued a guideline for the minimum and maximum limits of punishment that the Board could pass. For instance, the maximum penalty for the offence of possession of cigarettes is a fine of RM50.00. A student who is dissatisfied with the decision of the Tribunal could lodge a written notice of appeal to the Secretary of the Tribunal within five days of the decision of the Tribunal and the said officer would then forward the notice to the Education Minister together with the records of the proceedings.
-ahmadgeronimo-

Criminal: Rape - Section 375 should be amended?

2005-11-29T06:15:00.000-08:00

Rape is the act of a man forcing a woman to have sexual intercourse with him, against her will. In the minds of the public, rape is also associated with violence, fear and intimidation[1]. Sexual intercourse according to Halsbury's Law of Malaysia is penetration of penis into the vagina. A slight penetration is also considered as rape. In the case of R v. Miller which the late Prof. Ahmad Ibrahim extracted the definition of rape as unlawful carnal knowledge of a woman without her consent by force, fear or fraud[2]. According to section 375 of the penal code, a man is said to commit rape when he has sexual intercourse with a women against the woman's will, without her consent, misconception and having sexual intercourse with a woman under 16 years old. [3]
In order to establish the offence of rape, there are two elements that should be established; actus reus and mens rea. Actus reus in rape under explanation in section 375 of the penal code is penetration. However, just because a women is not bruised, bleeding and terribly distressed does not mean she has not been raped. The law says that " in proving a charge of rape it is not necessary to prove that what might otherwise appear to have been consent was in reality merely a submission induced by force, the fear of force or fraud, but merely that the victim did not consent." There does not have to be violence, merely lack of consent or recklessness on the part of the rapist as to whether the woman consented or not[4].
The question now that should be look at is whether the sexual intercourse or penetration in the offence of rape should be amended to reflect the various offences now occurring that invade a woman's modesty. After further analyzing and reading at certain cases and other law sources, we completely disagree that the actus reus in the offence of rape should be amended. The arguments are presented as follow.
There are various offences that can invade a woman's modesty. There are sexual assault, attempt to do unlawful intercourse, flashing and other unlawful or illicit intercourse which are against the order of nature. Different offences have different actus reus. In the offence of rape under section 375, the actus reus is only sexual intercourse and no other. The question then will arise is whether the actus reus is sufficient enough. One can argue that even though without penetration, a woman can suffer mentally impact as same as other woman that had been raped.
Like say, if a man tried to rape a woman and had fulfill all the elements in rape except the actus reus that is sexual intercourse, he should not be liable for the offence of rape. This man may act violently against the woman and against her modesty but his act is not rape. Although it seems that this section is against the right of a woman, to amend the actus reus in the offence of rape may actually cause overlapping with other sexual offences that are provided in the penal code.
In the offence of sexual offences stated in section 354 of the penal code, any assault or criminal force to a person with intent to outrage modesty, shall be punished with imprisonment for a term which may extent to 10 years, or with fine, or whipping, or with any two or such punishments. In order to establish the sexual assault, the actus reus of the act is that there must be physical gesture which may cause the victim to feel reasonable apprehension that sexual offence will be committed, this was well mentioned in the case of Public Prosecutor v. Basar[5]. If the scope of section 375 is widen and include sexual assault as amounting to rape, then it would be difficult for the court to assess the offence committed.
In Section 366, the act of kidnapping or abducting a woman in order that she may be forced or seduced to illicit intercourse has covered the actus reus which will invade a women modesty. In the case of Lim Baba v Public Prosecutor[6], the appellant was convicted under section 366 for abducting a woman to have illicit intercourse. This section has definitely covered the act of kidnapping or abducting woman which will lead to outraging the modesty of women.
Section 511 has also covered punishment for any attempt to rape, therefore if any amendment to be made to section 375 then it will contradict with section 511.This is well covered in the case of Public Prosecutor. v. Zainal Abidin Bin Ismail & Ors[7] ,which illustrated the offence of attempt to rape where the learned judge stated that the acts which he took preparatory to the offence, namely by lying on top of the girl,with his expressed intention of having inter course are sufficient in law to constitute an attempt to rape[8].
By the virtue Section 509 of Penal Code, it is stated whoever, intending to insult the modesty of the woman by words, gesture or exhibit any objects shall be punished with imprisonment for the term which may extend to five years or fine or both. This section has already covered any acts done which intending to insult the modesty of any woman, thus justify the arguments we laid above.

