Archives for

Press Release: There should be No Space for Racist Rhetoric in Malaysia

Wednesday, 08 May 2013 05:13pm
Image

 

The Malaysian Bar is troubled by the racially-charged comments reported in the media in connection with the recently concluded federal and state elections. Such divisive rhetoric has the effect of demonising Malaysians by virtue of their race, fostering ill will, and causing disharmony and disunity, and is a potential precursor of conflict. This is wholly irresponsible and should have no place in Malaysian politics and public discourse.

We ask that the Prime Minister show leadership for the country, and we welcome his call for national reconciliation. As a nation we must move away from racial divides; instead, we should emphasise commonalities and promote a shared Malaysian identity.

Malaysian leaders should not resort to reprehensible and dangerous gimmicks as a convenient camouflage for perceived weaknesses or shortcomings, or as comfort for disappointments. Only those bereft of ideas and leadership abilities would resort to such tactics. It serves no good purpose, but only self-interest, to speak of and emphasise the elections results along racial lines. Former leaders should retire graciously and gracefully, and refrain from expressing views that serve to fracture rather than build the nation. They should strive to nurture peace. Spewing venom and spreading discord must not be the Malaysian way, and right-thinking Malaysians must reject such practices.

The media also have a responsibility to refrain from writing and publishing articles that would foment racial discord. Whether as politicians, journalists, bloggers or netizens, those who participate in the public sphere should exercise freedom of expression responsibly and respectfully. Our leaders must not, and should not be seen to, endorse the publication and dissemination of racist messages. Ultimately, it was Malaysians who were substantially the electors.

The Malaysian Bar commends the police for their prompt response and action in investigating such publications, in particular their investigations of a national newspaper for its publication on 7 May 2013 and of comments on blogs.

Christopher Leong
President
Malaysian Bar

8 May 2013

Press Release: Unilateral Conversions of Minor Children are Unconstitutional

Tuesday, 18 June 2013 03:56pm
Image

The Malaysian Bar is concerned that the controversy surrounding the unilateral conversion of minor children to the religion of Islam by a newly converted Muslim parent, without the knowledge and/or consent of the non-converting parent, has once again arisen.

It has been reported that two children, aged 5 and 8, were converted in Negeri Sembilan in April 2013 by the estranged husband of a Hindu woman, without her knowledge. According to her, she and her husband had contracted a civil marriage in 2004, and she was unaware that her husband had embraced Islam. The Negeri Sembilan state Islamic Affairs Department has reportedly taken the position that consent by both parents is unnecessary, as children can be automatically converted once one parent embraces Islam. It is noteworthy that this is reminiscent of many similar cases, including the widely publicised cases of Shamala Sathiyaseelan and Subashini Rajasingam.

The unilateral conversion of minor children to any religion by a parent, without the knowledge or consent of the non-converting parent, creates social injustice, violates the rights of the non-converting parent, and is contrary to our constitutional scheme. In this regard:

(a) Article 12(3) of the Federal Constitution states that “No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.”; and

(b) Article 12(4) provides that “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” (emphases added)

Article 160 governs the interpretation of the Federal Constitution, and it refers to the Eleventh Schedule (of the Federal Constitution), which states, inter alia, that “words importing the masculine gender include females”; and “words in the singular include the plural, and words in the plural include the singular”. Therefore, Article 12(4) must be construed as requiring the religion of children (whether male or female) under the age of eighteen years to be decided by both parents, in cases where both parents are alive. Accordingly, unilateral religious conversions of any minor children in breach of this are unconstitutional.

There is presently confusion in the Bahasa Malaysia version of Article 12(4) of the Federal Constitution. Until 2002, the Bahasa Malaysia version, as published by the government printers, translated “parent” as “ibu bapa”, ie in the plural. Inexplicably, in the 2002 edition of the translation of the Federal Constitution, the word “parent” was translated as “ibu atau bapa” (emphasis added). It would also appear today that some Bahasa Malaysia translations use the term “ibu bapa” while others state “ibu atau bapa”. Nevertheless, it would seem that the authorities are now applying this new Bahasa Malaysia translation of “parent” as “ibu atau bapa”.

