Sunday, 29 November 2015

MALAYSIA-DUMC-VBS 2015-"SCAR FORCE-THE POWER UNVEILED"


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CLJ Bulletin #48/2015

CLJ Bulletin #48/2015





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27 November 2015, Issue #48/2015
Editors Note
Dear Reader,
Welcome to the latest CLJ Bulletin, Issue #48 of 2015. In this issue we provide you with highlights of selected cases from the Current Law Journal, Malaysia's leading authoritative reporter of case laws and judgments from the Courts of Malaysia and a selection of unreported cases from our widely cited Legal Network Series (LNS).
Among the items featured in this week's edition:

CASE(S) OF THE WEEK

GIGA ENGINEERING & CONSTRUCTION SDN BHD v. YIP CHEE SENG & SONS SDN BHD & ANOR [2015] 9 CLJ 537
FEDERAL COURT, PUTRAJAYA
RAUS SHARIF PCA, ZULKEFLI AHMAD MAKINUDIN CJ (MALAYA), RICHARD MALANJUM CJ (SABAH & SARAWAK), ABDULL HAMID EMBONG FCJ, JEFFREY TAN FCJ
[CIVIL APPEAL NO: 02(f)-83-12-2013 (W)]
27 OCTOBER 2015
CIVIL PROCEDURE
Pleadings - Evidence - Companies and corporations - Lifting of corporate veil - Allegation that contractual obligations avoided due to controlling position of common/connected officers and shareholders in management of companies - Whether companies were 'single' entity - Whether there was evidence of abuse, fraud or any special circumstances by companies to justify lifting of corporate veil
COMPANY LAW
Lifting of corporate veil - Dispute arising from failure of joint venture of companies to award subcontract works - Allegation that contractual obligations avoided due to controlling position of common/connected officers and shareholders in management of companies - Whether companies were 'single' entity - Whether there was basis for lifting of corporate veil - Whether there was abuse by companies - Concept of corporate separate entities - Whether failure to award subcontract works resulted from manipulation or abuse of 'single' entity - Whether there was evidence of fraud or any special circumstances to justify lifting of corporate veil
CONTRACT
Breach - Agreement - Pre-tender agreement - Plaintiff to be awarded subcontract works if defendants secured main subcontract works for project with another party - Clause in agreement stipulated that joint venture becomes void if first defendant fails to secure main subcontract works - First defendant failed to secure main subcontract works - Whether defendants in breach of joint venture by failing and/or refusing to award plaintiff's portion - Whether joint venture existed
MKINI DOTCOM SDN BHD & ORS v. CHIEF JUDGE OF MALAYA & ORS [2015] 9 CLJ 459
HIGH COURT MALAYA, KUALA LUMPUR
ASMABI MOHAMAD J
[JUDICIAL REVIEW NO: 25-164-06-2015]
3 AUGUST 2015
ADMINISTRATIVE LAW
Judicial review - Application for - Distribution of business among judges - Powers conferred to Chief Judge of Malaya pursuant to s. 20 of Courts of Judicature Act 1964 ('CJA') - Whether directives given by Chief Judge of Malaya under s. 20 of CJA open to challenge - Whether applicants' application for judicial review was frivolous, vexatious and filed out of time - Whether applicants had liberty to apply for recusal against assigned judge
FULIJAYA MANUFACTURING SDN BHD lwn. UNIVERSITI SAINS MALAYSIA [2015] 2 SMC 16
MAHKAMAH SESYEN, BUTTERWORTH
ROSLAN HAMID HS
[SAMAN NO: 52-2289-10-2011]
30 MAC 2015
KONTRAK
 Pembentukan - Tiada kontrak bertulis ditandatangani - Perkhidmatan untuk menghasilkan contoh berus gigi ciptaan baru - Tuntutan bayaran bagi perkhidmatan yang diberikan atas pesanan dan permintaan defendan - Sama ada deraf perjanjian dipinda oleh plaintif - Sama ada plaintif menarik diri sebelum perjanjian ditandatangani - Sama ada plaintif tidak akan mengenakan bayaran bagi kerja-kerja yang dibuat sekiranya plaintif diberi hak pengkomersilan berus gigi - Sama ada barangan yang dinyatakan dalam invois dibekalkan kepada defendan - Sama ada kontrak wujud di antara pihak-pihak
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Malaysia-Public Forum on "Whither the Federal Constitution -- Do Fundamental and Minority Rights Matter?" (19 Dec 2015)

Public Forum on "Whither the Federal Constitution -- Do Fundamental and Minority Rights Matter?" (19 Dec 2015)





​Please note the updated list of speakers.

​_____________________________________________________________________________________________________________


Circular No 255/2015
Dated 17 Nov 2015

To Members of the Malaysian Bar, Pupils in Chambers, Law Students, and Members of the Public

Public Forum on "Whither the Federal Constitution — Do Fundamental and Minority Rights Matter?" (19 December 2015)

Recent judicial decisions in a string of constitutional challenges, all within the span of one month, have raised serious doubts whether the fundamental and minority rights guaranteed in the Federal Constitution are being protected and preserved by the courts.