As a conclusion, it can be concluded that section 375 should not be amended as it will overlapped with other section. Furthermore if other offence is inserted in the same category of rape, it will be difficult or the court to asses the offences thus will prejudiced the disputing parties and the system of justice.
[1] George P Raven, The Criminologist, 1993 pg 66.
[2] [1986] 2 MLJ lv.
[3] See Mohd Majid (1977) 1 MLJ 121
[4] George P Raven, The Criminologist, pg 68.
[5] [1965] 1 MLJ 75
[6] [1962] 1 MLJ 201
[7] [1987] 2 MLJ 741
[8] Ibid, p. 748
-ahmadgeronimo-

APPLICATION OF THE NATURAL JUSTICE PRINCIPLES INSTUDENT'S TRIBUNALS IN MALAYSIA

2005-11-27T00:26:00.000-08:00

- SERIES 2 -

The Tribunal

Traditionally, disputes between individuals or between the state and the individual belong to courts. For this purpose, there exists a well-regulated hierarchical judicial system. Today, the courts have lost their monopoly of adjudicating as they are sharing it with administrative bodies. This can be seen when a number of bodies, which includes tribunals, have been established outside the judicial system to decide on the questions of fact as well as law. They determine various claims, controversies and disputes. The basic reason for the emergence of these tribunals is an expansion in the functions and responsibilities of administration. As tribunals are clearly judicial in nature, their crucial function is to find the facts and to apply the law in the resolution of disputes.
According to M.P. Jain, a tribunal is a body set up by legislation to adjudicate upon disputes in a specific area and which enjoys a degree of autonomy. Furthermore, tribunals are effectively an alternative procedure to the court system for enforcement of legal rights. Normally, tribunals are constituted by an Act of Parliament. However, sometimes the power to constitute a tribunal may be delegated by the Act to a minister. However, in such cases the Act will make it clear that a tribunal is intended.
From the definition given, one can find that a tribunal is an important mode in settling disputes outside the court system and such a tribunal seems to be the best form for handling disputes outside the court system. This is because enforcement of one’s rights through the court is expensive, time consuming, formal and for many ordinary people, stressful. In other words, tribunals enable an ordinary man to obtain a cheap, fair and impartial hearing when he is affected by administrative action. There are various types of tribunals, such as Medical Appeal Tribunals, Mental Health Review Tribunals, Pensions Appeal Tribunals and Rent Tribunals.
Tribunals enjoy some element of separation and independence from the administration and come very near the model of a court. It means that tribunals exercise an independent jurisdiction as they decide particular cases by applying rules and regulations and sometimes by using their own discretion. This is to ensure that they are in no way subject to administrative interference as to how they decide any particular case.
A tribunal has also emerged as a control mechanism over the administration. Therefore, it is fundamental that the members of tribunals are independent persons and not civil servants. Furthermore, the decisions of most tribunals are in truth judicial rather than administrative. This means that they have to find the facts and then apply the legal rules to them in an impartial way.
In reviewing the operation of tribunals, the Committee on Administrative and Enquiries (the Franks Committee) 1957 recommended that their operation should be based upon principles of openness, fairness and impartiality. These principles were to be achieved by, inter alia, tribunal hearings being held normally in public, allowing legal representation, requiring that decisions be reasoned and given in writing and providing rights of appeal. These recommendations are made because it is crucial that tribunals act according to the principles of natural justice.
Although tribunals seem to have the advantage of settling disputes outside the court system, there are also some disadvantages in the tribunal system. In few tribunals, legal representation is not permitted. Besides that, sometimes there is no right of appeal. The reason behind this is that procedural rules for tribunals vary according to the nature of the tribunal. The procedure to be followed will be contained within the relevant statute or regulations made under the statute. However, a person appearing before the tribunal may seek judicial review on the grounds of error of law, violation of the principles of natural justice or excess of jurisdiction.
The denial of natural justice in tribunal proceedings can arise when there is a failure to observe any of its rules or principles. Hence in the case of Malloch v. Aberdeen Corp, the court decided that a failure to observe the rules of natural justice would invalidate any administrative action or proceeding taken thereunder. This case shows that it is vital for the principles of natural justice to be applied in arriving at any decisions either in courts or tribunals. As has been put forward by Lord Denning in the case of Pett v. Greyhound Racing Association Ltd., "when a man's reputation or livelihood is at stake, he not only has a right to speak with his own mouth but also has a right to speak by counsel or solicitor." This view is further supported by M.P. Jain when he opines that the denial of legal representation may amount to the denial of natural justice. In Malaysia, the court had the opportunity to consider this issue in the case of Doresamy v. Public Services Commission where the question on the right to legal representation was indirectly raised. The decision in this case was that since the rules did not specifically prohibit a person's right to legal representation, the appellant was entitled to submit his appeal through his solicitor.