This is tantamount to an unauthorised amendment or alteration of the Federal Constitution, and is itself unconstitutional. An act of translation of the Federal Constitution cannot become an act of amendment of the Federal Constitution. The word “parent” in Article 12(4) must be read as “ibu bapa”, as found in the pre-2002 Bahasa Malaysia translations, and which is consistent with Article 160 and the Eleventh Schedule.

The Malaysian Bar recalls the Cabinet directive announced in April 2009 through the former de facto Law Minister, Dato’ Seri Mohamed Nazri Abdul Aziz, that the children of an estranged couple should remain in the religion of the parents at the point of their marriage. This is the correct constitutional position.

In any event, the Government had sought to make clear and reaffirm this position with the introduction of appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976. Those draft amendments, which were discussed among the Attorney General’s Chambers, Bar Council and various civil society groups, recommended that both parents must consent to the change of religion of a minor child. However, these proposed amendments were deferred by the Government for further consultation, and then apparently quietly forgotten.

The Malaysian Bar calls on the Government to ensure that the Bahasa Malaysia version of the Federal Constitution is corrected, so that the term “ibu bapa” is used. The Malaysian Bar also calls on the Government to implement appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 to further make clear and provide assurance that the consent of both parents is obtained prior to any minor children being allowed to change his or her religion. The unilateral conversion of minor children to any religion should be unacceptable. The Malaysian Bar urges the Government to immediately legislate to resolve this controversy, which has occasioned untold hardship and social injustice to many citizens.

The Government must act now to put an end to this sorry state of affairs, and not remain in suspended animation in the face of human sorrow and misery.

Christopher Leong
President
Malaysian Bar

18 June 2013

Press Release: Legislation Inconsistent with Article 12(4) of Federal Constitution is Unconstitutional

Friday, 28 June 2013 09:34am
Image

 

The Malaysian Bar is concerned that section 107(b) of the Administration of the Religion of Islam (Federal Territories) Bill 2013 (D.R.1/2013) (“the 2013 Bill”), which has been tabled in Parliament, purports to provide that the consent of one parent alone is sufficient for the conversion of minor children to Islam.

We reiterate that the unilateral conversion of minor children to any religion by a parent, without the consent of the non-converting parent, is contrary to our constitutional scheme.

The 2013 Bill should reflect the meaning of “parent” contained in Article 12(4) of the Federal Constitution, read with Article 160 and the Eleventh Schedule of the Federal Constitution, which expressly provide that all words appearing in the Federal Constitution which are stated in one gender also include the other gender, and all words in the singular also include the plural.

Article 12(4) of the Federal Constitution provides: “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” (emphasis added). The same gender reference to “his” appears in Article 12(3).

If the words were to be taken literally as they appear, then Articles 12(3) and (4) would be read to only apply to conversions of males under the age of 18 years, and would not apply to females. This meaning or discrimination is clearly not the intention of such a provision in the Federal Constitution. A sensible application of the specific provisions in Article 160 and the Eleventh Schedule of the Federal Constitution would read the word “his” as also meaning “her”. This would likewise apply to the word “parent”.

Therefore, Article 12(4) must be construed as requiring the religion of children (whether male or female) under the age of eighteen years to be decided by one parent in cases where there is only one parent alive, and by both parents where both parents are alive. Any legislation inconsistent with this principle would thus be unconstitutional, unless there is an amendment of Article 12(4) beforehand.

While section 107(b) of the 2013 Bill maintains substantially the language of section 95 of the Administration of Islamic Law (Federal Territories) Act 1993, the Malaysian Bar urges the Government to use this opportunity to bring the provision into conformity with the interpretation of Article 12(4) set out above.

We note the Cabinet announced in April 2009 through the former de facto Law Minister, Dato’ Seri Mohamed Nazri Abdul Aziz, that the children of an estranged couple should remain in the religion of the parents at the point of their marriage. We also recall that the Government had sought to introduce appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 to provide that both parents must consent to the change of religion of a minor child. We urge the Government to renew its initiative to introduce these amendments. This is the correct constitutional position, and should be consistently reflected in all relevant legislation.