(1)    Firstly, on 28 Sept 2015, the Federal Court in the Ezra Zaid case decided that in respect of Muslim persons, the freedom of speech and expression under the Federal Constitution could be circumscribed by a state Islamic enactment.  The Court interpreted the provisions of the enactment liberally, without proper regard for the constitutionally-guaranteed fundamental liberty of the individual.

(2)    Three days later, on 1 Oct 2015, the Court of Appeal in the R Yuneswaran case chose to depart from its earlier decision in Nik Nazmi Nik Ahmad's case.  The Court held that section 9(5) of the Peaceful Assembly Act 2012 was not unconstitutional, as Parliament could criminalise the failure of an individual to give 10 days' prior notification of the holding of a peaceful assembly.  The Court failed to appreciate that a criminal sanction in relation to a procedural non-compliance of the Act is a de facto restriction of the constitutional right to assemble peaceably and without arms, and therefore unconstitutional.

(3)    Then, on 6 Oct 2015, the Federal Court in Azmi Sharom's case decided that a pre-Merdeka law, namely the Sedition Act 1948, which criminalises speech, is constitutionally valid.  In this regard, the transitional provisions in the Federal Constitution, which allows for Parliament to retain pre-Merdeka limitations on free speech, were upheld.  It has been decided that there is no obligation for Parliament to apply its mind, post-Merdeka, to ensure that restrictions to free speech were only to be imposed for the purposes permitted by the Federal Constitution.

(4)    Two days later, on 8 Oct 2015, the Federal Court in the case of State Government of Negeri Sembilan & Ors v Muhammad Juzaili & Ors allowed an appeal by the state concerning three transgender women who had been charged with the offence of cross-dressing.  The Court relied on a purported procedural non-compliance to set aside the ground-breaking and rights-upholding decision of the Court of Appeal in favour of the three transgender women.
 
(5)    On 13 Oct 2015, the Federal Court in See Chee How & Anor v Pengerusi Suruhanjaya Pilihanraya Malaysia denied leave to appeal in a case involving the re-delineation exercise in Sarawak.  The Court appeared to have decided that the leave application was academic, as the Election Commission had already completed the exercise and submitted its report to the Prime Minister.  The fact that the report had not yet been placed before Parliament, and was therefore not yet acted upon, was not considered relevant.

(6)    Finally, it was reported that on 20 Oct 2015, the Federal Court dismissed the constitutional challenge to the Kelantan Syariah Criminal Code (II) (1993) on the basis that the applicants were not Muslims.  This narrow reading of the requirement of standing (locus standi) resulted in the court side-stepping the substantive merits of the case, which include the basic structure of the Federal Constitution as well the fundamental rights found in Part 2 of the Federal Constitution.

These cases demonstrate a great reluctance on the part of the courts to invalidate legislation or state enactments on constitutional grounds.  Where fundamental liberties are concerned, the courts are prepared to interpret restrictions widely, to the point where the exercise of the fundamental right is either completely prevented or rendered illusory.  The interest of the state appears to prevail over the constitutional rights of citizens.

Many troubling issues and questions arise from these cases.  Has the Judiciary abdicated its responsibility to "preserve, protect, and defend" the sanctity of the Federal Constitution?  Can individuals and minorities look to the courts to defend their fundamental rights?  Is the doctrine of separation of powers alive and well in our constitutional scheme?  Or have our Courts become subservient to the legislature and the executive?  Are our Courts asserting their judicial power and independence in upholding the rule of law?  Or are our Courts prepared to allow rule by law and the abnegation of individual and fundamental constitutional rights?

To address these concerns and other matters, the Bar Council is organising a public forum entitled "Whither the Federal Constitution — Do Fundamental and Minority Rights Matter?"  We will have the benefit of the views of constitutional lawyers and an eminent panel of retired senior judges.

The details of the public forum are as follows:

Date:               19 Dec 2015 (Saturday)
Time:              9:30 am to 1:00 pm (Registration begins at 9:00 am)
Venue:            Raja Aziz Addruse Auditorium, Straits Trading Building, Unit 2-02A, 2nd Floor, 2 Leboh Pasar Besar, Kuala Lumpur
CPD Code:      T3/19122015/BC/BC152453/3 (3 CPD points)

Admission is free, but advance registration is required.

The confirmed speakers are:

(1)    Aston Paiva, Member of the Bar;
(2)    Andrew Khoo Chin HockCo-Chairperson, Bar Council Human Rights Committee; and    
(3)    Dr Azmi Sharom, Associate Professor of Law, University of Malaya.
   
The retired senior judges that have been invited, include:

(1)    Dato' Mohamad Ariff b Md Yusof, retired Judge of the Court of Appeal; and
(2)    Dato' Mohd Hishamudin Mohd Yunus, retired Judge of the Court of Appeal.

To register, please complete and submit the attached reply slip by 17 Dec 2015 (Thursday) to anusha@malaysianbar.org.my, or bazli@malaysianbar.org.my, or by fax at 03-2031 6640.

Should you have any enquiries, please contact Anusha Gopala Krishnan, Officer (03-2050 2097; anusha@malaysianbar.org.my) or Muhammad Bazli Naim b Abdul Azid, Administrative Assistant (03-2050 2094; bazli@malaysianbar.org.my).
   
Thank you.
Roger Chan Weng Keng and Firdaus Husni
Co-Chairpersons
Constitutional Law Committee


This circular and the attachment may also be accessed here.


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