In specific, reference to the first principles of natural justice, audi alteram partem, in Great Eastern Life Assurance Bhd. v. Kesatuan Sekerja Kebangsaan Pekerja-Pekerja Perdagangan, the Industrial Court has recognized the employee's right to be heard before his dismissal by stipulating the rule that the accused must be given sufficient opportunity not only to know the case against him but also to answer it.
Moreover, just like the Courts of Law, tribunals should also make a decision in good faith. It was decided in the case of Anisminic Ltd. v. Foreign Compensation Commission that a tribunal could commit a jurisdictional error by giving a decision in bad faith, making a decision which it had no power to make, failing to comply with natural justice, misconstruing the provisions giving it the power to act so that it failed to deal with the question remitted to it, refusing to take into account something which it was required to and taking into account something it had no right to. The significance of the decision, therefore, is that an authority that sits in the tribunal should not fail to comply with the principles of natural justice by acting in such a way that it is not supposed to. This is because every legal power must have legal limits, otherwise there is dictatorship and where it is wrongly exercised, it becomes the duty of the courts to intervene. Further, the decision also requires that the discretion granted to the relevant authorities to impose restrictions, terms and conditions as they may deem fit or necessary in their decisions must not be exercised beyond their express substantive limits.
Notwithstanding the above position, English judges appear to adopt an ambivalent view on the issue of natural justice in tribunals. Tucker L.J. expressed the view in the case of Russell v. Duke of Norfolk, in the following terms. "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth." Instead, Harman J. in the case of Byrne v. Kinematograph Renters Society Ltd. stated his opinion on the requirements of natural justice as follows. "First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more."
Since the interpretations on the requirements of natural justice vary from one person to another even among judges, therefore, there will be differences in the implementation of the principles of natural justice depending on the situations of each case. Such was the case in Ganasan a/l Marimuthu v. Public Services Commission & Anor, where the court decided that a fair hearing does not mean that there must be an opportunity to be heard orally by the officer in person or by his lawyer at the disciplinary authority stage. It is only at the committee of inquiry stage that an oral hearing and with it the desirability or otherwise of legal representation can be considered. In Malaysia, the number of literature that deal with the issue on the denial of natural justice in courts as well as in tribunals, including students' tribunals is rather limited. The only literature that deals directly with the issue of natural justice in students' tribunals is one by Gan Ching Chuan There, the author highlighted the issue regarding students who appeared before a students' tribunal not being given adequate time to prepare his defence to the charge proffered against him. This issue arose in virtue of Rule 46 of the University of Malaya (Disciplines of Students) Rules 1975 which only states that the disciplinary authority should specify the date and time of the hearing but it is silent as to whether the disciplinary authority should also stipulate a sufficient time period in the notice during which the student to be disciplined can prepare his defence. In the author's view, therefore, the failure to accord such an opportunity to a student brought before the students' tribunal may be treated as a breach of the rules of natural justice or fairness. The case of Phang Moh Shin v. Commissioner of Police appears to lend support to the proposition that it is against natural justice to afford no opportunity to an affected person to consider the charges against him and to prepare his defence accordingly.
Furthermore, Gan Ching Chuan in the same article, also highlighted the issue on the right of a student to pre-hearing. This is because the Students' Rules are silent as to the right of a student to pre-hearing, discovery of relevant information or documents or evidence in the possession of the disciplinary authority, which can be prejudicial to the student and would be used against him in the hearing before the disciplinary authority. Such a view was expressed in light of the High Court decision in Rohana bte Ariffin and Anor v. USM, where it was held that it would be a breach of procedural fairness to deny pre-hearing discovery as a defendant is generally entitled to evidence that might assist his case. Further, any refusal to accord pre-hearing to a defendant would tantamount to denying a person's guaranteed right to make representations.
Since natural justice has evolved into a flexible doctrine that seeks to ensure procedural fairness in administrative decision making, therefore, the procedures in courts as well as tribunals have to be conducted properly and accordingly so as to ensure fairness and justice in the judgment of the various types of cases appearing before courts and tribunals, including students' tribunal. While the above mentioned author highlights the issues regarding sufficiency of notice and absence of rights to pre-hearing in students' tribunal, this study attempts at exploring further weaknesses and inadequacies in the procedures of the Tribunal, although limited to UiTM's Student Tribunal, in the way that they violate or undermine the principles of natural justice. Additionally, the study will recommend measures and steps to rectify those weaknesses and inadequacies.
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cerita pendek