There is presently some confusion within some quarters regarding the relevance and weight of certain case law on this issue, in particular, the cases of Subashini Rajasingam v Saravanan Thangathoray decided by the Federal Court and Nedunchelian V Uthiradam v Nurshafiqah Mah Singai Annal & Ors decided by the High Court.

The case of Subashini Rajasingam v Saravanan Thangathoray is not authority for the interpretation and meaning of Article 12(4) of the Federal Constitution and the word “parent” found therein. That Federal Court decision concerned appeals with respect to the High Court’s refusal to grant an application by the wife for interim injunctive relief against the husband, and the grant of an Erinford injunction pending the appeals to the Court of Appeal being disposed of, and subsequently pending the appeals to the Federal Court.

The Federal Court dismissed the appeals on an initial and technical point, that the petition for dissolution of the marriage and for ancillary or consequential relief (such as for custody of the children) filed by the wife was premature and not in compliance with section 51(1) of the Law Reform (Marriage and Divorce) Act 1976. That section states that a person may petition for dissolution of a marriage and seek ancillary or consequential orders only after the expiry of three months from the date of the other spouse’s conversion to Islam. In the Subashini case, the three-month period had not yet expired when the wife filed her petition for dissolution.

Therefore, the discussion by the Federal Court thereafter on the meaning of the word “parent” in Article 12(4) of the Federal Constitution is obiter dicta — other statements not required for the decision in dismissing the appeal — and is therefore not a binding statement of the law.

In any event, in discussing the meaning of the word “parent” in Article 12(4), the Federal Court in its judgment did not address Article 160 and the Eleventh Schedule of the Federal Constitution, as described above. As such, the decision of the Federal Court in this respect was not only obiter dicta, it was also per incuriam, that is, a decision of court that is mistaken as a result of oversight.
Likewise, the case of Nedunchelian V Uthiradam v Nurshafiqah Mah Singai Annal & Ors was dismissed on a preliminary objection. The High Court in that case decided that the civil courts had no jurisdiction on the subject matter and that the Syariah Court had the jurisdiction, and thus the application in the High Court was dismissed. Any other discussion thereafter on Article 12(4) and the meaning of the word “parent” was therefore again obiter dicta, and not binding law.

Any legislation that is inconsistent with Article 12(4), read with Article 160 and the Eleventh Schedule of the Federal Constitution, and that purports to provide that the consent of only one parent is sufficient for the conversion of a minor to any religion, would therefore be unconstitutional unless there is a prior amendment of Article 12(4).

Christopher Leong
President
Malaysian Bar

28 June 2013

Press Release: A Right Step in a Long and Unfinished Journey

 

Sunday, 30 June 2013 02:16pm
Image

The Malaysian Bar welcomes the decision by the Attorney General to withdraw the Government’s appeal at the Court of Appeal in the case of Chayed bin Basirun & Ors v Noorfadilla bt Ahmad Saikin.

The legal question in Noorfadilla’s case arose when the Malaysian Government revoked and withdrew her appointment as a Guru Sandaran Tidak Terlatih (“GSTT”) because she was pregnant. The High Court held that this act amounted to gender discrimination and constituted a violation of Article 8(2) of the Federal Constitution, which deals with equality before the law.

What was significant in this case was the High Court’s reliance on the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), to which Malaysia acceded in July 1995, in clarifying what is meant by the terms “equality” and “gender discrimination”. To quote from the judgment of the High Court:

… the word “gender” was incorporated into Article 8(2) of the Federal Constitution in order to comply with Malaysia’s obligation under the CEDAW. It is to reflect the view that women are not discriminated. . . . In Article 11(2)(a) of CEDAW, it provides that State Parties shall take appropriate measure to prohibit, subject to the imposition of sanctions, dismissal on the grounds inter alia, of pregnancy. . . . [CEDAW] has the force of law and [is] binding on members states, including Malaysia. [sic]

The High Court also stated that:

. . . in interpreting Article 8(2) of the Federal Constitution, it is the Court’s duty to take into account the Government commitment and obligation at international level . . . there is no impediment for the Court to refer to CEDAW in interpreting Article 8(2) of the Federal Constitution. Hence, applying Article 1 and 11 of CEDAW I hold that pregnancy in this case was a form of gender discrimination. The plaintiff should have been entitled to be employed as a GSTT even if she was pregnant. Further, the plaintiff was pregnant because of her gender. Discrimination on the basis of pregnancy is a form of gender discrimination because basic biological fact that only women has the capacity to become pregnant.” [sic]

Notwithstanding this welcomed decision, the Malaysian Bar calls upon the Government to do more to eradicate gender discrimination in Malaysia. Apart from the amendment to the Federal Constitution, which was made in 2001, the Government has not passed any specific legislation to prohibit gender discrimination. Indeed, in the first test case after the Federal Constitution was changed, Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor in 2004, the provisions of CEDAW were also invoked but without success. That decision, which still stands today, held that the forced resignation of an airline stewardess after becoming pregnant was a matter of private contract law, and not gender equality or discrimination.

A further disturbing decision was that of the Court of Appeal in March 2012 which upheld the right of an employer, Guppy Plastics Industries Sdn Bhd, to enforce the retirement of female employees at an earlier age than male employees.

Enacting specific anti-gender discrimination legislation will go a long way towards promoting and protecting gender equality in Malaysia. The government should also consider addressing the other concerns of the Committee on the Elimination of Discrimination against Women expressed in their Concluding Observations issued after their review of Malaysia in May 2006. Many of those concerns remain outstanding, notwithstanding the passage of seven years.

The action of the Malaysian Government in withdrawing its appeal in the Noorfadilla case is a step in the right direction. However, the journey remains long and unfinished.

Christopher Leong
President
Malaysian Bar

30 June 2013

Corporate Advisory and Regulatory Compliance

There are increasingly burdensome and complex regulation and compliance obligations on businesses and the people who run them.

It’s one reason why Corporate governance compliance is vital. Your board is a key driver of your business . They are responsible for devising and carrying out policies and decisions which determine the underlying success of the company for its shareholders and relevant stakeholders. They have to perform these diverse roles in a legal framework that continues to evolve. Trying to interpret and implement the plethora of international corporate governance rules, regulations and best practice can be a difficult task. This does not need to be the case.

Our team of experienced lawyers will provide you with clear and simple strategic advice. It employs a multi-disciplinary approach, involving lawyers from our corporate, tax and incentives, employment and litigation practice areas, who are able to advise boards, committees, executive and non executive directors and senior HR professionals on a variety of day-to-day business issues.  For example, this includes advice on:

  • directors duties and liabilities
  • compliance with Higgs Review and Combined Code on Corporate Governance
  • remuneration (including equity incentive arrangements)
  • diversity, discrimination and recruitment
  • shareholder agreements
We understand the enormity of the regulatory burden upon business. We are experienced in advising our clients how to navigate the regulatory hurdles they face, with a particular emphasis on those clients in the legal sector and in financial services. We focus on regulatory compliance and designing and implementing policies, procedures and practices to achieve this. We can also help achieve swift resolution of compliance issues and assist in deals with law enforcement and other regulatory bodies when this is necessary.


 

Construction Law and Building Contracts

 

Our legal experience embodies building and construction projects in Malaysia, which includes advising on the legal requirements at the initial stage of planning, liaison with statutory bodies, environmental groups, the Malaysian Department of Environment especially on assessment reports of environmental impact studies, documentation drafting, financing and insurance. 

Our area of practice extends to:-

  • Building contract disputes
  • Late delivery claims
  • Arbitration proceedings
  • Engineering
  • Infrastructure project claims
  • Oil and gas industries

Corporate and Commercial Litigation

We offers a wide range of corporate and commercial law services with banking and finance, company incorporation, privatization, accounting, joint ventures, insurance, investment and real estate. 