2005-11-25T06:57:00.000-08:00

Leviathan adalah makhluk berkuasa absolut, raksasa adikuasa yang diabadikan oleh Thomas Hobbes di dalam bukunya yang bertajuk sama dengan mahluk itu. Hobbes menghasilkan karya tersebut sewaktu berlaku pertelingkahan di antara Parlimen dan Raja Charles I, dan beliau memilih bersama kuasa monarki, kuasa menindas! Bagi Hobbes mungkin lebih baik bersama hantu yang dikenali daripada hantu yang tidak dikenali. Hobbes mahukan jawapan praktikal terhadap masalah perebutan kuasa. Bagi beliau manusia ini senantiasa berada di dalam keadaan yang ribut, terhimpit di dalam keadaan kesunyian,miskin, kekejaman dan penindasan serta yang paling dahsyat, hayat yang pendek! Dan beliau memang melalui keadaan perit itu, kesempitan hidup kerana peperangan, hidup hanya untuk hidup, malah lahirnya ke duniapun tidak cukup umur.

Tapi Hobbesian bukan tidak dikritik, idea beliau diserang oleh manusia yang tidak pernah keluar dari radius 40 batu bandarnya yang bernama Kognisberg, Jerman. Nama besar itu adalah Immanuel Kant.Melalui karyanya Perpetual Peace, Kant mengkritik bahawa pemerintahan raksasa yang merampas, memanipulasi dan menipu untuk mendapat keabsahan pemerintahan tidak mempunyai kekuatan moral. Mereka hanya akan menjadi lelucon apabila tua kerepot, raksasa yang sayup-sayup hayatnya nanti akan dikejar habis tak bertulang dimakan dubuk-dubuk oportunis, itu seharusnya menjadi nasib mereka dan mungkin yang lebih parah mati tidak berkubur! tidak bernisan!
Insan yang bernama Kant juga menggesa dengan satu pertanyaan yang menggugah akal budi manusia di dalam satu makalah yang bertajuk Was Ist Aufkalrung? (apa itu pencerahan).Beliau mengatakan manusia yang tercerah itu manusia yang keluar dari ketidakmatangan yang dicipta sendiri, sedangkan ketidakmatangan adalah ketidakmampuan menggunakan akal-fikir serta harus dengan bantuan orang lain . Mereka ini bukan mempunyai kurang daya-fikir tetapi tidak berani untuk menggunakannya, ubat untuk mereka bagi Kant adalah Sapere Aude! Beranilah berfikir tanpa bantuan orang lain!

Lalu untuk orang yang masih takut akan raksasa berkuasa absolut, yang kuasa saktinya menggerunkan, memukau dan lebih-lebih lagi, kononnya, kebijaksanaan makhluk pandai menyamar ini tak terjangkau walau kita berhimpun seramai manapun, tetaplah yang bodoh itu rakyat yang terbanyak, umpama bodoh itu inalienable rights kita, hah! Jadi apa keputusan kita? Berdiam?
Tanpa kita sedari yang menghadiahi kekuatan tersebut adalah kita, oleh kerana itu sedarlah! Selagi kita tidak mampu keluar dari ketidakmatangan yang ditempa sendiri selagi itulah kita tidak tercerah, selagi itulah kita tidak mampu membuat perubahan walau untuk diri kita sendiri. Boleh saja sesetengah golongan mendakwa keabsahan otoriti mereka turun dari langit, keturunan yang mulia lagi tidak tercela,ataupun sebagaimana Hobbes, hayat yang terseksa dan pendek, oleh itu harus saja ada adikuasa untuk memerintah jagat ini agar tidak ribut, tapi manusia di Eropah sudah kena biasan Pencerahan, Tiada lagi dan tidak mahu lagi tirani, kesan tirani samaada dari kanan atau kiri sama saja, dan hayat yang pendek serta kejam bukan alasan kukuh untuk kuku besi, tanya saja pada Salvador Dali pelukis asal Catalan itu, alasan seperti itu hanya membuatkan beliau lebih produktif walaupun berahi beliau kepada Gala membuatkannya menghasilkan karya besar seperti The Great Mastubator dan The Girl at The Window.

APPLICATION OF THE NATURAL JUSTICE PRINCIPLES IN STUDENT'S TRIBUNALS IN MALAYSIA

2005-11-25T00:33:00.000-08:00

Series 1:

Natural justice is a very crucial principle that must be observed and applied in any organized and civilized legal system. This is because it is a procedural safeguard against improper exercise of power by a public authority in a democratic system. Under the principles of natural justice a person having a charge against her or him, either criminal or disciplinary, can claim the right of fair hearing (audi alteram partem). Further, in the process of a hearing, he or she is safeguarded against bias of the presiding tribunal. The application of the principles of natural justice covers proceeding before Courts of Law and Tribunals, Boards and Inquiries. However, there are variations with regard to the extent of the observation of this principle by these institutions. This is because the procedures and guidelines governing these institutions vary as they perform different functions. Additionally, the implementation of the guidelines and procedures contributes to further variation in the application of the principles in these institutions. Hence, the variation of these guidelines and procedures both in terms of their forms and implementation, can be a source of violations of natural justice as there is no fixed formal standard against which they can be measured. For example, procedures in students' tribunals usually do not allow a lawyer to represent the student appearing before the tribunal, whereas in the Courts of Law a different rule applies, where this institution allows lawyers to represent those facing a charge or a claim. For purpose of this article, the focus will be on UiTM's Student Tribunal.

The thesis of the article is that the guidelines and procedures adopted by UiTM's Student Tribunal differ from those practised by the Courts of Law, thereby resulting in the different treatment of the principles of natural justice (the right of fair hearing (audi alteram partem) and rules or safeguard against bias (nemo judex in re sua)) by the former which falls short of the standard observed by the latter. The potential variations can be seen from the right of legal representation, the contents of the notice being served, the composition of members in the tribunal and the right to pre-hearing discovery of relevant evidence.

1.0) The Rules of Natural Justice

Natural justice has two main components, which are the rule of hearing or audi alteram partem[1] and the rule against bias or nemo judex in causa sua.[2]

These two rules may be expressed in two words, which are fairness and impartiality.[3] This position is supported in the internet-based dictionary that states that natural justice is a term used to refer to situations where audi alteram partem and nemo judex in causa sua apply.[4]

Moreover, according to William Wade, in administrative law, natural justice is a well-defined concept which comprises two fundamental rules of fair procedure: that a man may not be a judge in his own cause; and that a man’s defence must always be fairly heard.[5] Therefore, we can summarize that the principle of natural justice is derived from these rules of audi alteram partem and nemo judex in causa sua.

1.1) Audi Alteram Partem

The audi alteram partem rule, or the rule requiring fair hearing, is of central importance and can be used to construe a whole code of administrative procedural rights.[6] In Sarawak Electricity Supply Corporation v. Wong Ah Suan,[7] the court emphasizes that if a person were to be deprived of any of their rights, the rule of audi alteram partem must be strictly observed. Therefore, it is fundamental to fair procedure that both sides should be heard.[8] The application of the rule in Malaysia can be illustrated in Wong Kwai v. President, Town Council, Johore Baru.[9] It was decided in the case that before passing an order of demolition of a building which had been constructed in contravention of the bye-laws of the Town Council, it was necessary to observe the rule of audi alteram partem. Referring to the case of Local Government Board v. Arlidge,[10] Justice Syed Othman observed, "There are many authorities who require a tribunal which is given a discretionary power as in this case, to exercise that power judicially. This means that before the tribunal can make a decision, the rule of audi alteram partem must be observed. The principles underlying this rule provide minimum safeguards for justice. If the tribunal fails to observe them a decision loses its judicial character".[11]