Our area of practice extends to:-

  • Corporate Takeovers and Mergers
  • Corporate listings
  • Due diligence
  • Shareholders Agreements
  • Joint Venture Agreements
  • Securities Documentation
  • Foreign Investments
  • Share Financing Agreements
  • Acquisition of Shares Agreements
  • IT contracts and documentation
  • IP contracts and documentation
  • Maintenance and service Agreements
  • Distributorship Agreements
  • Agency Agreements / Franchise Agreements
  • Licensing rights
  • Partnership Agreements
  • Investment Agreements
  • Software-systems project Agreements
  • Building and construction contracts
  • Memorandums of Undertaking (MOUs)
  • Various business contracts and Commercial Agreements

General Litigation & Dispute Resolution

Our Firm strongly believes in the benefits of Alternative Dispute Resolution (ADR) namely Arbitration and Mediation as an alternative to litigation. However should our clients request that the matter be placed before the court, then our lawyers having vast experience in general litigation matters as well as in specific areas such as banking, corporate, insolvency securities , employment, construction, insurance and arbitration.
  • Administrative law
  • Adoptions
  • General debt recovery
  • Hire purchase disputes
  • Contentious land matters
  • Compulsory land acquisition
  • Landlord and tenant disputes
  • Eviction and distress proceedings
  • Building contracts disputes and claims
  • Construction law and engineering
  • Company law and insolvency
  • Personal injury and / or fatal accident claims
  • Employment law
  • Industrial relations
  • Defamation proceedings
  • Professional negligence
  • Medical negligence
  • Family law
  • Divorce proceedings including custody of children
  • Probate and administration of estates
  • Private and/or public company law disputes
  • Shareholders and/or directors disputes including minority protection
  • Contractual disputes
  • Sale and purchase agreement disputes
  • Share margin financing
  • Acquisition of shares
  • Interlocutory injunctions applications including Anton Piller and Mareva Injunctions
  • Bankruptcy proceedings
  • Winding-up, receivership and liquidation of companies
  • Writ of seizure and sale
  • Garnishee proceedings
  • Prohibitory orders
  • Interim preservation of property
  • Insurance
  • Product liability
  • Foreclosure proceedings
  • Specific performance of contracts
  • Third party proceedings

Securities Laws and Enforcement

We defend clients in securities investigations, enforcement actions, litigation and prosecution by the Securities Commission and/or Bursa Malaysia relating to securities offences. We offer securities regulatory solutions based on experience, thoughtful risk assessment and close client collaboration, often in a crisis setting. Our clients include domestic and foreign issuers, major financial services conglomerates, broker-dealers, audit committees, accounting firms, investment banks, investment advisers, including hedge fund managers, and self-regulatory organizations, as well as individual directors, officers and employees. By carefully assessing each case, we mount effective responses to all types of securities regulatory inquiries. Our adversarial skills cover the full spectrum of securities enforcement matters, from defending investigations to litigating cases in courts or before the regulatory authority. We bring to bear extensive experience and an unwavering commitment to client service. Our seasoned counsel, Ng Boon Siong was a former prosecutor in the Securities Commission Malaysia.

 

Conveyancing and Real Estate


 

Our lawyers’ exposure to this area is extensive. We attend to all forms of property transactions having represented international and Malaysian vendors as well as purchasers of residential and commercial buildings and for land conveyances. The firm also handles leases and tenancies and attends to loan and other documentation relating thereto.

 

Our conveyancing practice area extends to:-

  • Sale and Purchase Agreements – Housing Projects for Developer and/ or property subsale for individuals and companies
  • Bank loan and security documentation
  • Deed of Mutual Covenants
  • Power of Attorney
  • Deed of Assignment / Reassignment
  • Probate and Administration of estates
  • Wills
  • Trust Deeds
  • Applications for copyright, trademark and patent registration
  • Drafting, vetting and commenting on IT contracts and IP Agreements
  • Sale and Purchase of Shares Agreements
  • Sale and Purchase of Goods Agreements
  • Telecommunications Agreements
  • Service and maintenance Agreements
  • Settlement Agreements
  • Tenancy Agreements
  • Leasing Agreements
  • Hire-Purchase Agreements
  • Drafting, preparing and vetting various types of legal documents, contracts and agreements
  • Commenting and rendering legal opinions on various legal documents and issues