The British courts had linked natural justice not only with the concept of judicial function, but also with the concept of quasi-judicial activity and were liberal in conceding natural justice to a person affected by an action of the administration. This phase in judicial thinking is denoted by Cooper v. Wandsworth Board of Works.[12] According to the statutory provision involved in this case, no one could put up a house in London without giving seven days' notice to the local Board of Works of his intention to build a house. In default of such a notice, the Board had power to demolish the house. The plaintiff built his house without giving the notice as required and, accordingly, his house was demolished. In the literal terms of the statute, the Board could be said to be acting within its powers, but the court considered the question whether a person could be deprived of his property without being given an opportunity of being heard. The Board argued that while it conceded that the principle of hearing applied to judicial proceedings, in ordering the demolition it did not, however, perform judicial act.

The court, however, ruled that the principle of hearing applied to various exercises of power of demolition as it carried with it enormous consequences since a house of any value could be demolished. This power was opened to abuse and so hearing was essential. The court thereby ruled that the Board was acting judicially as it had to determine the offence and apportion punishment as well as the remedy and, therefore, hearing of the plaintiff was essential. Accordingly, the court awarded damages to the plaintiff for the injury done to his building as the Board had no power to act without giving him a hearing. The principle was laid down that when an authority is by law invested with the power to affect the property of a person, it is bound to give him a hearing before it proceeds to affect his property.

In another case that came before the Malaysian Federal Court, the court was similarly asked to consider the question whether the rule of audi alteram partem was to be followed by the administrative authority passing an order to demolish a building. It was decided in the case that the magistrate should have given a hearing before passing the demolition order.[13]

The above court's decisions clearly indicate that the right of hearing gives some protection to the affected person against action of the administration and it also helps the administration in reaching the right decisions which is bound in turn to enhance the credibility of the administration in the public eye.[14]

1.2) Nemo Judex In Causa Sua

This Latin maxim means that no man can be a judge in his own cause. Therefore, a person cannot act as a judge in a case in which he is one of the parties, and any direct pecuniary interest, however small he might have in the subject matter, will disqualify him.[15] Putting it in another way, no matter how small the pecuniary interest a person has in the case, it will disqualify him from adjudicating upon it.[16] A person with such an interest is conclusively presumed to be biased, and the courts will not inquire into whether or not he actually was.[17] An interest other than of pecuniary nature may also invalidate a decision.[18] This means that personal bias[19] and policy bias[20] that the person adjudicating has in the issue disputed will also invalidate his decision. As Lord Goff has observed recently in R v. Gough,[21] "the nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand." This means that when an adjudicator has, for instance, a pecuniary interest in the subject matter of the dispute, then he becomes disqualified without the need to prove that there was an actual bias or a real likelihood of bias in the facts of the specific case.

This rule against bias is clearly consistent with the characteristics and requirements of a judicial function[22] as can be seen in R v. Altrincham Justices, ex p Pennington.[23] This case concerns a magistrate, who was also a member of the county education committee. Consequently, she had an active connection with the victims of an offence committed against the county council when short supplies of vegetables were delivered to two of its schools. The farmer in question had also supplied vegetables to a school of which the magistrate was a governor. Overall, therefore, the magistrate's interests were sufficient to disqualify her from hearing the criminal charges. It can be concluded from the case that the rule against bias applies where there is some direct interest in the matter to be adjudicated and where there is some reasonable suspicion, appearance or likelihood of bias.[24]

Another example of the application of the rule can be seen in the case of Dimes v. Grand Junction Canal,[25] a public limited company filed a case against a landowner in a matter largely involving the interests of the company. The Lord Chancellor who was a shareholder in the company heard the case and gave the desired relief to the company. The decision was, however, quashed by the House of Lords because of the Lord Chancellor's pecuniary interest in the company. Lord Campbell in his opinion emphasized, "While no one could suppose that the Lord Chancellor was in the remotest degree influenced in his decision by his interest in the company, nevertheless, it was necessary that the maxim no one is to be a judge in his own cause be held sacred."

The recent development in this area of the law show that courts have started invoking the concept of 'fairness' or 'fair procedure' or 'procedural fairness'[26] instead of 'natural justice' in administrative proceedings.[27] The notion of procedural fairness incorporates certain guidelines to be followed in administrative proceedings. The guidelines are that a person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges). Moreover, a person making a decision should declare any personal interest they may have in the proceedings. Besides that, a person who makes a decision should be unbiased and act in good faith. These requirements thus make clear that proceedings have to be conducted in a fair manner, in tandem with the legal maxim, nemo judex in causa.

Under the rule of nemo judex in causa sua, a person should act in good faith. In law, good faith (in Latin, bona fides) is the mental and moral state of being honest, even if objectively unfounded, conviction as to the truth or falsehood of a proposition or body of opinion, or as to the rectitude or depravity of a line of conduct.[28]

Using Islamic civilization as an illustration of the universal recognition of the principle, one discovers that the Holy Quran itself contains a number of references to judges, the importance of equity and the danger of attempting to influence judgments. Surah Al-Nissa, line 58, enjoins that one should judge equitably, while Surah Al-Ma'idah, line 8, cautions judges not to be influenced by enmity or other subjective feelings in making their judgments. Above of all, Surah Al-Baqarah, line 188, warns Muslims that it is wrong to tempt judges with bribes which may affect their independent judgment.[29]

In the light of the above, it can be concluded that it is a well established and a recognized principle in any developed and civilized legal system that judges should be fair in arriving at their judgments. In other words, they should not have any interest in the particular case they are presiding and that they should not be biased. Tun Dr. Mahathir once said, “However wise the judges are, as ordinary human beings, they have feelings which can influence their thinking and their stand. It is not impossible that an interpretation is made not independently but because certain values and beliefs belong to, and influence, the interpreters of the law concerned".[30]

[1] The rule that no one is to be condemned unheard.
[2] No one may be a judge in his own cause.
[3] M.P. Jain, Administrative Law of Malaysia and Singapore, (Butterworths Asia Kuala Lumpur 1989), 289.
[4] "Dictionary", 12th Feb 2005, http://www.fifthdistrictcourt/dictionary/dict-qr.htm
[5] William Wade & Christopher Forsyth, Administrative Law, (Clarendon Press Great Britain 1994), 464.
[6] Raja Azlan Shah FJ in Ketua Pengarah Kastam v. Ho Kwan Seng [1977] 2 MLJ 152.
[7] [1980] 1 MLJ 65.
[8] H.W.R. Wade & C.F. Forsyth, Administrative Law, (Clarendon Press London 2000), 469.
[9] [1970] 2MLJ 164.
[10] [1915] AC 120.
[11] M.P. Jain, Administrative Law of Malaysia and Singapore, (Butterworths Asia Kuala Lumpur 1997), 232.
[12] (1863) 14 CBNS 180; 143 ER 414.
[13] Chief Building Surveyor v. Makhanlall & Company [1969] 2 MLJ 118.
[14] M.P. Jain, Administrative Law of Malaysia and Singapore, (Butterworths Asia Kuala Lumpur 1997), 227.
[15] David Foulkes, Introduction to Administrative Law, (Butterworths London 1972), 142.
[16] The principle has been applied in Kumkum Prakasham v. State of Gujerat AIR 1990 Guj 12.
[17] Supra n. 39.
[18] Ibid.
[19] Personal bias may arise in the adjudicator against, or in favour of, one party to the dispute before him under many varied circumstances.
[20] Policy bias may arise when an administrator acts in an adjudicatory capacity, to decide a controversy between an individual and his department as he may have an 'official' or 'policy' bias towards his department.
[21] [1993] 2 All ER 726.
[22] Neil Hawke & Neil Parpworth, Introduction to Administrative Law, (Cavendish Publishing Ltd United Kingdom 1996), 165.
[23] [1975] 2 All ER 78.
[24] Supra n. 46 at 166.
[25] (1852) 3 HLC 759.
[26] This term has been used by Gopal Sri Ram, JCA, in Raja Abdul Malek Muzaffar Shah v. Suruhanjaya Pasukan Polis [1995] 1 MLJ 311.
[27] M.P. Jain, Administrative Law of Malaysia and Singapore, (Butterworths Asia Kuala Lumpur 1997), 229-230.
[28] Ibid.
[29] The Holy Quran.
[30] "May Day for Justice", 29th August 2005, http://www.freeanwar.net/news/Vacuum.html.
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